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queensland

court_judgement

Queensland Information Commissioner 1993-

Queensland Newspapers Pty Ltd and Ipswich City Council; Third Party [2015] QICmr 12 (12 May 2015)

Queensland Newspapers Pty Ltd and Ipswich City Council; Third Party [2015] QICmr 12 (12 May 2015) Last Updated: 23 November 2016 Decision and Reasons for Decision Citation: Queensland Newspapers Pty Ltd and Ipswich City Council; Third Party [2015] QICmr 12 (12 May 2015) Application Number: 312126 Applicant: Queensland Newspapers Pty Ltd Respondent: Ipswich City Council Third Party: Third Party Decision Date: 12 May 2015 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - applicant seeks information about travel by Council’s Mayor to London - photographs depicting individuals other than the applicant - 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 and schedule 4, part 3, item 3 and part 4, item 6(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to Ipswich City Council (Council) seeking access under the Right to Information Act 2009 (Qld) (RTI Act) to documents created between 1 January 2008 and 10 June 2014 relating to travel by Council’s Mayor to London. Council located 73 pages and decided to refuse access to two pages, comprising photographs (Photographs),[1] and parts of 14 pages[2] 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. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the decision to refuse access to the Photographs.[3] OIC notified a third party of the likely release of the information under the RTI Act and invited them to provide submissions supporting their case if they objected to disclosure of the Photographs. The third party objected to disclosure of the Photographs and contended that disclosure of the Photographs would, on balance, be contrary to the public interest. For the reasons set out below, I affirm Council’s decision to refuse access to the Photographs. Background The applicant applied to Council for access to documents held by Council about travel to London by the Mayor in September 2012. The Mayor and other Councillors travelled in their capacity as councillors and as directors of Ipswich City Properties Pty Ltd (Ipswich City Properties). The Photographs, which were taken whilst the Mayor and Councillors were in London, fall within the scope of the access application as they were emailed between two of the Councillors using their Council email accounts. 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 5 August 2014. Material considered The evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and appendix). Information in issue The information in issue in this review is comprised of the Photographs. Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[4] 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.[5] Relevantly, an agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[6] and explains the steps that a decision-maker must take[7] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosing the information in issue would, on balance, be contrary to the public interest. Submissions The third party submits[8] that ‘the Photographs were taken during [the third party’s] spare time as personal mementoes [sic] of the trip’. In addition, Council submits:[9] the Photographs do not reflect the third party acting in an official or work related capacity the third party has a right to privacy when information does not relate to a public sector representative or employee’s official duties, their status as such does not automatically diminish or significantly reduce their right to privacy or protection of personal information; and public sector policies, including those of Council, expressly authorise their representatives and employees to use public sector ICT related infrastructure or devices for limited personal use. The applicant submits[10] that due to a lack of publicly available information about Ipswich City Properties, which it submitted is wholly owned by Council ratepayers, there is a strong public interest in the Photographs being disclosed as this will assist in enhancing Council’s accountability, enable ratepayers to scrutinise the spending of public funds and to cross-reference with other available information about the trip. Further, the applicant contends that the privacy attaching to the Photographs is reduced as the Photographs were emailed between Councillor’s using Council email addresses, the third party would have consented to the Photographs being taken and the nature of the Photographs does not necessarily mean that the third party was not, in some way, still acting in an official capacity as a representative of Ipswich City Properties. Findings No irrelevant factors arise in the circumstances of this review. I will now consider the relevant factors for and against disclosure of the Photographs. Accountability and transparency The RTI Act recognises factors in favour of disclosure where disclosure could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability[11] contribute to positive and informed debate on important issues or matters of serious interest;[12] and ensure effective oversight of expenditure of public funds.[13] I note the applicant’s arguments that disclosure of the Photographs would enable community members to be satisfied that Council is being accountable and transparent about the trip to London, enable them to engage in positive and informed debate about that trip, and ensure that ratepayer’s funds are being expended appropriately by Council. I have carefully considered the Photographs and it is evident on their face that they are unlikely to facilitate the type of public oversight, debate and enlightenment envisaged by the applicant. This is because: the background of both photographs (streetscape and a park setting respectively) indicates that they were taken outdoors during the day time; the people in the photographs appear to be everyday citizens, dressed smartly (though not in business attire); and unlike other photographs taken of the third party with International business figures during the trip (which have been released or published by Council), the people in the Photographs do not seem likely to be persons that the third party would have met with in their official or work related capacity. I note the third party’s submission, and that of Council, that the Photographs were mementos taken during the third party’s personal spare time during the trip. It is evident from the material before me and media articles produced about the trip to London that the third party acted in their capacity as a Director of Ipswich City Properties as well as in their capacity as a representative of Council.[14] I note[15] that Ipswich City Properties is a separate legal entity to Council which operates separately and independently from Council.[16] However, the issue of whether the third party was acting as a representative of Council or a director of Ipswich City Properties is moot as I accept the third party’s submission that the Photographs were taken as mementos in the third party’s personal spare time. I consider the third party’s submission is credible, as there is nothing on the face of the Photographs that would suggest otherwise, nor in any other material before me. As to the issue of the Photographs being located on Council’s network. I note Council’s ICT policy and Councillor and Employee Codes of Conduct allow limited personal use of Council ICT infrastructure by employees and the transmission of the Photographs appear to fall within that permissible use. I note that there were only two photographs which Council and the third party submit were taken during personal spare time, rather than a larger number, and they only appear to be in Council’s possession by virtue of them being emailed between Council email addresses. Which is permitted under Council policy. Thus, in light of the nature of the images captured in the Photographs and the fact that they were taken as personal mementos during the third party’s personal spare time, I consider that the degree to which disclosure of the Photographs could further the public interest factors of accountability and transparency of Council, informed public debate or effective oversight of the expenditure of public funds is limited. I am satisfied that the Photographs convey very little information that could enhance the accountability of Council, enable public debate, or allow assessment of Council’s expenditure of rates. Given this position, I afford these factors favouring disclosure low weight. Personal information and privacy The RTI Act recognises factors in favour of nondisclosure where disclosure could reasonably be expected to: prejudice the protection of an individual’s right to privacy;[17] and cause a public interest harm if it would disclose personal information of a person, whether living or dead.[18] As explained above, I am satisfied that the Photographs are mementos taken during personal spare time, were taken during the day-time and are not of the type that would necessitate disclosure in the public interest. While the RTI Act[19] precludes me from offering more information regarding the two Photographs, I confirm that their content is sufficient to satisfy me that neither Photograph was taken while the third party was acting in their official or work related capacity. I acknowledge that a public sector representative will have some (relatively brief) ‘personal spare time’ during a work-related trip and, on the information before me, accept that the Photographs were taken as personal mementos during the third party’s personal spare time during the trip in question. Further, although the Photographs appear within the information located by Council as attachments to emails sent from one Council email address to another, I am satisfied that they do not comprise ‘routine personal work information’[20] of either the sender or the recipient. In this regard, as previously noted, minor, limited personal/private use of Council’s networks and devices is permitted for employees.[21] The applicant has submitted that ‘should the photographs be so innocuous, one must consider why the subject of such a photograph would be concerned about their potential release.’[22] In my view, the third party’s desire to maintain the privacy in mementos of personal time during an overseas trip should not be construed as undue concern about release. The third party is entitled to seek to maintain privacy over personal non-work related information. In these circumstances, I am satisfied the prejudice to the privacy of the third party and others that would occur if the Photographs were disclosed would be significant. Also, the nature of the information and circumstances of the case do not, on the information before me, reduce or mitigate the public interest harm that would result from disclosure. Accordingly, I afford the factors favouring nondisclosure significant weight in this review. Balancing the public interest I have identified the public interest factors in favour of disclosure as; enhancing Council’s accountability and transparency, facilitating informed public debate and ensuring effective oversight of the expenditure of public funds. However, I afford low weight to these factors in the circumstances of this review. On the other hand, I consider that there is significant public interest in protecting the personal information and privacy of the third party and other individuals depicted within the Photographs. Balancing these factors against one another, I am satisfied that the public interest in protecting personal information and privacy outweighs the factors favouring disclosure. Accordingly, I find that access to the Photographs is refused on the basis that disclosure of the Photographs would, on balance, be contrary to the public interest. DECISION I affirm Council’s decision to refuse access to the Photographs 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 145 of the Right to Information Act 2009 (Qld). ________________________ Assistant Information Commissioner Corby Date: 12 May 2015APPENDIX Significant procedural steps Date Event 20 June 2014 Council received the access application dated 10 June 2014. 5 August 2014 Council issued its decision on the access application. 7 August 2014 The applicant applied to OIC for external review. 19 August 2014 OIC advised the applicant and Council that the external review had been accepted and asked Council to provide information relevant to the review. 16 September 2014 OIC received the requested information from Council, including a copy of the Photographs. 17 September 2014 OIC and Council discussed the basis for refusing access to the Photographs. 18 September 2014 OIC conveyed its preliminary view to Council that the Photographs could be disclosed and asked Council to consult with a third party. 24 October 2014 Council advised OIC that the third party objected to disclosure of the Photographs. 6 January 2015 OIC wrote to the third party and: notified them of the likely disclosure of the Photographs conveyed a preliminary view; and invited them to participate in the review and to provide submissions supporting their case if they object to disclosure of the Photographs. 3 February 2015 Council objected to disclosure of the Photographs and provided a submission. 5 February 2015 The third party objected to disclosure of the Photographs and provided a submission. 27 February 2015 OIC conveyed its preliminary view to the applicant that disclosure of the Photographs would, on balance, be contrary to the public interest, and invited the applicant to provide submissions in support of their case if they did not accept the preliminary view. 4 March 2015 Council provided OIC with a submission. 12 March 2015 The applicant advised OIC that they did not accept the preliminary view and provided submissions supporting their case. 20 April 2015 OIC requested Council to provide to OIC a copy of its ICT Policy. 28 April 2015 Council provided OIC with copies of relevant policies, including its ICT Policy. [1] Comprising pages 58 and 60 of the information located by Council.[2] Comprising pages 1, 2, 6, 10, 49, 51, 53, 55, 57, 59, 61, 63, 65 and 67.[3] The applicant did not seek review of Council’s decision to refuse access to the information contained within the 14 part pages.[4] Section 23 of the RTI Act.[5] Set out in section 47 of the RTI Act. [6] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant. [7] Section 49(3) of the RTI Act.[8] Submission dated 5 February 2015.[9] Submission dated 3 February 2015.[10] Email to OIC requesting an external review dated 7 August 2014 and submission dated 12 March 2015.[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 4 of the RTI Act.[14] For example, see http://www.qt.com.au/news/pisasale-roadshow-rollsacross-the-globe/1561532/. [15] As set out in a submission on behalf of Council received on 4 March 2015.[16] However, I make no finding about the public entity status of Ipswich City Properties for the purpose of the RTI Act.[17] Schedule 4, part 3, item 3 of the RTI Act.[18] Schedule 4, part 4, item 6(1) of the RTI Act. [19] Section 108 of the RTI Act.[20] That is, related to the routine day to day work duties and responsibilities.[21] In accordance with Council’s ICT Policy and Councillor and Employee Codes of Conduct.[22] Submission to OIC dated 12 March 2015.

queensland

court_judgement

Queensland Information Commissioner 1993-

L39 and Department of Housing and Public Works [2020] QICmr 4 (7 February 2020)

L39 and Department of Housing and Public Works [2020] QICmr 4 (7 February 2020) Last Updated: 22 April 2020 Decision and Reasons for Decision Citation: L39 and Department of Housing and Public Works [2020] QICmr 4 (7 February 2020) Application Number: 314473 Applicant: L39 Respondent: Department of Housing and Public Works Decision Date: 7 February 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - AMENDMENT OF PERSONAL INFORMATION - information appearing in a ministerial correspondence briefing note recording complaints made by the applicant - whether information is inaccurate, incomplete, out of date or misleading - whether agency entitled to exercise discretion to refuse amendment - section 72 of the Information Privacy Act 2009 (Qld). REASONS FOR DECISION Summary The applicant applied[1] to the Department of Housing and Public Works (Department) for amendment of a ministerial briefing note (Briefing Note) under the Information Privacy Act 2009 (Qld) (IP Act).[2] Specifically, the applicant sought amendment of the statement that the Department was addressing the applicant’s concerns with his ‘continued support’. The Department decided to refuse the requested amendment on the basis that the information sought to be amended was not inaccurate, incomplete, out of date or misleading.[3] The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision.[4] I affirm the Department’s decision to refuse to amend the Briefing Note for the reasons set out below. Background Significant procedural steps taken by OIC in conducting this external review are set out in the Appendix to these reasons. Reviewable decision The decision under review is the Department’s decision dated 29 January 2019. Issue for determination The issue for determination is whether the Department is entitled to refuse the requested amendment under section 72 of the IP Act. In its decision,[5] the Department offered to add a notation to its records as contemplated by section 76 of the IP Act. OIC attempted to settle the review on the basis of such a notation,[6] however, the applicant and Department were unable to reach an agreement as to the form of this notation. This decision considers the separate issue of whether the Department was entitled to refuse to amend the Briefing Note. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching my decision are as disclosed in these reasons (including in footnotes and Appendix). I have also had regard to the Human Rights Act 2019 (Qld),[7] particularly the right to seek, receive and impart 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.[9] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act.[10] The applicant provided several detailed submissions to OIC.[11] I have considered these submissions to the extent they are relevant to the issue for determination. The applicant’s submissions detail his concerns about the conduct of Departmental officers in responding to his complaints. The applicant also requests further particular action by the Department in response to his concerns and alleges that the Department has produced misleading and inaccurate documents. In this decision, I have made findings in relation to whether the applicant’s request for amendment can be refused. It is not within my jurisdiction to investigate concerns raised in relation to the conduct of the Department and its officers. Relevant law The IP Act confers on an individual the right to amend documents of an agency containing the individual’s personal information, where the personal information is inaccurate, incomplete, out of date or misleading.[12] A decision maker may refuse to amend a document if not satisfied that the personal information is inaccurate, incomplete, out of date or misleading.[13] These words are not defined in the IP Act, and therefore, should be given their ordinary meaning. For information to be considered ‘inaccurate’, the Information Commissioner has previously found that an applicant must establish not only that the information inaccurately represents the underlying events or issues, but that the authoring individual had not actually held and accurately entered into the official record their particular understanding of those events.[14] The term ‘misleading’ is not defined in the IP Act. The ordinary dictionary definition[15] of ‘mislead’, as set out below, is therefore relevant: to lead or guide wrongly; lead astray. to lead into error of conduct, thought or judgement. In considering whether information is misleading, the Information Commissioner has previously observed[16] that amendment provisions are aimed at: ...ensuring that personal information concerning an applicant and read by third persons, does not unfairly harm the applicant or misrepresent personal facts about the applicant. The wording of section 72 of the IP Act provides that the decision maker is not limited to the specific grounds for refusing amendment set out in that section. Consequently, the decision maker retains a discretion to refuse to amend a relevant document.[17] A decision maker may also take into account the fact that it is not the purpose of the amendment provisions to: re-write history,[18] as this destroys the integrity[19] of the record-keeping process determine disputed questions of opinion (including expert opinion), when that opinion was actually held and accurately entered in the official record[20] re-write a document in words other than the author’s[21] review the merits or validity of official action;[22] or correct any perceived deficiencies in the work undertaken by agencies or re-investigate matters.[23] Findings Having considered the Briefing Note, I am satisfied that it comprises the applicant’s personal information as it identifies the applicant and details his complaint about the fire alarm system in a nearby residential building. The applicant seeks amendment of the statement in the Briefing Note that his concerns are being addressed with his ‘continued support’.[24] The applicant submits he withdrew his support due to ‘misleading material’[25] and further states: My support... was based on (identification of) the failing within the departmental systems and also with these fire assets and tenants... I do not support any person or organisation that needs to continually produce such misleading / inaccurate documents.[26] On external review, OIC has received evidence in the form of a handwritten note by the applicant[27] that he withdrew his support on 2 August 2017 and therefore the Briefing Note dated 10 July 2017 is now inaccurate, incomplete, out of date or misleading. On its face, the Briefing Note is a ‘point in time’ document, the purpose of which is stated to be providing ‘the Minister’s office with additional background information and context to support the information contained in the proposed response’[28] to the applicant. The Briefing Note was endorsed by the General Manager, Service Delivery, Housing and Homelessness Services on 7 July 2017 and approved by the Minister for Housing and Public Works and Minister for Sport’s Office on 10 July 2017.[29] As stated at paragraph 19, the applicant acknowledges he withdraw his support after the creation of the Briefing Note. On that basis, I consider the statement that the issues were being addressed with the applicant’s ‘continued support’ is correct as at the relevant time, that is, when the Briefing Note was signed and approved. Therefore, I am satisfied that the Briefing Note accurately records the relevant facts at the time of its creation, and is not inaccurate, incomplete, out of date or misleading. Even if my findings above are incorrect—and the relevant part of the Briefing Note may properly be regarded as inaccurate, incomplete, out of date or misleading—I am satisfied that the Department would nevertheless be justified in exercising its discretion to refuse to amend the Briefing Note. It is not the purpose of the amendment provisions to re-write history[30] or correct perceived deficiencies in agency conduct.[31] I acknowledge the Briefing Note does not reflect the applicant’s current point of view, however, the amendment the applicant seeks goes to the integrity of the Briefing Note created by a Departmental officer, at a point in time. Permitting the requested amendment would violate the integrity of a public record and would amount to a re-writing of the facts as they were at the time the record was made. Accordingly, I consider the Department was entitled to refuse the requested amendment.DECISION I affirm the Department’s decision to refuse to amend the Briefing Note under section 72(1)(a)(i) of the IP Act. I have made this decision under section 123 of the IP Act, as a delegate of the Information Commissioner, under section 139 of the IP Act.S MartinAssistant Information CommissionerDate: 7 February 2020 APPENDIX Significant procedural steps Date Event 25 February 2019 OIC received the application for external review. 26 February 2019 OIC notified the applicant and the Department that the external review had been received and requested relevant procedural documents. 28 February 2019 OIC received submissions from the applicant. 21 March 2019 OIC received the requested procedural documents from the Department. 2 April 2019 OIC notified the applicant and the Department that the external review had been accepted. 3 April 2019 OIC received submissions from the applicant. 4 June 2019 OIC spoke to the Department and received submissions by telephone. 1 July 2019 OIC spoke to the applicant and received submissions by telephone. 29 July 2019 OIC conveyed a preliminary view to the applicant. 9 August 2019 OIC received submissions from the applicant. 5 September 2019 OIC spoke to the applicant and received submissions by telephone. 19 September 2019 OIC received the proposed notation from the applicant. 20 September 2019 OIC conveyed the applicant’s notation to the Department and proposed settlement of the review. 14 December 2019 OIC received submissions from the applicant. 17 December 2019 The Department advised OIC that it did not agree to settle review on the basis of the applicant’s proposed notation. 18 December 2019 OIC conveyed the Department’s position to the applicant and his final requested submissions. 23 December 2019 OIC received submissions from the applicant. [1] Amendment application dated 19 December 2018.[2] Briefing Note dated 10 July 2017.[3] Decision dated 29 January 2019.[4] External review application dated 25 February 2019.[5] Dated 29 January 2019. [6] OIC is required by section 103 of the IP Act to promote settlement of the external 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 [11].[10] 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.’[11] Applicant’s submissions received 28 February 2019, 3 April 2019, 9 August 2019, and 14 and 23 December 2019, telephone conversations on 1 July 2019 and 5 September 2019 and proposed notation received on 19 September 2019 and 23 December 2019.[12] Section 41 of the IP Act. [13] Section 72(1)(a)(i) of the IP Act. [14] A4STL6K and Queensland Health (Unreported, Queensland Information Commissioner, 6 September 2013) at [27].[15] Online Macquarie Dictionary: www.macquariedictionary.com.au (accessed 14 May 2019).[16] In 3DT2GH and Department of Housing and Public Works (Unreported, Queensland Information Commissioner, 26 November 2012) (3DT2GH) at [15] citing Buhagiar and Victoria Police (1989) 2 VAR 530, per Jones J.[17] 3DT2GH at [11].[18] DenHollander and Department of Defence [2002] AATA 866 (DenHollander) at [96].[19] To ensure that the document, as a public record, is preserved without any alteration. [20] Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 (Crewdson) at [34].[21] Re Traynor and Melbourne and Metropolitan Board of Works (1987) 2 VAR 186 (Traynor) at 190, cited 3DT2GH at [18]. Traynor considered the requirements of the Freedom of Information Act 1982 (Cth), the terms of which are substantially similar to the amendment provisions in the IP Act.[22] Crewdson at [24].[23] Shaw and Medical Board of Queensland (Unreported, Queensland Information Commissioner, 3 July 2008) (Shaw) at [57].[24] The Department advised OIC that scope of the amendment application was clarified in a meeting with the applicant on 7 January 2019 and provided to OIC a handwritten note from this meeting. OIC confirmed with the applicant that this was the sole issue for determination in a letter dated 29 July 2019 and email dated 30 January 2020. [25] Applicant’s submissions received 9 August 2019.[26] Applicant’s undated proposed notation received by OIC on 20 September 2019 and 23 December 2019. [27] Handwritten note of applicant’s meeting with the Department dated 7 January 2019. [28] The Briefing Note, at page 1. [29] This is apparent on the face of the Briefing Note and also noted in the Department’s decision dated 29 January 2019.[30] 3DT2GH at [50] and [51]. The Assistant Information Commissioner also comprehensively canvassed principles and considerations relevant to the exercise of the discretion to refuse to amend at [16]-[18]. I have relied on the same principles here. See also DenHollander at [96].[31] Shaw at [57].

queensland

court_judgement

Queensland Information Commissioner 1993-

Bruce Dulley Family Lawyers and WorkCover Queensland [2012] QICmr 38 (26 July 2012)

Bruce Dulley Family Lawyers and WorkCover Queensland [2012] QICmr 38 (26 July 2012) Bruce Dulley Family Lawyers and WorkCover Queensland [2012] QICmr 38 (26 July 2012) Last Updated: 10 September 2012 Decision and Reasons for Decision Application Number: 310859 Applicant: Bruce Dulley Family Lawyers Respondent: WorkCover Queensland Decision Date: 26 July 2012 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - application for access to documents relating to a WorkCover claim made by the applicant’s former employee - access refused to personal, medical and financial information of the WorkCover claimant - whether enhancing an agency’s accountability and contributing to the administration of justice for the applicant outweigh the interests in protecting the WorkCover claimant’s personal information and privacy - whether access to information may be refused under section 47(3)(b) of the Right to Information Act 2009 (Qld) on the basis that disclosure would, on balance, be contrary to the public interest REASONS FOR DECISION Summary The applicant applied to WorkCover Queensland (WorkCover) under the Right to Information Act 2009 (Qld) (RTI Act) for a complete copy of the WorkCover file relating to a claim lodged by a former employee of the applicant (claimant).[1] WorkCover located 950 pages in response to the application and granted the applicant full access to 141 pages and partial access to 74 pages. WorkCover decided to refuse access to the remaining parts of 74 pages and 735 whole pages, on the basis that disclosure would, on balance, be contrary to the public interest. In deciding to refuse access to information on the claim file, WorkCover considered that protecting the claimant’s privacy and safeguarding the claimant’s personal information carried significant weight in favour of nondisclosure. The applicant applied to the Office of the Information Commissioner (OIC) for external review of WorkCover’s decision. The applicant submits that it requires access to the WorkCover claim file to assist in its appeal to the Queensland Industrial Relations Commission (QIRC). The applicant submits that as a participant in an ongoing legal matter, releasing the information would afford it natural justice and procedural fairness. WorkCover indicated in its decision that the applicant had been provided with access to all information it was entitled to as part of the claim process, including information relevant to rehabilitation and return to work of the claimant and WorkCover’s decision-making process. WorkCover’s decision to refuse access to information under section 47(3)(b) of the RTI Act is affirmed on the basis that disclosure would, on balance, be contrary to the public interest. Background Significant procedural steps relating to the application and external review are set out in the Appendix to these reasons. Reviewable decision The decision under review is WorkCover’s decision dated 7 November 2011 refusing access to information under section 47(3)(b) of the RTI Act on the basis that disclosure would, on balance, be contrary to the public interest. Material 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 During this review, WorkCover agreed to release 41 full pages and part of one page to the applicant.[2] Accordingly, this information is not considered in these reasons for decision. Part of one further page[3] is also not dealt with in this decision as the applicant did not raise any specific objection[4] to the information being deleted on the basis that it was the personal information of an unrelated WorkCover claimant. In view of the above, 692 full and 75 part pages remain in issue in this review and are subject to this decision (Information in Issue). The Information in Issue can be described as: (i) documents and information which relate personally to the claimant (Personal Documents);[5] and (ii) documents relating to the claimant provided to WorkCover by an external entity (External Documents).[6] The Personal Documents mainly comprise correspondence exchanged between WorkCover, the claimant and various third parties[7] in the course of assessing the claim.[8] Medical reports, invoices and certificates also fall into this category. WorkCover refused access to the following information in these documents: personal details of the claimant – for example, Medicare number, home and email address, telephone numbers and contact details for the claimant’s partner details of the claimant’s medical conditions, medications, diagnoses, treatment plans, appointments and assessments details of benefit payments to the claimant and related tax details; and information relating to other employment of the claimant. The External Documents were provided to WorkCover by an external entity to support a request for information from WorkCover in relation to the claimant. WorkCover explained to OIC that while it did not request the documents, it chose to retain them on the claimant’s file to comply with recordkeeping requirements. WorkCover also confirmed that the External Documents were not considered in assessing the claim. Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[9] However, this right is subject to limitations including grounds on which access may be refused.[10] One ground for refusing access is where 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.[12] The RTI Act list factors which may be relevant to deciding the balance of the public interest[13] and sets out the following steps[14] 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. Findings I am satisfied that disclosing the Information in Issue would, on balance, be contrary to the public interest for the reasons set out in paragraphs 17 to 39 below. Irrelevant Factors I have examined the irrelevant factors in schedule 4, part 1 of the RTI Act and consider that none arise in this case. Factors favouring disclosure Accountability The applicant contends that by refusing it access to the Information in Issue, WorkCover is being provided with ‘a certain immunity from scrutiny and hence accountability’.[15] Specifically, the applicant considers that: the financial information which has been released is so deficient that the calculations of amounts it has been ordered to pay ‘cannot be checked for accuracy’[16] it should have access to any information showing WorkCover’s deliberations to reach the decision to ‘exclude any pre-existing injury from their assessment of the contested claim’;[17] and the intervention of ‘another unidentified entity’ in the assessment of the WorkCover claim is concerning and the applicant should be told why the External Documents were not considered.[18] The applicant’s above submissions relate generally to the public interest in enhancing government accountability and transparency in decision-making. Under the RTI Act, the public interest will favour disclosure of information where it could reasonably be expected to: enhance the government’s accountability[19] allow or assist inquiry into possible deficiencies in the conduct of an agency;[20] and reveal the reason for a government decision and any background or contextual information that informed the decision.[21] I acknowledge that disclosing the Information in Issue would allow the applicant to scrutinise the full body of evidence which was available to the WorkCover decision-maker. WorkCover has, however, already provided the applicant with a complete copy of its decision to accept the claim[22] which includes reasons for the decision and a summary of the evidence considered by WorkCover, including relevant medical evidence. WorkCover’s reasons for the claim decision state that the claimant’s treating doctor considered the claimant’s previous back injuries were ‘unrelated to [the claim] injury’ and the ‘current condition was not an aggravation of a pre-existing condition’. I am satisfied that the reasons for decision adequately explain the extent to which any evidence of a pre-existing injury was treated by WorkCover in its assessment of the claim and that disclosing any further documents concerning a pre-existing injury would not further the public interest in revealing information that informed WorkCover’s decision on this issue. The financial information of particular concern to the applicant appears in a Payment/Recoveries History Report.[23] All information in the report relating to medical, hospital and rehabilitation payments was released. However, only the total amounts of weekly benefits and lump sum payments were disclosed, not the breakdown of these payments. WorkCover stated[24] that claims costs information was released to the applicant as it impacts on an employer’s premium but that this consideration does not extend to the breakdown of weekly benefits, paid to the claimant and Australian Taxation Office, as there is a significant privacy interest attaching to this information. Having reviewed the information which was not disclosed, I am satisfied that there is no basis to consider that WorkCover’s conduct of the matter (including calculation of payments) was deficient. WorkCover’s submissions in relation to the External Documents are set out in paragraph 12 of these reasons. I have considered these, as well as the content of the External Documents and WorkCover’s reasons for decision on the claim. In view of the circumstances in which the External Documents were received by WorkCover and the fact that they are not referred to in the claim decision, I am satisfied that the public interest in accountability would not be furthered by disclosing the External Documents. On the basis of the above, I am satisfied that disclosing the Information in Issue would allow the applicant to view all of the evidence which was available to the WorkCover decision-maker and may therefore, increase the applicant’s understanding of WorkCover’s reasons for decision. However, I do not consider that the public interest in accountability and transparency would be significantly advanced through disclosure given the information which has already been provided to the applicant. I therefore find that these factors carry only moderate weight in favour of disclosure. Administration of justice The applicant submits that it requires access to all information on the WorkCover claim file to assist in its pursuit of further legal avenues, including the QIRC appeal and any potential related common law claim. The applicant contends that ‘knowledge of medical information and treatment’ is crucial to its QIRC appeal and that it is important for it to know ‘employment details of the worker especially those which could mitigate a loss’.[25] The applicant also emphasises that it is seeking any evidence which shows there was a delay in the claimant’s return to work program as a result of acts/omissions of WorkCover employees and/or the claimant’s treating doctor as it considers this information impacts on the quantum of its financial liability.[26] The RTI Act recognises that where disclosure of information could reasonably be expected to contribute to the administration of justice for a person[27] or generally, including procedural fairness,[28] this will favour disclosure. In view of the applicant’s submissions regarding its current and potential future involvement in related legal proceedings, I consider these factors are relevant in this case. In a QIRC proceeding relating to a Q-COMP appeal, the QIRC may make a directions order about the conduct of a proceeding for example, in relation to disclosure of documents.[29] Given QIRC’s broad discretion as to procedure and the rules applicable to QIRC proceedings, I am satisfied that the QIRC has the power to obtain any information it identifies as necessary to examine the issues in the appeal, including any information which may impact the quantum of the applicant’s financial liability. For this reason, I consider the public interest in the applicant gaining access to the Information in Issue for the purpose of conducting the QIRC appeal carries only limited weight. In support of its case, the applicant also made extensive submissions in relation to the Information Commissioner’s decision in Willsford and Brisbane City Council (Willsford),[30] a decision which considered the public interest in the administration of justice in the context of allowing a person with an actionable wrong to pursue a remedy. In Willsford, the Information Commissioner found that the administration of justice will favour disclosure if an applicant demonstrates that: (i) 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 (ii) they have a reasonable basis for seeking to pursue the remedy; and (iii) disclosing the information would assist the applicant to pursue the remedy, or to evaluate whether a remedy is available or worth pursuing.[31] The applicant considers that legal remedies are available to it and that it should be given access to the Information in Issue so that its ‘rights at law can be pursued and/or evaluated as to whether the remedies available are worth pursuing’.[32] The applicant has not, however, specified the particular remedies it is considering other than to refer to ‘a common law claim’ throughout its submissions in this review. Having considered the circumstances of the applicant’s case, I am not satisfied that the principles in Willsford apply to support disclosure of the Information in Issue. The applicant has been ordered to make payments to the claimant and has disputed these in Q-COMP and more recently in the QIRC appeal. In my view, a WorkCover order to make payments to an injured employee does not constitute a loss, damage or actionable wrong to the employer, as identified by the Information Commissioner in Willsford. Similarly, while there are avenues of appeal available to an employer who contests a decision to accept a claim and/or quantum, I am not satisfied that pursuing an appeal is equivalent to pursuing a remedy for an actionable wrong. For these reasons, I am unable to attribute any weight to the applicant’s submissions as they relate to the Willsford requirements for establishing the administration of justice factor. On the basis of the above, I am satisfied that disclosing the Information in Issue could not reasonably be expected to assist the applicant in conducting the QIRC appeal, or contribute to the administration of justice generally in relation to any future legal pursuits. I therefore find that the public interest in the administration of justice carries limited weight in favour of disclosure of the Information in Issue. Factors favouring nondisclosure Personal information and privacy As set out in paragraph 11 of these reasons, the Personal Documents contain information which relates personally to the claimant – for example, medical, and financial information. The External Documents also relate personally to th[33]claimant.33 I am satisfied that the Information in Issue comprises the claimant’s ‘personal informa[34]on’34 as it is about, and identifies, the claimant. The RTI Act recognises a public interest in safeguarding another individual’s personal information[35] and protecting their privacy.[36] Given the particularly personal and sensitive nature of the Information in Issue, I consider these factors are relevant. I accept that the privacy interest in some of the claimant’s personal information is somewhat reduced as it is already known to the applicant through their previous employment relationship.[37] However, I am not satisfied that the privacy interest is reduced to such an extent so as to favour disclosure. As for the personal information not already known to the applicant, for example, medical details, I am satisfied that disclosure would constitute a significant intrusion into the claimant’s privacy. I find that the public interest in protecting the claimant’s personal information and privacy carries significant weight favouring nondisclosure of the Information in Issue. Disclosure of information prohibited by an Act In its decision, WorkCover stated that any communication between an injured worker and WorkCover is confidential.[38] This reflects section 573(7) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act) which places a general prohibition on WorkCover employees from disclosing information they obtain through their employment. I acknowledge that section 6 of the RTI Act overrides provisions of other legislation prohibiting the disclosure of information. However, where a provision such as section 573(7) of the WCR Act applies to information, it will give rise to a public interest factor favouring nondisclosure.[39] In this case, I consider this factor carries some weight in favour of nondisclosure of the Information in Issue, particularly in relation to the sensitive personal information of the claimant obtained by WorkCover. Conclusion In balancing the competing public interest factors in this case, I am satisfied that moderate weight can be afforded to the public interest in advancing WorkCover’s accountability and providing the applicant with further understanding of the reasons for the claim decision. However, I do not consider that disclosing the Information in Issue could reasonably be expected to contribute to the administration of justice for the applicant in its current and/or future legal pursuits and therefore, I attribute only limited weight to this factor in favour of disclosure. Weighing against these factors are the significant interests in safeguarding the claimant’s personal information and privacy. There is also some weight to be afforded to the public interest in ensuring information obtained by WorkCover employees under their enabling legislation is not disclosed. On balance, I find that the public interest factors favouring disclosure are outweighed by the factors favouring nondisclosure considered in these reasons for decision. DECISION I affirm WorkCover’s decision to refuse access to the Information in Issue under section 47(3)(b) of the RTI Act on the basis that 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. ________________________ K Shepherd Assistant Information Commissioner Date: 26 July 2012 APPENDIX Significant procedural steps Date Event 14 October 2011 The applicant applied to WorkCover for access to a complete copy of the claimant’s WorkCover claim file. 7 November 2011 WorkCover located 950 pages in response to the application and decided to: release 141 pages in full grant access to 74 pages in part; and refuse access to 735 pages in full,on the basis that disclosure of the information to which it refused access would, on balance, be contrary to the public interest under section 49 of the RTI Act. 1 December 2011 The applicant applied to OIC for an external review of WorkCover’s decision. 17 January 2012 WorkCover provided OIC with copies of the 950 pages located in response to the application. 20 February 2012 OIC obtained oral submissions from WorkCover in relation to the External Documents. 24 April 2012 OIC obtained WorkCover’s agreement to release some additional information to the applicant. 15 May 2012 OIC conveyed to the applicant a preliminary view that disclosing the Information in Issue would, on balance, be contrary to the public interest, and invited the applicant to provide submissions in response by 30 May 2012. OIC also confirmed to the applicant that WorkCover had agreed to release a further 39 full pages and part of one page. 25 May 2012 The applicant provided submissions to OIC contesting the preliminary view and raising concerns about external review processes. 6 June 2012 OIC responded to the applicant’s procedural concerns in writing. 13 June 2012 The applicant provided further submissions to OIC in support of its contention that disclosure of the Information in Issue would be in the public interest. The applicant also raised further concerns about procedure. 20 June 2012 OIC obtained WorkCover’s agreement to release a further two full pages to the applicant. 26 June 2012 The applicant provided further submissions to OIC in support of its contention that disclosure of the Information in Issue would be in the public interest and also raised concerns about WorkCover’s file maintenance, recordkeeping systems and format of released documents. 3 July 2012 OIC responded to the applicant’s procedural concerns in writing. [1] The claim was contested by the applicant, accepted by WorkCover (decision dated 10 August 2011 which found that the claimant ‘sustained an injury due to a work related event’) and later affirmed by Q-COMP (the Workers’ Compensation Regulatory Authority). The applicant has lodged an appeal of the Q-COMP decision in the Queensland Industrial Relations Commission (QIRC). [2] Pages 256-275 and 280-300, and part of page 279.[3] Page 72.[4] In response to OIC’s preliminary view dated 15 May 2012.[5] 71 full pages (pp. 21; 89; 95; 109-113; 115; 116; 119; 120; 204-209; 211-214; 216-220; 223-224; 227; 229-232; 234; 236-255; 276-278; 928; 929; 936-941; 944; 947-950) and 75 part pages (pp. 1; 3-17; 19; 30-32; 35-44; 46; 47; 49; 50; 52-55; 61-65; 67-70; 76; 79-82; 84-87; 91; 93; 96; 97; 99-102; 105-107; 117; 121; 228; 233; 235; 279; 942; 945). [6] The External Documents comprise 621 pages (pp. 301-921). [7] For example, the claimant’s legal representatives and health practitioners. [8] Including file notes of conversations.[9] Section 23 of the RTI Act.[10] As set out in section 47 of the RTI Act. [11] Sections 47(3)(b) and 49 of the RTI Act. [12] 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).[13] In schedule 4 of the RTI Act. However, this list is not exhaustive and therefore, factors not listed may be relevant in a particular case. [14] In section 49(3) of the RTI Act. [15] Page 2 of applicant’s submissions to OIC dated 25 May 2012. [16] Page 2 of applicant’s submissions to OIC dated 25 May 2012[17] Page 2 of applicant’s submissions to OIC dated 26 June 2012. [18] Page 4 of applicant’s submissions to OIC dated 25 May 2012.[19] Schedule 4, part 2, item 1 of the RTI Act.[20] Schedule 4, part 2, item 5 of the RTI Act. [21] Schedule 4, part 2, item 11 of the RTI Act. [22] Dated 10 August 2011.[23] Pages 33-37. [24] In its decision dated 7 November 2011. [25] Page 2 of applicant’s submissions to OIC dated 25 May 2012. [26] Pages 2-3 of applicant’s submissions to OIC dated 25 May 2012 and pages 2-3 of applicant’s submissions to OIC dated 13 June 2012. [27] Schedule 4, part 2, item 17 of the RTI Act.[28] Schedule 4, part 2, item 16 of the RTI Act. [29] Rule 41 of the Industrial Relations (Tribunals) Rules 2011 (Qld). The Industrial Relations (Tribunals) Rules 2011 (Qld) apply to the QIRC proceeding by virtue of section 553 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act). Section 553 of the WCR Act also provides that the non-party disclosure provisions in chapter 7, part 2 of the Uniform Civil Procedure Rules 1999 (Qld) may also be available to a participant in a QIRC appeal. These provisions allow a party to a proceeding to serve a notice on a non-party requiring it to produce a document, in its possession or under its control that is directly relevant to an allegation in the proceeding. [30] (Unreported, Queensland Information Commissioner, 27 August 1996). The decision in Willsford was made under the repealed Freedom of Information Act 1992 (Qld). The reasoning in Willsford was recently affirmed under the RTI Act in 1OS3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011).[31] Willsford at paragraph 17. [32] Page 5-6 of applicant’s submissions to OIC dated 25 May 2012. [33] The extent to which I can describe the specific nature of the External Documents is limited by section 108(3) of the RTI Act which prohibits OIC from disclosing information which is claimed to be contrary to the public interest information.[34] Section 12 of the Information Privacy Act 2009 (Qld) defines personal information 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’.[35] Schedule 4, part 4, item 6 of the RTI Act. The RTI Act recognises this factor as favouring nondisclosure because of the public interest harm in disclosure. [36] Schedule 4, part 3, item 3 of the RTI Act. [37] For example, name, residential address, mobile and home telephone number and tax file number.[38] Page 4 of WorkCover’s decision dated 7 November 2011. [39] Schedule 4, part 3, item 22 of the RTI Act

queensland

court_judgement

Queensland Information Commissioner 1993-

Morris & Others and Queensland Treasury [1995] QICmr 25; (1995) 3 QAR 1 (19 October 1995)

Morris & Others and Queensland Treasury [1995] QICmr 25; (1995) 3 QAR 1 (19 October 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 231 of 1993COMMISSIONER (QLD) ) (Decision No. 95025) Participants: TERENCE EDWARD MORRIS AND OTHERS Applicants - and - QUEENSLAND TREASURY Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access - matter in issue comprising the names and other identifying particulars of persons who had made complaints or inquiries to the respondent about the applicants' business operations (which involve the sale to customers resident outside Australia of Australian lotto and lottery-type products) - whether information disclosing that a person has engaged, or considered engaging, in gambling activities is information concerning that person's personal affairs, for the purposes of s.44(1) of the Freedom of Information Act 1992 Qld - whether the fact that a person has made a complaint to a government agency is information concerning that person's personal affairs for the purposes of s.44(1) of the Freedom of Information Act 1992 Qld - application of the public interest balancing test incorporated in s.44(1) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - refusal of access - matter in issue comprising the identity of a source from whom information was obtained by a private detection agency engaged to act on behalf of the respondent - whether the identity of the source constitutes information of a confidential nature that was communicated in confidence, by the detection agency to the respondent, for the purposes of s.46(1)(b) of the Freedom of Information Act 1992 Qld - whether disclosure of the matter in issue could reasonably be expected to prejudice the future supply of such information - application of the public interest balancing test incorporated in s.46(1)(b) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - refusal of access - matter in issue comprising documents communicated to the respondent by an agency of the New South Wales government concerning issues relating to the regulation of the trade in lotto and lottery-type products - whether the matter in issue constitutes information of a confidential nature that was communicated in confidence, for the purposes of s.38(b) and s.46(1)(b) of the Freedom of Information Act 1992 Qld - application of the public interest balancing test incorporated within s.38 of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.28(1), s.38(b), s.42(1)(b), s.44(1), s.46(1)(a), s.46(1)(b), s.46(2), s.52, s.76(2)(b), s.83(3), s.87Golden Casket Art Union Act 1978 QldLotteries Act 1994 QldLotto Act 1981 Qld"B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279Byrne and Gold Coast City Council, Re [1994] QICmr 8; (1994) 1 QAR 477Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111Pemberton and The University of Queensland, Re (Information Commissioner Qld, Decision No. 94032, 5 December 1994, unreported)Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227Yabsley and Department of Education, Re [1994] QICmr 14; (1994) 1 QAR 587 DECISION1. In respect of the first decision under review (being the internal review decision made on 7 December 1993 by Mr M Sarquis on behalf of the respondent) - (a) I affirm that part of the decision by which it was decided that matter deleted from the documents identified in paragraph 23A of my reasons for decision is exempt matter under s.44(1) of the Freedom of Information Act 1992 Qld; and (b) I vary that part of the decision which dealt with documents identified as documents 291 and 292 by finding that the matter contained in documents 291 and 292, to which the applicants have been refused access, is exempt matter under s.46(1)(b) of the Freedom of Information Act 1992 Qld.2. In respect of the second decision under review (being the internal review decision made on 22 December 1993 by Mr M Sarquis on behalf of the respondent) - (a) I affirm that part of the decision by which it was determined that documents identified as documents 301 and 304 comprise exempt matter under s.38(b) of the Freedom of Information Act 1992 Qld; and (b) I set aside that part of the decision by which it was determined that the document identified as document 306 comprises exempt matter under s.38(b) and s.46(1)(b) of the Freedom of Information Act 1992 Qld, and in substitution for it, I decide that the applicants have a right to be given access to document 306, except for the name and address of the person to whom document 306 is addressed, which comprises exempt matter under s.44(1) of the Freedom of Information Act 1992 Qld.Date of Decision: 19 October 1995...........................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS PageBackground 1 Initial decision on access 3 First internal review decision 4 Second internal review decision 4The review process 4 Procedural fairness issue 5The matter remaining in issue 6The "personal affairs documents" and the application of s.44(1) 7Matter in documents 291 and 292 and the application of s.46(1)(b) 11Documents 301, 304 and 306 and the application of s.38(b) and s.46(1)(b) 15Conclusion 20OFFICE OF THE INFORMATION ) S 231 of 1993COMMISSIONER (QLD) ) (Decision No. 95025) Participants: TERENCE EDWARD MORRIS AND OTHERS Applicants - and - QUEENSLAND TREASURY Respondent REASONS FOR DECISIONBackground1. The applicants seek review of the respondent's decision to refuse access to three documents, and to delete matter from a large number of other documents to which access has otherwise been given under the Freedom of Information Act 1992 Qld (the FOI Act). 2. By letter dated 25 August 1993 to Queensland Treasury, Paul Everingham and Co, Solicitors, on behalf of the applicants (who are identified in Schedule Two of the document quoted below), lodged an FOI access application in the following terms: Pursuant to Section 25 of the Freedom of Information Act, I request access to documents being: (a) Documents of the nature referred to in Schedule One, which (b) Record, refer to or relate to either or both: (i) Any person, firm or corporation set out in Schedule Two; (ii) Any matter or thing set out in Schedule Three. SCHEDULE ONE 1. Letters 2. Memoranda 3. Facsimile Transmissions 4. Telexes 5. Telegrams 6. Forms of Complaint 7. Memoranda 8. Interdepartmental Memoranda 9. Ministerial Memoranda 10. File Notes 11. Diary Notes 12. Personal Attendance Memoranda 13. Telephone Attendance Memoranda 14. Any other form of written communication, written record, including any such communication or record kept or stored on any computer system. SCHEDULE TWO 1. Terence Edward Morris 2. Lurleen Gaye Morris 3. T E Morris & Associates Pty Ltd ACN 004 889 810 4. Terry Morris Pty Ltd ACN 010 155 549 5. Merle Norman Cosmetics ACN 010 432 185 6. Fralo Pty Ltd ACN 010 103 161 7. International Lottery Agents (I.L.A.) 8. Australian Players' Service (A.P.S.) 9. Orion International The registered office of all of the above is at 9 Ouyan Street Bundall Queensland 4217 We attach duly executed authorities from all of the above. SCHEDULE THREE 1. The Business Practices of any Person, Corporation or Firm mentioned in Schedule Two. 2. Possible Unlawful Conduct by any Person, Corporation or Firm mentioned in Schedule Two, or in respect of which any such Person, Corporation or Firm is alleged to have been involved or to have participated. 3. Complaints by or from any person other than the Persons, Firms and Corporations mentioned in Schedule Two concerning such Persons, Firms or Corporations. 4. Any view or opinion expressed by any employee, officer or public official concerning or relating to any Person, Firm or Corporation mentioned in Schedule Two, or the business, conduct or affairs of any such Person, Firm or Corporation.3. In a subsequent submission accompanying an application for internal review under s.52 of the FOI Act, the applicants' solicitor explained the background to the making of the FOI access application: The purpose of making the application for access was to establish the nature of complaints that had been received by the Golden Casket Art Union Office ("GCAUO") about any member of the [applicants] so that Terence Edward Morris [the principal of the group comprising the applicants] could investigate the validity of such complaints. Terence Edward Morris has applied for a lottery licence in the Northern Territory ... . As part of the investigation of Terence Edward Morris' application for such a licence, a probity check was conducted on Terence Edward Morris and other [applicants]. The result of the probity check was adverse to Terence Edward Morris or other [applicants]. As a result of this adverse result, Terence Edward Morris' application has not succeeded. The [applicants] believe that the information which caused the adverse probity check result was supplied by GCAUO and one other agency. Notwithstanding the adverse result of the probity check and subsequent to it the director of GCAUO has provided a reference which endorses Terence Edward Morris' application for the lottery licence. As a result, the Northern Territory Government is reviewing its decision and undertaking a further probity check. In this context, Terence Edward Morris wishes to be able to refute, if possible, any information given by GCAUO which contributed to the adverse results of the first probity check.4. Queensland Treasury's decision-maker, Ms Anthea Derrington, prior to making her decision, clarified with the applicants' solicitor the terms of the applicants' FOI access application as follows: ? the applicants did not wish to access promotional material of the companies listed in Schedule Two of the FOI access application;? the applicants did not wish to access every response to complaints referred to at Item 3, Schedule Three of the FOI access application, although they did wish to access copies of various standard responses, and responses which were not standard in nature;? the applicants did wish to access the names and addresses of individual complainants referred to at Item 3, Schedule Three of the FOI access application; and? the applicants did wish to access copies of cheques or credit card statements attached to complaints referred to at Item 3, Schedule Three of the FOI access application.Initial decision on access5. By decision dated 29 October 1993, Ms Derrington granted access in full to a number of documents, granted access to a large number of documents subject to deletion of information which would identify third parties on the basis that it was exempt matter under s.44(1) of the FOI Act (those documents are hereinafter referred to as "the personal affairs documents"), and granted access to documents identified as documents 291 and 292, subject to deletion of certain matter on the basis that it was exempt matter under s.42(1)(b) of the FOI Act. Ms Derrington also refused access to a document, identified as document 466, under s.22 of the FOI Act, and deferred access to ten documents, including documents identified as documents 301, 304 and 306 (which remain in issue in this review), in accordance with s.51 of the FOI Act.First internal review decision 6. On 18 November 1993, the applicants applied for an internal review of Ms Derrington's decision. By decision dated 7 December 1993, Mr Michael Sarquis varied Ms Derrington's decision in the following respects:? by granting access in full to 6 of the 10 documents to which access had been deferred in Ms Derrington's decision (on the basis that third parties had not lodged requests for internal review of her decision in respect of those documents);? by granting access in full to 9 documents previously subject to deletions of matter claimed to be exempt under s.44(1) of the FOI Act; ? by exempting additional matter in a document identified as document 268, previously subject to partial release (no exemption provision was indicated in Mr Sarquis' decision); and? by refusing to grant access to some matter in document 463 which Ms Derrington had agreed to release in its entirety (no exemption provision indicated). 7. Mr Sarquis further deferred access to the remaining four documents (301, 304, 306 and 357) to which access had been deferred in Ms Derrington's decision, on the basis that third parties had lodged applications for internal review of Ms Derrington's decision to release those documents. 8. Mr Sarquis also affirmed Ms Derrington's decision to grant partial access to the remaining "personal affairs documents", affirmed Ms Derrington's decision to refuse access to document 466 under s.22 of the FOI Act, and affirmed Ms Derrington's decision to exempt matter in documents 291 and 292 under s.42(1)(b) of the FOI Act, while deciding that the matter exempted from documents 291 and 292 was also exempt matter under s.44(1) and s.46(1)(a) of the FOI Act. Second internal review decision 9. In a second internal review decision dated 22 December 1993, Mr Sarquis dealt with documents 301, 304, 306 and 357 (to which access had been deferred in his first internal review decision, and in the decision of Ms Derrington).10. Mr Sarquis refused access to documents 301, 304 and 306 under s.38(b) of the FOI Act, on the basis that the documents comprise information of a confidential nature communicated in confidence between agencies of the New South Wales and Queensland governments, and also under s.46(1)(b) on the basis that the disclosure of the information contained in them could reasonably be expected to prejudice the future supply of such information.11. Mr Sarquis granted partial access to document 357, exempting the name of a person on the basis that it was exempt matter under s.44(1) of the FOI Act.The external review process12. By applications dated 14 December 1993 and 24 December 1993, the applicants applied to me for review, under Part 5 of the FOI Act, of Mr Sarquis' first and second internal review decisions, respectively. 13. Copies of the documents in issue were obtained and examined. Queensland Treasury confirmed that Mr Sarquis' first internal review decision had exempted matter in documents 268 and 463 on the basis of s.44(1) of the FOI Act.14. During preliminary discussions, the applicants' solicitor advised that access to document 466 (the document to which the respondent had refused access in reliance upon s.22 of the FOI Act) would not be pursued. Later during the course of the review, the applicants made a further concession in respect of a substantial segment of the documents comprising the "personal affairs documents". By a letter from their solicitor dated 10 November 1994, the applicants confirmed that they no longer wished to pursue access to the matter deleted (in reliance upon s.44(1) of the FOI Act) from documents described as credit card documents, cheques, money orders and postal documents, Australian Players' Service (APS) documents, International Lottery Agents' (ILA) documents, Millionaire 200 Club documents, and Australian Lottery Agents (ALA) International documents.15. During the course of the review, I received written submissions from Queensland Treasury under cover of letters dated 20 June 1994, and 16 December 1994, and from the Golden Casket Art Union Office (the GCAUO) by letters dated 15 December 1994 and 16 February 1995. Copies of these were provided to the applicants, subject to the deletion of references to matter claimed to be exempt. I also received written submissions on behalf of the applicants forwarded under cover of letters from the applicants' solicitor dated 20 June 1994 (hereinafter referred to as the applicants' first submission) and 5 October 1994 (hereinafter referred to as the applicants' second submission), and supplementary submissions in the form of letters from the applicants' solicitor dated 16 January 1995 and 24 January 1995. In reaching my decision, I have also had regard to the submission which accompanied the applicants' application for internal review under s.52 of the FOI Act.16. Because documents 301, 304 and 306 originated from an agency of the New South Wales government, that agency was given the opportunity to participate in the external review. It declined to apply to become a participant, but did, by letter dated 23 August 1994, set out the basis of its objection to the release of the documents, and provided evidence, via the respondent, in support of the respondent's claims that documents 301, 304 and 306 are exempt under s.38(b) and s.46(1)(b) of the FOI Act.Procedural fairness issue17. During the external review process, the applicants claimed that they had not been afforded procedural fairness in relation to documents 301, 304 and 306 on the basis that they had not been provided with any details of the nature of the documents, sufficient to enable them to participate meaningfully in the review of the respondent's decision with respect to those documents.18. I acknowledged the applicants' necessary disadvantage in making submissions where all information recorded in a document is claimed to be exempt matter. That is a consequence of the obligations imposed on me by s.76(2)(a) and s.87 of the FOI Act, with respect to ensuring that matter claimed to be exempt is not disclosed to an applicant or an applicant's representative.19. The applicants' solicitor submitted: Whilst I understand that the applicant is at a necessary disadvantage in relation to documents which are claimed to be exempt, my point is that in this case my client has not even been provided with a broad description of the nature of the information said to be confidential. For the purposes of making submissions I do not require disclosure of the very matter claimed to be exempt but my clients do require: (a) a description of the nature of the information said to be confidential; (b) a description of the evidence establishing implicit confidentiality. With respect, the necessary disadvantage that you speak of does not mean that my clients should be kept almost completely in the dark about the nature of the claim for exemption. In my submission, a balance needs to be struck between, on the one hand, not disclosing the matter claimed to be exempt, and on the other hand, extending to my clients sufficient information to enable them to respond meaningfully.20. I accepted the views expressed by the applicants' solicitor, particularly in light of the requirements of s.83(3) of the FOI Act, which provides: (3) In conducting a review, the Commissioner must - (a) adopt procedures that are fair, having regard to the obligations of the Commissioner under this Act; and (b) ensure that each participant has an opportunity to present the participant's views to the Commissioner; but, subject to paragraph (a), it is not necessary for a participant to be given an opportunity to appear before the Commissioner.21. I advised the respondent that in order to afford the applicants natural justice, the substance of the evidence from the New South Wales government agency must be made known to the applicants in a form which avoids the disclosure of any of the matter in issue, and that some further matter (previously deleted from the copy forwarded to the applicants of Queensland Treasury's first written submission) would need to be disclosed to the applicants. 22. I also informed the New South Wales government agency of my decision that Part 5 of the FOI Act (specifically s.83(3)), required, in the interests of procedural fairness, that I paraphrase the substance and effect of the evidence provided by the New South Wales agency in relation to documents 301, 304 and 306, in order to inform the applicants of the nature and substance of the case they had to meet. That material was paraphrased and forwarded to the applicants for response. The matter remaining in issue23. The matter remaining in issue (after the concessions by the applicants referred to above, and the respondent's decision to consent to the disclosure to the applicants of the small amount of matter in document 134 which had previously been claimed to be exempt) is as follows:A. Matter which would enable the applicants to identify the authors of, or complainants named in, the "personal affairs documents", i.e. matter comprising the names, addresses, telephone numbers, signatures and/or other identifying material in respect of those persons. The documents have otherwise been released to the applicants. The "personal affairs documents" remaining in issue are those documents numbered for identification, in the respondent's initial and internal review decisions, as follows - 1, 5, 7-13, 15, 22, 23, 27, 32, 34, 35, 39, 41, 43, 45, 46, 49, 59-61, 63-72, 76-78, 85, 86, 99, 111-128, 130, 131, 133, 135, 138-140, 158, 162, 163, 166, 167, 175-182, 185, 186, 188-190, 192, 195, 198, 202-207, 216-219, 221, 226, 227, 229-232, 235, 240, 241, 244-246, 248-250, 252-259, 261-268, 302, 303, 307, 323, 324, 326, 344-349, 352-364, 372, 373, 375-378, 383-385, 393, 395, 396, 403-408, 411, 413, 415, 417-419, 421, 424, 425, 427, 428, 430, 432, 433, 435, 436, 438-440, 447-451, 453, 454, 456, 458-463.B. Matter in documents 291 and 292, claimed to be exempt under s.42(1)(b), s.44(1), s.46(1)(a) and s.43(1) of the FOI Act.C. Documents 301, 304, and 306, claimed to be exempt under s.38(b) and s.46(1)(b) of the FOI Act.The "personal affairs documents" and the application of s.44(1)24. 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.25. The "personal affairs documents", containing matter claimed to be exempt under s.44(1), can be described as follows:(a) letters comprising general inquiries as to whether the applicants' business operations (which, in essence, involve the sale overseas of Australian lotto and lottery-type products) are "legitimate"; (b) letters of complaint about the applicants; or (c) letters from the GCAUO to complainants and inquirers, providing information about its Direct Mail Club, and advising that the applicants are not its agents.26. The information exempted from these documents includes the names, addresses, signatures, account details, phone numbers, and matter that would otherwise identify the author/complainant/inquirer. At paragraph 81 of my reasons for decision in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, I said: For information to be exempt under s.44(1) of the FOI Act, it must be information which identifies an individual or is such that it can readily be associated with a particular individual. Thus deletion of names and other identifying particulars or references can frequently render a document no longer invasive of personal privacy, and remove the basis for claiming exemption under s.44(1). This is an expedient (permitted by s.32 of the Queensland FOI Act) which has often been endorsed or applied in reported cases: see, eg, Re Borthwick and Health Commission of Victoria (1985) 1 VAR 25 ... . (See also Re Byrne and Gold Coast City Council [1994] QICmr 8; (1994) 1 QAR 477 at p.490, paragraph 38.) No doubt, it was on this basis that the respondent considered that it was able to disclose to the applicants documents of the type described above, provided that identifying particulars were deleted. 27. The respondent's decision would be justified (subject to the application of the public interest balancing test which qualifies s.44(1) of the FOI Act) if, in each of the documents under consideration, there is information which is properly to be characterised as information concerning the personal affairs of the person whose name (along with other identifying particulars) has been deleted.28. I consider that each of the "personal affairs documents" remaining in issue, would (if disclosed without deletion of the matter in issue) disclose information which is properly to be characterised as information concerning the personal affairs of a person, on either or both of two bases:(a) it would disclose that an identifiable person has engaged, or has made inquiries with a view to engaging, in gambling (on lotto or lottery-type products); and/or(b) it would disclose that an identifiable person has sought to make a complaint to a government agency believed to be the appropriate regulatory authority in respect of the Australian lotto or lottery-type products which the person has seen advertised in a foreign country, or to which the person subscribed.29. As to (a), it is my view that information that a person has engaged, or made inquiries with a view to engaging, in gambling activities is properly to be characterised as information concerning that person's personal affairs, according to the natural and ordinary meaning of the phrase "personal affairs" which I explained in Re Stewart, that is, affairs "of or relating to the private aspects of a person's life" (see Re Stewart at p.249, paragraph 55 and at p.252, paragraph 63). I do not think there is any doubt on this issue, but if there were, it would be appropriate to resort to the guiding principle which, in Re Stewart (at p.256, paragraph 76), I recommended for use when difficult questions of characterisation arise in the "grey area" of the ambit of the phrase "personal affairs". Applying that guiding principle, I consider that, according to the current community standards of persons of ordinary sensibilities, information that a person has engaged, or made inquiries with a view to engaging, in gambling activities, is information the dissemination of which that person ought to be entitled to control, and hence, is information which should be capable of being claimed to be exempt from mandatory disclosure under the FOI Act. The position might be different in the case of a "professional" gambler (having regard to the intended distinction in the scheme of the FOI Act between personal affairs and business/employment affairs), but there is nothing in the present case to suggest that the relevant persons engaged, or considered engaging, in gambling otherwise than as a casual pastime. 30. As to (b), I stated in Re Stewart (at p.268, paragraph 119) that the fact that Mr and Mrs Stewart had lodged complaints with a government Department, and with the Parliamentary Commissioner for Administrative Investigations, was a matter concerning their personal affairs. In Re Byrne, I held that the fact that a person made a complaint to an elected representative about a matter of concern was information concerning that person's personal affairs, for the purposes of s.44(1) of the FOI Act (see, in particular, at p.487, paragraphs 26-27, and pp.488-490, paragraphs 33-38 of Re Byrne). The fact of making the complaint was to be distinguished from the substance of the complaint, which may or may not (but in Re Byrne did not) itself comprise information concerning the personal affairs of the complainant.31. At pages 4-11 of their first submission, the applicants analysed the contents of a sample of the documents in issue (which they have obtained subject to the deletion of the matter now in issue) with a view to persuading me that they are not "personal" or "private" or "confidential" in character. The phrasing of the applicants' submissions suggests that they are based, in part, on a misconception. It is not necessary that matter contained in a document be confidential or secret, and it is certainly not necessary that it be conveyed under an express or implied understanding of confidence, for it to comprise information concerning a person's personal affairs within the meaning of s.44(1) of the FOI Act (see Re Stewart at p.251, paragraph 60, and at p.252, paragraph 63; also Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111 per Lockhart J at pp.118-119). Similarly, the attempts in the applicants' first submission to characterise the contents of a document in issue, considered as a whole, cannot assist the applicants if the document contains some information concerning the personal affairs of an identifiable person. If disclosure of a document in issue (without deletions) would disclose some information which is properly to be characterised as information concerning the personal affairs of an identifiable person, then (subject to the application of the public interest balancing test incorporated within s.44(1)) deletion of names and other identifying particulars is justified in order to make anonymous that which would otherwise be exempt matter.32. Having examined the "personal affairs documents", I consider that, with the possible exception of documents 49 and 111 to 128, the matters complained of, or inquired about (e.g. winnings not received, confirmation of numbers not received, unauthorised credit card deductions or overcharging, requests for advice as to the legitimacy of ILA or APS), relate to the persons concerned having engaged, or made inquiries with a view to engaging, in gambling activities. This is information concerning the personal affairs of the persons concerned. In addition, where documents contain complaints for the reference of the body believed to be the appropriate regulatory authority, the fact of the making of the complaint is information concerning the personal affairs of the complainant. The latter principle applies to documents 49 and 111 to 128 (being documents in respect of which it is not clear, from their face, that the author making the complaint has engaged in, or is considering engaging in, gambling activity). The GCAUO was an appropriate regulatory authority to whom the authors of documents 49 and 111 to 128 might reasonably direct complaints of the kind contained in those documents. 33. It is argued in the applicants' second submission that it is inappropriate to simply characterise all written complaints to a proper authority as a personal affair of the individual. I accept that; indeed in Re Byrne I referred to possible exceptions to the principle which I applied in that case: see Re Byrne at p.489, paragraphs 34-35. However, I do not accept the correctness of the applicants' attempts, in their written submissions, to read down or confine the principle which I have explained at paragraph 30 above, or to distinguish its application to documents in issue in this case.34. At pages 14-15 of their first written submission, the applicants raised the following argument: 42. On page 2 of his reasons, the Internal Review Officer has this to say: "I also considered that it is necessary to protect the rights of dissatisfied customers to complain to a relevant authority in order to seek an explanation or restitution." As to that: (a) Yes, in most cases the customers were either dissatisfied or were making an enquiry. In most cases they thought they were directing their complaint or query to the proper authority; (b) However, as the GCAUO invariably pointed out, the applicants were not affiliated or connected with the Government or the GCAUO; (c) That meant that if the letter was a complaint then it would often be referred to the applicants for response. In some cases the Golden Casket Office asked for details or advice of the response (see, for example, document 341); (d) If the letter is a complaint the "relevant authority" was never the GCAUO; the "relevant authority" was the applicants as the referral of complaints to the applicants implies. Indeed in many cases the authors of the letters were confused as to who they should be writing to (understandably so given the distance). 43. Almost invariably where the GCAUO received a complaint the GCAUO would take the opportunity to make the complainant aware of the GCAUO's direct sales system. That really illustrates that in no sense could the GCAUO be described as, to use the Internal Review Officer's words, "a relevant authority in order to seek an explanation or restitution". Rather, in a very real sense the applicants and the GCAUO were competitors. 44. Indeed, at every opportunity the GCAUO said both that it had no responsibility for the applicants and that it offered an alternative direct service. 45. In fact the only entity which could or would give an "explanation or restitution" was the applicants. That makes it rather odd for it to be said against the applicants that the authors deserve protection against disclosure to the applicants to preserve the authors' right to complain to the "relevant authority". 46. It is also important to ask, even if the Internal Review Officer's argument were correct, why it is necessary to conclude that the rights of the dissatisfied customers were protected by preserving their anonymity, and indeed preserving their anonymity against the applicants. In other words, what is confidential or personal about the complaints.35. The applicants here are, in effect, arguing that so far as the matter in issue comprises names, addresses and other information concerning persons who have subscribed to lotto and lottery-type products through the applicants, information that these persons have engaged in gambling activity is not "personal" or "private" or "confidential" vis-à-vis the applicants; and likewise in respect of the fact that a person has made a complaint about the applicants where the complaint has in fact been passed on to the applicants. Arguments of this nature, which have regard to the position and relevant knowledge of a particular applicant for access, may well be relevant to a decision by an agency as to whether or not, in a particular case, to exercise the discretion conferred by s.28(1) of the FOI Act to refuse access to exempt matter or an exempt document. But that is a discretion which is denied to the Information Commissioner, in a review under Part 5 of the FOI Act, by the terms of s.88(2) of the FOI Act. In cases where an applicant disputes a refusal of access to matter, the Information Commissioner is ordinarily called upon to determine whether matter in issue is or is not exempt matter, and hence whether an applicant for access has or has not a legally enforceable right to be given access in accordance with the FOI Act to the matter in issue. That task is, with limited exceptions (see Re Yabsley and Department of Education [1994] QICmr 14; (1994) 1 QAR 587, at p.592, paragraph 16; Re Pemberton and The University of Queensland (Information Commissioner Qld, Decision No. 94032, 5 December 1994, unreported), at paragraphs 164-193), to be approached by evaluating the consequences of disclosure of the matter in issue as if disclosure were to any person, or as is sometimes said, "to the world at large", since in the usual case there is no restriction (other than any applying under the general law, cf. s.102(2) of the FOI Act) on the further use or dissemination by an applicant for access of matter obtained under the FOI Act.36. I also note that the applicants, in a submission accompanying their application for internal review, offered an undertaking that they would not contact any persons named in any of the documents to which they are given access. If this is relevant at all (given that neither the respondent nor the Information Commissioner have any powers to enforce compliance with such an undertaking), it could only be relevant to the exercise of the discretion conferred on agencies by s.28(1) of the FOI Act.37. The arguments set out in the passage quoted at paragraph 34 above do not affect my finding, for the reasons explained at paragraphs 28-30 and 32 above, that the matter deleted from the "personal affairs documents" comprises information concerning the personal affairs of persons other than the applicants, and hence is prima facie exempt from disclosure to the applicants, subject to the application of the public interest balancing test incorporated within s.44(1) of the FOI Act.38. In their written submissions prepared for the purposes of my review, the applicants did not address any arguments to the application of the public interest balancing test incorporated within s.44(1) of the FOI Act. In the written submission which accompanied the applicants' application for internal review, a brief argument was addressed to the effect that, given that the applicants were not pursuing access to some of the deleted information, given the applicants' assurance that they will not attempt to contact complainants, and given the importance which the application for the Northern Territory lottery licence holds for Terence Edward Morris, the public interest, on balance, required the disclosure of the names and additional information deleted from the documents in issue.39. Other than names and other identifying particulars, the "personal affairs documents" have been released to the applicants, who have thus been made aware of the nature and substance of the inquiries and complaints. This is not a situation in which a regulatory authority proposes to take action against the applicants in respect of a particular complaint of wrongdoing. In such a situation, the public interest in fair treatment of the applicants might (according to the circumstances of the particular case, including the requirements of procedural fairness) require the disclosure of the identity of the particular complainant. In the present case, however, given that the applicants have obtained access to edited versions of the documents in issue which disclose the nature and substance of relevant complaints and inquiries, I am unable to accept that any public interest that may exist in the applicants knowing the identities of the complainants/inquirers is sufficiently strong to outweigh the public interest in non-disclosure which is inherent in satisfaction of the test for prima facie exemption under s.44(1) of the FOI Act.40. I am satisfied that the matter contained in the documents identified in paragraph 23A above, to which the applicants have been refused access, is exempt matter under s.44(1) of the FOI Act. Matter in documents 291 and 292 and the application of s.46(1)(b)41. Document 291 comprises a letter dated 27 March 1991 from the GCAUO's solicitors, Clarke and Kann, to the Deputy Director of the GCAUO, and its enclosure, a report from a private detection agency engaged by Clarke and Kann on behalf of the GCAUO. The report contains the results of an undercover investigation conducted by the detection agency into suspected activities of the applicants. The letter has been released in full. The detection agency's report has also been released, subject to the deletion of the name of a source from whom the detection agency obtained information under a pretence, i.e., the source was unaware that information was being provided to a detection agency, and ultimately the GCAUO. 42. Document 292 comprises two letters, dated 18 and 19 February 1991, from Clarke and Kann to the Deputy Director of the GCAUO, and a facsimile transmission sheet dated 19 February 1991. The letter dated 19 February 1991 has an enclosure, being a further report from the private detection agency. Both letters and the facsimile transmission sheet have been released in full, and the detection agency's report has been released, subject to the deletion of the name and position of the same source of information referred to in the preceding paragraph.43. The matter in documents 291 and 292 was claimed in Mr Sarquis' first internal review decision to be exempt under s.42(1)(b), s.44(1), s.46(1)(a) and additionally, in the course of my review, under s.43(1). Following examination of documents 291 and 292 and the matter claimed to be exempt, and consideration of the submissions received from the respondent and the applicants, I came to the view that there were difficulties with the application to the matter in issue of each of the exemption provisions invoked by the respondent. (Given the view I have ultimately reached, it is unnecessary for me to go into the detail of those difficulties.) It appeared to me, however, that there was sufficient foundation in the nature of the matter in issue, and in the submissions made by the respondent, to attract the application of another exemption provision not specifically argued by the respondent, namely s.46(1)(b) of the FOI Act. Accordingly, the applicants were informed by letter dated 19 June 1995 that the facts and arguments relied on by the respondent supported an arguable case for the application of s.46(1)(b) to the matter claimed to be exempt in documents 291 and 292. The applicants were given the opportunity to submit arguments and evidence going to this issue. By a letter from the applicants' solicitor dated 30 August 1995, that opportunity was formally declined.44. 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.45. No question as to the application of s.46(2) arises in this instance because the matter in issue is clearly not information of a kind mentioned in s.41(1)(a) of the FOI Act.46. The elements of s.46(1)(b) are discussed in some detail in my reasons for decision in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at pp.337-342 (paragraphs 144-162, 167). In order to establish the prima facie ground of exemption under s.46(1)(b) of the FOI Act, three cumulative requirements must be satisfied:(a) the matter in issue must consist of information of a confidential nature (see Re "B" at pp.337-338, paragraph 148, and at pp.306-310, paragraphs 71-73);(b) that was communicated in confidence (see Re "B" at pp.338-339, paragraphs 149-153); and(c) the disclosure of which could reasonably be expected to prejudice the future supply of such information (see Re "B" at pp.339-341, paragraphs 154-161).If the prima facie ground of exemption is established, it must then be determined whether the prima facie ground is displaced by the weight of identifiable public interest considerations which favour the disclosure of the particular information in issue (see Re "B" at p.342, paragraph 167). 47. The first element of s.46(1)(b) turns on whether the information in issue has the requisite degree of relative secrecy or inaccessibility. I note that documents 291 and 292 are marked "confidential", and document 291 states that "all reports (written or verbal) rendered by the [detection] agency are strictly confidential and privileged". These indicators are not in themselves conclusive (see Re "B" at p.307, paragraph 71(h)). More importantly, however, it is clear from the nature of the information contained in the detection agency's reports that it comprised information not generally known or accessible (it would have been kept confidential by the detection agency and the respondent's solicitor, in accordance with duties of confidence owed by them to the respondent, and would not have been made generally accessible by the respondent) and would not have been known by the applicants prior to the disclosure to them of edited copies of documents 291 and 292 under the FOI Act. I find that the information in documents 291 and 292, which has been withheld from the applicants, has the requisite degree of secrecy and inaccessibility to be properly characterised as information of a confidential nature for the purposes of s.46(1)(b) of the FOI Act.48. The second element of s.46(1)(b) requires that there be mutual expectations, as between the supplier and recipient of the information in issue, 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 (see Re "B" at p.338, paragraph 152).49. Having regard to the general contents of the detection agency reports, I have no doubt that both the detection agency and the respondent's solicitors would have understood that they were under a duty to their client, the respondent, to keep the reports confidential. However, I doubt that there could have been any understanding, express or implied, that the respondent, as client, was to keep confidential, at the detection agency's behest, the general contents of the reports which the detection agency had been engaged, and paid, to supply for the respondent's purposes. Ordinarily, it would have been the respondent's privilege, in those circumstances, to deal with the reports as it wished. However, there might be exceptions to that general principle, eg, where the detection agency obtained information from a source in circumstances imposing on it an obligation of confidence, but one which permitted a limited disclosure to the detection agency's client provided that the client, in turn, agreed to receive the information under an obligation of confidence. Another exception might exist in circumstances where the detection agency conveyed information of such sensitivity or value to the detection agency that the recipient must have understood that it was expected to keep the information confidential.50. In my opinion, the last-mentioned scenario applies to the matter which the respondent has deleted from documents 291 and 292. In its first written submission, the respondent addressed arguments to this issue which, although raised in the context of s.42(1)(b) of the FOI Act, are equally germane to the establishment of the second element of s.46(1)(b): It is generally accepted that detective agencies are desirous of maintaining the confidentiality of the sources of information which such agencies use. The reason for wishing to protect such sources arises from the fact that those confidential sources of information may be able to be used for the same or different clients in future investigations. However, the agencies would not be able to use a source if the identity of the source was published. Thus the confidentiality surrounding the identity of the informant remains current.51. Having regard to the regulatory responsibilities which the GCAUO has under the Golden Casket Art Union Act 1978 Qld and the Lotto Act 1981 Qld, and the expanded regulatory responsibilites which its successor, the Golden Casket Lottery Corporation, will have upon the commencement of the Lotteries Act 1994 Qld, there is a strong possibility of further investigations being commissioned in the future, in which the source could again prove valuable. I am prepared to accept that the identity of the detection agency's source was understood by both the detection agency and the GCAUO to have continuing sensitivity and value, and that there were mutual expectations that the identity of the source would be treated in confidence.52. In respect of the third element of s.46(1)(b), the words "could reasonably be expected to" call for the decision-maker applying s.46(1)(b) to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (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 (see Re "B" at pp.339-341, paragraphs 154-160). The test is to be applied by reference to whether disclosure of the information in issue could reasonably be expected to prejudice the future supply of such information (ie. information of a like character) from a substantial number of the sources available, or likely to be available, to an agency (see Re "B" at p.341, paragraph 161). 53. The nature of investigations conducted on behalf of government agencies can differ markedly. The very purpose of some kinds of investigation would be rendered futile if sources of information were not prepared to be identified and to give evidence on the public record in subsequent proceedings. Other investigations may be more in the nature of intelligence-gathering exercises in which an agency is willing to obtain information on the basis that its source is not to be further disclosed by the agency. (The agency would usually need a record of the source's identity to assist in evaluating the accuracy and reliability of the source's information.) Detection agencies would ordinarily understand the nature and purpose of investigations they are commissioned to undertake, and the basis on which evidence is to be obtained. If it is understood that sources have to be identified for the purposes of a particular investigation, then I do not think the prospect of sources being disclosed under the FOI Act could reasonably be expected to inhibit detection agencies from identifying sources in reports to their government agency clients.54. In my opinion, however, the disclosure under the FOI Act of the identity of a source of information used by a detection agency, which both the detection agency and the recipient of the information had understood was communicated in confidence, could reasonably be expected to prejudice the future supply by detection agencies, conducting investigations on behalf of government agencies, of the identities of sources of information which the detection agencies wished, or felt bound, to protect.55. Accordingly, I am satisfied that the three cumulative requirements for establishing the prima facie ground of exemption under s.46(1)(b) are made out in respect of matter claimed to be exempt in documents 291 and 292.56. I must now decide whether the prima facie ground for exemption is displaced by the weight of any identifiable public interest considerations favouring disclosure of the matter in issue. 57. The applicants have chosen not to make a submission addressing s.46(1)(b), and have not identified any public interest considerations favouring disclosure of the matter in issue in documents 291 and 292. I do not think it can be said that any public interest in fair treatment of the applicants warrants disclosure of the identity of the source used by the detection agency. The applicants have obtained access to the contents of the detection agency's reports to the respondent based on information obtained from the source. I am not able to identify any public interest considerations favouring disclosure of the matter deleted from documents 291 and 292 which are of sufficient weight to displace the public interest in non-disclosure which is inherent in the satisfaction of the test for prima facie exemption under s.46(1)(b) of the FOI Act. 58. Accordingly, I find that the matter in issue in documents 291 and 292 is exempt matter under s.46(1)(b) of the FOI Act.Documents 301, 304 and 306 and the application of s.38(b) and s.46(1)(b)59. Document 301 is a letter from a New South Wales government agency to the GCAUO. Documents 304 and 306 are copies of letters to third parties which were attachments to document 301. The documents are claimed to be exempt under s.38(b) and s.46(1)(b). 60. The requirements of s.46(1)(b) have been discussed above. Section 38(b) of the FOI Act provides: 38. Matter is exempt matter if its disclosure could reasonably be expected to - ... (b) divulge information of a confidential nature that was communicated in confidence by or on behalf of another government; unless its disclosure would, on balance, be in the public interest. 61. When s.38(b) is contrasted with s.46(1)(b), it can be seen that its key elements, i.e., that the information in issue is of a confidential nature and that it was communicated in confidence, are in essence identical to the first and second requirements of s.46(1)(b) (save that the relevant communication must be made by or on behalf of another government). Section 38(b) contains no equivalent to the third requirement of s.46(1)(b) (i.e. that disclosure could reasonably be expected to prejudice the future supply of like information), but, like s.46(1)(b), s.38(b) is qualified by a public interest balancing test.62. I discussed the meaning of the phrases "could reasonably be expected to", "information of a confidential nature" and "communicated in confidence", in the context of s.46(1)(b), in Re "B" at pp.337-341, paragraphs 148-161, and at paragraphs 46-48 and 52 above. I consider that these phrases have the same meaning, when employed in s.38(b), as they do in s.46(1)(b). 63. The respondent made the following submissions (which have been edited to reflect the form in which they were provided to the applicants during the course of the review) in respect of documents 301, 304 and 306: The nature of the information comprising the documents is confidential. The information specifically identifies an issue of concern facing [NSW and Queensland] and the information is not trivial. The disclosure of the information would be a misuse of the information taking into account the reason for the provision of the information. ... The ... members freely exchange information to enhance their products, marketing strategies, etc. Implicit in the free flow of information is a "gentlemen's agreement" that all information communicated among members of the ... is done so on the basis that it is provided and received on the understanding that it will be treated in a confidential manner. The Lotto agencies fiercely compete with other organisations (such as the TAB and art unions) for the public's recreation dollar and would suffer a commercial disadvantage if information relating to aspects of Lotto which cause concern for Lotto agencies were to be released to those agencies' competitors. In a letter dated 24 November 1993, the NSW ... stated that if the documents were to be released the NSW ... "would not be in a position to further disclose confidential information to government agencies in the State of Queensland". The letter further stated that such an action would have a significantly detrimental effect on the free flow of information between our respective government agencies. The documents were provided by the NSW ... which forms part of the New South Wales Government. The need to maintain a high level of integrity in all matters relating to gaming requires the flow of relevant information between state authorities to continue unabated and with full candour. It has therefore been held that the release of information which would serve to stop such flows of information would not be in the public interest. In addition, the ability of the Golden Casket Art Union Office to maximise its revenue raising activities for the Queensland Government would be jeopardised if the Office was no longer able to gain access to information of other jurisdictions (such as marketing strategies). Accordingly, it has been concluded that the disclosure of the documents would not, on balance, be in the public interest. ... The matters contained in documents 301, 304 and 306 were intended to provide the Golden Casket Office with background information ... . ... that information is provided ... on the basis of confidentiality. Whilst that flow of information is provided on the basis of confidentiality which all members ... observe, the confidentiality is implied rather than explicit. However, Treasury contends that the information was communicated in such a manner as to oblige the Golden Casket Art Union Office to treat the letters in a confidential manner. The information was intended for use only by the Golden Casket Art Union Office thus the disclosure of the information to the applicant would be a misuse of the information. The nature of the information which is provided among members ... is not intended for publication and is only provided in order to seek to maintain the high standard of integrity within the lotteries industry Australia-wide. Australia needs to preserve its high standard of operations within the lotteries industry and therefore needs to be able to continue to exchange relevant information among the ... Any State lottery which is unable to provide an appropriate guarantee of confidentiality will not continue to be given such information. Thus the supply of future information from ... will be prejudiced.64. In support of its contentions, the respondent provided evidence from an officer of the New South Wales government, which for the benefit of the applicants, was paraphrased in the following terms:? documents 301, 304 and 306 were provided on the implicit understanding that the contents thereof would remain confidential and not be disclosed to any party;? the information would not have been provided if it had been understood that it would be revealed to third parties;? the information includes matter that would be severely detrimental to the commercial interests of the New South Wales government if revealed; and? disclosure of the information would severely hamper the release of information between the New South Wales government and agencies of the government of Queensland.65. The respondent also provided, by way of evidence, a statutory declaration from the Acting Manager of the GCAUO attesting to the following matters:? the GCAUO regularly disseminates information and documents to, and receives information and documents from, New South Wales;? the exchange of information between the GCAUO and the New South Wales agency is critical to the integrity and conduct of lotteries, and the monitoring of unauthorised activity; and? all communications between the GCAUO and the New South Wales agency are made on the implicit understanding that the communication and any documents forming part of the communication remain confidential and not be disclosed to any party. 66. In response, the applicants submitted that:? the respondent has not explained why or how the exchange of information is critical to the integrity and conduct of lotteries - not all exchanges of information will be critical;? the monitoring of illegal operations might be important, but the GCAUO refers only to the monitoring of "unauthorised activity" - the meaning of "unauthorised activity" is unclear;? the GCAUO has not alleged that the applicants have committed an offence, so it is unclear what was being monitored - unless it is an activity which is legal but which the GCAUO considers should be illegal;? the information is not of a confidential nature;? unless the information concerns criminal activity or something akin to a trade secret it is difficult to see what could be detrimental to the commercial interests of the New South Wales government;? no factual basis is given for the assertion that the information was disclosed on an implicit understanding of confidence. The information is not said to have been marked confidential nor is there evidence that its circulation within the GCAUO was restricted or that it was kept within restricted files;? the real question is, was the communication submitted and received in confidence prior to the FOI access request; and? the applicants are not competitors within Australia. The applicants' business involves selling to overseas citizens. On the other hand the claim of confidentiality seems to be based on the desire to "maintain the high standard of integrity within the lotteries industry Australia wide" (applicants' underlining). 67. I agree with the applicants that the crucial issues are whether documents 301, 304 and 306 contain confidential information, and whether the documents were submitted and received in confidence. There is no doubt that documents 301, 304 and 306 were communicated to the respondent by or on behalf of another government (within the terms of s.38(b) of the FOI Act). 68. Document 301 is a letter from a New South Wales government agency to the GCAUO. Document 304 is a letter from a New South Wales government agency to the regulatory authority for lotteries in an overseas jurisdiction. Both these letters deal with matters relating to regulation of the trade in lotto and lottery-type products, which would be of concern to the regulatory authorities to which the letters are addressed. I am satisfied that documents 301 and 304 contain information which would be known only by a limited group, and is sufficiently secret/inaccessible in nature, for it to be properly characterised as information of a confidential nature, for the purposes of s.38(b) and s.46(1)(b) of the FOI Act.69. Having regard to the evidence lodged on behalf of the respondent, and to the fact that the information conveyed in documents 301 and 304 relates to issues in the regulation of lotto and lottery-type products of mutual concern to the supplier and recipients of the documents, and likely to be regarded by them as inappropriate for wider dissemination, I find that documents 301 and 304 comprise information that was communicated in confidence by or on behalf of another government, for the purposes of s.38(b) of the FOI Act. (It is also information communicated in confidence for the purposes of s.46(1)(b), but in the view I have come to, it is unnecessary for me to give further consideration to s.46(1)(b) of the FOI Act.)70. Accordingly, I am satisfied that documents 301 and 304 are prima facie exempt under s.38(b) of the FOI Act, subject to the application of the public interest balancing test which qualifies s.38(b).71. The respondent has referred in its submission to public interest considerations favouring non-disclosure, which are predicated on the assumption that disclosure of the information in documents 301 and 304 would prejudice the future supply of like information. The applicants submissions (with the handicap of not knowing the nature of the information contained in documents 301 and 304) are largely confined to attacking the respondent's case, without advancing public interest considerations which favour disclosure. 72. The applicants must know that documents 301 and 304 concern or refer to them in some way, or the documents would not have fallen within the terms of the applicants' FOI access application. To that extent, there is a question as to whether this is an appropriate case for the application of the principle that an applicant's involvement in, and concern with, particular information is of such a nature that it should be taken into account as a public interest consideration favouring disclosure (see Re Pemberton at paragraphs 164-193). This is a borderline case in that respect, since documents 301 and 304 raise issues or concerns which are not specific to the operations of the applicants, and canvas solutions at a general policy level. I am prepared to give some weight, but not substantial weight, to a public interest consideration of the kind mentioned in this paragraph. 73. In addition, there are more general public interest considerations favouring disclosure, for the purpose of informing the public about issues of concern in the regulation of the trade in lotto and lottery-type products, of which the general public are both consumers and beneficiaries (in respect of the return to consolidated revenue of the Queensland government's share of the profits from trading in these products). 74. However, on balance, the public interest considerations favouring disclosure are not, in my opinion, sufficient to outweigh the public interest favouring non-disclosure of documents 301 and 304 which is inherent in the satisfaction of the test for prima facie exemption under s.38(b) of the FOI Act. Accordingly, I find that documents 301 and 304 comprise exempt matter under s.38(b) of the FOI Act.75. Document 306 does not, in my opinion, qualify for exemption under either s.38(b) or s.46(1)(b) of the FOI Act, because I am not satisfied that it meets the first requirement for exemption under both of those provisions, i.e. that it comprises information of a confidential nature. Document 306 is a letter from a New South Wales government agency to a citizen of the United States of America who has made a complaint or inquiry concerning the operations of one of the applicants. There is nothing inherently confidential about the nature of the information that document 306 conveys to the US citizen; it is not secret or inaccessible information. Indeed, document 306 is similar in character to the replies forwarded by the GCAUO to persons who have made complaints or inquiries to it concerning the operations of the applicants. (The respondent has given the applicants access to copies of those replies, subject to the deletion of the names, and other identifying particulars, of the persons to whom they are addressed.) The letter is not marked "confidential" and there is nothing about the nature of the information which might have led the US citizen who received it to understand that it was forwarded in confidence. That person would have been free to further disseminate the letter as he pleased.76. It is true that, according to the respondent's evidence, a copy of document 306 was provided to the GCAUO pursuant to a general understanding of confidentiality. However, the elements which must be established to attract the application of s.38(b) and s.46(1)(b) of the FOI Act are cumulative: failure to establish any one of them negates the application of the exemption provision. In this case, I am not satisfied that document 306 comprises information of a confidential nature, and I find that it is not exempt under s.38(b) or s.46(1)(b) of the FOI Act. However, for the same reasons given at paragraphs 28-30 and 32 above, I consider that the name and address of the US citizen to whom document 306 is addressed is exempt matter under s.44(1) of the FOI Act, and the respondent may choose to delete that exempt matter, when giving the applicants access to document 306 in accordance with my decision.Conclusion77. For the foregoing reasons -(a) I affirm that part of the first internal review decision (i.e., the decision made on 7 December 1993 by Mr Sarquis on behalf of the respondent) by which it was decided that matter deleted from the documents identified in paragraph 23A of my reasons for decision, is exempt matter under s.44(1) of the FOI Act;(b) I vary that part of the first internal review decision which dealt with documents 291 and 292 by finding that the matter contained in documents 291 and 292, to which the applicants have been refused access, is exempt matter under s.46(1)(b) of the FOI Act;(c) I affirm that part of the second internal review decision (i.e., the decision made on 22 December 1993 by Mr Sarquis on behalf of the respondent) by which it was determined that documents identified as documents 301 and 304 comprise exempt matter under s.38(b) of the FOI Act;(d) I set aside that part of the second internal review decision by which it was determined that the document identified as document 306 comprises exempt matter under s.38(b) and s.46(1)(b) of the FOI Act, and in substitution for it, I decide that the applicants have a right to be given access to document 306 under the FOI Act, except for the name and address of the person to whom document 306 is addressed, which comprises exempt matter under s.44(1) of the FOI Act.F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Poyton and Department of Education [2023] QICmr 13 (16 March 2023)

Poyton and Department of Education [2023] QICmr 13 (16 March 2023) Last Updated: 14 April 2023 Decision and Reasons for Decision Citation: Poyton and Department of Education [2023] QICmr 13 (16 March 2023) Application Number: 316778 Applicant: Poyton Respondent: Department of Education Decision Date: 16 March 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - whether an agency is taken to have made a deemed decision - whether the Information Commissioner has jurisdiction to conduct a review - whether an application for external review is misconceived - sections 66 and 99 and 107(1)(a) of the Information Privacy Act 2009 (Qld). ADMINISTRATIVE LAW - RIGHT TO INFORMATION - whether an application complies with all relevant application requirements - requirement to provide evidence of identity for the applicant - electronic submission of certified identification - sections 43 and 53 of the Information Privacy Act 2009 (Qld) and section 16 of the Electronic Transactions (Queensland) Act 2001 (Qld) REASONS FOR DECISION Summary On 20 May 2022, the applicant made an application to the Department of Education (Department) under the Information Privacy Act 2009 (Qld) (IP Act) for access to information about himself. On 3 July 2022, the applicant applied for external review, submitting that the Department had not made a decision on his application and was therefore taken to have made a deemed decision refusing access to the requested information.[1] The Department submits that the applicant did not make a compliant application, and a deemed decision cannot have been made. Accordingly, the Department contests the Information Commissioner’s jurisdiction to consider the applicant’s external review application. I find that the Department is taken to have made a deemed decision refusing access to the requested information and the applicant has applied for external review of a reviewable decision. I set aside that decision and find that the application does not comply with all relevant application requirements.[2] Issues for determination The Department considers that it has not made a deemed decision, and therefore there was no reviewable decision which can be the subject of an external review at the time the applicant applied for review, so it is necessary to first determine this issue. The applicant considers that his application complies with all relevant application requirements, so it is also necessary to determine this issue. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including in footnotes and the appendix). I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[3] 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 Right to Information Act 2009 (Qld) (RTI Act) and IP Act.[4] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between similar pieces of Victorian legislation[5] 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.’[6] Relevant law Under Chapter 3 of the IP Act, an individual who wishes to be given access to a document of an agency or document of a Minister, to the extent it contains the individual’s personal information, may apply to the agency or Minister under the IP Act for access to the document.[7] The access application must be in the approved form; give sufficient information concerning the document to enable a responsible officer of the agency or the Minister to identify the document; and state an address to which notices may be sent to the applicant.[8] The applicant must also provide with the application, or within 10 business days after making the application, evidence of identity for the applicant.[9] Evidence of identity means the evidence of identity prescribed under the Information Privacy Regulation 2009 (Qld) (IP Regulation).[10] The evidence of identity prescribed is a document verifying the person’s identity, including, relevantly, a driver licence.[11] If a document is a photocopy of an original document,[12] the document must be certified by a qualified witness as being a correct copy of the original document.[13] If a person purports to make an access application[14] to an agency or Minister and the application does not comply with all relevant application requirements, the agency or Minister must make reasonable efforts to contact the person within 15 business days after the purported application is received and inform the person.[15] The agency or Minister must not refuse to deal with an application because it does not comply with all relevant application requirements[16] without first giving the applicant a reasonable opportunity to consult with a view to making an application in a form which does comply.[17] The applicant is taken to have made an application under the IP Act if and when the application is made in a form complying with all relevant application requirements.[18] If, after giving the applicant the opportunity to make the application compliant, the agency or Minister decides the application does not comply with all relevant application requirements, section 53(6) of the IP Act provides that the agency or Minister must, within 10 business days after making the decision, give the applicant prescribed written notice of the decision. Section 65 of the IP Act provides that if a person makes an access application for a document to an agency or Minister, the agency or Minister must, after considering the application, make a decision (a considered decision) whether access is to be given to the document,[19] and give the applicant written notice of the decision under section 68 of the IP Act. Section 68 of the IP Act requires that an agency or Minister must give to an access applicant a prescribed written notice of the decision on the application, including a decision to refuse to deal with the application,[20] and sets out certain details that must be stated in such notices. Section 199 of the IP Act sets out other details that must be stated in prescribed written notices generally. Section 66 of the IP Act provides that if an applicant is not given written notice of the decision by the end of the processing period for an access application, on the last day of that period, the principal officer of the agency or Minister is taken to have made a decision (a deemed decision) refusing access to the document.[21] The processing period for an access application is a period of 25 business days from the day the application is received by the agency or Minister.[22] As soon as practicable after a deemed decision is taken to have been made, the principal officer of the agency or Minister must give prescribed written notice of the decision to the applicant.[23] A person affected by a reviewable decision may apply to have the decision reviewed by the Information Commissioner.[24] Relevantly, in this case, reviewable decision includes both a decision that an access or amendment application does not comply with all relevant application requirements under section 53(6), and a deemed decision.[25] Analysis and findings Issue 1: Is there a reviewable decision on which to conduct an external review? It is not in dispute that:[26] a) The applicant sent his application to the Department by email on 20 May 2022, attaching a scanned version of a certified copy of his driver licence. b) On 24 May 2022, the Department contacted the applicant to advise that the application did not comply with all relevant application requirements. The Department requested further information to identify relevant documents and requested that the applicant provide the original certified copy of his evidence of identity, rather than a scanned version of the certified copy. c) On 24 May 2022, after some negotiation, the applicant agreed to the scope proposed by the Department. The applicant also advised the Department that he would not provide physical copies of his identity documents and requested that the Department provide a written decision on his application. The applicant then applied for external review on 3 July 2022, submitting that he had not been given notice of the Department’s decision within the processing period and therefore the Department made a deemed decision refusing access to the requested documents.[27] After receiving the external review application, the Information Commissioner conveyed a preliminary view to the Department[28] that it appeared the Department was taken to have made a deemed decision on the application, explaining that while it had historically been the view that the processing period only commenced once a valid application was received, this was at odds with McMurdo JA’s comments in Powell & Anor v Queensland University of Technology & Anor (Powell).[29] In that matter, the applicants had applied under the IP Act to access documents and the agency decided that the applications did not comply with all relevant application requirements. The decisions were affirmed on external review but set aside on appeal. In the proceedings before the Court of Appeal: the Information Commissioner submitted: [T]he processing period had not commenced, because “the provisions of the IP Act relating to the timeframes for giving a written notice of decision are not enlivened until the agency is satisfied that it has received an access application which meets all the relevant requirements.”[30] McMurdo JA expressly rejected the Information Commissioner’s submission, stating: The Commissioner’s submission that the processing period does not begin until an agency is satisfied that it has received a duly made application, cannot be accepted. Section 22 relevantly defines the processing period as a period of 25 business days from the day the application is received by the agency. It does not distinguish between a duly made application and an application having some formal defect. And that distinction would be problematic, because according to s 43(3), evidence of identity need not be provided with the application but could be provided within a further 10 business days. Nor does the definition of the processing period distinguish between the receipt of an application which the agency considers to be compliant and that of an application which it believes, rightly or wrongly, to be non-compliant. A non-compliant application is not in this context a nullity: it still requires the action of the agency, under s 53, to dispose of it by a reviewable decision of the agency.[31] In response to this preliminary view, the Department submitted:[32] [The applicant]’s application is not in a form that complies with all relevant application requirements, in that it does not contain, and he has not subsequently provided, ‘evidence of identity for the applicant.’ It follows that the Department never became subject to an obligation to make a considered decision about [the applicant]’s purported application, or to give [the applicant] written notice of such decision, under s 65 of the IP Act. Where s 65 of the IP Act was not enlivened, the operation of s 66 of the IP Act was never engaged in relation to [the applicant]’s purported application, and the Department therefore cannot be deemed to have made a decision refusing [the applicant]’s purported application. Accordingly, [the applicant]’s application for external review is misconceived and does not properly engage the OIC’s jurisdiction under s 99 of the IP Act in respect of the Department’s purported deemed decision. It follows, then, that the obiter comments of McMurdo JA in Powell in relation to the meaning of the term ‘processing period’ as it applies to s 66 of the IP Act are not relevant to this matter. In any event, the facts in Powell are distinguishable from the present matter. Unlike the present matter, before the relevant QCAT appeal in Powell was heard, the agency concerned ‘agreed to treat the applications for access as if they had been regularly made,’ despite the decision-maker having previously decided, under s 53(6), that the applications did not comply with s 43(3) because they had not received the requisite evidence of identity. ... A person only ‘makes’ an access application for the purposes of s 65 of the IP Act ‘if and when the application is made in a form complying with all relevant application requirements.’ Prior to s 53(4) being satisfied, there is only a ‘purported’ access application (see s 53(1)(a)), which an agency is not required to decide under s 65, because that section must be read together with ss 53(1)(a) and 53(4). The Department further understands that s 66 of the IP Act must be read harmoniously with s 65 of the IP Act. That being the case, the duty in s 65 of the IP Act to make a considered decision does not arise where an application is not taken to have been made as required by the IP Act. Where s 65 of the IP Act is not enlivened, there cannot have been a failure within the meaning of s 66 of the IP Act ‘to give written notice of the decision’ (whether or not that occurs by the end of the processing period) such that a deemed decision refusing access has been made. That is, where an access application has not been properly made in accordance with s 53(4), the end of the processing period prescribed by the IP Act which would trigger a deemed decision is not relevant because the duty under s 65 of the IP Act to make a considered decision did not arise in the first place. The Department also points to OIC’s guideline on calculating timeframes which states that ‘the processing period is triggered by the arrival of a valid application’[33] and annotated legislation, which refers to Stanway and Queensland Police Service [2018] QICmr 7 (22 February 2018), a published decision where the Information Commissioner states, ‘[t]he RTI Act requires an agency to make a decision on a valid access application within 25 business days. Failure to do so results in a Deemed Decision’ (Footnotes omitted)[34] (both of which were available on the OIC website at the time the view was conveyed). The IP Act specifies that the starting point for interpreting its provisions is that they must be interpreted in keeping with the objects of the IP Act.[35] More generally, the interpretation that will best achieve the purpose of the Act is to be preferred.[36] The primary object of the IP Act includes providing a right to access government held personal information. Also, Justices McHugh, Gummow, Kirby and Hayne explained in Project Blue Sky Inc v Australian Broadcasting Authority:[37] The primary object 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. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. While the Department is correct that the provisions of the IP Act must be read and interpreted together, I differ in the approach to this task. The Department’s interpretation is premised on its view that the applicant has not provided evidence of identity and therefore has not met all relevant application requirements under section 43(3) of the IP Act. This matter is addressed at Issue 2. below. Proceeding on this premise, the Department then contends that: a) Based on reading section 65 together with section 53, the requirement for the Department to make a considered decision under section 65 of the IP Act is not enlivened. b) Then, based on reading section 65 together with section 66, as the section 65 requirement to make a considered decision is not enlivened, section 66 of the IP Act cannot be engaged and the Department cannot be taken to have made a deemed decision. In terms of a), it is my understanding that the Department considers that section 65, when read together with sections 53(1)(a) and (2) (particularly the words purport and purported when referring to a non-compliant application) and 53(4) (particularly the word made when stating that an application is taken to be made when it is in a form which complies with all relevant requirements), should be interpreted as meaning that an agency is not required to make a decision under section 65 when all relevant application requirements are not satisfied. However, as noted by McMurdo JA in Powell, ‘a non-compliant application is not in this context a nullity: it still requires the action of the agency, under s 53, to dispose of it by a reviewable decision of the agency’. In my view, section 65 is not the only provision in the IP Act which requires an agency or Minister to issue a prescribed written notice. Other provisions – including, relevantly, section 53, as noted by McMurdo JA – also require this.[38] Specifically, section 53(6) of the IP Act provides that, if an agency decides the application does not comply with all relevant application requirements, the agency must give prescribed written notice of its decision that an access or amendment application does not comply with all relevant application requirements, and the definition of reviewable decision includes such a decision.[39] Notably, section 53(6) of the IP Act and the relevant definition of reviewable decision refer to deciding an application which does not comply with all necessary requirements. The Department’s concerns about the effect of the words purport and purported in sections 53(1)(a) and (2) do not, in my opinion, align with the nature of a decision under section 53(6), given the precise purpose of that provision is for an agency to make a decision about non-compliance with application requirements. Also, the effect of section 53(4)’s statement that an applicant is taken to have made an application under the IP Act if and when the application is made in a compliant form is not, as the Department suggests, that prior to this it is not an application at all. Rather, I interpret section 53(4) of the IP Act as meaning that once the application is validly made, the application is taken to have been re-presented and the processing period recommences. This is logical, given that the whole processing period may be used in consulting on and deciding a non-compliant application. It is reasonable for the agency to have the benefit of the processing period recommencing once that issue is rectified, to allow the agency time to search for and consider documents and issue a considered decision. I will now address the Department’s second contention noted at paragraph 25.b) above. It is my understanding that the Department’s position is that, where it considers that a decision that an application is non-compliant is appropriate, but it has not yet issued such a decision, the threshold issue of non-compliance precludes a considered decision under section 65, and this in turn disallows the occurrence of deemed decision under section 66. Presumably, the Department would make the same argument in circumstances where it considered that a decision under section 52(2) or 54(5)(b) of the IP Act was appropriate, but it had not yet issued such a decision, as the jurisdictional matters these provisions address would also preclude a considered decision. It appears that the logical extension of the Department’s position might be that, wherever an agency or Minister intended, or perhaps stated that it intended, to issue a decision under sections 53(6), 52(2) or 54(5)(b) (regardless of the reasonableness or otherwise of that approach in the particular circumstances) but had not yet done so, an applicant would have neither a decision nor a deemed decision, and would have no ability to seek review. I am of the view that the Department’s focus on section 65 and position that sections 65 and 66 operate in a binary manner is inconsistent with the language, intent and purpose of the IP Act as a whole. Interpreting the provisions in the way the Department submits effectively permits an agency to ignore an application for an indefinite period without consequence, denying the applicant the right to seek review of an adverse decision. I consider it unlikely that it is the legislature’s intention that an applicant is left without effective remedy in such circumstances. On the other hand, interpreting the provisions as deeming an application as refused when an agency has not provided notice of a decision within a period which approximates the processing period for applications that satisfy threshold and jurisdictional issues affords an applicant in these circumstances the same opportunity to seek review within a short timeframe as is afforded an applicant who receives any other adverse decision. In response to the Department’s submission that McMurdo JA’s comments in Powell are not relevant to this matter, I am of the view that his obiter statements are highly persuasive because they were not limited to the facts before him and addressed the more general point that a non-compliant application is not a nullity and must be dealt with in accordance with the provisions set out in section 53 of the IP Act, which ultimately includes issuing the applicant with a reviewable decision.[40] In conclusion, reading the abovementioned sections of the IP Act together with the object of the IP Act and McMurdo’s comments in Powell, I find that an agency is required to provide an applicant with written notice of a reviewable decision within the processing period – even where the application does not comply with all relevant application requirements – and, in the event that an agency fails to do so, it is taken to have made a deemed decision on the last day of the processing period to enable an applicant to seek external review. I acknowledge that this represents a departure from the Information Commissioner’s prior position on the issue and I recognise the importance of consistency. However, the emergence of cases can result in the evolution in understanding and application of legislation, which may require a change in position. In the present matter, as the access application was received by the Department on 20 May 2022, the Department was required to provide the applicant with written notice of its decision by 24 June 2022 or avail itself of the provisions which operate to extend the processing period.[41] This did not occur. As such, I am satisfied that the applicant was not given written notice of the Department’s decision by the end of the processing period, and therefore, on 24 June 2022, the Department is taken to have made a deemed decision refusing access to the requested documents.[42] Further, given a deemed decision is a reviewable decision,[43] I am satisfied that the applicant is affected by a reviewable decision and is therefore entitled to seek review of this decision, as he did on 3 July 2022. In these circumstances, the applicant’s application for external review is not misconceived.[44] Even if I am wrong and the Department is not taken to have made a deemed decision on the application, I note that the Department provided the applicant with written notice that his application did not comply with all relevant application requirements under section 53(6) of the IP Act on 12 December 2022. This notice would constitute a reviewable decision[45] about which the applicant is entitled to seek review,[46] enlivening the Information Commissioner’s review jurisdiction.[47] Issue 2: Does the application comply with all relevant application requirements? The applicant emailed his application to the Department by email on 20 May 2022, attaching a scanned version of the certified copy of his driver licence. The Department advised the applicant that they ‘require that (he) provide the actual physical piece of paper that was signed and stamped by the certifier.’[48] The applicant declined to do so, submitting that the scanned copy was sufficient to satisfy the application requirements. The Department submitted that the applicant did not satisfy the evidence of identity requirements and his application was non-compliant.[49] After receiving the application for external review, the Information Commissioner conveyed a view to the applicant that it appears his application does not meet the relevant evidence of identity requirement. In response, the applicant submitted:[50] the provision of evidence of identity as required by the IP Act is satisfied by providing by email as a reliable way of maintaining the integrity of the information contained in the identity document and to be readily accessible so as to be useable for subsequent reference the Department has a discretion to accept evidence of identity provided electronically and must exercise this power reasonably many other agencies, dealing with sensitive information, accept emailed evidence of identity as satisfying the evidence of identity requirements the Department’s position that it will not accept evidence of identity via electronic means is not reasonable; and the discretion of the Department’s decision maker was fettered. An applicant is required, when making an access application under the IP Act, to provide evidence of their identity[51] and an agency is entitled to refuse to deal with an application which does not comply with this requirement.[52] A copy of a driver licence certified by a qualified witness[53] will satisfy this requirement, however, the issue in this case is whether that requirement was satisfied when the applicant provided the certified copy of evidence of identity by scanned version attached to an email. The Electronic Transactions (Queensland) Act 2001 (Qld) (ETQ Act) provides that if a person is required by a state law to produce a document that is in the form of paper, an article or other material, the requirement is taken to have been met if the person produces an electronic form of the document by an electronic communication, in the following circumstances:[54] a) having regard to all the relevant circumstances when the communication was sent, the method of generating the electronic form of the document provided a reliable way of maintaining the integrity of the information contained in the document[55] b) when the communication was sent, it was reasonable to expect the information contained in the electronic form of the document would be readily accessible so as to be useable for subsequent reference; and c) the person to whom the document is required to be produced consents to the production, by an electronic communication, of an electronic form of the document. OIC has previously determined that section 16 of the ETQ Act confers a ‘discretion to decide whether to accept evidence of identity electronically’ when considering an access application.[56] The applicant submits that criteria a) and b) are satisfied. I consider it unnecessary to make findings on these because c) is clearly not established. The Department did not consent to the production of an electronic form of the certified identity document by an electronic communication. The purpose of the requirement to produce evidence of an applicant’s identity is not a mere technicality. Indeed, it goes to the very object and purpose of the IP Act—the protection of personal information through fair collection and handling. Further, the making of such a policy is mandated by the IP Act where it states that an agency must ensure that any information intended for the applicant is received only by the applicant (or the applicant’s agent, as applicable) through the adoption of appropriate procedures.[57] The requirement that reliable evidence of identity be provided ensures that personal information is released only to the person to whom it relates. Similarly, the certification of a copy of an identity document ensures that a qualified witness has viewed the original. I consider it reasonable for an agency to be concerned that the integrity of this process may be undermined by the provision of a certified copy electronically because, in such circumstances, it may be difficult to detect alteration. In addition to this, the scanning of the certified copy arguably creates a new copy (that is, a copy of the certified copy) which has not been verified and certified and would not satisfy the requirement to produce a certified copy of the original. In considering the reasonableness of the Department’s policy, I also observe that alternatives were available and offered to the applicant, that is, by posting the certified copy of the evidence of identity to the Department or presenting to have the original sighted. I am satisfied that it is appropriate and reasonable for the Department to have enacted a policy requiring production of the actual certified copy of evidence of identity to ensure that personal information is handled with care, and only released to the person to whom it relates, and for the Department to have applied that policy in the circumstances of this case. For the sake of clarity, I do not imply that all agencies must adopt this policy. I merely observe that it is reasonable for the Department to have done so. For these reasons, I find that: as required, consultation was undertaken with the applicant about the deficiency in his application and he was given a reasonable opportunity to respond; and the application does not comply with all relevant application requirements,[58] as the provision of an electronic copy of a certified copy of the applicant’s evidence of identity does not satisfy the requirement to provide evidence of identity[59] in the absence of the agency’s consent to receive it this way. DECISION I find that the applicant has applied for external review of a reviewable decision by the Department. I set aside the deemed decision and find that the application does not comply with all relevant application requirements.[60] 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.Stephanie Winson Right to Information Commissioner Date: 16 March 2023 APPENDIX Significant procedural steps Date Event 3 July 2022 Applicant applied for external review. 4 July 2022 The Department was notified of the application for external review and procedural documents were requested. The Department provided submissions. 5 July 2022 The applicant requested that all correspondence be in writing. 21 July 2022 The Department is advised in a telephone discussion that the applicant submits that the Department has made a deemed decision on his access application and the Information Commissioner is undertaking a preliminary assessment of this issue. 4 August 2022 The Department is advised in a telephone discussion of the preliminary view that it is taken to have made a deemed decision refusing access to the requested documents and OIC proposes the Department apply for further time to deal with the application. 5 August 2022 Written preliminary view issued to the Department that it is taken to have made a deemed decision refusing access to the requested documents, and informal resolution proposed on the basis that the Department apply for further time to deal with the application. 15 August 2022 The Department requested an extension to provide a response. 16 August 2022 The Department was granted an extension to provide its response to the preliminary view. 5 September 2022 The Department requested and was granted a further extension to provide a response to the preliminary view. 12 September 2022 The Department provided submissions in response to the preliminary view. 27 September 2022 The applicant and Department were advised that the application for external review had been accepted on the basis that the Department is taken to have made a deemed decision, and a view conveyed to the applicant that his application does not comply with all relevant application requirements. The applicant was encouraged to consider resolving the matter. 11 October 2022 Applicant provided submissions in response to the preliminary view. 12 October 2022 OIC proposed resolution on the basis that the Department accept the electronic version of the evidence of identity. The Department declined this proposal. OIC requested and the Department provided a copy of its email to the applicant explaining how to satisfy the evidence of identity requirements. 12 December 2022 The Department purported to issue a considered decision on the application and provided further submissions to OIC along with a copy of the purported decision notice. The applicant purported to apply for external review of the Department’s purported decision. 16 December 2022 OIC reiterated the preliminary view to both review parties and advised that a decision will shortly be issued in finalisation of the matter. 19 December 2022 The Department was advised of the applicant’s purported application for external review. [1] Under section 66 of the IP Act. [2] Section 53 of the IP Act.[3] 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]. I further note that OIC’s approach to the HR Act was considered and endorsed by the Queensland Civil and Administrative Tribunal in Lawrence v Queensland Police Service [2022] QCATA 134 at [23] (where Judicial Member McGill saw ‘no reason to differ’ from this position).[5] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [6] XYZ at [573].[7] Section 43(1) of the IP Act. [8] Section 43(2) of the IP Act. [9] Section 43(3)(a) of the IP Act. [10] In accordance with section 43(4) of the IP Act. [11] Section 3(1) of the IP Regulation. The other examples provided are a passport, a copy of a certificate or extract from a register of births, a statutory declaration from an individual who has known the person for at least 1 year, or, if the person is a prisoner within the meaning of the Corrective Services Act 2006 (Qld)—a copy of the person’s identity card from the Department administering that Act that is certified by a corrective services officer within the meaning of that Act. [12] Other than a prisoner’s identity card certified by a corrective services officer. [13] Section 3(2) of the IP Regulation. [14] Or amendment application.[15] Section 53(1) and (2) of the IP Act. [16] Defined in section 53(7) as—for an access application—a matter set out in section 43(2) of (3) of the IP Act that is required for the application. [17] Section 53(3) of the IP Act. [18] Section 53(4) of the IP Act. [19] And, if access is to be given, whether any access charge must be paid before access is given. [20] And, if the application relates to a document that is not a document in the possession, or under the control, of the agency or Minister—the fact that the document is not a document in the possession, or under the control, of the agency or Minister. [21] Section 66(1) of the IP Act. [22] Section 22 of the IP Act. However, certain periods such as the following do not count as part of the processing period and, in practice, operate to extend this period: the transfer period (if the application is transferred to another agency or Minister under section 57 of the IP Act); the further specified period (if the agency or Minister asks the applicant for a further specified period under section 55(1) of the IP Act); ten business days (if the application involved consultation with a third party under section 56 of the IP Act); or the prescribed consultation period under 61 of the IP Act (if the applicant is given a notice under section 61(1)(a) of the IP Act).[23] Section 66(2) of the IP Act. [24] Section 99 of the IP Act. [25] Defined in schedule 5 of the IP Act. [26] The applicant provided copies of these emails to OIC, and the Department set out these events in its submissions dated 12 December 2022. [27] Applicant’s external review application dated 3 July 2022. The applicant expanded on this position in submissions dated 11 October 2022. [28] On 5 August 2022.[29] [2017] QCA 200.[30] Ibid, [142]. [31] Ibid, [152].[32] Submissions dated 12 December 2022 (footnotes omitted).[33] How to calculate timeframes.[34] Submissions dated 12 September 2022. [35] Section 3(2) of the IP Act.[36] Section 14A(1) of the Acts Interpretation Act 1954 (Qld).[37] (1998) 194 CLR 355, at 381.[38] See also sections 52(2), 54(5)(b) and 56(3)(c) of the IP Act.[39] See paragraph (b) of definition of reviewable decision in schedule 5 of the IP Act. [40] I note that the wording of section 53(6) could be construed as stipulating no strict timeframe for making the decision on the application and only a timeframe for consulting with the applicant and communicating the decision after making it. Under section 38(4) of the Acts Interpretation Act 1954 (Qld), ‘if no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion occurs.’ In this case however, I consider that the provisions of the IP Act, when considered as a whole as set out above (in particular, stipulating a consequence where an applicant is not provided with a decision within the defined timeframe), indicate a contrary intention.[41] Set out in section 22 of the IP Act. [42] In accordance with section 66(1) of the IP Act. [43] See paragraph (l) of definition of reviewable decision in schedule 5 of the IP Act. [44] And I decline to refuse to deal with the application on that basis as provided for under section 107(1)(a) of the IP Act. [45] That is, a decision that the application does not comply with all relevant application requirements under section 53(6) of the IP Act. [46] As he did on 12 December 2022.[47] Under section 99 of the IP Act.[48] Email dated 24 May 2022.[49] Department submissions dated 4 July 2022 and 12 December 2022.[50] Applicant submissions dated 11 October 2022 and 12 December 2022.[51] Section 43(3)(a) of the IP Act.[52] Section 53(6) of the IP Act.[53] Section 43(3)(a) of the IP Act and section 3 of the IP Regulation. [54] Section 16 of the ETQ Act. [55] Section 16(3) of the ETQ Act provides that the integrity of information contained in a document is maintained only if the information has remained complete and unaltered, apart from the addition of any endorsement or any immaterial change arising in the normal course of communication, storage or display.[56] Y63 and Department of Health [2022] QICmr 3, [24]. See also Mathews and Attorney General and Minister for Justice (Unreported, Queensland Information Commissioner, 20 May 2013).[57] In accordance with the precaution provisions set out in section 85 of the IP Act.[58] Section 53(6) of the IP Act.[59] Section 43(3) of the IP Act. [60] Section 53(6) of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Gilmour and Queensland Fire and Emergency Services [2014] QICmr 15 (24 April 2014)

Gilmour and Queensland Fire and Emergency Services [2014] QICmr 15 (24 April 2014) Last Updated: 7 August 2014 Decision and Reasons for Decision Citation: Gilmour and Queensland Fire and Emergency Services [2014] QICmr 15 (24 April 2014) Application Number: 311765 Applicant: Gilmour Respondent: Queensland Fire and Emergency Services Decision Date: 24 April 2014 Catchwords: ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - complaint information about applicant and information identifying third persons - applicant aware of substantial portions of the information in issue including complaints and complainants’ identities - 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 Queensland Fire and Emergency Services (QFES)[1] under the Information Privacy Act 2009 (Qld) (IP Act) for access to documents relating to complaints made about the applicant. In its decision dated 9 August 2013, QFES refused to deal with the access application[2] on the basis that all the documents comprised exempt information as their disclosure could reasonably be expected to prejudice the investigation of a contravention or possible contravention of the law.[3] The applicant applied to QFES for internal review. During the course of the internal review, the relevant investigation was finalised. QFES varied its original decision and decided to give access to some information[4] and refused access to other information on the basis that disclosure would, on balance, be contrary to the public interest under sections 47 and 49 of the Right to Information Act 2009 (Qld) (RTI Act).[5] The applicant applied to the Office of the Information Commissioner (OIC) for external review of the internal review decision. The applicant also contended that QFES had not located all relevant documents. This ‘sufficiency of search’ issue was resolved during the external review.[6] For the reasons set out below, I affirm QFES’ internal review decision and find that access may be refused to the information in issue on the ground that its disclosure would, on balance, be contrary to the public interest under section 47(3)(b) and section 49 of the RTI Act, in conjunction with section 67(1) of the IP Act.[7] Background The applicant was a member of a State Emergency Service (SES) Group. He was the subject of complaints made by members of his SES Group about an incident in May 2013, when the applicant raised concerns about the safety of a training exercise. An investigation of the complaints was conducted. The applicant was provided with a full copy of the Investigation Report (Investigation Report). The applicant was subsequently suspended from his duties. He believes the nature and content of the complaints was altered between their lodgement in May 2013 and their inclusion in the Investigation Report in September 2013. He also considers he has been denied an opportunity to challenge the basis of his suspension. Significant procedural steps Significant procedural steps relating to the access application and the external review are set out in the appendix to this decision. Reviewable decision The decision under review is QFES’ internal review decision dated 23 September 2013. 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 comprises 32 part pages and 12 full pages (Information in Issue)[8] and consists of: Identifying Information - the names, positions and work email addresses[9] of individuals other than the applicant; and Complaint Information - complaints, emails attaching complaints, and a page extracted from QFES’ online portal. Issues for determination The issue for determination is whether QFES is entitled to refuse access to the Information in Issue on the ground that its disclosure would, on balance, be contrary to the public interest Would disclosure of the Information in Issue, on balance, be contrary to the public interest? Yes, for the reasons that follow. 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.[10] However, this right is subject to other provisions of the IP Act and the RTI Act, including the grounds on which an agency may refuse access to documents.[11] Relevantly, an agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[12] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[13] and explains the steps that a decision-maker must take[14] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify any 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 arise in the circumstances of this case. Factors favouring disclosure of the Information in Issue The applicant submits[15] that several public interest factors favour disclosure[16] of the Information in Issue. These are examined below. Applicant’s personal information As the applicant was the subject of the complaints, the Information in Issue contains his personal information.[17] This gives rise to a public interest factor favouring disclosure of that information to the applicant.[18] I acknowledge the public interest in individuals being able to obtain access to their own personal information. In this case, the applicant is already aware of a significant amount of the Information in Issue. He is aware of much of the Complaint Information, having been present during the events giving rise to the complaints and having been provided with a full copy of the Investigation Report and attachments, containing the complaints made against him. He is also aware of significant amounts of the Identifying Information,[19] as he was the sender or recipient of numerous emails or correspondence, and received an attachment to the Investigation Report, all containing Identifying Information. Only a small portion of the Information in Issue not already known to the applicant comprises his personal information. Disclosing Identifying Information, to which the applicant has not previously had access, would also reveal information about persons other than the applicant, rather than about the applicant. Disclosing the Information in Issue would reveal little additional personal information of the applicant. As disclosure would do little to advance this public interest, I therefore attribute slight weight to this pro-disclosure factor. Transparency and accountability I acknowledge the general public interest in promoting access to government-held information. Disclosure of the Information in Issue may enhance the transparency of the investigation process for which QFES is ultimately responsible, and to some degree the accountability of QFES for that process.[20] The applicant is aware of the considerations taken into account by the Investigator, having been provided with the complete Investigation Report. The Investigation Report contains the complaints on which the investigation was based and outlines the approach taken in the investigation. As noted in paragraph 18, the applicant is already aware of a substantial amount of the Identifying Information. I consider that transparency and accountability public interests have been adequately served by the information previously provided to the applicant. Disclosing the small amount of Complaint Information of which the applicant is unaware (dates and senders of emails, and emails attaching the complaints), or Identifying Information which has not been disclosed to the applicant, will add little to the applicant’s existing knowledge or comprehension of the complaints, or his understanding of the processes undertaken. As disclosure is unlikely to further advance this public interest factor, I afford it slight weight. Fairness and administration of justice Public interest factors favouring disclosure arise if disclosing information could reasonably be expected to: contribute to the administration of justice for a person[21] (for example, by allowing a person subject to adverse findings or conviction access to information that may assist them in mounting a defence or clearing their name) more generally contribute to the administration of justice, including procedural fairness;[22] or advance the fair treatment of individuals in accordance with the law in their dealings with agencies.[23] The applicant contends that disclosing the Information in Issue will assist him to demonstrate improper conduct in the presentation of complaints against him and to pursue a remedy for what he considers is unfair treatment in respect of the investigation and his suspension. Therefore, these three factors arise for consideration. The applicant submits that access to the part of the Complaint Information comprising emails transmitting the complaints (including dates, times and interaction with the particular officers), will reveal that alterations were made to the complaints between their lodgement in May 2013 and publication in the Investigation Report in September 2013.[24] He contends that disclosure of this information will demonstrate culpability on the part of complainants and other persons. He states that access to officers’ names and the dates of the emails containing the complaints will assist him in establishing that officers changed their complaints. Other than his assertion, the applicant provided no evidence supporting his suspicion. The applicant contends[25] that OIC is not in a position to identify whether the Information in Issue supports his suspicion or not. However OIC is required under the IP and RTI Acts to evaluate relevant public interest factors.[26] In assessing these factors, the applicant’s submission essentially calls for an examination of the Information in Issue and complaints in the Investigation Report. This is the exercise I have undertaken. I have carefully reviewed the Complaint Information and the complaints contained in the Investigation Report. The Complaint Information does not support the submission that the complaints were altered between their initial lodgement and later inclusion in the Investigation Report. As the Identifying Information solely concerns information identifying third persons and does not appear in a context associated with any of the complaints,[27] it is incapable of supporting this submission. Disclosing the Information in Issue will not demonstrate improper conduct on the part of QFES officers, as asserted by the applicant. Its disclosure would add little to his knowledge, comprehension or understanding of issues in the investigation. It is therefore unlikely to assist him to take steps not currently open to him to seek review of any Investigation Report findings with which he disagrees. I acknowledge the applicant’s concern that he was denied a ‘right of reply’ in respect of QFES’s decision to suspend him. However, the Information in Issue concerns investigation of the complaints. It does not relate to the subsequent process by which the applicant was suspended. I am unable to see how disclosing the Information in Issue could provide the applicant with any information on which to base a complaint about QFES’s subsequent process which resulted in a suspension decision. I therefore afford slight weight only to these three factors favouring disclosure. Enforcement of criminal law I do not consider that disclosure of the Information in Issue could reasonably be expected to contribute to the enforcement of the criminal law.[28] While the applicant asserts the relevance of this factor, he has not provided information supporting its application. The investigation was of an administrative, rather than criminal nature. Release of information of the type in issue to the applicant, the subject of the investigation,[29] will not advance the administration of the criminal law. Accordingly, I am not satisfied that this factor arises and I have not taken it into account in evaluating the balance of the public interest. Agency or official conduct; revealing the reason for a government decision or that the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant I also consider that the following public interest factors favouring disclosure raised by the applicant do not arise for consideration: revealing or substantiating that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct[30] allow or assist inquiry into possible deficiencies in an agency or officer’s conduct or administration[31] reveal that the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant;[32] and reveal the reason for a government decision and any background or contextual information that informed the decision.[33] The applicant provided no evidence to support the relevance of these factors other than his suspicion that complaints were altered between their lodgement and the publication of the Investigation Report. The applicant contends[34] as I understand it, that the first two pro-disclosure factors listed above apply because the Information in Issue will demonstrate misconduct and deficiencies in QFES’ conduct, specifically breaches by QFES staff of sections 104 and 106(h) of the Workplace Health and Safety Act 2011 (Qld). These provisions forbid discrimination against a person raising a work health and safety issue. In effect, the applicant submits that he is the subject of discrimination based on his having raised safety concerns. He contends firstly that he is being punished by being excluded from Emergency Services activities. Secondly, that the discrimination takes the form of him being prevented from accessing the Information in Issue that would confirm his suspicion that complainants changed their accounts of events. I have no jurisdiction under the IP Act to consider the applicant’s grievance about his exclusion from SES activities or to determine issues arising under the Workplace Health and Safety Act 2011 (Qld). I acknowledge the applicant’s concerns that complaints were altered. However, as explained in paragraph 27, the Information in Issue does not support the contention that they were altered. Nothing in the Information in Issue suggests that QFES officers acted improperly in respect of the complaints. Therefore, disclosing the Information in Issue will not reveal that wrong or incorrect information was taken into account nor, as the applicant already has the complete Investigation Report, provide him with additional information about the investigator’s reasoning. As the Information in Issue does not concern the process by which QFES decided to suspend the applicant,[35] disclosing the Information in Issue will not provide him with any information about QFES’ reasons for the suspension. Accordingly, I am not satisfied that these factors favouring disclosure arise and I have not taken them into account in evaluating the balance of the public interest. Factors favouring nondisclosure of the Information in Issue Others’ personal information and privacy The Information in Issue contains the personal information of individuals other than the applicant (relevantly, persons providing emergency services), disclosure of which the RTI Act recognises would give rise to public interest harm.[36] Also, disclosing private personal information about these individuals could reasonably be expected to prejudice the protection of those individuals’ right to privacy.[37] Accordingly, two factors favouring nondisclosure of the Information in Issue arise. The applicant is dissatisfied with his suspension from duties without, he contends, first being given a right to challenge that decision.[38] He submits, as I understand it, that his right of reply and access to information that would inform his right of reply, should not be stymied by protecting the privacy interests of other individuals. However, as I have already said, from my review of the Information in Issue, it does not include material about the suspension decision or the decision making process. Accordingly, I consider that disclosing the Information in Issue will not provide the applicant with material to assist in his seeking a review of the suspension decision. There is a clear public interest in ensuring that government protects privacy and treats with respect the personal information it collects from members of the community. This is particularly so in relation to sensitive personal information collected from persons for use in a workplace investigation. I acknowledge that relevant privacy interests, at least as they pertain to the complainants, are considerably diminished as, due to disclosure of the Investigation Report and the applicant’s presence during the events the subject of the complaints, he is aware of some of the personal information in issue, including the complainants’ identities. Also, the complainants do not object to the applicant being provided with copies of their complaints. However, the Information in Issue also concerns personal information not included in the Investigation Report and which is not known to the applicant. I therefore consider these interests maintain some significance and accord these two factors moderate weight. Management function of an agency and prejudice agency’s ability to obtain confidential information Public interest factors favouring nondisclosure arise if disclosing information could reasonably be expected to: prejudice an agency’s ability to obtain confidential information[39] (for example, if disclosure could reasonably be expected to have a detrimental impact on an agency’s capacity to obtain information on a confidential basis in the future); or prejudice the management functions of an agency.[40] I recognise a strong public interest in protecting the free flow of confidential information to agencies, to enable them to fulfil their functions. Disclosing information of the type in the Information in Issue could reasonably be expected to result in officers being reluctant to privately raise concerns about their colleagues with management personnel. Additionally, I recognise that agencies often rely on information from individuals within their workforce to be alerted to and to investigate allegations of workforce misconduct. Routinely disclosing complaint information would tend to discourage individuals from coming forward with such information and this in turn would significantly prejudice QFES’ ability to effectively discharge its functions. In this case, the complainants do not oppose the applicant being provided with copies of their complaints. This reduces the weight to be assigned to these two nondisclosure factors. Accordingly, I afford them moderate weight. Balancing the public interest To summarise, I afford: slight weight to the pro-disclosure factors relating to enhancing government accountability; accessing the applicant’s personal information; contributing to the administration of justice for a person; contributing to the administration of justice generally, including procedural fairness; and advancing the fair treatment of individuals in accordance with the law in their dealings with agencies; and moderate weight to the public interest factors favouring the protection of the privacy of individuals and their personal information; and avoiding prejudice to an agency’s management functions and its ability to obtain confidential information. The applicant contends[41] that an assessment of whether disclosure is contrary to the public interest does not require a balancing of interests because it does not ‘allow for a weighting system’. However, section 49(3) of the RTI Act clearly requires that a balancing process be undertaken.[42] Additionally the applicant submits[43] that OIC’s weighting of factors is arbitrary and unreasonable. The applicant did not provide alternate weightings or suggest other bases for allocating weight to relevant factors or balancing them. The findings above explain my reasons for allocating particular weightings to the relevant public interest factors. The applicant has already been provided with significant detail about the investigation and the complaints, including the identities of the complainants. Non-disclosure of the information remaining in issue will afford a degree of protection to the individuals’ privacy interests and the government’s ability to manage its staff and acquire confidential information in the future. In these circumstances, I consider that the slight weight attributed to the pro-disclosure factors of enhancing government accountability, administration of justice and access to the applicant’s personal information is outweighed by the moderate weight attributed to the nondisclosure factors. Accordingly, I find that disclosure would, on balance, be contrary to the public interest. DECISION For the reasons set out above, I have decided to affirm QFES’ decision to refuse access to the Information in Issue on the basis that its disclosure would, on balance, be contrary to the public interest under sections 47(3)(b) and 49 of the RTI Act in conjunction with section 67 of the IP Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the Information Privacy Act 2009 (Qld). ________________________ L Lynch Assistant Information Commissioner Date: 24 April 2014 APPENDIX Significant procedural steps Date Event 10 July 2013 QFES received the applicant’s access application. 9 August 2013 QFES issued its decision on the access application. 29 August 2013 The applicant applied for internal review of QFES’ decision. 23 September 2013 QFES issued its internal review decision. 3 October 2013 OIC received the applicant’s application for external review. 17 October 2013 OIC notified the applicant and QFES that the application for external review had been accepted and requested that QFES provide a copy of the documents in issue. 7 November 2013 QFES provided OIC with the requested documents. 21 November 2013 OIC clarified with QFES the entity now responsible for the review following Machinery of Government changes. 21 November 2013 The applicant provided OIC with submissions by telephone. 25 November 2013 OIC received written submissions from the applicant. 28 November 2013 OIC requested that QFES provide OIC with further information about sufficiency of search issues raised by the applicant’s submissions. 13 December 2013 QFES provided OIC with the requested information. 19 December 2013 OIC clarified with QFES the basis of its decision refusing access to information. 2 January 2014 OIC conveyed a preliminary view to the applicant and invited him to provide submissions supporting his case if he did not accept the preliminary view. 28 January 2014 The applicant notified OIC that he did not accept the preliminary view and provided OIC with submissions. 4 February 2014 OIC conveyed a further preliminary view to the applicant and invited him to provide submissions supporting his case if he did not accept the preliminary view. 17 February 2014 OIC received further submissions from the applicant. 24 February 2014 OIC requested that QFES conduct further searches in response to the applicant’s submissions. 28 February 2014 OIC received further submissions from QFES in response to OIC’s request. 3 March 2014 OIC informed the applicant of the results of QFES’ searches and inquiries. [1] Formerly the Department of Community Safety (DCS). The applicant’s access application was made to DCS and machinery of government changes in 2013 transferred relevant responsibility from DCS to QFES. Accordingly, existing RTI applications and reviews involving certain applications made to DCS before the machinery of government changes now rest with QFES, including this external review. [2] Under section 59 and the schedule 5 definition of ‘exempt information’ in the IP Act together with section 48 of the Right to Information Act 2009 (Qld).[3] Schedule 3, section 10(1)(a) of the RTI Act.[4]QFES’ decision dated 23 September 2013 gave access to 79 full and 32 part pages, and refused access to 12 full and 32 part pages.[5] The internal review decision did not expressly state the grounds upon which the refusals were based. However, QFES confirmed with OIC by telephone on 19 December 2013 that refusals were based on sections 47 and 49 of the RTI Act.[6] The applicant accepted the preliminary view, conveyed by letter dated 2 January 2014, that access to some requested documents could be refused under section 52(1) of the RTI Act, on the ground they were non-existent or unlocatable; and, by not providing the specific submissions requested in OIC’s letter dated 4 February 2014, was deemed to have elected not to continue to seek access to other information. Some additional documents located by QFES during the external review were outside the date range of the application - being post-application documents, they were not considered further in the external review under section 47(1) of the IP Act, which provides that an access application is taken only to apply to documents that are, or may be, in existence on the day the application is received.[7]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.[8] Being, from file one - part pages 1-4, 7, 11-13, 21-23, 30, 34, 46-48, 51, 57, 60, 63 and 68-69; and from file two – part pages 1, 3, 5, 10, 15, 19-20, 25, 28-29 and full pages 37-48.[9] The applicant seeks individuals’ work email addresses but does not seek access to individuals’ private email addresses: applicant’s submission dated 17 February 2014. [10] Section 40 of the IP Act.[11] Section 47 of the RTI Act, in conjunction with section 67(1) of the IP Act.[12] 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. [13] Schedule 4 of the RTI Act sets out a non-exhaustive list of factors for deciding whether disclosing information would, on balance, be contrary to the public interest. [14] Section 49(3) of the RTI Act. [15] In his application for external review and his written submissions dated 22 November 2013, 28 January 2014 and 17 February 2014 and his verbal submissions given on 28 November 2014.[16] Schedule 4, part 2, items 1, 5, 6,7,10, 11, 12, 16, 17 and 18 of the RTI Act.[17] 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.’[18] Schedule 4, part 2, item 7 of the RTI Act.[19] Comprising all the information in issue in the following pages from file one: part pages 1-4, 7, 11-13, 21-23, 46-48, 51, 60, 63 and 68-69; and from file two: part pages 1, 3, 5 and 10.[20] Schedule 4, part 2, item 1 of the RTI Act. [21] Schedule 4, part 2, item 17 of the RTI Act.[22] Schedule 4, part 2, item 16 of the RTI Act.[23] Schedule 4, part 2, item 10 of the RTI Act.[24] Submissions sent by email dated 22 November 2013.[25] Submission dated 28 January 2014.[26] Sections 47 and 49 of the RTI Act, in conjunction with section 67(1) of the IP Act.[27] With the exception of page 10, of which the applicant has a full copy.[28] Schedule 4, part 2, item 18 of the RTI Act.[29] As opposed, for example, to agencies with appropriate investigatory powers and law enforcement responsibilities, such as the Queensland Police Service.[30] Schedule 4, part 2, item 6 of the RTI Act.[31] Schedule 4, part 2, item 5 of the RTI Act.[32] Schedule 4, part 2, item 12 of the RTI Act.[33] Schedule 4, part 2, item 11 of the RTI Act.[34] Submission dated 28 January 2014.[35] Noted above at paragraph 29.[36] Schedule 4, part 4, section 6 of the RTI Act.[37] The nondisclosure factor in schedule 4, part 3, item 3 of the RTI Act. The concept of ‘privacy’ is not defined in the IP Act or RTI Act. It can, however, be viewed as the right of an individual to preserve their personal sphere free from interference from others – see the Australian Law Reform Commission’s definition of the concept in “For your information: Australian Privacy Law and Practice” Australian Law Reform Commission Report No. 108 released 11 August 2008, at paragraph 1.56. [38] The applicant has not indicated if he intends to take action to seek review of the suspension decision. [39] Schedule 4, part 3, item 16 of the RTI Act.[40] Schedule 4, part 3, item 19 of the RTI Act.[41] Submission dated 17 February 2014.[42] Section 49(3)(e) of the RTI Act stipulates that relevant pro-disclosure factors be balanced against relevant nondisclosure factors. Sections 49(3)(f) and 49(3)(g) of the RTI Act require access be given after determining, on balance, that disclosure would be in the public interest.[emphasis added].[43] Submissions dated 29 January 2014 and 17 February 2014.

queensland

court_judgement

Queensland Information Commissioner 1993-

Wooding and Gold Coast Hospital and Health Service [2014] QICmr 50 (16 December 2014)

Wooding and Gold Coast Hospital and Health Service [2014] QICmr 50 (16 December 2014) Last Updated: 26 May 2015 Decision and Reasons for Decision Citation: Wooding and Gold Coast Hospital and Health Service [2014] QICmr 50 (16 December 2014) Application Number: 312014 Applicant: Wooding Respondent: Gold Coast Hospital and Health Service Decision Date: 16 December 2014 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - INFORMATION PRIVACY ACT - REFUSAL OF ACCESS - EXEMPT INFORMATION - BREACH OF CONFIDENCE -medical records - information provided by other individuals during applicant’s medical treatment - whether disclosure would found an action for breach of confidence - whether information exempt under schedule 3, section 8(1) of the Right to Information Act 2009 (Qld) - whether access to information may be refused under section 67 of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - INFORMATION PRIVACY ACT - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - medical records - information about individuals other than the applicant - accountability of health service provider - personal information and privacy - whether disclosure would, on balance, be contrary to the public interest - whether access to information may be refused under section 67 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 under the Information Privacy Act 2009 (Qld) (IP Act) for access to her medical records held by Gold Coast Hospital, within a specified period. Gold Coast Hospital and Health Service (GCHHS) granted the applicant full access to 784 pages, but decided to refuse access to: three full pages and parts of four pages on the basis that the information was exempt;[1] and one full page and parts of 15 pages on the basis that the information would, on balance, be contrary to the public interest to disclose.[2] On internal review, GCHHS affirmed its original decision to refuse access to the information, on the same grounds. The applicant applied to the Office of the Information Commissioner (OIC) for external review of GCHHS’s internal review decision. In her external review application, the applicant questioned why she was being refused access to information in her medical records and also raised concerns about the relevance of public interest factors to disclosure of her medical records. Following negotiations with OIC on external review, GCHHS agreed to release some further information to the applicant. For the reasons set out below, I affirm GCHHS’s decision to refuse access to information under section 67(1) of the IP Act and sections 47(3)(a) and 47(3)(b) of the RTI Act. Background Significant procedural steps are set out in the Appendix. Reviewable decision The decision under review is GCHHS’s internal review decision dated 31 March 2014, refusing access to information under section 67(1) of the IP Act and sections 47(3)(a) and 47(3)(b) of the RTI Act. Evidence considered The evidence, submissions, legislation and other material considered in reaching this decision is disclosed in these reasons (including footnotes and Appendix). Information in issue Following the release of some information by GCHHS during this review,[3] two full pages and parts of nine pages of the applicant’s medical records remain in issue, as set out below: Category Description Page numbers A Information other individuals provided to GCHHS 512, 520, 523 (parts)521, 522 (full) B Information about the applicant and other individuals, eg. their opinions and actions 233, 234, 376, 377, 469 and 519 (parts) I am prevented by section 121 of the IP Act from describing the particular nature of the information in issue in any further detail. Issues for determination The issues for determination in this external review are: whether the Category A Information constitutes exempt information under schedule 3, section 8(1) of the RTI Act; and whether the disclosure of the Category B Information would, on balance, be contrary to the public interest. Right to access information Section 40 of the IP Act provides that an individual has a right to be given documents of an agency to the extent that they contain the individual’s personal information. However, this right of access is subject to some limitations, including the grounds for refusal of access in section 47 of the RTI Act.[4] Relevantly, an agency may refuse access to information that is exempt,[5] or information the disclosure of which would, on balance, be contrary to the public interest.[6] Is the Category A Information exempt? Relevant law Schedule 3, section 8(1) of the RTI Act operates to exempt information, the disclosure of which would found an action for breach of confidence. The words of the section refer to an action based in equity for breach of an equitable obligation of confidence.[7] This exemption will apply if each of the following criteria are satisfied:[8] the information must be capable of being specifically identifiable as information that is secret, rather than generally available[9] the information must possess the necessary quality of confidence[10] circumstances of the communication must create an equitable obligation of confidence[11] disclosure to the applicant for access must constitute an unauthorised use of the information[12] disclosure of the information would result in detriment to the plaintiff, such as embarrassment, loss of privacy, fear or an indirect detriment, for example, disclosure of the confidential information may injure some relative or friend.[13] For a non-government plaintiff, it will be a sufficient detriment to the confider that the information given in confidence is to be disclosed to persons to whom the confider would prefer not to know of it, even though disclosure would not be harmful to the confider in any positive way.[14] Findings I have carefully considered the Category A Information. For the reasons that follow, I am satisfied that the Category A information satisfies each of the five criteria set out above, and disclosure of the Category A Information would found an action for breach of an equitable obligation of confidence. Applicant’s submissions about the Category A Information I have carefully considered the information provided by the applicant in her external review application dated 4 May 2014, and submissions the applicant provided to OIC dated 28 August 2014. Some of the applicant’s submissions about the Category A Information relate to issues which OIC has no jurisdiction to consider or investigate on external review. Additionally, some of the applicant’s submissions about the Category A Information relate to public interest grounds favouring disclosure of the information. Schedule 3 of the RTI Act sets out the types of information the disclosure of which Parliament has considered would, on balance, be contrary to the public interest.[15] Therefore, where information is found to be exempt, the RTI Act does not provide for further consideration of public interest factors favouring disclosure. Where they are relevant, I refer to the applicant’s submissions about the Category A Information below. a) Specifically identifiable information The Category A Information is contained within five pages of the applicant’s medical records, and comprises communications between health professionals and other individuals. On this basis, I find that the Category A Information is specifically identifiable as information that is secret, rather than generally available. b) Necessary quality of confidence As the applicant’s medical records are not publicly available, the Category A Information is not generally known. Further, a person’s medical records are of an important character and therefore, I do not consider the information to be useless or trivial. Accordingly, I find that the Category A Information has the necessary quality of confidence. c) Circumstances of communication The applicant has submitted that it is standard practice for health care professionals to record discussions they have with other medical professionals and other individuals about a patient. The applicant has submitted the relevant medical professionals and individuals involved in such conversations about her would have been aware that the medical professionals would make notes in her hospital record as a result of the relevant discussions, and that these notes may be provided to her, as the patient. The Category A Information comprises the highly personal, sensitive information of other individuals. Due to the sensitive nature of the Category A Information, I am satisfied that the individuals who supplied it to GCHHS did not expect that it would be disclosed to others. For this reason, I am also satisfied that the Category A Information was communicated to the relevant health care professionals on the mutual understanding that it would not be communicated to other individuals. I therefore find that the Category A Information was communicated in circumstances which give rise to an equitable obligation of confidence. d) Unauthorised use I have found above that the individuals who supplied the Category A Information to GCHHS did not intend for it to be further disseminated. Therefore, I find that disclosure of the Category A Information under the IP Act would constitute an unauthorised use of that information. e) Detriment I have found[16] that the Category A Information was communicated confidentially to health professionals at Gold Coast Hospital while the applicant was receiving medical treatment from that facility. On this basis, and given the sensitive nature of the Category A Information, I consider that the individuals who communicated the information would be concerned about its disclosure to the applicant. I therefore find that disclosure of the Category A Information under the IP Act would cause detriment to those individuals who supplied it. Breach of confidence - conclusion On the basis of the findings set out above, I am satisfied that schedule 3, section 8(1) of the RTI Act applies to the Category A Information, and it is therefore exempt information. Accordingly, I am satisfied that access to the Category A Information may be refused under section 67(1) of the IP Act and section 47(3)(a) of the RTI Act. Would the disclosure of the Category B Information, on balance, be contrary to the public interest? Relevant law Access to information may be refused if its disclosure would, on balance, be contrary to the public interest.[17] 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 that 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,[18] and explains the steps that a decision-maker must take in deciding the public interest as follows:[19] identify any irrelevant factors and disregard them identify any relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the Category B Information would, on balance, be contrary to the public interest. Findings I have carefully considered the Category B Information. For the reasons that follow, I consider that the disclosure of the Category B Information would, on balance, be contrary to the public interest. Irrelevant factors I do not consider that any irrelevant factors arise for consideration in this external review. Factors favouring disclosure I have carefully considered the applicant’s submissions about disclosure of the Category B Information. In summary, the applicant has submitted that she is entitled to access to the Category B Information for the following reasons: the applicant is suffering from a debilitating illness, and wants to ensure that the information GCHHS holds about her is accurate, and that she received appropriate treatment at Gold Coast Hospital for her illness; and the public interest in honesty and transparency favours disclosure of the information in issue in this review. The applicant’s submissions raise the following public interest factors favouring disclosure of the Category B Information: the disclosure of the Category B Information could reasonably be expected to enhance the accountability of government[20] the Category B Information is the applicant’s personal information;[21] and the disclosure of the Category B Information could reasonably be expected to reveal background and contextual information for government decisions, for example, medical treatment of a patient at a public hospital.[22] I accept that there is a strong public interest in individuals accessing information that government agencies hold about them generally, and in members of the community being given ways to ensure the accuracy of their personal information[23] held by government agencies. It follows that, in the circumstances of this review, I am satisfied that there is a strong public interest in the applicant being able to access the Category B Information. To date, GCHHS has released 809 full pages[24] of the applicant’s medical records to her, which has gone a significant way to discharging these public interest factors in favour of disclosure. Accordingly, I am satisfied the weight of these public interest factors are somewhat reduced, and I afford them moderate weight in favour of disclosure. Factors favouring nondisclosure While the Category B Information is the applicant’s personal information, it also comprises the personal information of other individuals who could be identified if the Category B Information was disclosed, for example their opinions and actions. I therefore find that the Category B Information is the shared personal information of the applicant and other individuals. In the context of the Category B Information, it is not possible to separate the applicant’s personal information from other individuals’ personal information. Given that the Category B Information comprises information about other individuals, its disclosure could reasonably be expected to: cause a public interest harm by disclosing other individuals’ personal information;[25] and prejudice the protection of the right to privacy of other individuals.[26] The Category B Information appears in the context of the applicant’s medical records. Having examined the Category B Information, I find that it is at the higher end of the spectrum in terms of sensitivity, and therefore, if released, it could reasonably be expected to cause a significant public interest harm. On the basis that the Category B Information comprises the sensitive personal information of other individuals, I also consider that its disclosure could reasonably be expected to significantly prejudice the right to privacy of other individuals. Balancing the public interest In the circumstances of this review, I have found that the public interest in the applicant accessing her medical records, and in enhancing Gold Coast Hospital’s accountability regarding the treatment it provided to the applicant, carry moderate weight in favour of disclosure. Weighed against this is the significant public interest harm that could reasonably be expected to be caused by disclosure of the Category B Information, and the significant prejudice to the right to privacy of other individuals that could reasonably be expected to be caused by disclosure of the Category B Information. On the basis of the above, I find that the disclosure of the Category B Information would, on balance, be contrary to the public interest, and therefore access to it may be refused under section 67 of the IP Act and section 47(3)(b) of the RTI Act. DECISION I affirm GCHHS’s decision and find that the disclosure of the: Category A Information would found an action for breach of confidence,[27] and it is exempt;[28] and Category B Information would, on balance, be contrary to the public interest.[29] I have made this decision as a delegate of the Information Commissioner, under section 139 of the Information Privacy Act 2009 (Qld). ________________________ Assistant Information Commissioner Corby Date: 16 December 2014 APPENDIX Significant procedural steps Date Event 12 August 2013 Queensland Health received the access application. 14 November 2013 The access application became compliant. 25 November 2013 Queensland Health transferred the access application to GCHHS. 6 February 2014 GCHHS issued its decision on the access application. 4 March 2014 GCHHS received the applicant’s application for internal review. 31 March 2014 GCHHS issued its internal review decision. 4 May 2014 The applicant applied to OIC for external review. 20 May 2014 OIC advised the applicant and GCHHS that the application had been accepted for review. 18 June 2014 GCHHS provided OIC with a copy of the information to which access was refused. 14 July 2014 OIC conveyed a preliminary view to GCHHS that some information in issue was not exempt on the basis that its disclosure would found an action for breach of confidence. 28 July 2014 GCHHS informed OIC that it accepted OIC’s preliminary view, and that it would release the relevant information to the applicant. 15 August 2014 OIC conveyed a written preliminary view to the applicant. 29 August 2014 The applicant advised OIC that she contested the preliminary view and provided submissions in support of her case. 8 September 2014 OIC provided the applicant with a written update on the status of the external review. 2 October 2014 OIC conveyed a second preliminary view to GCHHS that some information in issue was not exempt on the basis that its disclosure would found an action for breach of confidence and that some information in issue would not, on balance, be contrary to public interest to disclose. 14 October 2014 OIC provided the applicant with a written update on the status of the external review. 24 October 2104 GCHHS informed OIC that it accepted OIC’s preliminary view. 16 December 2014 OIC requested GCHHS to release additional information to the applicant. [1] Under section 67 of IP Act and section 47(3)(a) and (b) of the Right to Information Act 2009 (Qld) (RTI Act). Section 67 of the IP Act provides that an agency may refuse access to information on the same grounds as set out in section 47 of the RTI Act.[2] Under section 47(3)(b) of the RTI Act. [3] Being part of page 523; and in addition, page 225 and parts of pages 393, 394, 433, 456, 467, 468, 471, 477, 478, 479 and 490 that GCHHS has agreed should be disclosed to the applicant and, on 16 December 2014, OIC requested GCHHS to release to the applicant.[4] Section 67(1) of the IP Act.[5] Sections 47(3)(a) and 48 and schedule 3 of the RTI Act. Schedule 3 of the RTI Act sets out the types of information the disclosure of which the Parliament has considered would, on balance, be contrary to the public interest: see section 48(2) of the RTI Act. [6] Sections 47(3)(b) and 49 of the RTI Act. [7] In cases concerning disclosure of information that is claimed to be confidential, the facts may give rise to both an action for breach of contract, and in equity, for breach of confidence. At general law, these are separate and distinct causes of action. An action for breach of confidence will only be established where the requirements at [14] of these reasons are present.[8] The Information Commissioner analysed the requirements of this exemption in B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (B and BNRHA), in the context of the equivalent section 46(1)(a) of the repealed Freedom of Information Act 1992 (Qld). The Right to Information Commissioner analysed the exemption under the RTI Act in TRO08G and Department of Health [2011] QICmr 46 (13 December 2011) (TRO08G).[9] B and BNRHA at [60] to [63]. [10] B and BNRHA at [43].[11] B and BNRHA at [84].[12] B and BNRHA at [103] to [106].[13] Dean, R., (1990) The Law of Trade Secrets, Law Book Company, pp. 177-8, cited in TRO08G at [14].[14] B and BNRNA at [111], citing Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109 (Lord Keith of Kinkel at page 256).[15] Section 48(2) of the RTI Act. [16] At [22] of this decision.[17] Sections 47(3)(b) and 49 of the RTI Act.[18] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would on balance, be contrary to the public interest. This list is not exhaustive, and a decision maker may consider factors not listed in schedule 4 in assessing that balance of the public interest.[19] Section 49(3) of the RTI Act.[20] Schedule 4, part 2, item 1 of the RTI Act.[21] Schedule 4, part 2, item 7 of the RTI Act.[22] Schedule 4, part 2, item 11 of the RTI Act.[23] Section 12 of the IP Act defines ‘personal information’ as information, whether true or not and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. [24] In addition, GCHHS has agreed with OIC’s view that a one full page and parts of 11 pages of the applicant’s medical records should be disclosed to her.[25] Schedule 4, part 4, item 6 of the RTI Act. [26] Schedule 4, part 3 item 3 of the RTI Act.[27] Schedule 3, section 8(1) of the RTI Act.[28] Sections 47(3)(a) and 48 of the RTI Act. [29] Sections 47(3)(b) and 49 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Farrand-Collins and Caloundra City Council [2006] QICmr 6 (8 February 2007)

Farrand-Collins and Caloundra City Council [2006] QICmr 6 (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-

R63 and Department of Transport and Main Roads [2021] QICmr 36 (14 July 2021)

R63 and Department of Transport and Main Roads [2021] QICmr 36 (14 July 2021) Last Updated: 12 January 2022 Decision and Reasons for Decision Citation: R63 and Department of Transport and Main Roads [2021] QICmr 36 (14 July 2021) Application Number: 315938 Applicant: R63 Respondent: Department of Transport and Main Roads Decision Date: 14 July 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - applicant seeks information about health professional notification concerning fitness to drive - whether 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 - 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 1. The applicant applied[1] to the Department of Transport and Main Roads (Department) under the Information Privacy Act 2009 (Qld) (IP Act) seeking ‘the letter the doctor wrote to [the Department] that stated the reason why I should not be driving my car’. 2. The Department located two documents in response to the application and released one to the applicant. It refused access to the second document, which is comprised of a notification form (Medical Notification Form),[2] 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.[3] 3. The applicant applied[4] for internal review of this decision, and on internal review the Department affirmed its original decision.[5] 4. The applicant then applied[6] to the Office of the Information Commissioner (OIC) for external review. During the review, the Department released a copy of the Medical Notification Form but redacted information that would identify the notifying health professional.[7] 5. For the reasons set out below, I affirm the Department’s decision to refuse access to the redacted information under section 67(1) of the IP Act and sections 47(3)(a) and section 48 of the RTI Act.[8] Reviewable decision 6. The reviewable decision is the Department’s internal review decision dated 3 March 2021. Evidence considered 7. The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). 8. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[9] I consider a decision-maker will be ‘respecting and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the IP Act and the RTI Act.[10] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[11] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[12] 9. In this case, the applicant has raised concerns about our preliminary view process,[13] noting that our Office ‘seem[s] to be in a hurry’ to finalise the matter.[14] In this regard, I note that the procedure to be followed on external review is, subject to the IP Act, within the discretion of the Information Commissioner.[15] To ensure procedural fairness,[16] OIC routinely issues a written preliminary view to an adversely affected party. In terms of the timing of the matter, reviews are to be conducted with as much expedition, as the requirements of this Act and a proper consideration of the matters before me allow.[17] In this case, I have carefully considered all of the information before me, including the access application, the Department’s decision and internal review decision, the applicant’s external review application and submissions, and the Medical Notification Form. While I note the applicant’s discontent, I am satisfied that he has been afforded procedural fairness throughout the review process and has been given a reasonable opportunity to put forward his view. I do not accept the applicant’s contentions that our Office is not independent, or more fanciful allegations that our Office is acting for a religious organisation.[18] 10. Significant procedural steps relating to the external review are set out in the Appendix. Background 11. The factual background to this matter is related to the applicant’s fitness to drive. As noted in paragraph 1 above, the applicant is seeking a copy of the notification (ie. the letter) about his fitness to drive that was provided to the Department. The applicant has expressed concerns[19] about the veracity of information provided to the Department, and has indicated that the content of the Medical Notification Form was ‘fantasised behind [his] back as an excuse in order to stop [him] from driving’. [20] 12. The notification regime is established by the Transport Operations (Road Use Management) Act 1995 (Qld) and the Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld). Under this regime, the holder of a Queensland driver licence must give notice to the Department of any permanent or long-term mental or physical incapacity if it is likely to adversely affect the holder’s ability to drive safely.[21] This regime places the primary responsibility for notification with the individual licence holder, but the Department also encourages medical professionals to notify it if they believe that a person will not notify them about their medical condition and their medical condition poses a risk to public safety, or if their advice not to drive, or their recommended treatment will not be complied with. Information in issue 13. The information in issue in this matter is the health professional details and length of time that the relevant health professional had known/treated the applicant (Identifying Details) as set out in a Medical Notification Form. The remainder of this form has been released to the applicant and is no longer in issue in this review.[22] Issue for determination 14. The issue for determination is whether access to the Identifying Details may be refused on the basis that 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.[23] Relevant law 15. 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[24] subject to certain limitations. One such limitation is that an agency may refuse access to a document to the extent it comprises exempt information.[25] 16. 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.[26] 17. 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:[27] ...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). Findings 18. 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 which the confidential source has supplied is in relation to the enforcement or administration of the law disclosure of the information in issue could reasonably be expected[28] to enable the existence or identity of the confidential source of information to be ascertained;[29] and none of the exceptions to the exemption apply. 19. I consider each of these factors are satisfied in this case, as set out below. Is the source of the information confidential? 20. Yes, for the following reasons. 21. A confidential source of information supplies information on the understanding that their existence or identity will remain confidential.[30] This understanding may arise as a result of an express agreement between the parties.[31] Alternatively, the surrounding circumstances may indicate an implicit mutual understanding of confidentiality of the identity of the source between the parties.[32] 22. In this case, the Department provides the following express assurance on the PDF version of its Medical Notification Form:[33] Privacy Statement: The Department of Transport and Main Roads (the department) provides this form under the Transport Operation (Passenger Transport) Act 1994, Transport Operations (Road Use Management) Act 1995 and the Tow Truck Act 1973 so that you may notify the department about a patient’s medical fitness to drive a motor vehicle. The information collected on this form is accessible by authorised departmental persons and some of this information may be disclosed to the Queensland Police Service and interstate driver licensing authorities, as allowed under the relevant transport acts. The department will not disclose your personal information or documents to any other third parties without your consent unless authorised or required by law. 23. I note, however, that the above statement is not shown on the online notification form which appears to have been used by the health professional in this case. Accordingly, I have considered the surrounding circumstances to determine whether there is an implicit mutual understanding of confidentiality. 24. Turning first to the legislative regime under the Transport Operations (Road Use Management) Act 1995 (Qld) and the Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld), as noted at paragraph 12 above, there is no positive obligation on health professionals to make notifications. Rather, the Department ‘encourages’ health professionals to make a notification where they believe the licence holder will not do so [34]emselves.34 The legislative regime supports this voluntary approach by providing protection from civil and administrative processes for health professionals who give information in good faith about a person’s medical fitness to hold, or continue to hold, a drive[35] licence.35 In circumstances where health professionals have voluntarily reported information about their own patient, it is reasonable for them to expect that their identity be kept confidential (except where it is necessary to be provided to authorities such as Queensland Police Service). This is consistent with the Department’[36]position,36 which is that it ‘regularly receives notifications relating to driver licensing issues, which often contain sensitive information. The department 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.’ 25. Another factor that points towards confidentiality is the Department’s ability to independently verify fitness to drive without revealing the source of the information. On this issue, the Information Commissioner has previously noted:[37] 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. 26. Following notification from a health professional, the Department may require that a person take a practical driving test.[38] While a notice with reasons is required to be given, the notice is not required to include the identity of the source of the information.[39] The practical driving test allows the agency to determine for itself (without reference to the source of the notification) the individual’s medical fitness to drive. 27. Having regard to the express assurances on the PDF form, the voluntary nature of the notification regime, the Department’s stated understanding of confidentiality, and the ability to verify fitness to drive without revealing the source, I am satisfied there is an implied mutual understanding of confidentiality between the Department and the source in this case. Was the information supplied in relation to the enforcement or administration of the law? 28. Yes. I am satisfied that notifications by health professionals (including their identifying details) are supplied to the Department in relation to[40] its administration of the Transport Operations (Road Use Management) Act 1995 (Qld) and the Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld). 29. Whilst the notification itself is voluntary, it allows the Department to undertake administrative action set out in the legislation, including - in certain circumstances - immediately amending or suspending a licence,[41] or requiring a person to take a practical driving test.[42] Would disclosure of the Identifying Details reasonably be expected to enable the identity of the confidential source of information to be ascertained? 30. Yes. The Identifying Details either directly identify the source of the information (by name, address and contact details) or would allow the applicant to readily ascertain the source, by cross referencing this information with other information known by the applicant, such as the length of time the patient has known or received treatment from the health professional. 31. The applicant has made submissions[43] about the motivations of the relevant health professional, and the costs imposed by his residential aged care facility. I do not consider these matters are relevant to the application of the exemption. Do any of the exceptions apply? 32. The applicant is of the view that the Medical Notification Form was submitted by a doctor with ulterior motivations, and that the notification is comprised of lies and fabrication. In particular, he submits that the notification was retaliation for seeing another doctor and/or to restrict his ability to find alternative accommodation.[44] The Department has now disclosed to the applicant the specific information that was provided by the notifier. The only information the applicant does not have is information that could identify the notifier. Any concerns regarding the veracity of the information provided by the notifier can be addressed with reference to the information that has now been released to the applicant. 33. I have considered the applicant’s submissions in light of the exceptions in schedule 3, section 10(2)(a)-(e) of the RTI Act and the particular information in issue. Even if I accepted the contentions of the applicant on these matters, it would not give rise to an exception in so far as the disclosure of the information in issue is concerned. For example, the Identifying Details could not, due to their nature, reveal that the scope of a law enforcement investigation has exceeded the limits imposed by law. Conclusion 34. For the reasons set out above, I am satisfied that the Identifying Details 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. I have considered the exceptions set out in schedule 3, section 10(2)(a)-(e) of the RTI Act, and I am satisfied that they do not apply.DECISION 35. I affirm the Department’s decision to refuse access to the Identifying Details 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. 36. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.S MartinAssistant Information Commissioner 14 July 2021 APPENDIX Significant procedural steps Date Event 11 March 2021 OIC received the external review application. OIC requested, and received, the preliminary documents and information in issue from the Department. 29 March 2021 OIC accepted the external review application and conveyed a preliminary view to the applicant. 13 April 2021 OIC received submissions from the applicant (dated 10 April 2021). 10 June 2021 OIC received further submissions from the applicant (dated 6 June 2021). 22 June 2021 OIC conveyed a view to the Department that some additional information in issue could be released to the applicant. 29 June 2021 The Department agreed to release the additional information to the applicant. 5 July 2021 The Department advised it posted the additional information to the applicant. [1] Compliant on 9 December 2020.[2] Decision dated 28 January 2021.[3] Section 67(1) of the IP Act and section 47(3)(a) and schedule 3, section 10(1)(b) of the Right to information Act 2009 (Qld) (RTI Act).[4] Dated 4 February 2021.[5] Dated 3 March 2021.[6] Application received on 11 March 2021.[7] The Department advised OIC on 5 July 2021 that the Medical Notification Form had been posted to the applicant.[8] Because the information is exempt under schedule 3, section 10(1)(b) of the RTI Act.[9] Section 21 of the HR Act. [10] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[11] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [12] XYZ at [573].[13] A preliminary view was conveyed to the applicant on 29 March 2021 (and was sent by post and email).[14] As set out in submissions received on 13 April 2021.[15] Section 108(1)(a) of the IP Act. [16] As required by section 110 of the IP Act and common law. [17] Section 108(1)(b) of the IP Act.[18] Submissions received on 13 April 2021.[19] External review application, and submissions received on 11 March 2021 and 13 April 2021. [20] External review application received on 11 March 2021.[21] Section 51 of the Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld).[22] The Department confirmed, by email to our Office on 5 July 2021, that the Medical Notification Form (with Identifying Details redacted) had been released to the applicant by post. One other document was released by the Department following its original decision. This document was also not in issue in the review.[23] Section 67(1) of the IP Act, sections 47(3)(a) and 48, and schedule 3, section 10(1)(b) of the RTI Act.[24] Section 40 of the IP Act.[25] Under section 67(1) of the IP Act, sections 47(3)(a) and 48 of the RTI Act.[26] Schedule 3, section 10(1)(b) of the RTI Act.[27] [2020] QCA 96 at [47].[28] 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].[29] 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 repealed 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)at [16]-[31] and Shirirone Pty Ltd and Department of Agriculture, Fisheries and Forestry [2014] QICmr 46 (18 November 2014) at [13]-[45].[30] McEniery at [20]-[22].[31] McEniery at [35].[32] McEniery at [50].[33] Available at <https://www.support.transport.qld.gov.au/qt/formsdat.nsf/forms/QF4842/$file/F4842_ES.pdf>, accessed on 23 June 2021.[34] As noted on the Department’s website: Information for health professionals, ‘Notifying us about a person’s medical condition’ <https://www.qld.gov.au/transport/licensing/update/medical/professionals>, accessed on 23 June 2021.[35] Section 142 of the Transport Operations (Road Use Management) Act 1995 (Qld). In addition, section 143 creates an offence for disclosing information gained through involvement in the administration of the Act or because of an opportunity provided by involvement (with certain exceptions).[36] As set out in its original decision dated 28 January 2021.[37] McEniery at [27].[38] Section 130 of the Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld).[39] There is also, in some cases, the option of immediate suspension under section 126 of the Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld). This also requires a notice, including reasons, but once again, the identity of the source of the information is not necessarily provided. [40] In Carmody v Information Commissioner & Ors (5) [2018] QCATA 18 at [39], Hoeben J notes the wide meaning of this term (and other relational terms such as ‘connected with’), citing French CJ in R v Khazaal [2012] HCA 26; (2012) 246 CLR 601 at [30].[41] Section 126 of the Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld).[42] Section 130 of the Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld).[43] Received 11 March 2021 and 13 April 2021.[44] Submissions received 11 March 2021 and 13 April 2021.

queensland

court_judgement

Queensland Information Commissioner 1993-

S13 and Queensland Police Service [2020] QICmr 13 (28 February 2020)

S13 and Queensland Police Service [2020] QICmr 13 (28 February 2020) Last Updated: 12 May 2020 Decision and Reasons for Decision Citation: S13 and Queensland Police Service [2020] QICmr 13 (28 February 2020) Application Number: 314390 Applicant: S13 Respondent: Queensland Police Service Decision Date: 28 February 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - NONEXISTENT DOCUMENT - applicant seeks details on public interest disclosure register about himself - whether the public interest disclosure register is nonexistent - 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) REASONS FOR DECISION Summary The applicant applied[1] to the Public Service Commission under the Information Privacy Act 2009 (Qld) (IP Act) for all details on the ‘Public Interest Disclosure Register’ (PID Register) regarding him[2] within a particular date range.[3] The Public Service Commission made enquiries about where a PID Register may be held and, after receiving submissions from the applicant, transferred the application to the Queensland Police Service (QPS).[4] QPS consented to the transfer of the application and decided[5] to refuse access on the basis that the PID Register is nonexistent. The applicant applied[6] to the Office of the Information Commissioner (OIC) for external review of this decision. During the review, the applicant provided evidence of records held by QPS, and made submissions concerning the meaning of PID Register, QPS locations that should be searched and QPS’ record-keeping obligations under the Public Interest Disclosure Act 2010 (Qld) (PID Act) and the now repealed Whistleblowers Protection Act 1994 (Qld). QPS also provided submissions on external review, particularly concerning: the scope of the application, and information held on its Internal Witness Support (IWS) database and QPS’ Client Service System (CSS)[7] its enquiries within the Ethical Standards Command, including within its IWS Unit (including enquiries with an individual named by the applicant)[8] its legislative obligations and administrative arrangements for recording public interest disclosures; and information uploaded onto the Queensland Ombudsman’s RaPID database.[9] Having considered the relevant law, the applicant and QPS’ submissions, for the reasons set out below, I affirm QPS’ decision and find that the PID Register[10] is nonexistent. Background Significant procedural steps taken by OIC in conducting the external review are set out in the Appendix. Reviewable decision The decision under review is QPS’ decision dated 10 January 2019. After applying to the Information Commissioner for external review of QPS’ decision, the applicant made two subsequent applications to QPS for similar information.[11] The last of these applications sought his ‘Internal Witness Support Unit, Person History Report’.[12] These later applications are not the subject of this review.[13] Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (particularly footnotes and Appendix). Issue for determination The issue for determination is whether QPS was entitled to refuse access to requested details on a PID Register on the basis that it is nonexistent under section 67(1) of the IP Act and section 47(3)(e) of the Right to Information Act 2009 (Qld) (RTI Act). For the reasons described below, I have not considered whether the applicant is entitled to access individual records or references to public interest disclosures that are not collated within a PID Register. It is also not within my jurisdiction to review QPS’ subsequent decisions as detailed at paragraph 9 above. I also do not make any findings on whether QPS is meeting its legislative obligations under the PID Act, as explained below.[14] Relevant law Access to a document may be refused if it is nonexistent or unlocatable.[15] A document is nonexistent if there are reasonable grounds to be satisfied it does not exist.[16] The RTI Act is silent on how an agency may satisfy itself about the existence of a document. However, the Information Commissioner has previously recognised that it will be necessary for the agency to rely upon a number of key factors, including its particular knowledge and experience regarding: [17] the administrative arrangements of government the agency’s structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and other legal obligations that fall to it); and the agency’s administrative practices and procedures (including, but not limited to, its information management approaches). By considering the above factors, an agency may ascertain that a particular document was not created because, for example, the agency’s processes do not involve creating that specific document. In such instances, it is not necessary for the agency to search for the document. Rather, it is sufficient that the relevant circumstances to account for the nonexistent document are adequately explained by the agency. An agency may also rely on searches to satisfy itself that a document does not exist. In those cases, all reasonable steps must be taken to locate the documents, and searches should not be indiscriminate.[18] In searching, the agency may rely on the factors listed above, together with key factors within the access application, other factors reasonably inferred from information supplied by the applicant, the nature and age of the requested documents and the nature of the government activity to which the request relates.[19] Analysis Scope of the access request In his access application, which was directed initially to the Public Service Commission, the applicant described the ‘type of documents’ he was seeking as an ‘Electronic PID Registry’, and indicated he thought the documents would be located in the ‘PID Registry’. I accept that as a general rule, the scope of an access application should not be interpreted narrowly or with the same degree of precision as a piece of legislation.[20] However, the access application must give sufficient information concerning the document to enable a responsible officer of the agency to identify the document.[21] There are sound reasons for this, as a clear and unambiguous scope allows the agency to set the parameters of its response and the directions of its search efforts.[22] I also note that: The search for relevant documents is frequently difficult, and has to be conducted under tight time constraints. Applicants should assist the process by describing with precision the document or documents to which they seek access.[23] In conducting a merits review and standing in the shoes of the decision-making agency, I am also bound by the terms of the access application. To consider whether an applicant is entitled to documents that fall outside the scope of an access application, would be in effect, deciding on matters outside my jurisdiction on external review. It is not open to the access applicant to unilaterally expand the scope of the application on external review.[24] Rather, the correct avenue available to the applicant in such circumstance, is to make a new access application. Being mindful of these principles, I interpret the term ‘register’ broadly to mean any book, list, database or record of acts, occurrences and/or names.[25] A PID Register (even if is not named as such) is any compilation or collation of acts, occurrences and names (and the like) about identifiable public interest disclosures into a book, list, database or record. In this case, details about the applicant[26] within a certain date range appearing within such a register would fall within the terms of his application. In relation to the meaning of PID Register, the applicant submits that a register is a broad term that encompasses any list of records that records public interest disclosures:[27] ...a register includes a ‘Person History Report’ but it also includes the ‘CSS database’ as a register that included PID’s. The CSS database is a list of records and therefore a register. There maybe another register that I am not aware of hence the word register was used to encompass all records. I understand that not all the records contained in the registers should be released to me but I am only asking for those made by Myself, as defined in my RTI request. It may be the case there the QPS have not recorded any PID’s made by me or are unable to locate them. If this is the situation then they need to confirm that they have NO records of any PID’s made by me for the time frame I have requested in my RTI application. I accept that the word ‘register’ is a broad term. However, in order to be a PID Register, a document needs to collate together acts, occurrences and names (and the like) about public interest disclosures. Based on this interpretation, and after considering the applicant’s submissions, I have considered a number of extracts from CSS[28] and an extracted Person History Report from the IWS database.[29] I understand that the Person History Report is a document of interest to the applicant, and the subject of a separate access application to QPS.[30] Broadly speaking, this document relates to internal witnesses and contains one checkbox to indicate whether or not an individual has ‘PID status’. I do not consider that this singular reference can be described as a PID Register. While the applicant may have established during the review that this was the information he was seeking, his original application was not framed to seek ‘all records of’ or ‘all references to’ public interest disclosures made by him. Similarly, CSS is a QPS system for recording complaints, and while it may contain records/references that relate to public interest disclosures, it is not capable of collating entries that relate to identifiable public interest disclosures. The application was originally made to the Public Service Commission, and within this context, it is apparent that the applicant was not intending to seek ‘all QPS records’ of public interest disclosures but rather seeking information from a distinct PID Register. In summary, having considered the words and construction of the access application, I do not consider that CSS or the IWS database (or reports/summaries created through these systems) collate identifiable public interest disclosures into a book, list, database or record. The applicant has expressed concern that this interpretation of his application is ‘semantics’.[31] He has also referred to a court decision[32] involving statutory interpretation in support of his contention that the term ‘PID Register’ should be interpreted more broadly. I have considered the decision referred to by the applicant, and I do not consider that the findings in that matter apply in this case. The Information Commissioner’s jurisdiction in this external review is limited to reviewing the decision described in foot 8 above, which relates to information recorded on a PID Register. It is not open to the access applicant to expand the scope of the application on external review to include all records of public interest disclosures involving him. He is, however, able to make a fresh application directly to QPS requesting a different document (and I understand he has done so, as outlined at paragraph 9 above). Existence of PID Register The applicant has made extensive submissions to OIC regarding the existence of a PID Register within QPS. To the extent that these submissions relate to the interpretation of the scope of his access application, I have addressed them above. Turning now to the question of whether a PID Register exists, I note that the applicant submits that QPS is required to keep this document under section 29 of the PID Act.[33] Accordingly, as a starting point, I have considered QPS’ legislative obligations in relation to recording public interest disclosures, and whether the legislation requires QPS to keep a PID Register. Section 29 of the PID Act provides that the chief executive officer of a public sector entity to which a public interest disclosure is made must keep a proper record of the disclosure, including: the name of the person making the disclosure, if known; and the information disclosed; and any action taken on the disclosure; and any other information required under a standard made under the Public Interest Disclosure Standard No. 3/2019 (PID Standard). Under the PID Standard, agencies are required (among other things) to establish and maintain a record-keeping system to:[34] record PIDs and possible PIDs search for PIDs and possible PIDs; and extract data about PIDs and possible PIDs for reporting purposes. In relation to the last point above, QPS is required to report data using the Queensland Ombudsman’s RaPID reporting database.[35] The information reported via this database is anonymous, and as submitted by QPS, does not allow for information to be collated by the name of discloser. In relation to RaPID data, QPS has submitted:[36] As required by the PID Act QPS uploads PIDS to the RaPID database administered by the QLD Ombudsman by entering data on to their system as opposed to recording or maintaining a QPS register or list of PIDS. This information is statistical in nature and does not identify the PID by name. QPS provided a summary of its practice for recording public interest disclosures as follows:[37] Whilst in practice most agencies likely maintain a ‘PID Register’, the PID Act does not explicitly require one, it only requires certain information to be recorded. The QPS stands unique to most public sector entities in that it has its detailed statutory regime for internal discipline and investigations under the Police Service Administration Act 1990 (PSAA). In this respect, for many matters that may for others be considered discrete issues under the PID Act, these are for the QPS subsumed by a more rigorous regime under the PSAA. The QPS satisfies its requirements under the PID Act through the recording of complaints in the Ethical Standards Command Complaints Management system. However complaints are not classified as PIDs through this recording mechanism. There is no meaningful way of filtering ‘possible PIDs’ through this system. I acknowledge that the applicant does not accept this submission[38] and provided evidence in response to suggest that QPS records public interest disclosures in its system (particularly CSS), is able to quantify the number of public interest disclosures made within a particular period,[39] and that CSS is searchable (ie. that particular complaints can be found within this system).[40] In one document provided by the applicant QPS refers to the ‘registration’ of a particular public interest disclosure.[41] I have considered the applicant’s submissions and supporting evidence, and I do not accept that the legislative regime, or the evidence, point definitively to the existence of a PID Register. I acknowledge that QPS has record-keeping obligations under the PID Act, however the existence of such obligations alone do not establish the existence of a PID Register, particularly in circumstances where QPS maintains that it does not create any internal PID Register (with complainant names) that otherwise mirrors the Queensland Ombudsman’s anonymised RaPID database. I accept QPS’ submission that although some of the evidence appears to support the contention that such a register exists, when analysed more closely it supports the view that QPS has multiple processes for maintaining a record of complaints (including public interest disclosures). It uploads public interest disclosures to RaPID (and is able to obtain anonymised quantitative data through this system). This point is summarised by the following QPS submission:[42] Although the points raised by the applicant could be construed to indicate that the QPS does maintain a PID register or a register of PID information, when considered in context these points actually show that the QPS provides information to the QLD Ombudsman by manually entering data directly onto the RaPID system. The QPS maintains a proper record via multiple processes including the CSS system and the IWS database and does not maintain a separate register of PIDs, or a system by which PIDs are readily identified. Findings The applicant’s submissions focus on whether QPS is required to keep a ‘proper record’ of public interest disclosures. Having closely analysed the submissions of the applicant and QPS, it is evident that both parties disagree as to QPS’ specific record-keeping obligations under the PID Act. In this case, the question of fact that I must consider is whether a PID Register exists within QPS, regardless of what its recordkeeping obligations may be. On the evidence before me, and having considered QPS’ relevant functions, responsibilities, administrative policies and procedures, as well as the specific enquiries it has conducted on external review, I am satisfied that a PID Register does not exist within QPS. Accordingly, access to the information requested by the applicant can be refused on the basis it does not exist. DECISION I affirm QPS’ decision to refuse access to details on the PID Register regarding the applicant,[43] 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 is nonexistent. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.S MartinAssistant Information Commissioner 28 February 2020 APPENDIX Significant procedural steps Date Event 11 January 2019 OIC received the application for external review. 25 January 2019 OIC received an email submission from the applicant. 30 January 2019 OIC received preliminary information and documents from QPS. 6 February 2019 OIC received an email submission from the applicant. 7 February 2019 OIC received submissions by telephone from the applicant. 12 February 2019 OIC notified the applicant and QPS that the application for external review had been accepted. 18 April 2019 OIC requested that QPS conduct further searches. 24 May 2019 OIC received submissions from QPS. 22 August 2019 OIC sought additional information from QPS. 23 August 2019 OIC conveyed the substance of QPS’s submissions to the applicant and sought additional information from the applicant. 26 August 2019 OIC received submissions and the requested information from the applicant. 30 August 2019 OIC requested additional information from QPS. 4 September 2019 OIC received additional information from QPS. 27 September 2019 OIC requested outstanding information from QPS. 30 September 2019 OIC received requested information from QPS. 8 October 2019 OIC received submissions by telephone from QPS. 9 October 2019 OIC conveyed a preliminary view to the applicant. 13 October 2019 OIC received submissions in response from the applicant. 15 October 2019 The applicant agreed to OIC providing his submissions to QPS for a response. 16 October 2019 OIC provided a copy of the applicant’s submissions (and attached evidence) to QPS for a response and sought evidence of searches and enquiries. 4 December 2019 OIC updated the applicant and advised that QPS had sought two extensions to provide submissions. 9 December 2019 OIC received additional submissions from the applicant. 11 December 2019 OIC wrote to the applicant and clarified the issue under consideration. 10 January 2020 OIC received a submission and search certification from QPS. 21 January 2020 OIC wrote to the applicant and confirmed the preliminary view dated 9 October 2019. 31 January 2020 OIC received submissions from the applicant. OIC spoke to the applicant and received additional submissions. [1] Application dated 2 December 2018.[2] Or another name he had used.[3] Between 2010-2018.[4] On 10 December 2018 under section 57 of the IP Act.[5] On 10 January 2019.[6] External review application received 11 January 2019.[7] CSS Summary Reports were provided to OIC by QPS on 4 September 2019. Person History Reports were addressed in QPS submissions to OIC dated 10 January 2020. For the reasons set out in this decision, I do not consider that such reports fall within the terms of the applicant’s access application. [8] QPS has provided OIC, on 10 January 2020, with records of searches and certifications indicating that it has conducted searches and enquires with the Ethical Standards Command, IWS Unit, including with the officer named. The records indicate that further searches were conducted to determine whether ‘there is a possible way of identifying all PIDS by a specific person’.[9] Submissions made by QPS by telephone to OIC on 8 October 2019, and outlined in submissions dated 10 January 2020.[10] And accordingly, the applicant’s details on such a register.[11] Applications dated 11 January 2019 and 25 January 2019. [12] This scope was clarified by the applicant by email to QPS on 28 February 2019.[13] On 7 February 2019, the applicant requested an external review in relation to one of his later applications, however at this point QPS had not made a reviewable decision in relation to that application. OIC wrote to the applicant and advised him of this on 12 February 2019.[14] In his external review application, the applicant indicated he is ‘...seeking the information as requested from the QPS records (as registered in CSS) or that these legislative obligations are not being met with regards to PID made by myself...’[15] Section 67(1) of the IP Act and Sections 47(3)(e) and 52(1) of the RTI Act.[16] Section 52(1)(a) of the RTI Act. ‘Being satisfied’ is an evaluative judgment based on the knowledge and experience of the agency. Such judgement requires that the decision be based on reasonable grounds: PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE) at [43], citing Finn J in Chu v Telstra Corp Ltd [2005] FCA 1730 (Unreported, Finn J, 1 December 2005) at [10] to [11]. 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.[17] PDE at [37]-[38]. [18] As set out in PDE at [38] and [49]. See also section 137(2) of the IP Act.[19] PDE at [38] and Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [21]. See also, F60XCX and Office of the Queensland Parliamentary Counsel [2016] QICmr 42 (13 October 2016) at [84] and [87], and Underwood and Minister for Housing and Public Works [2015] QICmr 27 (29 September 2015) at [33]-[34] and [49].[20] Mewburn and Department of Natural Resources and Mines [2016] QICmr 31 (19 August 2016) at [22].[21] Section 43(2)(b) of the IP Act.[22] Lonsdale and James Cook University [2015] QICmr 34 (15 December 2015) at [9] citing Fennelly and Redland City Council (Unreported, Queensland Information Commissioner, 21 August 2012) at [15].[23] Cannon and Australian Quality Egg Farms Ltd [1994] QICmr 9; (1994) 1 QAR 491 at [8].[24] Ibid.[25] The Macquarie Dictionary Online defines ‘register’ to include a book in which entries of acts, occurrences, names, or the like are made for record (accessed 24 February 2020).[26] Or another name he had used.[27] Submissions to OIC on 31 January 2020.[28] Copies provided to OIC by QPS on 4 September 2019.[29] A redacted example of the Person History Report was provided to OIC by the applicant under cover of his email dated 13 October 2019.[30] As set out in paragraph 9 above. On 25 January 2019, the applicant contacted OIC to indicate this was ‘where to look for the PID register/record’.[31] Telephone submissions made by the applicant on 7 February 2019 and 31 January 2020.[32] A copy of the decision was provided to OIC with the applicant’s submissions dated 31 January 2020. The matter involved the applicant as an identified party, and accordingly, I have not cited it here.[33] There was a similar requirement under section 29 of the now repealed Whistleblowers Protection Act 1994 (Qld). This section’s objectives were expressly stated as being to ensure that disclosures are sufficiently identifiable to allow part 5 (concerning the privilege, protection and rights of a person who makes a public interest disclosure) to be easily applied and assist in the preparation of accurate reports to the Legislative Assembly. [34] Clause 3.1.2. Similar but less detailed recording and reporting requirements also appeared in the superseded standards.[35] Clause 3.2.1 – 3.2.3 of the PID Standard. [36] Submissions dated 10 January 2020.[37] Submissions dated 23 May 2019.[38] Submissions dated 13 October 2019.[39] Submissions dated 13 October 2019, and attached documents. [40] Submissions dated 9 December 2019.[41] Evidence provided under cover of his submissions dated 13 October 2019.[42] Submissions dated 10 January 2020.[43] Or another name he used.

queensland

court_judgement

Queensland Information Commissioner 1993-

TE66LB and Queensland University of Technology; H9P6ZM (Third Party) & Ors [2019] QICmr 9 (29 March 2019)

TE66LB and Queensland University of Technology; H9P6ZM (Third Party) & Ors [2019] QICmr 9 (29 March 2019) Last Updated: 16 April 2019 Decision and Reasons for Decision Citation: TE66LB and Queensland University of Technology; H9P6ZM (Third Party) & Ors [2019] QICmr 9 (29 March 2019) Application Number: 313812 Applicant: TE66LB Respondent: Queensland University of Technology Third Party: H9P6ZM Fourth Party: 65DZCL Decision Date: 29 March 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - SCOPE OF ACCESS APPLICATION - information related to a workplace investigation arising from applicant’s complaint - applicant and agency engaged in negotiations to narrow the application scope - whether information falls outside the narrowed scope - whether parts of a document may be deleted on the basis they are irrelevant to the terms of the narrowed application - section 73 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTARY TO PUBLIC INTEREST - information related to a workplace investigation arising from applicant’s complaint - 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 Queensland University of Technology (QUT) under the Right to Information Act 2009 (Qld) (RTI Act) for access to an investigation report relating to a workplace complaint made by him (Report) and certain associated correspondence. QUT located 581 pages of responsive information and decided[2] to refuse access to some of that information. QUT also deleted signatures which appeared within the pages it released to the applicant, on the basis they were irrelevant to the application. The applicant sought[3] internal review of QUT’s decision and raised concerns that QUT had not located all requested documents. On internal review, QUT varied its original decision and decided to refuse access to most of the located information, including information it had disclosed to the applicant pursuant to its original decision.[4] The applicant then applied[5] to the Office of the Information Commissioner (OIC) for an external review of the internal review decision and raised concerns that QUT had not located all requested documents. In an attempt to informally resolve aspects of the review,[6] OIC asked the applicant whether he would accept inspection access to parts of the information in issue, on terms previously offered by QUT.[7] The applicant did not agree and continued to seek access in the form requested in the application. During the course of the review, the third and fourth parties were joined as participants.[8] For the reasons set out below, I vary QUT’s decision and find that: there is no basis under the RTI Act to refuse access to some of the information in issue[9] access to the remaining information in issue[10] may be refused on the ground that its disclosure would, on balance, be contrary to the public interest; and certain information requested by the applicant falls outside the scope of the application. Background The applicant made a workplace complaint in January 2017. The investigation of the applicant’s complaint was undertaken by an investigator appointed by QUT and was conducted in accordance with QUT’s procedure titled ‘MOPP B/10.1 Grievance resolution procedures for workplace related grievances and bullying’ (Procedure).[11] The Procedure relevantly provided that, on QUT’s receipt of an investigator’s investigation report, advice was to be provided to the Vice-Chancellor about whether disciplinary action should be commenced against any person subject to the complaint[12] and, following a decision in this regard by the Vice-Chancellor, written advice was to be provided to all relevant parties.[13] The terms of reference for the investigation of the applicant’s complaint (Terms of Reference) relevantly provided that a full copy of the complaint had been provided to two individuals (the third and fourth parties in this review) and that a copy of the Report would be provided to the applicant, the third party and the fourth party. By letter dated 31 July 2017, QUT informed the applicant, in accordance with the Procedure, that: 10 of the 11 allegations in the complaint were found to be unsubstantiated the remaining allegation[14] was found to be substantiated; and based on the Report’s findings, QUT had decided not to take disciplinary action against any party. In that letter, QUT also notified the applicant that it would not provide a copy of the Report to the applicant (as contemplated in the Terms of Reference), given the applicant was, at that time, no longer employed by QUT. Significant procedural steps taken in the external review are set out in the Appendix. Reviewable decision The decision under review is QUT’s internal review decision dated 6 March 2018. QUT bears the onus in this review of establishing that the decision under review was justified or that the Information Commissioner should give a decision adverse to the applicant.[15] Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). Preliminary issues On external review, the applicant confirmed that he did not seek access to certain information, namely the copy of his complaint and transcript of his interview with the investigator (both of which were attachments to the Report),[16] and the information which QUT released to him in accordance with its original decision. Twenty-two pages and 48 part pages of the Report were released pursuant to QUT’s original decision. QUT’s internal review decision reconsidered this information and decided to refuse access to some of it. QUT has submitted to OIC that its initial release of the information was in error.[17] The internal reviewer acknowledged that the information had been released to the applicant, but stated that ‘[t]hose facts notwithstanding, I am required to make my Review Decision under the Act as if the Original Decision had never been made: section 80 (2) of the Act’. Under section 80(1) of the RTI Act, ‘a person affected by a reviewable decision may apply to have a decision reviewed by the agency ... dealing with [their] application’. Section 80(2) of the RTI Act provides that ‘the reviewer must make a new decision as if the reviewable decision had not been made’. The definition of ‘reviewable decision’[18] does not include any reference to a decision giving access to information in a document. Given these provisions, QUT’s decision to give access to 22 pages and 48 part pages was not a “reviewable decision” that could be considered on internal review. It follows that I do not have jurisdiction on external review to consider the internal review decision’s refusal of this already released information. Even if I did, the applicant has, as noted above, advised OIC that he does not wish to pursue access to this information on external review, obviating any need for consideration of it in this formal decision. QUT has, in terms of this information, submitted[19] ‘(a) [t]hat any disclosure in the original decision going beyond disclosure provided for in the Internal Review was in error and obligations of confidence binding on the conscience of the applicant remained and/or revived once the preferable decision ... was made upon the Internal Review; and/or (b) QUT wishes to reserve the right to submit concerning the operation of the Act ... that an applicant bound by obligations of confidence with respect to specific documents is not free to disseminate the once the same documents are disclosed under the Act’. Insofar as QUT may contend that OIC has failed to address this submission, I consider that such matters extend beyond the merits review of reviewable decisions that the Information Commissioner[20] is tasked with performing under the RTI Act. Information in issue The information remaining for consideration (Information in Issue) appears on 554 pages. While I am constrained as to the level of detail that I can provide regarding the Information in Issue,[21] it generally comprises: Information Description Category A Information The following types of information: (i) restatements of the applicant’s allegations (ii) the investigator’s summaries of the information provided by the applicant; and (iii) the investigator’s reasoning for the finding that the allegations were not substantiatedin the parts of the Report regarding the 10 allegations which were found to be unsubstantiated, excluding Category B Information. Category B Information Personal information of individuals other than the applicant and small portions of additional information which could reasonably be expected to lead to their identification[22] appearing in: (a) the following parts of the Report regarding the 10 allegations which were found to be unsubstantiated (i) restatements of the applicant’s allegations (ii) the investigator’s summaries of the information provided by the applicant; and (iii) the investigator’s reasoning for the finding that the allegations were not substantiated (b) some other parts of the Report (for example, the executive summary); and (c) correspondence. Category C Information The following parts of the Report: (a) sections of the Report containing the investigator’s summaries of information provided by individuals other than the applicant regarding all 11 allegations; and (b) information in the Report’s attachments, being transcripts of interviews with individuals other than the applicant and information provided to the investigation. Category D Information Names and signatures of individuals other than the applicant which were refused or deleted in 47 of the pages partially released to the applicant. I will provide QUT with a copy of the Category A Information along with this decision. Issues for determination The issues to be determined are: whether information falls outside the scope of, or is irrelevant to, the access application; and whether access to the Information in Issue may be refused on the basis that its disclosure would, on balance, be contrary to the public interest. During the external review, QUT submitted[23] that the internal review decision was ‘one made under section 47(3)(a) and (b) of the Act to refuse access on public interest grounds as provided for in sections 48 and 49’ and ‘[b]oth section 47(3)(a) and (b) apply, the former in respect of the findings of exemption based on confidence (see clause 8 of Schedule 3) and the latter as to the other grounds discussed in the Internal Review as factors favouring non-disclosure in the public interest’. The internal review decision applied the public interest test set out in section 49 of the RTI Act and decided that the Information in Issue could be refused on the ground that it was contrary to public interest information under section 47(3)(b) of the RTI Act. However, it did not address schedule 3, section 8(1) of the RTI Act (which provides information is exempt information if its disclosure would found an action for breach of confidence), and did not decide that the Information in Issue could be refused on the ground that it was exempt information under section 47(3)(a) of the RTI Act. Nor have these provisions been addressed on external review by QUT, or the third or fourth parties. In absence of any submissions regarding these provisions, noting that the material before me appears insufficient to establish that disclosure would found an action for breach of confidence, and also noting that the onus is on QUT to establish that its decision was justified,[24] I am satisfied that the ground of refusal in section 47(3)(a) and schedule 3, section 8(1) of the RTI Act does not arise for consideration, nor appear reasonably likely to apply, in this review. Information outside the scope of, or irrelevant to, the access application Prior to issuing the original decision, QUT and the applicant engaged in negotiations regarding the scope of the access application and agreed to a narrowed scope. QUT has submitted that the Category A Information falls outside the narrowed scope,[25] while the applicant has submitted that QUT agreed to expand the narrowed scope to include certain information, but then failed to locate that information.[26] Relevant law The scope of an access application should not be interpreted in the same manner as the interpretation of a statute or legal document.[27] An applicant must, however, give sufficient information concerning the documents sought to enable a responsible officer of the agency to identify the documents.[28] This is because the terms of an access application set the parameters for an agency’s response and the direction of an agency’s search efforts. When narrowing of an access application has occurred, it is not possible for OIC to interpret the narrowed application more broadly than its terms. In practice, if a document does not contain any information that is relevant to the terms of the access application, it is referred to as being ‘outside scope’ and it will not be considered as part of the application under the RTI Act. Where parts of a document do not relate to the terms of an application, section 73 of the RTI Act permits an agency to delete information in a document that the agency reasonably considers is not relevant to the access application before giving access to a copy of the document. This is not a ground for refusal of access, but a mechanism to allow irrelevant information to be deleted from documents which are identified for release to an applicant.[29] 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.[30] Findings On external review, the applicant raised additional information which he submitted[31] QUT failed to locate in response to the application. More specifically, the applicant submitted that QUT had agreed to expand the scope of the application to include information about a second complaint he had made and his personnel file. On the material before me, I note that: following discussions between QUT and the applicant, QUT notified[32] the applicant that the application had been narrowed to the Report and its attachments (excluding information that the applicant had provided) and certain correspondence created after QUT’s receipt of the Report the applicant confirmed[33] his agreement to the scope of the narrowed application in his application for internal review of QUT’s original decision, the applicant sought to contest the terms of the narrowed application;[34] and in the internal review decision, QUT determined that documents relating to the applicant’s second complaint and his personnel file fell outside the scope of the narrowed application. An agency’s determination that a document falls outside the scope of an application is not a “reviewable decision” under the RTI Act.[35] Accordingly, once OIC determines that a document is outside the scope of an access application, it cannot further consider the document in an external review arising from that application.[36] I have carefully considered the material before me concerning the interactions between the applicant and QUT regarding the scope of the application and I find that: QUT did not agree to expand the scope of the narrowed application as the applicant contends; and the documents which the applicant submitted were not located by QUT are documents which fall outside the scope of the narrowed application and, on this basis, I am unable to further consider the applicant’s request to access these documents.[37] QUT also submitted[38] that, because the narrowed application excluded information provided by the applicant, the Category A Information falls outside the scope of, or is irrelevant to, the application. In this regard, I consider it is relevant to note that: In an email exchange between the applicant and QUT prior to QUT’s confirmation of the narrowed application— QUT suggested that ‘[i]t would also be helpful if we excluded from scope any email where you are the sender or recipient, i.e. email correspondence you already have, and any duplicate email correspondence’; and the applicant confirmed that he was not requesting information where he was the ‘sender or recipient’.[39] The QUT officer who engaged in the scope negotiations confirmed to the applicant by email:[40] This is to confirm that we discussed and agreed to proceed with the application as a request for the following: The ... Report and attachments, including terms of reference of the investigation and excluding any information provided by yourself Correspondence containing the recommendation made by the HR Director to the Vice-Chancellor following QUT’s receipt of the ... Report. The same QUT officer went on to make the original decision. He excluded from consideration two appendices to the report, comprising the applicant’s complaint and the transcript of his interview with the investigator. He proceeded on the basis that the information responsive to the application included the investigator’s summaries of information provided by the applicant about all 11 allegations, and the investigator’s reasoning for findings regarding all 11 allegations. In terms of this information, he decided to partially release the investigator’s summary of information provided by the applicant about the allegation which was found to be substantiated, and the investigator’s reasoning for finding this allegation was substantiated. I have carefully considered QUT’s submissions that it erroneously released such information.[41] Based on the scope discussions between the applicant and the original decision maker, and the steps taken by those parties noted in the above paragraph, I am satisfied that, at the conclusion of the scope negotiations, both QUT and the applicant were of the same understanding regarding the narrowed scope. Specifically, they were both of the understanding that information provided or received by the applicant was outside scope; however, the mention of such information by the investigator in the Report was not. Assessing the narrowed application scope set out in the above paragraph objectively and without undue technicality, I am also of this understanding. Accordingly, given that the Category A Information comprises the investigator’s restatements and summaries of information provided to the investigator by the applicant and the investigator’s reference to such information in his analysis and conclusions about the allegations found to unsubstantiated—not information provided or received by the applicant himself—I find that the Category A Information falls within the scope of, and is relevant to, the narrowed application. Therefore, I find that this information cannot be excluded or partially deleted as QUT contends. Contrary to the public interest information Relevant law Under the RTI Act, an individual has a right to be given access to documents of an agency,[42] however, this right of access is subject to a number of exclusions and limitations. One such ground of refusal is where disclosure of information would, on balance, be contrary to the public interest.[43] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[44] 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. 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 – Category A Information As noted at paragraph 22 above, the Category A Information comprises the following information in the parts of the Report regarding the 10 allegations which were found to be unsubstantiated: (i) restatements of the applicant’s allegations (ii) the investigator’s summaries of the information provided by the applicant; and (iii) the investigator’s reasoning for the finding allegations were not substantiated. However, the Category A Information excludes parts of (i), (ii) and (iii) that comprise personal information of individuals other than the applicant, and small portions of additional information which could reasonably be expected to lead to their identification. Such information constitutes Category B Information and is addressed below. In summary, QUT submitted that disclosure of the Category A Information would be contrary to the public interest because the factors favouring nondisclosure of that information outweigh relevant factors favouring disclosure. QUT also: contended that it is not possible to remove the ‘intertwined’ personal information of individuals other than the applicant from the Category A and Category B Information;[45] and repeated and relied on the entirety of its internal review decision.[46] QUT’s internal review decision sets out reasoning regarding the Information in Issue as a whole, rather than reasoning regarding the Category A Information in particular. QUT has, throughout the external review, maintained that OIC decisions cited in its internal review decision with respect to the entirety of the Information in Issue apply regarding the Category A Information, and support nondisclosure of the Category A Information. However, on my reading of these earlier OIC decisions, I note that the comments relied on by QUT are largely made in relation to information more akin to the Category C Information (that is, information provided to a workplace investigation by individuals other than the applicant) than the Category A Information (that is, information provided to the investigation by the applicant). I will address this distinction as it arises in relation to the particular public interest factors where QUT’s internal review decision refers to comments made in various OIC decisions. QUT consulted the third and fourth parties to obtain their views about disclosure of parts of the Report which generally correspond to the Category A Information (Consult Information). The third and fourth parties objected to disclosure of the Consult Information on the basis that: it contains their personal information; and if it is disclosed, this could have a damaging effect on their reputations and professional relationships. Irrelevant factors The third and fourth parties have raised a number of concerns about what the applicant may do with information that is disclosed to him.[47] Under the RTI Act, disclosing information that could reasonably be expected to result in mischievous conduct by the applicant is an irrelevant factor in deciding the public interest.[48] While I have given consideration to the personal information and privacy of these individuals, I have not otherwise taken these concerns, or any other irrelevant factor, into account. Factors favouring disclosure Applicant’s personal information There is a public interest in individuals being able to obtain access to their own personal information held by government. Given that the Category A Information comprises restatements of 10 of the applicant’s allegations, the investigator’s summaries of the information provided by the applicant with respect to those allegations, and the investigator’s reasoning for finding that the allegations were not substantiated, I am satisfied that the Category A Information is the applicant’s personal information. Accordingly, a factor favouring disclosure[49] arises in respect of the Category A Information. Regarding the weight to be afforded to this factor, QUT submitted[50] that less weight should be afforded to take account ‘of the principle (again from an OIC decision) that the fact the information is known to an applicant lessens the weight of this factor’. In support of this submission, QUT relied upon the Information Commissioner’s decision of 0ZH6SQ and Department of Health[51] and the following statement in its internal review decision: However, it is the case that some of [the applicant’s] own personal information is already known to [the applicant]. This lessens the strength of this personal information factor as a factor in favour of disclosure. The decision of 0ZH6SQ considered an application by a prisoner to access a psychiatric report about him. The information in issue was details of some of the applicant’s offences and information about his victims, family and other people known to him,[52] and the Assistant Information Commissioner observed that ‘the applicant presumably knows the content of the Information in Issue as he claims he provided the information to the psychiatrists’.[53] In contrast, the context of the Category A Information is a workplace complaint, and the Category A Information comprises an investigator’s references to the applicant’s allegations and information provided by him, and the investigator’s analysis of, and conclusions about, that obtained information. On the material before me, I note that: the applicant is aware of the substance of all the allegations in his complaint, including the identities of individuals who were the subject of those allegations the applicant participated in the investigation and was notified of the investigation outcome—in particular, the applicant was notified that one of his 11 allegations was found to be substantiated and the remaining 10 were found to be unsubstantiated the applicant was not given a copy of the Report as contemplated in the Terms of Reference; and the information QUT released to the applicant in response to the access application, particularly the information released pursuant to the original decision, has provided him with some further understanding of how the investigation of his complaint was conducted and the reasoning for the finding that one allegation was substantiated. That is, while the applicant is aware of the allegations he made in the complaint and the information he provided to the investigator in respect of those allegations, he is not aware of how the investigator summarised and took into account his provided information in concluding that various allegations were not substantiated. Given these circumstances, I am satisfied that this matter involves different information and factual circumstances to those considered in 0ZH6SQ, and I do not consider that I am required to follow it in these reasons for decision. In this matter, I consider that the applicant’s knowledge about the investigation outcome and the information he provided to the investigation does not diminish, in any significant way, the weight to be attached to this factor favouring disclosure of the Category A Information. QUT also submitted[54] that ‘the weight of this factor is diminished and potentially defeated if that personal information cannot be unbound from the personal information of others’ and that ‘[w]here the applicant is well aware of the allegations that he made, the public interest must fall on the side of supporting non-disclosure, for otherwise, the applicant will have a written record of those allegations put in a formal manner to the investigator and be able to use such material to the detriment of the third parties’. As noted in paragraph 40 above, in assessing whether disclosure of information would, on balance, be contrary to the public interest, I must apply the process specified in section 49(3) of the RTI Act. The prospect that a factor favouring nondisclosure warrants significant weight does not form a basis for awarding factors favouring disclosure less weight than they would otherwise be awarded. Rather, the process requires that I attribute weight to all relevant factors and then balance them against one another. I have therefore dealt with these submissions below, in the context of considering relevant factors favouring nondisclosure and in balancing the public interest. Taking into account the nature of the Category A Information, the context in which it appears and the information within the applicant’s knowledge, I afford significant weight to this factor favouring disclosure of the Category A Information. Accountability and transparency The RTI Act recognises that public interest factors favouring disclosure will arise where disclosing information could reasonably be expected to: enhance the Government’s accountability[55] 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;[56] and reveal the reason for a government decision and any background or contextual information that informed the decision.[57] It is understandable that the applicant, as the complainant in the workplace investigation, wishes to be more informed about the nature and extent of the investigation. There is a public interest in workplace investigations being conducted with a degree of transparency and accountability which is sufficient to afford the parties to such an investigation (and the public generally) with an understanding of the investigation process and its outcome and conclusions. In the circumstances of this matter, I consider that the factors favouring disclosure relating to accountability and transparency apply to the Category A Information because disclosing that information would: provide the applicant (and the public generally) with an greater understanding of how the investigator dealt with information provided to the investigation; and inform the applicant about how the investigator summarised, and took into account, the information that the applicant provided to the investigator about the allegations that were found to be unsubstantiated. The third and fourth parties submitted[58] that these factors could have been ‘satisfied by inspection’, as offered by QUT. As noted above,[59] inspection was offered ‘otherwise than under the RTI Act’ and was contingent on the applicant completing a nondisclosure agreement. In this matter, the applicant did not request access by inspection and continues to seek access in the form requested in the application. Further, section 68(3) of the RTI Act provides that, subject to deletion of irrelevant, exempt and contrary to the public interest information, access must be given in the form that is requested. In these circumstances, I do not consider any potential advancement of accountability and transparency that could have occurred, had the applicant taken up the offer to be provided with inspection access outside the RTI Act, supports a view that the above factors regarding accountability and transparency do not apply, or apply but should be afforded reduced weight, when considering access under the RTI Act. I note that, in its internal review decision, QUT afforded these factors significant weight when considering the Information in Issue and relevantly noted: I have given significant weight to these factors. They are at the centre of the objects and purposes to be served by the Act and its administration by officers of agencies. Transparency and accountability of agencies for their conduct and their decisions are weighty public interests in virtually all decisions made under the Act. On external review, QUT submitted[60] that while these factors ‘must be given their usual rational and reasonable weight’, they are outweighed by factors favouring nondisclosure. As I have already noted, in assessing whether disclosure of the Category A Information would, on balance, be contrary to the public interest, I must apply the process specified in section 49(3) of the RTI Act. I acknowledge that, inherent in this process, the accountability and transparency factors will not necessarily be determinative of the public interest. The process I must follow is to identify and attribute weight to all relevant factors favouring disclosure and nondisclosure, and then balance them against one another. On careful examination of the material before me, I consider that, while the applicant was notified of the investigation outcome and is aware of the information he provided to the investigator (particularly as he has a copy of his complaint and the transcript of his interview with the investigator), the applicant is not aware of how the investigator summarised, or took into account, this information in concluding that most of the allegations were not substantiated. On this basis, I consider that each of these factors favouring disclosure applies regarding the Category A Information, and attach significant weight to each of them. Deficiencies in the conduct or administration of an agency, official or other person Public interest factors favouring disclosure also arise where disclosure of information could reasonably be expected to: allow or assist with inquiry into possible deficiencies in the conduct or administration of an agency or official[61] or another person contracted to perform work for the agency;[62] and reveal or substantiate that an agency or official, or another person contracted to perform work for the agency,[63] has engaged in misconduct or negligent, improper or unlawful conduct.[64] The applicant submitted that: the complaint allegations concerned serious conduct issues[65] his complaint was ‘ineffectively investigated by QUT in the first instance’;[66] and the substantial information he provided in support of his complaint was ignored by the investigator.[67] On external review, QUT submitted that little weight should be afforded to these factors favouring disclosure and relied upon the reasoning in the internal review decision, which relevantly stated: Once again, whilst I have considered these factors, I do not find that they have any particular application, and so I give them little weight. ... Further, no agency misconduct, negligent, improper or unlawful conduct appears in the circumstances, nor does any evidence of deficiencies in the conduct of QUT or any officer or employee of QUT. If this language, however, were to be applied to the one finding in support of the issues [the applicant] raised in [the applicant’s] grievance, [the applicant has] been advised of that outcome. Given the RTI Act does not permit me to reveal the content of the Category A Information in these reasons,[68] I am unable to address the extent (if any) to which the Category A Information reflects the applicant’s concern that the information provided by him was ignored by the investigator. As I have previously mentioned, the applicant is not aware of what information was considered by the investigator (including what parts of the information provided by him information were considered) in finding that 10 of the 11 allegations were not substantiated, nor is the applicant aware of the reasoning for those findings. In these circumstances, and in the context of the applicant’s submission that information he provided was ignored, I consider that disclosure of the Category A Information would reveal to the applicant (and the public generally) whether or not the investigator’s findings that allegations were unsubstantiated were reached without taking the information provided by the applicant into account. Thus, disclosure of the Category A Information could reasonably be expected to assist the applicant’s inquiry into the possible deficiencies he has identified concerning QUT’s investigation process. For these reasons, I am satisfied that the factor favouring disclosure which relates to allowing or assisting with inquiry into possible conduct deficiencies[69] applies to the Category A Information. Taking into consideration the nature of the Category A Information, the information known by the applicant and the possible deficiencies that have been raised by the applicant, I afford moderate weight to this factor. While the applicant submitted that the allegations which were the subject of the workplace investigation were of a serious nature,[70] he is aware that the investigation found that 10 of the 11 allegations were not substantiated. The applicant has not identified or enunciated how disclosure of the Information in Issue, or the Category A Information in particular, could reveal or substantiate any misconduct or negligent, improper or unlawful conduct by QUT, its staff or the investigator. On careful consideration of the material before me, there is nothing which evidences that there was any such misconduct or negligent, improper or unlawful conduct in QUT’s investigation process. Accordingly, I find that the factor relating to revealing or substantiating such conduct[71] does not apply to the Category A Information. Reveal information was incorrect, unfairly subjective etc A public interest factor favouring disclosure will also arise where disclosing information could reasonably be expected to reveal that the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.[72] Given the applicant’s submission that his complaint was ineffectively investigated and that the information provided by him to the investigator was ignored, I have considered whether this factor favouring disclosure applies to the Category A Information, although it was not specifically raised by the applicant.[73] QUT relies on its internal review decision, which relevantly contains the following statement: I have seen no evidence, nor claim, that the grievance procedure and the investigation produced any incorrect, misleading, irrelevant, out of date or unfairly subjective information. I took into account the following views of the Right to Information Commissioner in Z Toodayan and Metro South Hospital and Health Service [2017] QICmr 34 at 51: .... I note that the referenced comments by the Right to Information Commissioner in Z Toodayan and Metro South Hospital and Health Service[74] were made concerning witness statements and associated information which identified the witnesses, provided in an investigation about the conduct of the applicant in that matter. While I have given consideration to these comments, I have taken into account that they were expressed about information that is quite different to the Category A Information—specifically, information provided by a range of witnesses other than the applicant. The Category A Information relates to information provided by the applicant. I have carefully reviewed the Category A Information. Again, I am unable to address the applicant’s concern about the information provided by him being ignored.[75] As the Category A Information summarises, and includes analysis of, the information provided by the applicant, I consider that its disclosure could reasonably be expected to allow or assist inquiries by the applicant into any errors, or unfair subjectivity, in the investigator’s summaries or understanding of that provided information. In effect, this opportunity is noted and afforded requisite weight at paragraphs 67 and 68 above. However, the factor noted at paragraph 70 above is enlivened where disclosing information could reasonably be expected to reveal that the information itself is incorrect or unfairly subjective. The material before me is insufficient for me to conclude that disclosure of the Category A Information could reveal such defects. If I am wrong in this regard, and it is the case that the factor does apply, taking into account the nature of the Category A Information and the information known to, or possessed by, the applicant, I consider it should be afforded low weight. Administration of justice for the applicant Where disclosing information could reasonably be expected to contribute to the administration of justice for a person, a public interest factor favouring disclosure[76] will arise. In determining whether this public interest factor in favour of disclosure applies to the Category A Information, 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.[77] As I have previously noted, the applicant submitted that there were inadequacies in the investigation. He also submitted[78] that certain individuals have disclosed matters concerning the investigation and, as he was not provided with a copy of the Report as contemplated by the Terms of Reference, he is unable to counter this and there has been resulting damage to his reputation and career. QUT submitted that: this factor favouring disclosure does not apply to the Category A Information because, unlike the circumstances in Willsford:[79] ‘no possible remedy has ever been adverted to by the applicant in respect of the investigation (or any other dealing with QUT)’ and ‘QUT ought not to be placed in a position of having to guess at causes of action’; and ‘[i]t is impossible to understand how release to the applicant of the information originally provided by him to the investigation can assist him in pursuing a remedy ... ’ contrary to the Terms of Reference, an unredacted copy of the Report was only received by persons who required it for the performance of their duties;[80] and it is not aware of any person involved in the investigation communicating the fact that an investigation was undertaken, the nature of the matters investigated, nor the investigation outcomes to any individual.[81] It is my understanding that the applicant has formed his view about inadequacies in the investigation, and its processes, based upon his participation in the investigation process and the information that has been disclosed to him. I acknowledge the applicant’s submissions about damage he considers has been caused to his reputation and career; however, the applicant has not specified what type of remedy he seeks in respect of that submitted damage. Further, while the applicant has raised concerns about the investigation process itself, he has not specified what loss, damage or wrong he has suffered as a result and what remedy he seeks in respect of those concerns. I also note that the applicant has had some time to frame any loss, damage or wrong he considers relevant in terms of a potential remedy, as the workplace investigation is complete and its outcome was notified to the applicant approximately 18 months ago. In these circumstances, there is insufficient material before me to conclude that the applicant requires the Category A Information to enable him to evaluate whether a remedy is available and worth pursuing against any entity or individual in respect of the concerns he has raised about the investigation process and outcome, or the damage he submits his reputation and career have sustained. In these circumstances, I am not satisfied that disclosure of the Category A Information could reasonably be expected to contribute to the administration of justice for a person. Accordingly, I find that the factor relating to this aspect of justice does not apply to the Category A Information. Fair treatment and procedural fairness for the applicant The RTI Act also gives rise to factors favouring disclosure in circumstances 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;[82] and contribute to the administration of justice generally, including procedural fairness.[83] 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 the public interest factor relating to advancing the fair treatment of individuals. However, this public interest factor does not require a decision-maker to ensure that an applicant is provided with sufficient information to enable the applicant to be subjectively satisfied that he or she received fair treatment. In its internal review decision, which QUT relies upon, QUT relevantly stated: Whilst I have considered this factor, I do not find that it has any particular application, and so I give it little weight. I have seen no evidence, nor claim, that the grievance procedure and the investigation produced any treatment of [the applicant] (or other persons) that was anything but fair. The investigation spanned a great deal of time, many witnesses were interviewed and a detailed report was produced dealing with eleven allegations upon which the grievance was based. 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.[84] Accordingly, the person who is the subject of a decision 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.[85] In the context of a workplace investigation, procedural fairness generally requires that a person is: adequately informed of the allegations made against them given an opportunity to respond to the allegations; and informed of the outcome of the investigation.[86] QUT relies on its internal review decision, in which it afforded little weight to this factor and relevantly stated: Nor am I aware of any other respect in which the administration of justice would be attracted, such as some form of natural justice/procedural fairness based on action that might be taken against you: see Carter and James Cook University s 210/00, 28 March 2002 at [27]: ... I would distinguish [the applicant’s] case from the Carter case above in that [the applicant does] not have continuing contact with the University. I do not find that the administration of justice arises in the present context as a principle or factor in favour of disclosure. In particular, I have had regard to the fact that the purpose of the investigation was not to investigate [the applicant’s] conduct, but the conduct of others as set out in the grievance. In such circumstances, it is difficult to see how a requirement that [the applicant] be afforded procedural fairness arises: see F60XCX and Department of Natural Resources and Mines [2017] QICmr 19 at [89]- [92]: ... In respect of the referenced comments of the Information Commissioner in Carter and James Cook University,[87] I note the issue considered in that decision was whether disclosure of a management review report could have a substantial adverse effect on the management or assessment by an agency of the agency’s personnel under the now repealed Freedom of Information Act 1992 (Qld). While the internal review decision seeks to distinguish the decision in Carter, I do not consider the reference to this decision is particularly relevant to consideration of the administration of justice factor in the present matter. As to QUT’s reliance on the Information Commissioner’s referenced findings in F60XCX and Department of Natural Resources and Mines,[88] I note that the information in issue in that matter included ‘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’.[89] While the referenced findings may be apposite to the Category C Information and some of the Category B Information (that is, the personal information of others, and information provided to the investigation by individuals other than the applicant), I do not consider they are particularly relevant to the Category A Information (that is, information provided to the investigation by the applicant). As I have previously noted, while the applicant was notified of the investigation outcome, he has no knowledge of the investigator’s reasoning for finding that most of his allegations were unsubstantiated or the information the investigator took into account in reaching those findings (including what of the information provided by him was taken into account). The Terms of Reference for the investigation contemplated that the applicant would receive a copy of the Report after the investigation was concluded. Further, the applicant has submitted that he was ‘given assurances’ that he would get a copy of the Report when the investigation was finalised.[90] The applicant contends that he participated in the investigation on this basis. Given these specific circumstances, I consider that disclosing the Category A Information would provide the applicant with an understanding of how the information provided by him was summarised and taken into account in the Report findings and, in doing so, advance his fair treatment. On this basis, I am satisfied that this factor favouring disclosure[91] applies. Taking into consideration the nature of the Category A Information, I afford this factor moderate weight. In terms of procedural fairness, I note that the applicant was the complainant, not the subject of the complaint allegations. I further note that he was afforded an opportunity to participate in the investigation process and was provided with notification that 10 of his 11 allegations were found to be unsubstantiated. Given these specific circumstances, I do not consider that disclosure of the Category A Information could reasonably be expected to contribute to the administration of justice generally, and therefore this factor[92] does not apply. If I am wrong, and it is considered that this factor does apply due to some inadequacy in the notification provided to the applicant, taking into account the nature of the Category A Information, I afford low weight to this factor. Other factors favouring disclosure I have carefully considered all factors listed in schedule 4, part 2 of the RTI Act, and can identify no other public interest considerations telling in favour of disclosure of the Category A Information. Taking into consideration the nature of the Category A Information, I cannot see how its disclosure could, for example, contribute to a debate on important issues or matters of serious interest,[93] ensure the effective oversight of expenditure of public funds[94] or contribute to the enforcement of the criminal law.[95] Factors favouring nondisclosure Personal information of other individuals A public interest factor favouring nondisclosure will arise under the RTI Act where disclosure of information could reasonably be expected to cause a public interest harm because it would disclose personal information of a person, whether living or dead (personal information harm factor).[96] QUT relies on the following passage from its internal review decision regarding the entirety of the Information in Issue: ... [the applicant’s] personal information is inextricably intertwined with that of others. This is a strong factor against disclosure to [the applicant] of the [Report] and all attachments. In this regard, I note that it is very difficult to redact the information so as to effectively de-identify third parties: see F60CXC and Queensland Ombudsman [2014] QICmr 28[97] at [29]-[30]. As was the case in F60CXC and Queensland Ombudsman [2014] QICmr 28 at [31], the information is sensitive and personal in nature. Moreover, it was given in the sensitive context of an investigation into allegations, as occurred in Z Toodayan: see at [43]: ... I give significant weight to these factors. ... the intrusion into personal privacy of individuals is all the greater because what would be disclosed to [the applicant] (with the possibility of further dissemination) are allegations which are in essence allegations of misconduct or unlawful, negligent or improper conduct (which I decline to describe further). In this regard, I follow the reasoning in Z Toodayan at [43], and F60CXC and Queensland Ombudsman at [31]-[32]. It is apparent that disclosure of unsubstantiated allegations that are in part a third party's personal information can cause a public interest harm within [schedule 4, part 4, section 6(1) of the RTI Act] above. On external review, QUT submitted:[98] The three errors in ... [OIC’s preliminary view] are the central proposition, the claim that persons cannot be identified in the [Category A Information] ... (while not proposing any legal basis for that conclusion) and the failure to recognise that the personal information of the applicant is inextricably intertwined with personal information of other persons whose identity is reasonably ascertainable. QUT provided detailed submissions regarding these points, which I will outline and address below. The third and fourth parties submitted[99] that if the Consult Information is disclosed, their identities are still ascertainable by the applicant. Given these submissions, it is necessary that I address: whether the exclusion of the Category B Information from the Category A Information means that the Category A Information no longer contains the personal information of individuals other than the applicant; and whether it is possible to disclose the Category A Information without disclosing the personal information of others. Personal information The definition of ‘personal information’ in the RTI Act[100] refers to the definition in the Information Privacy Act 2009 (Qld) (IP Act), which provides that:[101] Personal information is information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. As noted in paragraphs 22 and 42-43 above, the Category A Information excludes the Category B Information, which is personal information of individuals other than the applicant, and small portions of additional information which could reasonably be expected to lead to identification[102] of such individuals. I have carefully considered the statement in the internal review decision[103] that ‘it is very difficult to redact the information so as to effectively de-identify third parties’, and reference to F60XCX and Queensland Ombudsman[104] in support of this view. In the referenced comments, the Assistant Information Commissioner observed[105] that: 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 [with the subject officer’s name redacted]. 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. [my emphasis] These referenced comments consider the redaction of one type of personal information—specifically, the names of the subject of a complaint and a witness. The present situation differs significantly, in that the Category B Information redacted from the Category A Information extends beyond the names of such parties. Here, the redacted information includes all information identified by OIC and/or QUT as personal information of individuals other than the applicant, and all information which could reasonably be expected to lead to their identification. I will address this point further at paragraphs 112-113 below. The abovementioned comments in F60XCX and Queensland Ombudsman contemplated that, in the circumstances of that review, disclosure of information with the names of the subject of the complaint and witness deleted could, nevertheless, allow the applicant and other readers to identify them. In terms of the reference to the applicant, it is relevant to note that, in F60XCX and Queensland Ombudsman, the information in issue was not provided to the Ombudsman by the applicant,[106] and was therefore not already in the applicant’s knowledge. That is not the case regarding the Category A Information. In terms of the reference to other readers, QUT has made extensive submissions[107] contending that, for the Category A Information to qualify as personal information, it need only allow the applicant or the individuals to whom the Category B Information relates—not other readers—to identify themselves. For example, QUT submitted:[108] [S]ince the applicant and the persons spoken of in the [Category A Information] can readily, between them (and/or the applicant on his own), ascertain the identity of every person referred to therein, the definition in the Act of "personal information" is satisfied as concerns third parties involved in the investigation. In other words, QUT’s position is that the redaction of the Category B Information cannot adequately de-identify the third and fourth parties because their identities remain reasonably ascertainable by the applicant and the third and fourth parties, and possibly others who participated in the investigation, and this is sufficient to satisfy the definition of personal information. In this regard, QUT relies primarily on the decision of Justice Smith of the Supreme Court of Western Australia in Public Transport Authority.[109] This decision considered a media organisation’s request to access pixelated CCTV footage about incidents occurring at train stations or level crossings. In terms of whether this information was ‘personal information’ as defined in the Freedom of Information Act 1992 (WA) (WA FOI Act),[110] Her Honour decided that:[111] Further, a construction that it is only necessary that one person may have the necessary information to ascertain their identity or the identity of another person is consistent with the exemption in cl 3(2) of sch 1[[112]] that contemplates that unless it is the applicant who is seeking personal information about themselves, the personal information is exempt from disclosure. In this context, cl 3(2) contemplates that personal information may only be information revealed about one person. ... The issue is whether a person's identity can reasonably be ascertained. The question to be asked is whether, on an objective assessment of all relevant circumstances when examining CCTV footage, it can reasonably be said that at least one or more persons, including the person or persons whose image(s) are shown in CCTV footage, could have the necessary knowledge or contextual information to ascertain the identity of the individual or individuals. [QUT’s emphasis] Given the similarity between the definitions of personal information in the WA FOI Act and Queensland’s IP Act, I have taken into account the findings in Public Transport Authority. However, I have done so noting that, unlike the pro-disclosure bias in section 44(1) of the RTI Act, the WA FOI Act places the onus on the access applicant[113] to establish, for the purposes of the schedule 1 definitions (including the personal information exemption in clause 3(1) of schedule 1), that disclosure would, on balance, be in the public interest. I have further noted that the WA FOI Act contains no provision similar to the public interest test in section 49(3) of the RTI Act. Also, as will be discussed further below, I have noted that the personal information harm factor is worded ‘would disclose personal information of a person’, whereas the WA FOI Act equivalent is worded ‘would reveal personal information about an individual’ (my emphasis). Public Transport Authority did not consider the construction of ‘would reveal personal information about an individual’. While there were two grounds of appeal in Public Transport Authority[114]—firstly, the proper construction of the expression ‘information about an individual whose identity is apparent or can reasonably be ascertained from the information’ in the definition of personal information; and secondly, the question of whether disclosure of the disputed CCTV footage ‘would reveal personal information about an individual’ as defined in the personal information exemption—Justice Smith only addressed the first ground of the appeal, and did not find it necessary to consider the second ground.[115] However, Her Honour subsequently considered the second ground in the decision of S v Department for Child Protection and Family Support.[116] This decision is discussed below. QUT also referred to two decisions of the Civil and Administrative Tribunal of New South Wales (NSW Tribunal)—namely, Peacock v Commissioner of Police, NSW Police Force[117] and CCB v Department of Education and Communities[118]—in support of its submission that ‘reasonable ascertainment for the purposes of the “personal information” is satisfied if made by as few as one person’.[119] Given the similarity between the definitions of personal information in the the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) and Queensland’s IP Act,[120] I have considered each of these decisions below. In doing so I have noted that, similar to the RTI Act, the GIPA Act provides a right to access information unless there is an overriding public interest against its disclosure.[121] I have also noted that, again similar to the RTI Act, the GIPA Act sets out a number of public interest considerations to consider and weigh when determining whether there is an overriding public interest against disclosure. These relevantly include where disclosure of information could reasonably be expected to ‘reveal an individual’s personal information’[122] (my emphasis). In CCB, in considering a request for disclosure of a ‘de-identified’ version of workplace health and safety reports, the NSW Tribunal found:[123] The character of the WH&S incident reports, as containing personal information, is not changed by de-identification when supplied to the applicant. Alternatively, the mother knows the identity of the support teacher, and knows that she was involved in the incidents, so that the support teacher’s identity could reasonably be ascertained from the de-identified information, with reference to the extraneous information. This means it would retain its character of “personal information”’. ... Accordingly, I find that the disclosure of the WH&S incident forms could reasonably be expected to reveal the support teacher’s personal information. It is relevant to note that CCB involved an application by a mother seeking workplace health and safety reports made by a support teacher following incidents involving her child. That is, CCB examined the redaction of a witness’ personal information from a statement made by that witness. In contrast, the Category A Information is information the investigator recorded about information received from the applicant and the investigator’s analysis and conclusions about the applicant’s allegations. Peacock involved an application by a mother for information about her deceased daughter, and considered the possibility of redacting ‘personal details ... recorded by Police officers in the course of exercising their functions, [including] the details of people who have supplied information to police as a witness, and people who have been investigated in relation to suspected criminal activities’[124] from documents. Following CCB, the NSW Tribunal found that the applicant’s knowledge of the incidents recorded in the documents meant that the identity of individuals identified in the documents ‘could reasonably be ascertained even if their names and contact details were redacted’.[125] Again, it is relevant to note that the information which was considered in Peacock (namely information about witnesses and suspects recorded by police) is significantly different from that considered in this review. I have carefully considered the Category A Information and the submissions of QUT and the third and fourth parties. I do not agree with QUT’s contention that the personal information of other individuals is inextricably intertwined with the personal information of the applicant in these sections of the Report. For the reasons that follow, I am satisfied that the exclusion of the Category B Information enables the Category A Information to be disclosed without disclosing the personal information of those other individuals. The Category B Information was identified and redacted from the Category A Information by the process of: providing a redacted version of the Category A Information to QUT,[126] with redactions of personal information consistent with QUT’s redactions to the information regarding the substantiated allegation released to the applicant pursuant to the original decision QUT making submissions[127] regarding certain information about work history, social activities and other information my considering the Category A Information in light of QUT’s submissions and providing a further redacted version of the Category A Information to QUT[128] with the names of the particular QUT research area and programs, their physical location and details of the social interactions between the applicant and a witness redacted QUT making submissions[129] that ‘there are still a few distinctive elements remaining which would make identification relatively easy for people other than the applicant (who can readily identify them, redaction or not)’ and identifying references to particular locations, a small number of nouns and pronouns, and certain information provided by witnesses my considering the Category A Information in light of QUT’s submissions and seeking[130] QUT’s view about the incorporation of further minor redactions of references to particular locations and nouns and pronouns; and my examining the Category A Information in close detail a further, final time. In terms of the additional information identified in QUT’s submissions, QUT submitted that ‘[t]hese continuing errors support the conclusion that it is difficult to redact information so as to effectively deidentify third parties’.[131] However, the fact that additional information was identified and redacted during the above type of process is not unusual[132] and does not demonstrate that the final version of the Category A Information still contains more information requiring redaction. During the above process, I identified information that, on its face, constituted the personal information of other individuals, and relied on QUT’s agency specific knowledge regarding further information that could reasonably be expected to enable identification of those individuals. By this process—and noting that QUT’s second submissions stated that there were only ‘a few distinctive elements remaining which would make identification relatively easy for people other than the applicant’,[133] all of which have been carefully considered by me—I am satisfied that all personal information of individuals other than the applicant (including the third and fourth parties), and all information identified as reasonably leading to their identification, has been redacted from the Category A Information. As noted at paragraph 97 above, the definition of personal information requires that the information be ‘about an individual whose identity is apparent, or can reasonably be ascertained, from the information’.[134] Given the redaction of all personal information of individuals other than the applicant (including the third and fourth parties) noted above, I am satisfied that the identities of any such individuals are not apparent from the Category A Information. However, on an objective assessment of the Category A Information, I accept that the applicant and the third and fourth parties, by reason of their involvement in the investigation process, will always be in a position to identify the individuals about whom the allegations relate or who are otherwise referenced in these sections of the Report. It may also be possible for some other individuals who participated in the investigation to identify themselves in these sections of the Report. According to QUT, this position is sufficient for the Category A Information to qualify as personal information. In this regard, I have carefully considered the decisions raised by QUT. On my reading of these decisions, only Public Transport Authority contended that the question is whether one or more person has the necessary knowledge or contextual information to identify other individuals recorded in the document.[135] In contrast, CCB and Peacock each turned on the practical question of whether, following some redactions, the applicants in those matters could still identify others. Specifically, CCB considered that, despite de-identification of a workplace health and safety incident report completed by a support teacher, the applicant could still identify that teacher;[136] while Peacock considered that, even with names and contact details redacted from information recorded by police about conversations with witnesses and suspects, the applicant could still identify those witnesses and suspects.[137] Given this, the information in CCB and Peacock would, in the present decision, be categorised as Category C Information, not Category A Information. Finally, S v DCPFS considered information like the Category B Information, which I agree comprises personal information of others. Accordingly, having carefully considered these cases, I am of the view that Public Transport Authority is the only case that supports QUT’s contention that, for the Category A Information to amount to personal information, it is only necessary that one person be able to identify themselves, and this one person could be the applicant. As noted at paragraph 104 above, Public Transport Authority considered the question of whether identities could reasonably be ascertained in relation to pixelated CCTV footage. This issue was also considered by the Right to Information Commissioner in Seven Network (Operations) Limited and Logan City Council:[138] ... as noted in the WA Public Transport Case, the determination of whether a person’s identity is apparent, or can ‘reasonably be ascertained’ must be made on an objective assessment of all relevant circumstances, on a case-by-case basis. ... whether self-identification, or identification by those close to the individual/incident is possible by a cross-referencing process will depend on how available the information is, and how difficult it is to obtain. This includes whether the additional information used for cross-referencing is available by way of general knowledge for a substantial segment of the community within which the relevant footage has been recorded, or whether it is only available through specialist knowledge. Generally speaking, if certain individuals hold the relevant additional information by virtue of their particular relationship with a person or personal involvement in relevant events, and are able to use this specialist knowledge in order to identify the individual, this information is not sufficiently available, and is difficult to obtain. Accordingly, I do not consider that identification through this specialist knowledge is sufficient to demonstrate that an individual’s identity can ‘reasonably be ascertained’ from the information. This reasoning was followed in further decisions by the Right to Information Commissioner in Australian Broadcasting Corporation and Department of Child Safety, Youth and Women[139] and Seven Network (Operations) Limited and Department of Justice and Attorney-General; Department of Child Safety, Youth and Women.[140] Given the differences between the RTI Act and the WA FOI Act noted at paragraph 105 above, I consider it appropriate to follow the reasoning in Seven and Logan CC, ABC and DCSYW and Seven and DJAG. Following this reasoning, I have considered whether individuals other than the applicant (including the third and fourth parties) could reasonably be identified by persons who do not hold prior knowledge (that is, by persons other than the applicant, the third and fourth parties and individuals who were involved in QUT’s investigation) through additional information. In this regard, I have noted that: QUT submitted that only a limited number of staff received the Report, and that all persons involved in the investigation are bound by confidentiality obligations when notifying the applicant of the Report findings, QUT also stated that the applicant was required to ‘maintain strict confidentiality in respect of the complaint and the investigation’; and while the applicant and the third and fourth parties each have a copy of the 2017 complaint which was investigated, QUT submitted that it is not aware of any individual involved in the investigation process communicating with others that the investigation occurred, the nature of matters investigated nor the investigation outcomes. In these circumstances and taking into account the availability and relevance of such additional information,[141] I consider it reasonable to conclude that persons without prior knowledge about the identities of persons the subject of, or otherwise involved in, the workplace investigation could not, through additional information, reasonably ascertain the identities of those individuals in the Category A Information. Accordingly, as well as being satisfied that the identities of individuals other than the applicant are not apparent from the Category A Information, I am also satisfied that the identities of such individuals cannot reasonably be ascertained. On this basis, I am satisfied that the Category A Information is not personal information. “Disclose” Even if I were satisfied that the Category A Information should be characterised as personal information, it is also relevant to note that the personal information harm factor only arises if disclosure would disclose the personal information. As noted at paragraph 105 above, the WA FOI Act equivalent is worded ‘would reveal personal information about an individual’ (my emphasis). This provision was considered by Justice Smith in S v DCFPS. In this case, the appellant sought access to ‘the personal information that she provided to the Department, about third parties, that has been redacted from the copies of the documents to which she has been given access’[142]—that is, information provided to her that is akin to the Category B Information that has been redacted from the Category A Information. Notably, it appears that the information akin to the Category A Information was released to the appellant. In terms of the redacted personal information of others, the appellant contended that:[143] The appellant claims that where the application for access has been explicitly limited to the very information provided by her, cl 3(1) can have no application as this information cannot be said to be 'revealed' or 'disclosed' by access within the meaning of cl 3(1). Justice Smith was required to consider the construction of the phrase ‘would reveal personal information about an individual’. As the word ‘reveal’ was not defined in the WA FOI Act, Her Honour considered previous decisions regarding the phrase 'reveal the investigation of any contravention or possible contravention of law', which had appeared in a previous iteration of the WA FOI Act, and decided that:[144] ... Whilst Anderson J's observations were made about the statutory context of the words 'reveal the investigation', the point of importance raised by his Honour is that those words are to be interpreted without regard to the state of the knowledge of the person seeking access to documents. It is my opinion that the same point arises in the construction of cl 3(1) of sch 1. There is nothing in cl 3 or in any of the provisions of the FOI Act from which a legislative intention can be inferred that would require a consideration of the knowledge of the person seeking access when determining whether the disclosure of a matter would reveal personal information. As for the WA decisions, the NSW decisions raised by QUT involve consideration of the word ‘reveal’, in the context of the phrase ‘could reasonably be expected to reveal an individual’s personal information’. However, unlike the WA FOI Act, which does not define ‘reveal’, the GIPA Act defines ‘reveal’ as ‘to disclose information that has not already been publicly disclosed (otherwise than by an unlawful disclosure)’.[145] In relation to this, the NSW Tribunal commented as follows in CCB:[146] There is a question as to whether the information in question has been “publicly revealed” (in which case the personal information consideration against disclosure would not apply). The definition of “reveal information” is “to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)” (GIPA Act, Sch 4, cl 1). Thus, if the information has been publicly disclosed already, further disclosure would not “reveal personal information” within cl 3(a). ... There is insufficient evidence to conclude there has been any public disclosure of the information contained in the WH&S incident forms and I find that there has not been. In contrast to the WA FOI Act and the GIPA Act, the RTI Act requires consideration of the word ‘disclose’, in the context of the phrase ‘would disclose personal information of a person’. In this regard, I note the comments of the Right to Information Commissioner in ABC and DCSYW that:[147] 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. This is consistent with the meaning that the courts have given to the concept of disclosure ... . I further note the Right to Information Commissioner’s reference to case law regarding the concept of disclosure as follows:[148] ... the interpretation that the courts have given to the specific concept of disclosure supports the conclusion that a disclosure does not occur where the recipient already knows the information. In Nakhl Nasr v State of New South Wales [2007] NSWCA 101 at [127], the Court said: ... The essence of disclosure of information is making known to a person information that the person to whom the disclosure is made did not previously know: R v Skeen & Freeman [1859] EngR 90; (1859) Bell 97; 169 ER 1182 (“uncovering ... discovering ... revealing ... imparting what was secret ... [or] telling that which had been concealed”); Foster v Federal Commissioner of Taxation [1951] HCA 18; (1951) 82 CLR 606 at 614-5 (“... a statement of fact by way of disclosure so as to reveal or make apparent that which (so far as the “discloser” knows) was previously unknown to the person to whom the statement was made”); R v Gidlow [1983] 2 Qd R 557 at 559 (“telling that which has been kept concealed”); Dun & Bradstreet (Australia) Pty Ltd v Lyle (1977) 15 SASR 297 at 299; A-G v Associated Newspapers Ltd [1994] UKHL 1; [1994] 2 AC 238 at 248 (“to open up to the knowledge of others”); Real Estate Opportunities Limited v Aberdeen Asset Managers Jersey Limited [2007] EWCA Civ 197 at [78] (“the revelation of information for the first time”). ... In both ABC and DCSYW[149] and Seven and DJAG,[150] the Right to Information Commissioner noted that, 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. QUT accepted this interpretation of disclosure within the meaning of the public interest harm factor and submitted that ‘there can be no satisfaction of the harm test in respect of information provided by the applicant about third parties to the investigator, since the applicant knows that information. ... However, that harm test is satisfied if third party information as appearing in the conclusions of the investigator is given to the applicant because that would amount to disclosure of information not previously known to the applicant’.[151] That is, despite lengthy submissions that the entirety of the Category A Information comprises personal information, QUT recognised that information restating the applicant’s allegations regarding the 10 allegations which were found to be unsubstantiated and summarising the information provided by the applicant regarding those allegations cannot be disclosed to the applicant, and therefore the personal information harm factor cannot apply to such information. I agree with QUT’s statement in the above paragraph. However, in terms of the remaining Category A Information—that is, the investigator’s reasoning and conclusions regarding each allegation—as I have noted above, the references to the information provided by individuals other than the applicant in the investigator’s analysis and conclusions have been excluded from the Category A Information and, consequently, I am satisfied that the remaining Category A Information does not comprise personal information. For the above reasons, I do not consider the personal information harm factor applies to any of the Category A Information. Privacy of other individuals A public interest factor favouring nondisclosure will also arise under the RTI Act where disclosure of information could reasonably be expected to prejudice the protection of an individual’s right to privacy (privacy prejudice factor).[152] In terms of the privacy prejudice factor, 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’.[153] As I have noted above, I accept that the applicant, the third and fourth parties and other persons who were involved in the workplace investigation would still be able to identify individuals other than the applicant in the Category A Information. To that extent, I consider the privacy prejudice factor applies to some of the Category A Information. In considering the weight to be given to this factor, I have taken into account the matters referred to in paragraph 119. I also note that, in the pages released to the applicant, QUT de-identified individuals who were the subject of the applicant’s allegations or certain other individuals referenced in those pages of the Report by using acronyms for their names or refusing access to their names. That is, QUT was of the view at that time that, in releasing information to the applicant, the privacy of these other individuals was adequately protected by the deletion, or de-identification, of their names. I have also noted the following comments of Justice Smith in S v DCPFS:[154] I am, however, of the opinion that where this information (that is a record of oral verbatim statements made by the appellant) is not intertwined the Commissioner erred in failing to have regard to the fact that the person seeking the information is the sole and only source of the information. The character of information of this kind is such that the protection of the privacy of third parties is necessarily rendered substantially irrelevant as the release of this information will not of itself constitute an invasion of their privacy, as it is information known to the person who is the sole and only source of the information. I have used the term 'only source' as the information of this class is information that is a record of what the appellant has said and in that sense are statements of perceptions, opinions and other matters stated by her. In the circumstances of this matter and taking into consideration the limited number of individuals who would be able to ascertain the identity of individuals other than the applicant in the Category A Information, I consider that the intrusion into the privacy of those individuals would be limited. On this basis, I consider that the privacy prejudice factor is relevant but afford it low weight in respect of the Category A Information. Preliminary comments about other factors QUT submitted[155] that other factors favouring nondisclosure do not have less significance due to the ‘supposed de-identification’ and that those factors ‘must be assessed by reference to their own language and conclusions reached about appropriate weight, not diminished by reliance on the central proposition[[156]]’. In this part of the decision, I am applying the public interest test in section 49(3) of the RTI Act regarding the Category A Information.[157] Consequently, the Category A Information is the information that I must consider when identifying and affording weight to relevant factors—not the Information in Issue as a whole, nor the Category B Information in conjunction with the Category A Information.Fair treatment of other individuals A public interest factor favouring nondisclosure arises where disclosure of 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.[158] Comprising, as it does, summaries of and references to information provided by the applicant in respect of the allegations found to be unsubstantiated, I am satisfied that the Category A Information comprises information about unsubstantiated conduct allegations. The third and fourth parties submitted[159] that if the Consult Information is disclosed, their identities are still ascertainable by the applicant and the applicant would be at liberty to disseminate information about the unsubstantiated allegations, thus causing damage their reputations and professional relationships. QUT submitted that: the Category A Information relates to ‘unsubstantiated and potentially defamatory allegations’[160] prejudice, for the purpose of this factor, can take the form of reputational damage[161] high weight should be given to this factor favouring disclosure[162] the Category A Information is ‘a written record of those allegations put in a formal manner to the investigator’ and the applicant will be able to use such material to the detriment of the third parties;[163] and if disclosed, the fact that the Category A Information relates to unsubstantiated allegations will not prevent the applicant from stating that those allegations ought to have been substantiated and complaining in that regard.[164] QUT also relies on the following finding in its internal review decision: In terms of prejudicing the fair treatment of individuals, I adopt the view that such prejudice can be to the reputation of individuals: see F60CXC and Queensland Ombudsman [2014] QICmr 28[165] at [34]-[41] and Troiani and Queensland Police Service 310967 21 Aug 2012 at [29]: ... Further, QUT’s references to the decision of Z Toodayan in its internal review decision, noted at paragraph 92 above, also require consideration in the context of the fair treatment factor. I accept that damage to reputation could constitute ‘prejudice’ for the purposes of this factor favouring disclosure. However, in this matter, I note that: the complaint was made over two years ago and the applicant was notified of the investigation finding approximately 18 months ago the applicant knows the details of all the allegations he made, including those which were found to be unsubstantiated, and information he provided to the investigator in support of those allegations the applicant also possesses a copy of his complaint and transcript of his interview with the investigator; and there is no evidence before me that, already possessing information about the substantiated and unsubstantiated allegations, the applicant has disseminated that information (or any part of it) to any individual in the manner that QUT and the third and fourth parties submitted he would disseminate any further information that is released to him. In respect of the Information Commissioner’s prior decisions that are referenced by QUT, the information considered in, and the circumstances of, those matters are different to the Category A Information and the circumstances of this matter. In F60XCX and Queensland Ombudsman, the information sought by the applicant was information provided by, and correspondence with, individuals other than the applicant, and some internal documents. The Assistant Information Commissioner noted that the redaction of the names of the subject of the complaint and a witness would not de-identify the information, and that the Ombudsman’s investigation did not proceed to a point where any findings were made on the substance of the allegations. It was in these specific circumstances that it was considered that disclosure of the information could adversely affect the reputation of the subject officer. As noted at paragraph 72 above, in Z Toodayan, the referenced comments were made regarding witness statements and associated information which identified the witnesses, provided in an investigation about the conduct of the applicant in that matter. Again, these comments relate to information that is quite different to the Category A Information—specifically, information provided by a range of witnesses other than the applicant. In Troiani and Queensland Police Service,[166] the Information Commissioner did find that the public interest weighed strongly against disclosure of the personal information of individuals within a complaint investigation report, because it related to unsubstantiated allegations and had the potential to adversely affect the reputation of those individuals. However, in making these findings the Information Commissioner also noted that, in contrast to the circumstances in this review, the majority of investigation report was released to the applicant. This released information was described by the Information Commissioner in Troiani as including ‘the substance of actions taken in the investigation and the reasons why it was finalised’ (being that there was no evidence of the alleged fraud and criminal activity was discovered). I have carefully considered the information before me, including submissions received from QUT and the third and fourth parties. There is nothing before me which gives rise to a reasonable expectation that disclosing the Category A Information would lead to the dissemination of that information (or parts of it) by the applicant in the manner submitted by QUT and the third and fourth parties. Accordingly, I do not consider that this factor applies to the Category A Information. Even if I am wrong, and it is considered that this factor should apply, I consider that it would warrant only low weight, given the nature of the majority of the Category A Information, on its face, clearly comprises the investigator’s restatements and summaries of the unsubstantiated allegations as such, rather than statements of fact, and the remaining information sets out clear conclusions that those allegations are unsubstantiated. Future ability to obtain confidential information The RTI Act also gives rise to a factor favouring nondisclosure where disclosing information could reasonably be expected to prejudice an agency’s ability to obtain confidential information.[167] Additionally, the RTI Act recognises that disclosure of 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 disclosure of the information could reasonably be expected to prejudice the future supply of information of this type.[168] QUT submitted[169] that a ‘cocoon of confidentiality’ exists with respect to the investigation and the Report and that it is reasonable to expect that third parties who were the subject of the unsubstantiated allegations would be ‘alarmed by a failure by QUT to adhere to the very clearly expressed confidentiality attaching to the whole process’. More specifically, QUT submitted[170] that ‘[s]taff expect compliance by management with promises of confidentiality and with following laid-down procedure, and, in particular, in relation to promises underpinned by written codes of the University’. QUT also relied upon the following passage in its internal review decision: I find that the whole of the grievance investigation and resolution process is contained within a cocoon of confidentiality, applicable to not only the investigator and witnesses, but also to the complainant, the subjects of the complaint and any persons having materials and/or knowledge concerning the complaint and the procedure in general. ... Accordingly, I am of the view that factors [in schedule 4, part 3, item 16 and schedule 4, part 4, section 8(1) of the RTI Act] are potentially applicable. I regard the information as a whole, including witness statements and the Report and attachments as confidential information provided in confidence, for the purposes of [schedule 4, part 4, section 8(1) of the RTI Act]. Further, I am of the view that disclosure of the Report and the attachments would prejudice the ability of QUT to obtain confidential information in the future from those presently assured of confidentiality: namely, the investigator, witnesses, the complainant, the subjects of the complaint and any persons having materials and/or knowledge concerning the complaint and the procedure in general. This was held to be a significant factor in Z Toodayan at [44] and N Toodayan and Metro South Hospital and Health Service [2017] QICmr 33 (11 August 2017) Application Numbers: 312978, 313109, 313190 and 313228 at [43]: ... These are factors to which I give significant weight. The third and fourth parties submitted[171] that all parties to the investigation, including the applicant, are bound by the confidentiality of the process and that this confidentiality is not ‘preserved’ by removing their personal information from any summary of or references to the information the applicant provided to the investigation ‘given the knowledge that [the applicant] has’. Regarding QUT’s reliance on the prior decisions of Z Toodayan and N Toodayan and Metro South Hospital and Health Service,[172] the referenced findings by the Information Commissioner in those decisions relate to information described as ‘mostly’ comprising witness statements obtained in the context of workplace allegations made about the applicants in those matters. By contrast, the Category A Information comprises summaries of, or references to, information the applicant, as a complainant, provided to a workplace investigation. In respect of QUT’s investigation, I note that: The Procedure relevantly required that, in dealing with workplace related grievances, confidentiality was to be respected and maintained at all times within the constraints of the need to fully investigate the matter and within the principles of natural justice.[173] The Terms of Reference required the investigator to inform witnesses of the confidential nature of the investigation but also contemplated that the Report would be provided to the applicant, the third party and the fourth party. When notifying the applicant of the investigation outcome, QUT advised the applicant that he was ‘required to maintain strict confidentiality in respect of the complaint and the investigation process’. QUT submitted that this notification confirms its view that the applicant is bound to a continuing obligation of confidentiality.[174] The Terms of Reference required the investigator to inform witnesses of the confidential nature of the investigation. QUT submitted[175] that it considered certain statements made by the investigator in informing participants about the confidential nature of the investigation were not relevant ‘to any issue’ in this review and that, in any event, those statements were not made by QUT. I do not agree. While I am prevented from providing any detail about the terms in which the investigator informed the various investigation participants of the confidential nature of the investigation, I consider those terms are relevant in the context of QUT’s submissions regarding confidentiality and to properly determine what expectations of confidentiality those individuals could reasonably be expected to hold. I have therefore given consideration to the investigator’s statements on that basis. I have carefully considered the submissions of QUT and the third and fourth parties. I acknowledge that the Procedure required confidentiality in dealing with the applicant’s complaint and that it only required ‘written advice’ to be provided to the parties following the Vice-Chancellor’s decision about whether disciplinary action should be taken. I also accept that information provided by witnesses to a workplace investigation is ordinarily treated confidentially, except to the extent that procedural fairness requires otherwise.[176] However, the Terms of Reference governed the process upon which individuals participated in this particular investigation and, as previously noted, those terms specifically contemplated that the applicant, the third party and the fourth party would each receive a copy of the Report. Most of the Category A Information summarises or references information the applicant, as the complainant, provided to the investigation to support his allegations and I do not consider that disclosure of that type of information to a complainant gives rise to a reasonable expectation that the supply of similar information by complainants would be prejudiced in future investigation processes. Accordingly, I consider that these factors do not apply. However, if I am wrong in this regard, and it is considered that these factors should apply, I am satisfied that they should be afforded very low weight, given the low likelihood that future complainants may be more circumspect in the information they provide to an investigation because of the prospect that they themselves may access that information under the RTI Act at a later date. Management function Where disclosure of information could reasonably be expected to prejudice an agency’s management function, a factor favouring nondisclosure arises.[177] Where disclosure could have a substantial adverse effect on the management or assessment by an agency of the agency’s staff, the RTI Act recognises that a public interest harm arises.[178] QUT submitted[179] that the free flow of information would be affected by disclosure of the Category A Information and there would be the ‘relevant prejudice’ to management functions as a result. In respect of these factors, QUT also relies upon its internal review decision, which states: Disclosure could reasonably be expected to damage the reputation of management, particularly in terms of being able to give and maintain assurances of confidentiality in sensitive staff management areas. For that reason, I find that disclosure of the Report and attachments other than as proposed in this Review Decision (having weighed up the contending public interests) could reasonably be expected to have a substantial adverse effect on the management or assessment by the University of its staff: 'LSN' and Department of Main Roads (S 42/00, 21January 2002) at [35] Disclosure could reasonably be expected to have a detrimental effect on QUT's management function as it may deter witnesses from providing full and frank accounts to investigators in future workplace investigations, thereby prejudicing investigation processes and outcomes: Z Toodayan at [44]; N Toodayan at [43]. As noted above, I consider that the Information Commissioner’s findings in Z Toodayan and N Toodayan are more relevant to the Category C Information. I also consider the Information Commissioner’s decision in LSN and Department of Main Roads[180] is not particularly relevant to the circumstances of this review, as it concerned whether an exemption provision in the Qld FOI Act[181] applied to statements and notes (or summaries of those) obtained from individuals other than the applicant (being a complainant and other witnesses), in circumstances where the information previously released to the applicant included ‘a significant amount’ of the investigation report.[182] The information considered in LSN has more similarities to the Category C Information; however, the circumstances of that matter (in particular, the noted ‘abusive and intimidating behaviour’ of the applicant) are also significantly different to the circumstances in this review. On the information before me, and notwithstanding the confidentiality of the investigation process, I am not satisfied that disclosure to a complainant of the parts of a workplace report which summarise the information they provided in support of their workplace complaint could reasonably be expected to have a substantial adverse effect on an agency’s management or assessment of its staff. On this basis, I do not consider that these factors arise in respect of the Category A Information. Even if I am wrong in this regard and it is the case that these factors do apply, for the same reasons set out at paragraph 159 above, I consider that these factors should be afforded low weight. Other factors favouring nondisclosure Having carefully considered all factors listed in schedule 4, parts 3 and 4 of the RTI Act, I can identify no other public interest considerations telling in favour of nondisclosure of the Category A Information. Taking into consideration the nature of the Category A Information and the fact the investigation of the applicant’s complaint has been completed and its outcome was notified to the applicant, I cannot see how its disclosure could, for example, prejudice a deliberative process of government.[183] Balancing the public interest I acknowledge the pro-disclosure bias of the RTI Act.[184] To the extent the Category A Information includes the applicant’s personal information, I am satisfied that significant weight should be afforded to the factor favouring disclosure of an applicant’s personal information.[185] On the other hand, I am satisfied that the information excluded from the Category A Information means that the Category A Information no longer contains or could disclose the personal information of the of individuals other than the applicant and therefore consider that the nondisclosure factor relating to personal information[186] does not apply. In terms of the privacy nondisclosure factor,[187] I consider that this factor warrants low weight.[188] I am satisfied that the factors favouring disclosure which relate to QUT’s accountability and transparency deserve significant weight.[189] As set out above, I consider that the factors about allowing or assisting the identification of conduct deficiencies and advancing fair treatment[190] warrant moderate weight. I do not consider that the factors regarding revealing incorrect or unfairly subjective information and procedural fairness apply,[191] however, if it were accepted that they do, I consider that they would be deserving of low weight. I have also considered nondisclosure factors relating to protecting an agency’s ability to obtain confidential information and manage its staff,[192] and am satisfied that each of these warrant low to no weight. Given these considerations, on balancing the factors against one another, I consider that disclosing the Category A Information would not be contrary to the public interest and this information should be released to the applicant. Findings – Category B Information As noted at paragraph 22 above, the Category B Information comprises the personal information of individuals other than the applicant, and small portions of additional information which could reasonably be expected to lead to their identification,[193] appearing in: (a) the following parts of the Report regarding the 10 allegations which were found to be unsubstantiated— (i) restatements of the applicant’s allegations (ii) the investigator’s summaries of the information provided by the applicant; and (iii) the investigator’s reasoning for the finding that the allegations were not substantiated (b) some other parts of the Report (for example, the executive summary); and (c) correspondence. The applicant’s submissions[194] confirm that he seeks access to information including the Category B Information. Irrelevant factors I do not consider that any irrelevant factors arise in respect of the Category B Information and the circumstances of this matter and I have taken none into account. Factors favouring disclosure Applicant’s personal information The applicant submitted[195] that ‘the vast majority’ of the information he requested ‘relates to his personal information’ and this ‘gives rise to clear presumption that this information will be disclosed to [him]’. As I have previously noted, I must apply the process specified in section 49(3) of the RTI Act. The fact that information may contain the applicant’s personal information is just one matter that is to be taken into account and is not necessarily determinative of the public interest. Much of the Category B Information appears in the investigator’s restatements of the applicant’s allegations and summaries of information provided by him. This information, and the parts of the investigator’s reasoning for finding that the allegations were not substantiated that refer to this information, constitute the applicant’s personal information. This gives rise to a factor favouring disclosure[196] of such information, which I consider deserves high weight. Accountability and transparency I consider that the information provided to the applicant about the investigation has advanced, to some extent, the public interest factors relating to accountability and transparency of QUT’s investigation process. Taking into account that most of the Category B Information appears in restatements of the applicant’s allegations and summaries of information that he provided to the investigation, I consider that its disclosure may provide the applicant with only marginally more detail about the investigation process, if at all. I also consider it is likely that the applicant, by virtue of his participation in the investigation and his knowledge of who the complaint allegations were made about, may be aware of some of the Category B Information. Taking into account the nature of the Category B Information and the information the applicant has received (or otherwise possesses), I consider that disclosing the Category B Information would only marginally enhance QUT’s transparency or accountability in relation to the workplace investigation. Accordingly, while I consider these factors favouring disclosure[197] apply, I afford them low weight. Deficiencies in the conduct or administration of an agency, official or other person As noted in paragraphs 64 and 65: the applicant submitted that his complaint was ineffectively managed and his provided information was ignored; and QUT submitted that little weight should be afforded to these factors favouring disclosure. The Category B Information appears in the parts of the Report which deal with allegations that were found to be unsubstantiated. Taking this and the nature of the Category B Information into account, I am satisfied that disclosing it could not reasonably be expected to reveal or substantiate any deficiencies in the conduct of QUT, any of its officers or the investigator. While I consider disclosure of the Category A Information could allow or assist the applicant’s inquiry into the possible investigation deficiencies he has identified, I do not consider disclosing the Category B Information could reasonably be expected to have the same result. The applicant, as the complainant, is aware of the nature of the allegations he made and the individuals about whom those allegations relate. Therefore, it is reasonable to conclude that the applicant is largely aware of the nature of the Category B Information which appears in the Report sections restating his allegations or summarising the information he provided in support of those allegations. The remaining parts of the Category B Information summarise information provided by other individuals in the investigator’s analysis of the allegations. In relation to both types of information, it is the surrounding information—that is, the Category A Information—which is indicative of the investigative process. Given the nature of the Category B Information, it advances understanding of the investigative process only a little further. In these circumstances, I do not consider that disclosure of the Category B Information could reasonably be expected to allow or assist the applicant’s inquiry into the investigation deficiencies he has identified. On this basis, I am satisfied the factors favouring disclosure relating to allowing or assisting with inquiries regarding possible conduct deficiencies and reveal or substantiating such deficiencies[198] do not apply to the Category B Information. Reveal information was incorrect, unfairly subjective etc For the reasons set out in paragraph 73 in respect of the Category A Information, and also noting the nature of the Category B Information, there is nothing before me to suggest that disclosure of the Category B Information could reasonably be expected to reveal that the Category B Information itself is incorrect or unfairly subjective. Accordingly, I consider that this factor[199] does not apply. If I am wrong in this regard, and it is considered that this factor does apply, taking into account the nature of the Category B Information and the information known to the applicant, I consider it warrants low weight. Administration of justice for the applicant Similarly, for the reasons specified in paragraphs 74-78 in respect of the Category A Information, I am not satisfied that disclosure of the Category B Information could reasonably be expected to contribute to the administration of justice for a person, and therefore find that the factor[200] does not apply to the Category B Information. Fair treatment and procedural fairness for the applicant As noted in respect of the Category A Information, while the applicant participated in and was notified of the investigation outcome, he has no knowledge of what, or how, information provided to the investigation was taken into account by the investigator in finding most allegations could not be substantiated. However, as I have noted above, it is reasonable to expect that the applicant is aware of the Category B Information which appears in the Report sections restating the applicant’s allegations or summarising the information provided by the applicant in support of those allegations. In these circumstances, I consider that the factor favouring disclosure regarding fair treatment[201] applies to such Category B Information, but warrants only low weight. In terms of the rest of the Category B Information, while the applicant does not agree with the investigation outcome and considers it has been ‘ineffectively investigated’, I do not consider that the notions of fair treatment in this case entitle the applicant to personal information about other individuals appearing in the context of the investigator’s discussions regarding information they provided to the investigation. In the case of such Category B Information, I do consider that the factor favouring disclosure regarding fair treatment applies. Even if I am wrong in this regard, and the factor does apply, I consider that it warrants only low weight. Noting that the applicant was the complainant, not the subject of the complaint allegations, that he was afforded an opportunity to participate in the investigation, and that he was provided with notification that 10 of his 11 allegations were found to be unsubstantiated, I do not consider that disclosure of the Category B Information could reasonably be expected to contribute to procedural fairness. I am therefore satisfied that the factor regarding procedural fairness does not apply.[202] If I am wrong in this regard, and it is the case that this factor does apply, taking into account the nature of the Category B Information, I afford low weight to this factor. Other factors I have carefully considered all factors listed in schedule 4, part 2 of the RTI Act, and can identify no other public interest considerations in favour of disclosure of the Category B Information. Taking into consideration the nature of the Category B Information and the context in which it appears, I cannot see how its disclosure could, for example, contribute to a debate on important issue or matters of serious interest[203] or ensure effective oversight of expenditure of public funds.[204] Factors favouring nondisclosure Personal information and privacy of other individuals The Category B Information comprises information about individuals other than the applicant, or information which could reasonably be expected to lead to their identification, appearing in restatements of the applicant’s allegations, summaries of information that he provided in support of his allegations, and the investigator’s analysis of and conclusions about those allegations. I consider that the Category B Information is sensitive in nature, as it appears in a report arising from a workplace investigation. Given the nature of the Category B Information, I am satisfied that its disclosure would be a significant intrusion into the privacy of these individuals. For this reason, I afford significant weight to the privacy prejudice factor. I also consider the extent of the harm that could be anticipated from disclosing the Category B Information, which includes the names, personal circumstances, observations and opinions of (or about) these individuals, under the RTI Act would be significant. Accordingly, I afford the personal information harm factor significant weight in respect of the Category B Information. Fair treatment of other individuals The Category B Information appears in parts of the Report relating to allegations which were found to be unsubstantiated. As the Category B Information comprises information that identifies the individuals about whom those unsubstantiated allegations were made or could reasonably be expected to enable their identification, I am satisfied that disclosing the Category B Information could reasonably be expected to prejudice the fair treatment of those individuals. On this basis, I afford significant weight to this factor favouring nondisclosure of the Category B Information.[205] Management function and future ability to obtain confidential information As noted in respect of the Category A Information, the Procedure and the Terms of Reference generally required confidentiality in dealing with the complaint and the investigation. While the Terms of Reference contemplate the disclosure of the Report to the applicant, this did not occur. The Category B Information includes details about the nature of the applicant’s allegations found to be unsubstantiated, and the identities of the individuals about whom those allegations relate. It also discloses the identities of individuals other than the applicant and the subjects of the complaint who provided information to the investigator—in effect acting as witnesses in the investigation. I consider that routinely disclosing information such as the Category B Information, outside of the investigation process and under the RTI Act, could reasonably be expected to make staff reluctant to fully participate in future investigations and prejudice the future flow of confidential information to such investigators. This, in turn, could reasonably be expected to adversely impact QUT’s ability to conduct workplace investigations and manage staff. For these reasons, I consider that the factors favouring nondisclosure regarding an agency’s management function and future ability to obtain confidential information[206] are relevant and afford them significant weight. Balancing the public interest I acknowledge that the RTI Act is to be administered with a pro-disclosure bias.[207] For the reasons set out above, I am satisfied that the nondisclosure factors relating to protection of personal information and privacy, fair treatment of individuals regarding unsubstantiated allegations, and the protection of QUT’s ability to obtain confidential information and manage its staff[208] each warrant significant weight. On the other hand, I consider that the personal information factor favouring disclosure warrants high weight insofar as the Category B Information comprises the applicant’s personal information;[209] while other relevant factors favouring disclosure warrant low weight.[210] In these circumstances, I am satisfied that the factors favouring nondisclosure of the Category B Information outweigh those favouring disclosure. Accordingly, I find that disclosing the Category B Information would, on balance, be contrary to the public interest and access to the Category B Information may be refused.[211] Findings – Category C Information As noted at paragraph 22 above, the Category C Information comprises the following parts of the Report: (a) sections of the Report containing the investigator’s summaries of information provided by individuals other than the applicant regarding all 11 allegations; and (b) information in the Report’s attachments, being transcripts of interviews with individuals other than the applicant and information provided to the investigation. Irrelevant factors I do not consider that any irrelevant factors arise in respect of the Category C Information and the circumstances of this matter and I have taken none into account. Factors favouring disclosure Applicant’s personal information Having carefully considered the Category C Information, I am satisfied that some, but not all, of it identifies the applicant or contains information from which his identity could reasonably be ascertained. Such information comprises the applicant’s personal information. In terms of this information, a factor favouring disclosure applies.[212] Insofar as the Category C Information comprise the applicant’s personal information, given the nature of this personal information, I consider that this factor deserves high weight. Accountability and transparency Disclosure of the Category C Information would provide the applicant with a more comprehensive understanding of the information that the investigator obtained from other individuals, and which of this information was taken into account by the investigator in dealing with his complaint. It may also further the applicant’s understanding, to some extent, of how the investigation was conducted. Accordingly, I consider these factors favouring disclosure[213] apply to the Category C Information. While there is a general requirement for agencies such as QUT to be transparent and accountable in how they deal with workplace complaints, there are circumstances in which disclosure of some, but not all, information in an agency’s records will achieve accountability and transparency in Government. I also consider that the requirement for accountability and transparency in workplace investigations does not extend to affording complainants a right to reinvestigate such investigations because they perceive there were investigative inadequacies. As I have previously noted, the applicant participated in the investigation and was notified of the investigation findings and QUT’s decision not to take any disciplinary action concerning his complaint. The applicant also received further information from QUT in response to the access application, which included information the investigator obtained about the allegation found to be substantiated and the investigator’s reasons for that finding. In these circumstances, while I consider it likely that the applicant is aware of at least some of the other individuals who participated in, and provided information to, the investigation process, I am satisfied that he is not aware of the content of the information provided to the investigator by those individuals. I acknowledge that the applicant does not agree with the investigation outcome and contends there were inadequacies in the investigation. However, the requirement for QUT to be accountable and transparent in the conduct of workplace investigations does not, in my view, oblige QUT to disclose the entire Report, nor reveal all of the information it gathered from other individuals in dealing with the investigation of the applicant’s complaint. Taking into consideration the information which has been provided to the applicant about the investigation and its outcome, I find that these factors favouring disclosure are relevant and attach moderate weight to them. Deficiencies in the conduct or administration of an agency, official or other person As I have previously noted at paragraph 64, the applicant has submitted that the complaint allegations concerned serious conduct issues,[214] his complaint was ineffectively investigated[215] and the substantial information he provided in support of his complaint was ignored by the investigator.[216] Beyond this, the applicant has not identified how disclosure of the Category C Information in particular would allow or assist inquiry into, or reveal or substantiate, the conduct deficiencies of QUT or its officers. QUT considers that little weight should be afforded to the factors favouring disclosure regarding deficiencies in conduct. I note that 10 of the 11 allegations by the applicant were found to be unsubstantiated. It follows that I am unable to identify how disclosing the Category C Information (being primarily the information provided by other individuals about those unsubstantiated allegations) would allow or assist enquiry into, or reveal or substantiate, the conduct deficiencies of the individuals who were the subject of the applicant’s complaint. Given the nature of the Category C Information (that is, information provided by other individuals), I am satisfied that its disclosure would not allow or assist the applicant’s inquiry into the only specific investigation deficiency that he has enunciated—that is, his view that the information he provided to the investigator in support of his complaint was ignored. Otherwise, regarding the applicant’s general assertion that his complaint was ineffectively investigated, there is nothing before me which evidences any conduct deficiencies in that investigation or its processes. Taking into consideration the nature of the Category C Information and the notified investigation outcomes, I do not consider that there is any reasonable expectation that disclosure of that information would allow or assist inquiry into any deficiencies in the conduct of QUT or its officers or reveal or substantiate that there was any misconduct or negligent, improper or unlawful conduct in QUT’s investigation process. On this basis, I consider that these factors favouring disclosure[217] do not arise in respect of the Category C Information. Reveal information was incorrect, unfairly subjective etc The Category C Information generally records information QUT’s investigator obtained from individuals other than the applicant during the investigation process. Such information is, by its very nature: the opinions and versions of events expressed by those other individuals, which are shaped by factors such as the individuals’ memories of relevant events and subjective impressions; and the investigator’s summaries of matters within that provided information which the investigator considered relevant in making his findings about the complaint allegations. This inherent subjectivity does not itself mean that the Category C Information is necessarily incorrect or unfairly subjective.[218] I have carefully reviewed the Category C Information. There is nothing within it, nor in any other information before me, to suggest that the Category C Information is not correct. In these circumstances, I do not consider that its disclosure could reasonably be expected to reveal that the information is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant. On this basis, I do not consider that this factor favouring disclosure applies to the Category C Information. Administration of justice, fair treatment and procedural fairness for the applicant As I have previously noted, the applicant was afforded an opportunity to participate in the investigation of the complaint he made about other individuals and QUT notified the applicant of the investigation findings. While the applicant does not agree with the investigation outcome and considers it has been ‘ineffectively investigated’, I do not consider that the notions of fair treatment and procedural fairness in this case entitle the applicant to the information provided by other individuals who participated in the investigation process or to the investigator’s summaries of such information. For these reasons, I do not consider that the factors relating to fair treatment and the administration of justice[219] apply to the Category C Information. Other factors I have carefully considered all factors listed in schedule 4, part 2 of the RTI Act, and can identify no other public interest considerations in favour of disclosure of the Category C Information. Taking into consideration the nature of the Category C Information, I cannot see how its disclosure could, for example, contribute to a debate on important issues or matters of serious interest[220] or ensure the effective oversight of expenditure of public funds.[221] Factors favouring nondisclosure Personal information and privacy of other individuals In contrast to the Category A Information, I am satisfied that the Category C Information primarily comprises the personal information of individuals other than the applicant. The personal information of university officers appears within the Information in Issue (including the Category C Information). I note that information relating to the day-to-day work duties and responsibilities of a university officer may generally be disclosed under the RTI Act, despite it falling within the definition of personal information. However, agency documents can also contain personal information of officers which is not routine work information.[222] In this regard, I also note that the Information Commissioner has previously found that information of a similar nature to the Category C Information was not routine personal work information—see, for example, the decisions of BFU12E and Metro North Hospital and Health Service[223] and F60XCX and DNRM. The applicant submitted[224] that the decisions in BFU12E and F60XCX and DNRM do not support a finding in this review that the Category C Information is not routine personal work information. More particularly, the applicant submitted that: These matters turned on their own particular facts, and while they may supply general precedents, they are not determinative of the matters in issue with my application. They are a mere starting point and the particular circumstances of my matter are very different to the circumstances applying in the decisions relied upon by you. I note further that these decisions that you have relied upon are not binding precedents within the Queensland court system. Accordingly, I submit that your reliance on these cases as determinative of this issue is misplaced. As a decision-maker, the Information Commissioner applies the doctrine of precedent.[225] In this regard, I consider the Category C Information—being information (and the investigator’s summaries of information) provided by individuals other than the applicant to a workplace investigation—is similar to the information considered in BFU12E and F60XCX and DNRM, and the findings in those decisions are therefore relevant in considering the application of these factors favouring nondisclosure to the Category C Information. Based upon my careful consideration of the Category C Information, I am satisfied that this particular personal information of university officers includes the opinions, observations and experiences of other people in the form of witness testimony and other information given in the context of a workplace investigation. Given its nature, I am satisfied that the Category C Information is not wholly related to the routine day-to-day work activities of university officers and it is therefore not routine personal work information. As noted in paragraph 198, some of the Category C Information comprises personal information of the applicant, in that it records other individuals’ comments relating to him. In terms of this information, the applicant submitted[226] that: finding that his personal information is intertwined with the personal information of others is ‘nonsensical’ and ‘an attempt to circumvent the intent of the RTI Act’ information which is not his personal information could be removed from the Category C Information to facilitate release of information to him; and this finding must be ‘viewed in light of, and weighed against, Parliament’s clear intention that the RTI Act facilitate access to personal, and non-exempt public agency information’. Unlike the Category A Information, which is a summary of information the applicant provided in support of his allegations and references to that information in the investigator’s analysis of the allegations, the Category C Information is essentially information obtained from other individuals which either responds to, or provides further context about, those allegations. While the applicant may be aware of some of the individuals who participated in the investigation, he is not aware of the information those individuals provided, particularly in respect of the allegations found to be unsubstantiated. On careful consideration of the Category C Information, I am satisfied that it is not possible to separate the applicant’s personal information from the personal information of those other individuals and, as a result, it is not possible to simply redact the personal information of other individuals and provide the applicant with his personal information. That is, disclosing the personal information of the applicant within the Category C Information would necessarily also disclose the personal information of individuals other than the applicant. The applicant does not accept this and has queried[227] what objective test is applied to the assessment of the Category C Information. While I appreciate the applicant is unaware of how his personal information appears within information that other individuals provided to the investigation and the investigator’s summaries of that information, I am constrained about the level of detail I can provide in these reasons about the Category C Information.[228] However, in conducting this merits review, I have concluded that, after careful consideration of the Category C Information, it is not possible to redact that information—which, in its entirety, comprises information provided by individuals other than the applicant—to an extent which would mean its remaining components are no longer the personal information of those individuals. On this basis, I am satisfied that disclosing the Category C Information could reasonably be expected to prejudice the protection of the other individuals’ right to privacy and cause a public interest harm, and therefore consider that both factors apply. As to the weight to be afforded to these factors, I consider that the Category C Information is sensitive and personal in nature, comprising the personal circumstances, opinions, recollections, observations and experiences of the relevant individuals obtained in the context of a workplace investigation. For this reason I afford significant weight to the privacy factor favouring nondisclosure.[229] I also consider that the extent of the harm that could be anticipated from disclosing this information, which includes transcripts of interviews conducted during a workplace investigation, under the RTI Act would be significant. Accordingly, I afford the harm factor favouring nondisclosure[230] significant weight. Management function and future ability to obtain confidential information As noted in respect of the Category A Information, the Procedure required confidentiality in dealing with the complaint and the investigation Terms of Reference required the investigator to inform witnesses of the confidential nature of the investigation. As the Category C Information records information that individuals other than the applicant provided to a workplace investigation, I have also given consideration to the way in which those other individuals were informed about the confidential nature of the investigation. The applicant accepted[231] that public sector officers, ‘in instances of lower level workplace investigations’, usually supply information to workplace investigators on the understanding that it will only be used for the investigation or any subsequent disciplinary action. However, the applicant submitted[232] that: in this case, as his complaint was ‘ineffectively investigated by QUT in the first instance’ and related to serious conduct issues, and ‘these are factors that support the release of the requested information and clearly satisfy the public interest test’;[233] and there was no ‘blanket confidentiality’ surrounding information provided as part of the QUT workplace investigation. I have previously noted that, in following the steps specified in section 49(3) of the RTI Act, factors which the applicant identified as favouring disclosure will not necessarily be determinative of the public interest. I have carefully considered the applicant’s submissions. I acknowledge the confidentiality requirements of the Procedure and the Terms of Reference, including that it was contemplated that a copy of the Report would be provided to the applicant and the third and fourth parties. I consider that disclosing the Category C Information—which is effectively witness information—outside of the investigation process and under the RTI Act could reasonably be expected to make staff reluctant to fully participate in future investigations and prejudice the ability of QUT to obtain witness information in future investigators. This, in turn, could reasonably be expected to adversely impact QUT’s ability to conduct workplace investigations and manage staff. For these reasons, I find that the factors favouring nondisclosure related to an agency’s management function and future ability to obtain confidential information[234] apply and deserve significant weight. Balancing the public interest Again, I acknowledge that the RTI Act is to be administered with a pro disclosure bias.[235] For the reasons set out above, accountability and transparency considerations favouring disclosure should be afforded moderate weight.[236] In relation to those parts of the Category C Information that comprise the applicant’s personal information, high weight in favour of disclosure applies;[237] however, as the applicant’s personal information is intertwined with the information of other individuals, releasing the applicant’s personal information would also disclose the personal information of other individuals. In terms of the personal information of other individuals, considerations related to the protection of privacy and personal information of other individuals apply regarding the entirety of the Category C Information and warrant significant weight.[238] Further, the anticipated prejudice to QUT’s management function and its ability to obtain confidential information in future workplace investigations warrant significant weight.[239] In these circumstances, I find that, on balance, the factors favouring nondisclosure are determinative in respect of the Category C Information, and therefore access to that information may be refused on the ground that its disclosure would, on balance, be contrary to the public interest.[240] Findings – Category D Information The applicant submitted[241] that he did not wish ‘identifying particulars of any person to be released’. During the review, the applicant was asked[242] if he wished to access the Category D Information, given the names and signatures of individuals could be categorised as ‘identifying particulars’. As the applicant did not respond to this request, I have taken this to mean that he continues to seek access to the Category D Information. However, apart from generally submitting that access should be given to all requested information, the applicant has made no specific submissions in respect of the Category D Information. Irrelevant factors I do not consider that any irrelevant factors arise in respect of the Category D Information and the circumstances of this matter and I have taken none into account. Factors favouring disclosure Accountability and transparency The information provided to the applicant about the investigation has advanced, to some extent, the public interest factors relating to accountability and transparency of QUT’s investigation process. Given the nature of the Category D Information, I consider that its disclosure may, if at all, provide the applicant with only marginally more detail about the investigation process. Given the applicant’s participation in the investigation and his knowledge of who the complaint allegations were made about, it is likely that he may be aware of at least some of the Category D Information. Taking into account the nature of the Category D Information and the information the applicant already possesses, I consider that disclosing the Category D Information would only marginally enhance QUT’s transparency or accountability in relation to the workplace investigation. Accordingly, while I consider these factors favouring disclosure[243] apply, I afford them low weight. Other factors I have carefully considered all factors listed in schedule 4, part 2 of the RTI Act, and can identify no other public interest considerations in favour of disclosure of the Category D Information. Taking into consideration the nature of the Category D Information and the surrounding information QUT released to the applicant in the pages on which the Category D Information appears, I cannot see how its disclosure could, for example: disclose any information that is the applicant’s personal information[244] contribute to a debate on important issues or matters of serious interest[245] reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct[246] advance the applicant’s fair treatment[247] contribute to the administration of justice, generally or for the applicant;[248] or ensure the effective oversight of expenditure of public funds.[249] Factors favouring nondisclosure Personal information and privacy of other individuals I am satisfied that the Category D Information, being the names and signatures of individuals, comprises the personal information of those individuals. Given the context in which the Category D Information appears—being a workplace investigation—I am satisfied that disclosing the Category D Information could reasonably be expected to prejudice the protection of these individuals’ right to privacy and cause a public interest harm. I accept that the applicant is aware of the identity of the individuals who were the subject of his complaint and may also be aware of other individuals who participated in the investigation. However, I do not consider that this awareness negates the prejudice or public interest harm that could expected to arise from disclosure of Category D Information. In the circumstances, I consider that both the privacy prejudice factor and the personal information harm factor are relevant and warrant significant weight. Fair treatment of other individuals The Category D Information is not information about unsubstantiated allegations. It comprises names and signatures appearing in the context of general information about the investigation process and information about an allegation found to be substantiated. Accordingly, I do not consider that this factor favouring nondisclosure[250] applies to the Category D Information. Management function and future ability to obtain confidential information I consider that routinely disclosing the names and signatures of these individuals outside of the investigation process and under the RTI Act could reasonably be expected to make staff reluctant to fully participate in future investigations and prejudice the future flow of confidential information to such investigators. This, in turn, could reasonably be expected to adversely impact QUT’s ability to conduct workplace investigations and manage staff. For these reasons, I consider that the factors regarding an agency’s management function and future ability to obtain confidential information[251] are relevant and should be afforded significant weight. Balancing the public interest For the reasons set out above, I am satisfied that the significant weight afforded to the nondisclosure factors relating to protection of personal information, privacy and protection of QUT’s ability to obtain confidential information and manage its staff[252] outweighs the relevant factors favouring disclosure of the Category D Information.[253] Accordingly, I consider that disclosing the Category D Information would, on balance, be contrary to the public interest and access to the Category D Information may be refused.[254] DECISION For the reasons set out above, I vary QUT’s decision and find that: disclosure of Category A Information would not, on balance, be contrary to the public interest and, accordingly, there are no grounds upon which access to that information may be refused under the RTI Act; and access to the remaining Information in Issue may be refused on the ground that its disclosure would, on balance, be contrary to the public interest. I also find that certain information requested by the applicant falls outside the scope of the applicant. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. A RickardAssistant Information Commissioner Date: 29 March 2019 APPENDIX Significant procedural steps Date Event 15 March 2018 OIC received the external review application. 4 April 2018 OIC notified the applicant and QUT that it had accepted the external review application and asked QUT to provide information. 5 April 2018 OIC received the requested information from QUT. 10 April 2018 OIC received the applicant’s submissions. 20 April 2018 OIC wrote to the applicant about the external review. 1 June 2018 OIC asked the applicant whether he would accept inspection access to parts of the Information in Issue on the basis previously offered by QUT. The applicant declined and OIC outlined its preliminary assessment of the issues in the review. 5 June 2018 and 7 June 2018 OIC asked QUT to provide further information and submissions. 13 June 2018 OIC received the requested information from QUT. 14 June 2018 OIC discussed with the applicant the information he wished to access. 25 June 2018 OIC received QUT’s submissions. 9 August 2018 OIC provided an update to the applicant. 21 November 2018 OIC conveyed a preliminary view to both the applicant and QUT. OIC invited the applicant and QUT to provide submissions if they did not accept the preliminary view. 14 December 2018 OIC received QUT’s further submissions. 17 January 2019 OIC conveyed a further preliminary view to QUT. 31 January 2019 OIC received the applicant’s submissions. 1 February 2019 OIC received QUT’s further submissions and notification that two third parties consulted during QUT’s processing of the access application wished to participate in the external review. 8 February 2019 OIC conveyed a further preliminary view to both the applicant and QUT and invited them to make further submissions if they did not accept the preliminary view. OIC conveyed a preliminary view to the third and fourth parties and invited them to make submissions if they did not accept the preliminary view. 15 February 2019 OIC wrote to the third and fourth parties to confirm they were invited to provide submissions if they did not accept the preliminary view. 20 February 2019 OIC received QUT’s further submissions. 22 February 2019 OIC received submissions from the third and fourth parties. 6 March 2019 OIC received the applicant’s further submissions. [1] The application was received on 12 December 2017. [2] On 18 January 2018. [3] On 24 January 2018. [4] In the internal review decision, QUT offered inspection of part of the refused information. This offer was subject to the applicant’s completion of a nondisclosure agreement. In QUT’s submissions dated 25 June 2018, QUT advised that the offered inspection was access ‘otherwise than under this Act’, as contemplated by section 4 of the RTI Act. [5] On 15 March 2018. [6] Under section 90 of the RTI Act, the Information Commissioner is required to identify opportunities and processes for early resolution of an external review. [7] As outlined at footnote 4 above. [8] Under section 89(3) of the RTI Act. [9] Referred to as the Category A Information in this decision. [10] Referred to as the Category B, C and D Information in this decision. [11] A copy of the Procedure was attached to QUT’s original decision. The Procedure is no longer publicly accessible on QUT’s website as it was revised and renamed subsequent to the investigation of the applicant’s complaint. [12] Section 10.1.6(a)7. of the Procedure. [13] Section 10.1.6(a)8. of the Procedure. [14] Allegation number 7 of the 11 allegations.[15] Section 87(1) of the RTI Act. [16] Which would, in any event, be outside the scope of the narrowed application—see paragraphs 33 and 36 below. [17] Submissions dated 25 June 2018 and 1 February 2019. [18] Schedule 5 of the RTI Act provides that ‘reviewable decision means any of the following decisions in relation to an access application— ... (e) a decision refusing access to all or part of a document under section 47’ (my emphasis).[19] Submission dated 25 June 2018.[20] Or delegate.[21] Section 108(3) of the RTI Act provides that the Information Commissioner must not include information that is claimed to be exempt information or contrary to the public interest information in reasons for a decision on external review and the Information in Issue is information which was refused on the ground that its disclosure would, on balance, be contrary to the public interest. [22] Given section 108(3) of the RTI Act, I am unable to further describe this information in these reasons for decision. [23] Submissions dated 25 June 2018. QUT’s submission also made the comments regarding obligations of confidence noted at paragraph 21 above—however, those comments related to information and matters other than those I am required to address in this formal decision.[24] Section 87(1) of the RTI Act. [25] Submissions dated 1 February 2019. [26] External review application. [27] Cannon and Australian Quality Egg Farms Ltd [1994] QICmr 9; (1994) 1 QAR 491 at [8] and O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) (O80PCE) at [33]. [28] Section 24(2) of the RTI Act. [29] Wyeth and Queensland Police Service [2015] QICmr 26 at [12]. [30] O80PCE at [52]. [31] External review application. [32] By email dated 8 January 2018. [33] By email dated 9 January 2018. [34] In this regard, I note that the internal review decision refers to an email QUT received from the applicant dated 2 February 2018. [35] As defined in schedule 5 of the RTI Act and discussed at paragraph 19 above. OIC’s external review jurisdiction is limited to reviewable decisions. [36] 8RS6ZB and Metro North Hospital and Health Service [2015] QICmr 3 (13 February 2015) at [12]. [37] OIC notified the applicant of this on 4 April 2018, 9 August 2018 and 21 November 2018. [38] Submissions dated 1 February 2019. [39] Email dated 15 December 2017. This confirmation was provided in response to QUT’s suggestion that: ‘It would also be helpful if we excluded from scope any email where you are the sender or recipient, i.e. email correspondence you already have, and any duplicate email correspondence’. [40] Dated 8 January 2018.[41] Submissions dated 25 June 2018 and 1 February 2019. [42] Section 23 of the RTI Act. [43] Sections 47(3)(b) and 49 of the RTI Act. [44] Section 49(3) of the RTI Act. [45] Submissions dated 14 December 2018 and 1 February 2019. [46] Submissions dated 14 December 2018. [47] To avoid identifying the applicant and the third and fourth parties, I am unable to provide further details about these concerns. [48] Schedule 4, part 1, item 3 of the RTI Act.[49] Schedule 4, part 2, item 7 of the RTI Act. [50] Submissions dated 1 February 2019. [51] (Unreported, Queensland Information Commissioner, 21 May 2012) (0ZH6SQ).[52] OZH6SQ at [8].[53] OZH6SQ at [16].[54] Submissions dated 1 February 2019. [55] Schedule 4, part 2, item 1 of the RTI Act. [56] Schedule 4, part 2, item 3 of the RTI Act. [57] Schedule 4, part 2, item 11 of the RTI Act. [58] Submissions dated 22 February 2019. [59] In paragraph 5 and footnote 4. [60] Submissions dated 1 February 2019. [61] Schedule 4, part 2, item 5 of the RTI Act. [62] As indicated by the word ‘including’ in section 49(3)(a), (b) and (c) of the RTI Act regarding irrelevant factors, factors favouring disclosure, and factors favouring nondisclosure (including harm factors) respectively, the list of public interest factors in schedule 4 is non-exhaustive. Consequently, while schedule 4, part, 2, item 5 of the RTI Act refers only to ‘agency or official’, I have also considered this public interest factor with reference to another person contracted to perform work for the agency—in this instance, the investigator.[63] As noted at footnote 62, the public interest factors in schedule 4 are non-exhaustive. Accordingly, while schedule 4, part, 2, item 6 of the RTI Act refers only to ‘agency or official’, I have also considered this public interest factor with reference to another person contracted to perform work for the agency—in this instance, the investigator.[64] Schedule 4, part 2, item 6 of the RTI Act. [65] External review application and submissions dated 31 January 2019. I am unable in these reasons for decision to further elaborate on the nature of those allegations or the applicant’s characterisation of them. [66] Submissions dated 31 January 2019. [67] Submissions made in a conversation with OIC on 1 June 2018. [68] Section 108(3) of the RTI Act. [69] As noted at footnotes 61 and 62 above. [70] External review application and submissions dated 31 January 2019. I am unable in these reasons for decision to further elaborate on the nature of those allegations or the applicant’s characterisation of them. [71] As noted at footnotes 63 and 64 above. [72] Schedule 4, part 2, item 12 of the RTI Act. [73] As part of identifying all relevant factors favouring disclosure, as required by section 49(3)(b) of the RTI Act.[74] [2017] QICmr 34 (11 August 2017) (Z Toodayan).[75] Given section 108(3) of the RTI Act. [76] Schedule 4, part 2, item 17 of the RTI Act. [77] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 (Willsford) at [17] and confirmed in 1OS3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011).[78] Submissions made in a conversation with OIC on 1 June 2018. [79] Submissions dated 1 February 2019. [80] Submissions dated 25 June 2018. QUT identifies those persons as staff in QUT’s Human Resources department, the Registrar and the Vice-Chancellor. [81] Submissions dated 25 June 2018. [82] Schedule 4, part 2, item 10 of the RTI Act. [83] Schedule 4, part 2, item 16 of the RTI Act. [84] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (Kioa) at 584 per Mason J.[85] Kioa at 629 per Brennan J. [86] Gapsa and Department of Transport and Main Roads (Unreported, Queensland Information Commissioner, 6 September 2013) and 0DW0PH and Queensland Bulk Water Supply Authority trading as Seqwater [2017] QICmr 3 (13 February 2017). [87] (Unreported, Queensland Information Commissioner, 28 March 2002) (Carter). [88] [2017] QICmr 19 (9 June 2017) (F60XCX and DNRM). [89] F60XCX and DNRM at footnote 9. See also [49] and [52]-[53], which confirm that the information in issue was provided to the investigation in that matter by other individuals, not that matter’s applicant.[90] External review application. [91] Schedule 4, part 2, item 10 of the RTI Act.[92] Schedule 4, part 2, item 16 of the RTI Act.[93] Schedule 4, part 2, item 2 of the RTI Act. [94] Schedule 4, part 2, item 4 of the RTI Act. [95] Schedule 4, part 2, item 18 of the RTI Act. [96] Schedule 4, part 4, item 6(1) of the RTI Act.[97] The citation for this decision, appearing in this excerpt and the excerpt appearing at paragraph 145, incorrectly refers to the applicant as F60CXC rather than F60XCX. The correct citation appears in paragraph 99. [98] Submissions dated 14 December 2018.[99] Submissions dated 22 February 2019. [100] Section 10 and schedule 5 of the RTI Act.[101] Section 12 of the IP Act.[102] Given section 108(3) of the RTI Act, I am unable to further describe this information in these reasons for decision. [103] Repeated in QUT’s submissions dated 1 February 2019.[104] [2014] QICmr 28 (13 June 2014) (F60XCX and Queensland Ombudsman), in particular [29]-[30].[105] At [29]-[30].[106] F60XCX and Queensland Ombudsman at [12].[107] Submissions dated 14 December 2018 and 1 February 2019. [108] Submissions dated 14 December 2018. [109] [2018] WASC 47.[110] Personal information is defined in clause 1 of the glossary of the WA FOI Act in similar terms to the definition of personal information in the IP Act, namely ‘information or an opinion, whether true or not, and whether recorded in a material form or not, about an individual, whether living or dead whose identity is apparent or can reasonably be ascertained from the information or opinion or who can be identified by reference to an identification number or other identifying particular such as a fingerprint, retina print or body sample’. [111] At [69] and [72].[112] Clause 3(1) of schedule 1 provides that ‘[m]atter is exempt matter if its disclosure would reveal personal information about an individual (whether living or dead)’. Clause 3(2) provides that ‘[m]atter is not exempt matter under subclause (1) merely because its disclosure would reveal personal information about the applicant’, while clause 3(6) provides that ‘[m]atter is not exempt matter under subclause (1) if its disclosure would, on balance, be in the public interest’.[113] Section 102 of the WA FOI Act. [114] At [5]. [115] At [74].[116] [2017] WASC 305 (S v DCPFS). [117] [2019] NSWCATAD 20 (Peacock). [118] [2015] NSWCATAD 145 (CCB). [119] Submissions dated 1 February 2019. [120] The GIPA Act defines personal information in schedule 4, section 4 of the GIPA Act in similar terms to the definition of personal information in the IP Act, namely ‘information or an opinion including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion’.[121] Section 9 of the GIPA Act.[122] Clause 3(a) in the Table to section 14 of the GIPA Act. [123] At [98] and [103].[124] At [38]. [125] At [37]. [126] On 21 November 2018.[127] Dated 14 December 2018 referring to pages 12 and 53 of the Report in particular. [128] On 17 January 2019.[129] Dated 1 February 2019.[130] On 8 February 2019.[131] Submissions dated 1 February 2019.[132] Especially during the informal resolution processes OIC is required to undertake under section 90(1) of the RTI Act.[133] Submissions dated 1 February 2019.[134] Section 12 of the IP Act.[135] At [72]. [136] At [98].[137] Peacock at [37]-[38]. [138] [2018] QICmr 21 (11 May 2018) at [38]-[40] (Seven and Logan CC) (footnote 40 omitted).[139] [2018] QICmr 47 (21 November 2018) (ABC and DCSYW) at [107]. [140] [2018] QICmr 48 (29 November 2018) (Seven and DJAG) at [44]. [141] Reflecting the factors set out in Mahoney and Ipswich City Council (Unreported, Queensland Information Commissioner, 17 June 2011) at [21]—namely, 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. [142] At [38].[143] At [39].[144] At [43]-[44]. [145] See definition in schedule 4, clause 1 of the GIPA Act.[146] At [100] and [102].[147] At [107] (footnote 56 omitted).[148] ABC and DCSYW at [66]. [149] At [107]. [150] At [45]. [151] Submissions dated 1 February 2019. [152] Schedule 4, part 3, item 3 of the RTI Act.[153] 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].[154] At [70].[155] Submissions dated 14 December 2018.[156] The “central proposition” referred to by QUT is the position that the redaction of the Category B Information successfully deidentifies other individuals—point 2. of QUT’s submissions dated 14 December 2018.[157] In subsequent parts of this decision I apply that test regarding the Category B, C and D Information. [158] Schedule 4, part 3, item 6 of the RTI Act. [159] Submissions dated 22 February 2019. [160] Submissions dated 14 December 2018. [161] Submissions dated 14 December 2018. [162] Submissions dated 1 February 2019. [163] Submissions dated 1 February 2019. [164] Submissions dated 1 February 2019. [165] See footnote 97 above.[166] (Unreported, Queensland Information Commissioner, 21 August 2012) (Troiani).[167] Schedule 4, part 3, item 16 of the RTI Act. [168] Schedule 4, part 4, item 8(1) of the RTI Act. [169] Submissions dated 14 December 2018. [170] Submissions dated 14 December 2018. [171] Submissions dated 22 February 2019. [172] [2017] QICmr 33 (11 August 2017) (N Toodayan). [173] Section 10.1.2(g) of the Procedure. [174] Submissions dated 14 December 2018. [175] Submissions dated 1 February 2019. [176] Z Toodayan at [44]. [177] Schedule 4, part 3, item 19 of the RTI Act. [178] Schedule 4, part 4, item 3(c) of the RTI Act. [179] Submissions dated 1 February 2019. [180] (Unreported, Queensland Information Commissioner, 21 January 2002) (LSN). [181] The wording of the exemption in section 40(c) of the Qld FOI Act is in similar terms to the factor favouring nondisclosure in schedule 4, part 4, section 3(c) of the RTI Act, in that it provided that matter is exempt matter if its disclosure could reasonably be expected to 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. [182] LSN at [34]. [183] Schedule 4, part 3, item 20 of the RTI Act. [184] Section 44(1) of the RTI Act. [185] Schedule 4, part 2, item 7 of the RTI Act. [186] Schedule 4, part 4, item 6(1) of the RTI Act. [187] Schedule 4, part 3, item 3 of the RTI Act. [188] Combined, these considerations address QUT’s submission noted at paragraph 53 above.[189] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act. [190] Schedule 4, part 2, items 5 and 10 of the RTI Act.[191] Schedule 4, part 2, items 12 and 16 of the RTI Act.[192] Schedule 4, part 3, items 6, 16 and 19 and schedule 4, part 4, items 3(c) and 8(1) of the RTI Act. [193] Given section 108(3) of the RTI Act, I am unable to further describe this information in these reasons for decision. [194] Submissions dated 31 January 2019.[195] Submissions dated 31 January 2019. [196] Schedule 4, part 2, item 7 of the RTI Act.[197] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act. [198] Schedule 4, part 2, items 5 and 6 of the RTI Act. While schedule 4, part, 2, items 5 and 6 of the RTI Act refer only to ‘agency or official’, I have also considered these public interest factors with reference to another person contracted to perform work for the agency—in this instance, the investigator. I have done so because, as noted at footnote 62, the public interest factors in schedule 4 are non-exhaustive.[199] Schedule 4, part 2, item 12 of the RTI Act. [200] Schedule 4, part 2, item 17 of the RTI Act. [201] Schedule 4, part 2, item 10 of the RTI Act. [202] Schedule 4, part 2, item 16 of the RTI Act. [203] Schedule 4, part 2, item 2 of the RTI Act. [204] Schedule 4, part 2, item 4 of the RTI Act. [205] Schedule 4, part 3, item 6 of the RTI Act. [206] Schedule 4, part 3, items 16 and 19 and schedule 4, part 4, items 3(c) and 8(1) of the RTI Act. [207] Section 44(1) of the RTI Act. [208] Schedule 4, part 3, items 3, 6, 16 and 19 and schedule 4, part 4, items 3(c), 6(1) and 8(1) of the RTI Act. [209] Schedule 4, part 2, item 7 of the RTI Act. [210] Schedule 4, part 2, items 1, 3, and 11 of the RTI Act and, if I am wrong in considering that schedule 4, part 2, items 12 and 16 of the RTI Act do not apply, those items as well. Also, schedule 4, part 2, item 10 of the RTI Act regarding the Category B Information appearing in restatements and summaries of information provided by the applicant and, if I am wrong in considering that item 10 does not apply to the rest of the Category B Information, in relation to such information as well. I am satisfied that schedule 4, part 2, items 5, 6 and 17 of the RTI Act do not apply.[211] Under section 47(3)(b) of the RTI Act. [212] Schedule 4, part 2, item 7 of the RTI Act.[213] Schedule 4, part 2, items 1,3 and 11 of the RTI Act. [214] External review application and submissions dated 31 January 2019. I am unable in these reasons for decision to further elaborate on the nature of those allegations or the applicant’s characterisation of them. [215] Submissions dated 31 January 2019. [216] Submissions made in a conversation with OIC on 1 June 2018. [217] Schedule 4, part 2, items 5 and 6 of the RTI Act. While schedule 4, part, 2, items 5 and 6 of the RTI Act refer only to ‘agency or official’, I have also considered these public interest factors with reference to another person contracted to perform work for the agency—in this instance, the investigator. I have done so because, as noted at footnote 62, the public interest factors in schedule 4 are non-exhaustive.[218] Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [15]-[20]. [219] Schedule 4, part 2, items 10, 16 and 17 of the RTI Act. [220] Schedule 4, part 2, item 2 of the RTI Act. [221] Schedule 4, part 2, item 4 of the RTI Act. [222] Underwood and Department of Housing and Public Works (Unreported, Queensland Information Commissioner, 18 May 2012) at [60]. [223] [2015] QICmr 21 (31 August 2015) (BFU12E). [224] Submissions dated 31 January 2019. [225] Under the doctrine of precedent, a lower court is bound to follow decisions that have been made by higher courts on similar facts and issues. This ensures that cases of a similar nature (for example, with similar facts or similar questions of law) are decided using the same principles as previous similar cases. [226] Submissions dated 31 January 2019. [227] Submissions dated 6 March 2019. [228] As this information was refused on the basis that its disclosure would, on balance, be contrary to the public interest—section 108(3) of the RTI Act. [229] Schedule 4, part 3, item 3 of the RTI Act. [230] Schedule 4, part 4, item 6(1) of the RTI Act. [231] Submissions dated 31 January 2019. [232] Submissions dated 31 January 2019. [233] Again, I am unable in these reasons for decision to further elaborate on the nature of those allegations or the applicant’s characterisation of them. [234] Schedule 4, part 3, items 16 and 19 and schedule 4, part 4, items 3(c) and 8(1) of the RTI Act. [235] Section 44(1) of the RTI Act. [236] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act. [237] Schedule 4, part 2, item 7 of the RTI Act. [238] Schedule 4, part 3, item 3 and schedule 4, part 4, item 6(1) of the RTI Act. [239] Schedule 4, part 3, items 6 and 16 and schedule 4, part 4, item 8(1) of the RTI Act. [240] Section 47(3)(b) of the RTI Act.[241] Submissions dated 31 January 2019. [242] On 8 February 2019. [243] Schedule 4, part 2, items 1 and 11 of the RTI Act. [244] Schedule 4, part 2, item 7 of the RTI Act.[245] Schedule 4, part 2, item 2 of the RTI Act. [246] Schedule 4, part 2, items 5 and 6 of the RTI Act. [247] Schedule 4, part 2, item 10 of the RTI Act. [248] Schedule 4, part 2, items 16 and 17 of the RTI Act. [249] Schedule 4, part 2, item 4 of the RTI Act. [250] Schedule 4, part 3, item 6 of the RTI Act. [251] Schedule 4, part 3, items 16 and 19 and schedule 4, part 4, items 3(c) and 8(1) of the RTI Act. [252] Schedule 4, part 3, items 3, 16 and 19 and schedule 4, part 4, items 3(c), 6(1) and 8(1) of the RTI Act [253] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act. [254] Under section 47(3)(b) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Q20RYB and Department of Justice and Attorney-General [2014] QICmr 2 (16 January 2014)

Q20RYB and Department of Justice and Attorney-General [2014] QICmr 2 (16 January 2014) Last Updated: 7 August 2014 Decision and Reasons for Decision Citation: Q20RYB and Department of Justice and Attorney-General [2014] QICmr 2 (16 January 2014) Application Number: 311556 Applicant: Q20RYB Respondent: Department of Justice and Attorney-General Decision Date: 16 January 2014 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION –CONTRARY TO PUBLIC INTEREST INFORMATION – recordings of prisoner’s telephone conversations –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) REASONS FOR DECISION Summary The applicant applied to the Department of Justice and Attorney-General[1] (Department) for access under the Information Privacy Act 2009 (Qld) (IP Act) to recordings of telephone calls he made while a prisoner. The Department decided to refuse to deal with the access application.[2] The applicant sought external review of the decision. For the reasons given below, I set aside the Department’s decision to refuse to deal with the access application and substitute a decision that disclosure of the requested recordings would, on balance, be contrary to the public interest.[3] Background The applicant was remanded in custody for three months on a serious charge. During that time, in accordance with security procedures, the Department recorded the applicant’s telephone conversations. The applicant was convicted, in separate trials, of that charge and another more serious charge. He seeks access to copies of numerous recordings made during his remand period (Recordings) for use in seeking a pardon in respect of his conviction on the lesser charge. In 2011 the applicant had applied for access to various recordings, including the recordings in issue in this review. Access was refused (Previous Decision) on the ground that their disclosure would, on balance, be contrary to the public interest. The applicant sought external review[4] of the Previous Decision. That external review was finalised on the basis that, not having provided a response within time, the applicant was deemed to have accepted OIC’s preliminary view that disclosure of the requested recordings would, on balance, be contrary to the public interest.[5] Significant procedural steps Significant procedural steps relating to the application and the external review are set out in the Appendix. Reviewable decision The decision under review is the Department’s decision dated 10 May 2013. In the decision, the Department refused to deal with the access application on the ground that it did not, on its face, disclose any reasonable basis for again seeking access to the Recordings; the applicant previously having applied to the Department for access to the same recordings and access having been refused.[6] 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 in this review comprises recordings of 93 telephone calls the applicant made to various individuals.[7] Issue for determination In the specific circumstances giving rise to this review, explained at paragraph 7 above, I exercise my discretion[8] to decide any matter in relation to the access application that could have been decided by the agency under the IP Act.[9] I have determined that, in these particular circumstances, there is a reasonable basis for the applicant again seeking access to the Recordings. Accordingly, in this review, I will consider whether disclosure of the Recordings would, on balance, be contrary to the public interest. Would disclosure of the Recordings be contrary to the public interest? Yes, for the reasons that follow. 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. However, this right is subject to other provisions of the IP Act and the RTI Act,[10] including the grounds on which an agency may refuse access to documents. Relevantly, 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.[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. Findings Irrelevant factors On external review the applicant expressed concern that, as a defendant in criminal proceedings, he may receive less favourable access to important relevant information than prosecution agencies. He states that, while he is being denied access to the Recordings, the prosecution at his trial on the more serious charge had been able not only to access, but to play publicly in court, copies of recordings of other telephone conversations between the applicant and other individuals.[14] I consider this comparison raises an irrelevant consideration. In criminal trials, the prosecution is required to present evidence relevant to the charge.[15] The fact that the information in issue in this external review – recordings of the applicant’s telephone conversations - may be of a similar general nature to evidence which was accessed and disclosed through a trial process, is not relevant to the issues for consideration in applying the provisions of the IP Act and RTI Act. I am satisfied that this is an irrelevant factor and I have not taken it into account in deciding whether disclosure of the Recordings would, on balance, be contrary to the public interest.[16] I have examined the irrelevant factors in schedule 4 of the RTI Act and am satisfied I have not taken into account these or any other irrelevant factors in reaching my decision. Factors favouring disclosure Personal information of applicant and deceased persons I acknowledge the public interest in individuals being able to obtain access to their own personal information.[17] As the applicant was a party to the telephone conversations, the Recordings comprise his personal information.[18] A further public interest factor favouring disclosure will arise in respect of the personal information of a deceased person where the applicant for access is an eligible family member of the deceased person.[19] Significant portions of the Recordings comprise the applicant’s conversations with and about two people who are now deceased, the applicant’s elder child and wife.[20] As parent and spouse respectively of those two deceased persons, the applicant is an eligible family member. The applicant was a party to the conversations and is aware of the nature of the information conveyed and the substance of the conversations. Disclosing the Recordings is unlikely to add significantly to his knowledge or comprehension of the information. As disclosure of the Recordings is unlikely to significantly enhance these public interest factors, I attribute only moderate weight to them. Contribute to the administration of justice 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,[21] for example, by allowing a person subject to adverse findings or conviction access to information that may assist them in mounting a defence or clearing their name. The applicant proposes to apply to the Governor of Queensland seeking a pardon in respect of his conviction for the lesser offence[22] and submits he requires access to the Recordings, in conjunction with other information,[23] for the purpose of completing his application. I understand the applicant’s submission to be, in essence, that the Recordings comprise, or would help provide, fresh evidence which, if adduced at his trial for the lesser charge, would have raised a reasonable doubt as to his guilt. He states that he was unaware of the existence of the recordings before his committal and trial on the lesser charge.[24] However, the applicant has not identified the nature of information in the Recordings, or any other means or information by which access to the Recordings would assist him in demonstrating that a reasonable doubt of guilt would have been raised at trial. It is incumbent upon the applicant to provide evidence supporting his submission. In the absence of information about the Recordings’ use towards seeking a pardon, I am unable to conclude that the applicant has demonstrated that disclosing them would assist him in pursuing a pardon, or in evaluating the prospects of success of seeking a pardon. Based on the above, I therefore consider it unlikely that disclosure of the Recordings could reasonably be expected to enhance this administration of justice public interest factor. I accord this factor only minimal weight. Factors favouring nondisclosure Personal information of others The RTI Act provides that disclosing personal information of a person, whether living or dead, could reasonably be expected to cause a public interest harm.[25] I have carefully reviewed the contents of the Recordings. They feature the personal information of individuals other than the applicant – relevantly, the voices and words of his children and other individuals, including his wife, as well as observations about those other individuals. The Recordings contain sensitive private information about others’ personal circumstances, such as their daily activities, expressions of emotion and feelings, particularly following the tragic accident and death of the applicant’s elder child. Given the very sensitive and private nature of the information discussed, I consider the public interest harm resulting from disclosure of this sensitive personal information would be significant. Protection of an individual’s right to privacy A public interest factor favouring nondisclosure will arise if disclosing information could reasonably be expected to prejudice the protection of an individual’s right to privacy.[26] An additional factor favouring nondisclosure arises 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.[27] The Recordings contain sensitive information about individuals such as the applicant’s acquaintances and family, including his deceased child and wife. The information concerns feelings about events in the lives of, and activities undertaken, by those various individuals. I am therefore satisfied disclosure would prejudice the protection of these individuals’ privacy and these two factors arise for consideration. Where information is already known to an applicant, this reduces, to an extent, the privacy interest attaching to the information. I acknowledge that the applicant participated in the conversations and this arguably diminishes relevant privacy interests. Much of the Recordings concern personal private information about individuals who did not themselves volunteer the information. Disclosure of such information could reasonably be expected to prejudice the protection of the relevant individuals’ right to privacy, by intruding into the ‘personal sphere’ of those individuals without their consent to disclosure. In these circumstances, the public interest in protecting those individuals’ right to privacy is significant. I acknowledge an element of voluntariness on the part of the adult persons who participated in calls with the applicant (in that, notwithstanding that the conversations with him were recorded, they elected to participate in them). However, the mandatory nature of the recording of such conversations gave those persons little chance to speak with the applicant other than by acquiescing to the recording. In these circumstances I consider their participation in calls with the applicant reduces the privacy value of their personal information only to a very minor extent. I acknowledge a reduction in the privacy interest attaching to information in the Recordings, where such information may have been disclosed publicly, for example at trial. A significant amount of information about the applicant’s wife entered the public sphere through the circumstances of her death and subsequent trial proceedings relating to her death. However a review of the information in the Recordings concerning her shows the content to be largely of a domestic private nature and it is unlikely that this information has been publicly disclosed. I therefore consider there is a significant public interest in protecting the privacy of information about the applicant’s deceased wife which remains private. I acknowledge that the applicant’s children engaged in numerous conversations with him and that they informed him of events and circumstances about themselves and others. I understand that the applicant had been the parent primarily involved in his children’s day to day care prior to his incarceration. On the basis of the applicant’s relationship as a parent having significant involvement in his children’s lives, I recognise some reduction in the privacy interest of information his children volunteered to the applicant about themselves. However, the privacy interests of other individuals, particularly the applicant’s surviving child, remain high and may be adversely affected by disclosure of information about the child, or the child’s deceased sibling or mother, even where the information is somewhat aged (over a decade having passed). Given the intertwined nature of information in the Recordings, disclosure of information about the applicant’s deceased child or wife would also disclose information about his surviving child. In these circumstances I consider the privacy interest in information in the Recordings is only minimally reduced and given the very sensitive nature of the information, the public interest in safeguarding the privacy of others should be accorded significant weight. Security or good order of a corrective services facility Under the RTI Act, disclosing a recording of a telephone call made by an offender from a corrective services facility could reasonably be expected to cause a public interest harm.[28] The Recordings are of calls made by the applicant from a corrective services facility and accordingly I must consider the extent of public interest harm arising from their disclosure. The nature of the information in the Recordings principally concerns the applicant’s and others’ relationships and activities. The information was created over a decade ago. Disclosing the Recordings is unlikely to reveal sensitive information about current prison security. I consider the public interest harm arising from disclosure of the Recordings would be minimal and I attribute only slight weight to this factor. Balancing the relevant public interest factors To summarise, I afford: moderate weight to the public interest factors favouring disclosure of the applicant’s personal information and that of deceased persons slight weight to the public interest factor favouring disclosure relating to administration of justice significant weight to the public interest factors favouring non-disclosure relating to the protection of personal information and the privacy of other individuals; and slight weight to the public interest harm factor favouring non-disclosure of information affecting the security of a correctional services facility. The nature of the Recordings is such that it is not possible to separate the applicant’s personal information from the personal information of others. Thus, the relevant information cannot be disclosed to the applicant without disclosing personal information of other individuals. While the factors favouring disclosure to the applicant of his own personal information and that of his deceased family members warrants moderate weight, balanced against this are the relevant privacy interests of the individuals mentioned in the Recordings, including the deceased persons. There is a clear public interest in ensuring that government protects privacy and treats with respect the personal information it collects from members of the community.[29] This is particularly so in relation to information collected through mandatory recordings of telephone calls made to third parties by prisoners. Further, an important principle underpinning both the RTI Act and the IP Act is that individuals should have a measure of control over the personal information collected from them by government, and, by extension, an access applicant should not be put in a position to control dissemination of the personal information of others, unless the balance of the public interest requires it in the circumstances of a particular case.[30] As the RTI Act and IP Act impose no restraint or condition on the use to which information obtained may be put, release of the Recordings would result in just such a prejudice. Despite some public interest in the applicant having access to his and his deceased relatives’ personal information, the particular circumstances of this case give rise to stronger factors favouring nondisclosure, namely the protection of personal information and other individuals’ right to privacy. Therefore I find that disclosure of the Recordings would, on balance, be contrary to the public interest. DECISION For the reasons set out above, I set aside the decision to refuse to deal with the access application and substitute a decision that disclosure of the Recordings would, on balance, be contrary to the public interest under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. ________________________ Louisa Lynch Assistant Information Commissioner Date: 16 January 2014 APPENDIX Significant procedural steps Date Event 11 April 2013 The Department received the applicant’s application for access to all personal telephone recordings. 10 May 2013 The Department issued its decision to refuse to deal with the application. 5 June 2013 OIC received the applicant’s application for external review of the Department’s decision and requested that the Department provide OIC with copies of procedural documents by 12 June 2013. 12 June 2013 OIC received a copy of the requested documents from the Department. 18 June 2013 OIC notified the applicant and the Department that the application for external review had been accepted. 12 July 2013 OIC wrote to the Department requesting a copy of the documents in issue. 29 July 2013 The Department provided OIC with the requested documents. 13 August 2013 – 13 September 2013 OIC liased with the Department regarding difficulties in accessing the documents provided by the Department. 10 October 2013 OIC received from the applicant correspondence requesting an update on the status of the review. 29 October 2013 OIC conveyed a preliminary view to the applicant that disclosure of the Recordings would, on balance, be contrary to the public interest, and invited the applicant to provide submissions supporting his case by 19 November 2013 if he did not accept the preliminary view. 5 November 2013 The applicant notified OIC that he did not accept the preliminary view and provided OIC with submissions. 8 November 2013 OIC wrote to the applicant addressing his submissions and reiterating the preliminary view that disclosure of the Recordings would, on balance, be contrary to the public interest. 19 November 2013 OIC received further submissions from the applicant dated 14 November 2013. 6 January 2014 OIC notified the Department that the applicant had rejected the preliminary view. [1] Machinery of government changes in 2013 transferred relevant responsibility from the Department of Community Safety (Community Safety) to the Department of Justice and Attorney-General. Accordingly, existing access applications and reviews involving certain applications made to Community Safety before the machinery of government changes now rest with the Department of Justice and Attorney-General, including this external review. [2] Under section 62(3)(b)(iii) of the IP Act.[3] Under section 47(3)(b) and section 49 of the Right to Information Act 2009 (Qld) (RTI Act), in conjunction with section 67(1) of the IP Act.[4] Review 310785.[5] The applicant had asked OIC to extend the time in which to provide his submission responding to the preliminary view, on the basis that day to day activities in the correctional centre in which he was held had been disrupted by a number of movements of prisoners within the centre, preventing him from responding in time. OIC declined the applicant’s request for an extension of time and advised him that, if he wished to again seek access to the relevant telephone recordings, he would need to make a fresh application to the Department. [6] Under section 62(3)(b)(iii) of the IP Act. [7] Highlighted in the list Call Activity Report attached to the access application dated 8 April 2013. [8] Under section 118 of the IP Act, which authorises the Information Commissioner to conduct a merits review of the decision made by the Department.[9]The Department, in a telephone conversation on 11 July 2013, did not raise any objection to the review proceeding in this manner. [10] 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. [11] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. [12] Schedule 4 of the RTI Act sets out a non-exhaustive list of factors for deciding whether disclosing information would, on balance, be contrary to the public interest. [13] Section 49(3) of the RTI Act provides that a decision maker must: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. [14] Letter to OIC dated 3 November 2013.[15] And under laws requiring fairness for defendants in the trial process, copies of the recordings played at the trial would have been provided to the applicant - see section 590AB of the Criminal Code Act 1899, which obliges the prosecution to give an accused person full and early disclosure of evidence the prosecution proposes to rely on in the proceeding. Under the principle of open justice, courts generally are open to the public, in order to enable scrutiny of the important processes by which individuals’ liberty may be constrained.[16] Section 49(3) of the RTI Act. [17] Schedule 4, part 2, item 7 of the RTI Act.[18] 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.’[19] Schedule 4, part 2, item 9 of the RTI Act.[20] Although not specifically identified, the context of some calls indicates the applicant’s wife was likely a participant in those calls.[21] Schedule 4, part 2, item 17 of the RTI Act.[22] Access application dated 8 April 2013 and submission dated 3 November 2013. Other avenues of appeal in respect of this offence appear to have been exhausted; the Queensland Court of Appeal dismissed the applicant’s appeal against conviction and sentence and the High Court of Australia dismissed his application for special leave to appeal.[23] The applicant’s submissions do not identify the nature of the additional information.[24] Submission dated 3 November 2013. [25] Schedule 4, part 4, section 6 of the RTI Act.[26] Schedule 4, part 3, item 3 of the RTI Act. 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: see Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [27] paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 11 August 2008, at paragraph 1.56.[27] Schedule 4, part 3, item 5 of the RTI Act.[28] Schedule 4, part 4, section 5(1)(b)(ii) of the RTI Act.[29] An expectation recognised by Parliament in enacting the IP Act. [30] 6E7YWS and Department of Housing and Public Works (Unreported, Queensland Information Commissioner, 24 October 2013) at [38].

queensland

court_judgement

Queensland Information Commissioner 1993-

Carter and Gold Coast City Council [2008] QICmr 24 (28 August 2008)

Carter and Gold Coast City Council [2008] QICmr 24 (28 August 2008) Office of the Information Commissioner Decision and Reasons for Decision Application Number: 210532 Applicant: Mr R Carter Respondent: Gold Coast City Council Decision Date: 28 August 2008 Catchwords: FREEDOM OF INFORMATION – section 43(1) of the Freedom of Information Act 1992 – whether matter in issue would be privileged from production in a legal proceeding on the ground of legal professional privilege FREEDOM OF INFORMATION – sufficiency of search – whether there are reasonable grounds to believe that further documents exist in the possession or control of Gold Coast City Council Contents REASONS FOR DECISION ....................................................................................... 2 Summary....................................................................................................................... 2 Background ................................................................................................................. 2 Decision under review................................................................................................... 2 Steps taken in the external review process ................................................................ 2 Issues on external review............................................................................................ 4 Findings....................................................................................................................... 4 A) Refusal of access.................................... ................................................................. 4 Matter in issue ..................................................................................................... 4 Council’s decision................................................................................................ 4 Section 43(1) of the FOI Act............................................................................... 4 The applicant’s submissions............................................................................... 5 Conclusion .......................................................................................................... 5 B) Sufficiency of search ............................................................................................... 6 The applicant’s submissions .............................................................................. 7 Conclusion .......................................................................................................... 7 DECISION ................................................................................................................... 8 REASONS FOR DECISION Summary 1. For the reasons set out below, I find that: • the matter in issue in this review is exempt from disclosure in its entirety under section 43(1) of the Freedom of Information Act 1992 (FOI Act) • there are no reasonable grounds to believe that further documents responsive to the applicant’s freedom of information application (FOI Application) exist in the possession or control of Gold Coast City Council (Council). Background 2. By letter dated 20 May 2006, the applicant lodged a seven page FOI Application with Council seeking access to certain documents under the FOI Act. 3. By letter dated 26 June 2006, the applicant lodged an amendment to the FOI Application with Council. 4. Due to the size of the FOI Application, Council corresponded with the applicant in July and August 2006 in relation to the processing of the FOI Application and reached an agreement with the applicant to process the FOI Application in various stages. 5. By letter dated 8 April 2008, Council made an initial decision in relation to some parts of the FOI Application. Council advised that it had: • located 52 documents responsive to the relevant parts of the FOI Application • decided to grant the applicant full access to 44 of those documents and to refuse the applicant access to eight of those documents under section 43(1) of the FOI Act. 6. By letter dated 30 April 2008, the applicant applied for internal review of Council’s decision. 7. By letter dated 16 May 2008, Council made an internal review decision affirming the initial decision and advising that in relation to the sufficiency of Council’s searches, proper and reasonable efforts had been made to locate the documents sought. 8. By letter dated 11 June 2008, the applicant applied for external review of Council’s internal review decision. Decision under review 9. The decision under review is Council’s internal review decision dated 16 May 2008. Steps taken in the external review process 10. By email dated 16 June 2008, this Office requested certain initiating documents from Council. 11. By letter dated 17 June 2008, Council provided this Office with the requested documents. 12. By letter dated 3 July 2008, this Office asked Council to provide a copy of the matter in issue in this review. 13. By letter dated 9 July 2008, Council provided the matter in issue. 14. By letter dated 24 July 2008, I advised the applicant that: • based on the wording of the external review application, I assumed that he only sought external review of Council’s decision refusing access to the matter in issue under section 43(1) of the FOI Act and that he did not seek external review of the sufficiency of Council’s searches for documents responsive to the FOI Application. I asked the applicant to advise me by no later than 8 August 2008 if this was not the case • it was my preliminary view that the matter in issue was exempt from disclosure in its entirety under section 43(1) of the FOI Act • I invited him to provide submissions to this Office by 8 August 2008 in support of his case if he did not accept the preliminary view. 15. On 8 August 2008, the applicant delivered a number of documents[1] to this Office and indicated that he did not accept the preliminary view. 16. Also on 8 August, the applicant contacted a staff member of this Office by telephone and reiterated certain parts of his submissions. 17. After careful consideration of the applicant’s submissions, I advised the applicant by letter dated 14 August 2008 that: • it remained my preliminary view that the matter in issue was exempt from disclosure in its entirety under section 43(1) of the FOI Act • in relation to the sufficiency of search issue which the applicant raised in his submissions, it was my preliminary view that there are no reasonable grounds to believe that further documents exist in Council’s possession which respond to the FOI Application • I invited him to provide final and specific submissions in support of his case by 27 August 2008 if he did not accept this preliminary view. 18. The applicant provided further submissions to this Office in support of his case in the form of an affidavit sworn 26 August 2008 and various supporting documents. 19. In reaching a decision in this external review, I have taken the following into account: • the FOI Application dated 20 May 2006 • the applicant’s letter to Council dated 26 June 2006 amending the FOI Application • various correspondence between Council and the applicant relating to the processing of the FOI Application • Council’s initial decision dated 8 April 2008 • the applicant’s internal review application dated 30 April 2008 • Council’s internal review decision dated 16 May 2008 • the applicant’s external review application dated 11 June 2008 • the applicant’s affidavits sworn 7 August 2008 and 26 August 2008 and various supporting documents provided to this Office • file notes of conversations between a staff member of this Office and the applicant • the matter in issue • relevant provisions of the FOI Act • relevant case law and previous decisions of this Office. Issues on external review 20. In his affidavits[2] and in conversations with staff members of this Office, the applicant made numerous allegations in respect of staff of Council, this Office and the Crime and Misconduct Commission. 21. By letter dated 14 August 2008, I advised the applicant that: • the issues for determination in this external review are whether: o the matter in issue is exempt from disclosure under section 43(1) of the FOI Act o there are reasonable grounds to believe that further responsive documents exist in the possession or control of Council, and if so, whether Council’s search efforts have been reasonable in the circumstances • this Office has no jurisdiction to undertake an investigation or to make enquiries into the allegations referred to above as they are unrelated to this external review. Findings A) Refusal of access Matter in issue 22. The matter in issue in this review comprises eight documents, being correspondence between a Council officer and Council’s legal representatives[3] (Matter in Issue). 23. Council provided this Office with a copy of the Matter in Issue which I have carefully reviewed. Council’s decision 24. Council decided that the Matter in Issue was exempt from disclosure in its entirety under section 43(1) of the FOI Act as it contained information provided to and received from Council’s legal representatives for the dominant purpose of obtaining legal advice. Section 43(1) of the FOI Act 25. Section 43(1) of the FOI Act provides: 43 Matter affecting legal proceedings (1) Matter is exempt matter if it would be privileged from production in a legal proceeding on the ground of legal professional privilege. 26. The section 43(1) exemption turns on the application of those principles of Australian common law which determine whether matter is subject to legal professional privilege. 27. Legal professional privilege protects confidential communications between a lawyer and client, including communications through their servants or agents, made for the dominant purpose of: • seeking or giving legal advice or professional legal assistance, or • use, or obtaining material for use, in legal proceedings that had commenced, or were reasonably anticipated, at the time of the relevant communication.[4] 28. Legal professional privilege also protects confidential communications between the client or the client's lawyers (including communications through their 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. [5] The applicant’s submissions 29. As set out above, the applicant provided submissions to this Office in the form of affidavits sworn 7 August 2008 and 26 August 2008 and various supporting documents. 30. In his affidavit sworn 7 August 2008, the applicant relevantly submits that: [7] wherein the / a GCCC employee [as a ‘tool’] provides official documentation to a person, being a solicitor / barrister, the [forced by law] ratepayer, allegedly, has under the principal of Natural Justice, &, Procedural Fairness, the indisputable right, to personally peruse the relevant documents, for inaccuracies. [8] That as the GCCC ratepayers [as individuals] are in effect, the persons paying the solicitor / barrister, that the ratepayers are [being secretly forced to pay] therefore the ratepayer, [unable to trust the GCCC employee] on discovery of this, alleged, documented falsified advise, a 51, 52, 52a, 6, 7, 8, 21, 24, 25, 30, 31, is entitled to peruse the legal advise provided. 31. I also note that in his affidavit sworn 26 August 2008, the applicant further submits that: • his previous submissions (a summary of which is set out above) raise the issue of truthfulness which should be taken into consideration • there is no reason to withhold the Matter in Issue unless Council employees and their legal advisors have lied. Conclusion 32. Having carefully considered the applicant’s submissions, I note that: • they are largely unrelated to the question of whether the Matter in Issue is exempt from disclosure under section 43(1) of the FOI Act • as advised to the applicant in my letter dated 14 August 2008, public interest considerations are not able to be taken into consideration in determining whether documents are exempt from disclosure under section 43(1) of the FOI Act. 33. After carefully considering the Matter in Issue, the applicant’s submissions[6] and relevant case law, I am satisfied that the Matter in Issue is privileged and exempt from disclosure in its entirety under section 43(1) of the FOI Act on the basis that: • it constitutes or records communications between Council and its legal representatives • the communications are confidential in nature • the dominant purpose of the communications was Council seeking and receiving professional legal assistance in anticipation of legal proceedings.[7] B) Sufficiency of search 34. The following questions are relevant to the issue of sufficiency of search:[8] • whether there are 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, • whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of the particular case. 35. The Information Commissioner has previously indicated that:[9] ... it is a practical consequence of the issues to be determined in 'sufficiency of search' cases) ... that applicants will ordinarily need to explain fully their grounds for believing that the respondent agency holds additional responsive documents, and to disclose any relevant documentary or other evidence which tends to support the existence of reasonable grounds for such a belief. If the information provided to me by the respondent agency supports a finding that the questions posed in paragraph 19 of Re Shepherd should be answered in favour of the agency, and I am unable, independently, to identify any further relevant avenues of search or inquiry that an agency could reasonably be required to undertake, then, in the absence of evidence to the contrary from the applicant, there will be only one course open to me - to answer the aforementioned questions in favour of the agency. 36. Therefore, where an external review involves sufficiency of search issues, there is a practical onus on the applicant to provide reasonable grounds to believe that documents responding to the request exist and are documents of the agency. 37. In both his written and oral submissions to this Office, the applicant asserts that Council has failed to provide him with thousands of documents. The applicant’s submissions 38. In his affidavit sworn 7 August 2008, the applicant submitted that: [60] being about 600 pages, PLUS another expected hundred pages [and another, alleged, 10,000 pages from, a 400 to a 10,400 [exact number unknown] pages of GCCC official records] with intent to cause loss of financial commercially due payments to the entity GCCC, 39. By letter dated 14 August 2008, I invited the applicant to provide specific submissions on this point. I also set out the relevant questions which the applicant should address in these submissions. 40. In his affidavit sworn 26 August 2008, the applicant submitted that: 8b. thereafter these, alleged serial offences [of GCCC specific employees secretly depriving their employer, the GCCC, of “CASH” for alleged they didn’t have 14 day GCCC accounts, for services lawfully provided] believed to be officially documented in the GCCC rubbish dump official records, allegedly, 10,000 pages, conclusively evidencing the fact that the relevant involved contractors, being required to ‘ABIDE’ are not officially recorded, as entering the GCCC dumps, thereby not officially recorded, as being lawfully provided with a GCCC owned, and regulated, commercial dumping service, therefore were not recorded as being officially ‘classified’ [example, a 20, 21, 25,] and paying the GCCC for commercial dumping services, lawfully provided, and accepted, involving, allegedly, unknown [at present] tens of thousands of unrecorded commercial entries. ... 11. You are wrong. Council have identified that there are official Stapylton dump records, which are / were in storage, originating from about 1995 to the present date. 11a. There are, alleged, 5 GCCC controlled rubbish dumps, being, Stapylton Landfill, Suntown Landfill, Tugun Landfill, Reedy Creek Landfill, Molendinar Landfill, are GCCC owned, the official records which are / were in storage from about 1995 to the present date. ... [j] My claim is that B Webber of GCCC FOI in about, September 2002, a 19b, apparently couldn’t find about, alleged, 20,000 pages of official GCCC dump records, [also CMC] and then retrieve the specific relevant GCCC official record, in effect, requested by the IC dated 3-2-01 and officially notified the IC that, in effect, the official GCCC dump records do not exist. [k] My claim is that, allegedly, B Webber of GCCC FOI, doesn’t want to provide the GCCC official dump record documents, possibly in 6 monthly lots. Is it because this criminally involves, allegedly, CM, GCCC Local Law, AAS ABN, P&ST,? ... [n] ... I could have 600 pages of relevant docs, with another 10,000 pages of GCCC official dump records to obtain from B Webber. My allegation is that the official GCCC dump records documents contain evidence that specific employees of GCCC, while under specific enforceable contract to the GCCC, and, as private contractors, were commercially entering the dumps, officially unrecorded, thereby carrying, ‘officially unclassified,’ [a 20, 21, 25,] material, [unknown future financial consequences] thereby being officially unrecorded, as entering and dumping, that the GCCC private contractors [a 7,] [as GCCC employees] were secretly commercially entering, unlawfully commercially, being unrecorded, thereby, dumping free of commercial charge. A 7. Conclusion 41. I have carefully considered the applicant’s submissions in respect of this issue and acknowledge his assertion that additional responsive documents exist. 42. However, I consider that the applicant’s submissions on this point are based on his belief that additional responsive documents should exist and that he has not provided relevant documentary or other evidence which supports the existence of reasonable grounds for his belief. 43. Accordingly, on the information available to me, I am unable to identify any reasonable grounds to believe that additional documents responding to the FOI Application exist in the possession or control of Council. 44. As I am unable to identify reasonable grounds to believe that further documents responding to the FOI Application exist in the possession or control of Council, it is unnecessary to make a determination in respect of Council’s search efforts. DECISION 45. For the reasons set out above, I affirm Council’s internal review decision dated 16 May 2008 by finding that: • the Matter in Issue is exempt from disclosure in its entirety under section 43(1) of the FOI Act • there are no reasonable grounds to believe that further documents responsive to the FOI Application exist in the possession or control of Council. 46. 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 August 2008 [1] These documents included an affidavit sworn 7 August 2008 and various supporting documents. [2] Sworn 7 August 2008 and 26 August 2008.[3] Council’s City Solicitor and an external law firm engaged by Council.[4] Esso Australia Resources Ltd v Commission of Taxation [1999] HCA 67; (1999) 74 ALJR 339.[5] Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 207 ALR 217. [6] Including the supporting documentation.[7] I note that Section 87(3) of the FOI Act precludes me from disclosing matter claimed to be exempt in the reasons for a decision on review. Consequently, I am unable to provide the applicant with further and specific detail as to the content of the legal advice contained within the Matter in Issue. [8] Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 at paragraphs 18 and 19 (Shepherd). [9] Ainsworth; Ainsworth Nominees Pty Ltd and Criminal Justice Commission; A (Third Party); B (Fourth Party) (1999) 5 QAR 284 at paragraph 46.

queensland

court_judgement

Queensland Information Commissioner 1993-

V2G7KC and Queensland University of Technology [2015] QICmr 23 (9 September 2015)

V2G7KC and Queensland University of Technology [2015] QICmr 23 (9 September 2015) Last Updated: 23 November 2016 Decision and Reasons for Decision Citation: V2G7KC and Queensland University of Technology [2015] QICmr 23 (9 September 2015) Application Number: 312176 Applicant: V2G7KC Respondent: Queensland University of Technology Decision Date: 9 September 2015 Catchwords: ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT - REFUSAL OF ACCESS - NONEXISTENT DOCUMENTS -applicant seeking information relating to university studies - teaching practicum - correspondence between university and high school - applicant contends further documents exist - whether the agency has taken all reasonable steps to locate documents - whether access may be refused on the basis that the documents do not exist - sections 47(3)(e) and 52(1)(a) 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 made an access application to Queensland University of Technology (QUT), seeking:[1] ... access to all documents QUT holds that contain information about [the applicant] created from the beginning of [the applicant’s] interactions with QUT until 29 July 2014. QUT located 479 electronic files and released 475 files in full and four files in part.[2] The applicant applied to the Office of the Information Commissioner (OIC) for an external review regarding the sufficiency of QUT’s searches for documents responsive to his application. On external review, the applicant contended that QUT should have located communications between staff at the host school where he undertook a teaching practicum, and staff at QUT. In his external review application, the applicant stated: I need access to communication records between the host school ... (in particular the supervising teacher ... and site coordinator ...), and staff at QUT (in particular, Dr Margaret Kettle and Mr Rick Maher). [3] At the request of OIC, QUT conducted additional searches specifically for the documents identified by the applicant. QUT located 35 additional files and released 18 files in full and, following consultation with third parties, parts of the remaining 17 files were released, subject to the removal of other individuals’ personal information.[4] The applicant maintained his contention that further documents should have been located.[5] For the reasons set out below, I vary the decision under review and find that access to further documents is refused under sections 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) (RTI Act) on the basis that they are non-existent.[6] Background Significant procedural steps relating to the application and external review are set out in the Appendix. Reviewable decision The decision under review is QUT’s decision dated 2 September 2014. Evidence considered The 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 access to further documents that the applicant contends should have been located can be refused on the basis that they are nonexistent under sections 47(3)(e) and 52(1)(a) of the RTI Act. Relevant law The Information Privacy Act 2009 (Qld) (IP Act) requires consideration of the grounds for refusal set out in the RTI Act.[7] In circumstances in which the sufficiency of an agency’s searches for documents responsive to an access application is in issue, the RTI Act provides that an agency may refuse access to documents which do not exist (i.e. they were never created).[8] A document is non-existent if there are reasonable grounds to be satisfied the document does not exist.[9] 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. [10] By considering the factors above, an agency may ascertain that a particular document does not exist because, for example, its processes do not involve creating the specific document.[11] In such instances, it is not necessary for the agency to search for the document.[12] It is sufficient that the relevant circumstances accounting for the nonexistent document are explained. However, an agency may use searches as a means to satisfy itself that documents do not exist.[13] 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 non-existent.[14] Given that the searches will be directed by the key factors listed above, what constitutes all reasonable steps will vary from case to case, depending on which of the factors are most relevant in the particular circumstances.[15] Analysis Initial searches QUT provided the following submission regarding its initial searches that located 479 files responsive to the applicant’s access application: staff involved in search –– Faculty Manager who referred the request to: Assistant Dean, Teaching and Learning, who then liaised with Unit Coordinator; University Liaison Officer; University Liaison Academic and Placement Officer, Field Experience Office Head of School Student Affairs Coordinator, who then liaised with several staff in the Student Affairs Office AskQUT staff member – who was requested to conduct searches using three email addresses used by the applicant locations searched – Outlook emails, TRIM (QUT’s e-records system), AskQUT (QUT’s online enquiry system), Inplace - placement system, and hard copies of student field experience practicum reports. search terms – applicant’s name; applicant’s student number and the three email addresses used by the applicant. As stated in paragraph 4, on external review the applicant submitted that QUT should have located communication records between staff at the host school where he undertook a teaching practicum, and staff at QUT. Additional searches Following OIC’s request that QUT conduct additional searches (with reference to the types of documents raised by the applicant in his external review application), QUT located 35 additional files and released 18 files in full and, following consultation with third parties, parts of the remaining 17 files were released, subject to the removal of other individuals’ personal information. In regard to its further searches, QUT submitted: the Placement Officer, Field Experience Office searched Outlook emails and hard copies of student field experience practicum reports from February 2014 to August 2014 for mention of the applicant the Student Affairs Coordinator searched Outlook emails (using the name of the high school where the applicant undertook his teaching practicum; the names of the teachers at the high school that the applicant identified as being relevant; the applicant’s name and student number; QUT staff members identified as relevant by the applicant); AskQUT (using the search terms of the applicant’s name; applicant’s student number and the three email addresses used by the applicant), filing cabinet; and written notes the University Liaison Officer searched Outlook emails for mention of the applicant; and the Senior Lecturer, Faculty of Education searched handwritten notes and Outlook emails for mention of the applicant. Following receipt of the additional information, the applicant submitted that QUT’s searches should have located a ‘letter from my Supervising Teacher that explained that I was given verbal At Risk warnings (during the Interim Report meeting)’. The applicant stated this letter was referred to by the Executive Dean, Faculty of Education in a teleconference on 3 September 2014. In relation to this letter, the applicant submitted:[16] ... Another reason I know everything has not been provided is because there are certain key documents that are missing. For example that which Faculty of Education Executive Dean Dr Wendy Patton mentioned in a teleconference on 3rd September 2014 (also attended by Famena Staley, Faculty Manager - Acting, Faculty of Education.). During the teleconference Dr Patton referred to a letter from my Supervising Teacher that explained that I was given verbal At Risk warnings (including during the Interim Report meeting). She stated what was written in the letter was contrary to what I was telling her (i.e. that I was informed I was borderline ‘very good’ during the Interim Report meeting). I requested a copy of that letter from my Supervising Teacher, and was told she would need to seek permission for it to be provided to me. She must not have received permission as she never responded to my repeated requests. The applicant made submissions to QUT as follows:[17] Finally regarding the teleconference with Faculty of Education Executive Dean Dr Wendy Patton and Acting Faculty of Education Manager Famena Staley (on 3rd September 2014), may I remind you that you were not present. I am informing you as the QUT Privacy Officer that Dr Patton explicitly referred to a letter from my Supervising Teacher ... This is a fact. Please confirm this with Ms Staley. Please provide me with a copy of the letter. Further specific searches QUT advised the applicant[18] that: I have made enquires this week with staff in the Faculty of Education for any document meeting this description, i.e. a letter from [the supervising teacher] to QUT explaining that you received verbal at risk warnings. I am advised that no such document exists and had it existed it would have been located during QUT’s searches. The letter which Prof Patton is most likely to have been referring to during the teleconference is the one to you from Dr Spooner-Lane (dated 18 June 2014) (I have attached a copy for reference). This document covers the same subject matter but was authored by Dr Spooner Lane not [the supervising teacher]. In relation to this advice from QUT, OIC obtained clarification from QUT that the further, specific enquiries regarding the letter were made with Mr Rick Maher. Given OIC’s understanding of Mr Maher’s role regarding the applicant’s placement with the school (based on consideration of the information released to the applicant to date), I consider that it was appropriate for QUT’s enquiries to be addressed by Mr Maher. I consider it is reasonable to expect that Mr Maher would have received, or otherwise been made aware of, a letter of the type raised by the applicant (should it exist). While the applicant states that ‘during the teleconference Dr Patton referred to a letter [to QUT] from my Supervising Teacher ... that explained that I was given verbal At Risk warnings (including during the Interim Report meeting)’, OIC was unable to identify any evidence supporting the existence of a letter setting out this type of content from the supervising teacher. In the circumstances, it appears reasonably possible that Dr Patton made comments in the teleconference that may have been imprecise or misconstrued and, while referring to a letter that recorded comments made by the supervising teacher, did not intend to convey to the applicant that the letter was from the supervising teacher. In this regard, I note that QUT is of the view that the letter that Dr Patton referred to during the teleconference was the letter from Dr Spooner-Lane to the applicant dated 18 June 2014 (which was released to the applicant under QUT’s decision dated 2 September 2014). This letter conveys the following comments made by the supervising teacher: There is no fundamental requirement for schools or University Supervisors to provide an “At Risk” notice. ... Whilst you did not receive your Interim Report in writing, you did receive the feedback verbally from your Supervising Teacher, this does constitute appropriate reporting at the midpoint of your placement. Alternatively, I consider it possible that the letter referred to by Dr Patton was an internal QUT communication – for example, the email from Dr Spooner-Lane to Professor Bahr, and copied to Mr Maher, sent at 3:50pm on 6 June 2014 (which was also released to the applicant under QUT’s decision dated 2 September 2014). This email conveys the following comments made by the supervising teacher: I have since spoken to [the supervising teacher] and he told me that [the applicant] also argued with him yesterday for 15 minutes when he told him not to come to school today. He was surprised when he showed up for school today. He also told me that while he did not give [the applicant] a written interim report, he verbally went through the report with [the applicant] and let him know that he was borderline of being put at risk and that he would really need to brush up on his behaviour management skills and also developing relationships with students. He said he really wanted to support [the applicant] by helping him pass his final report but by Tuesday this week when going through the final report, he realised that [the applicant] had not met certain criteria and would therefore need more time and experience before he could be considered as ‘developing adequately'. Subsequent to the searches conducted above, OIC conveyed its preliminary view to the applicant[19] that it considered QUT had conducted all reasonable searches for documents of the type raised by the applicant in his external review application and on external review. The applicant was requested to make submissions to OIC if he did not accept OIC’s preliminary view, and to provide information about: each further document he believed existed why he believed the document existed; and why he considered that QUT had not performed adequate searches for it.[20] In response, the applicant reiterated earlier submissions as to the existence of particular documents but did not provide any fresh information upon which further searches could be based. Accordingly, OIC did not require QUT to undertake any further searches. Findings I have considered the searches conducted by QUT, in light of the factors listed in PDE as set out above. In this regard, I note QUT’s structure (including relevant staff likely to have been involved in the types of communications raised by the applicant in his external review application), recordkeeping practices and systems, the time period of May 2014[21] to 29 July 2014[22] in which the communications would have occurred (if they did), and the likely mediums for such communications (that is, emails comprising communications, conveying attached documents including letters, or recording the content of earlier telephone discussions, and possibly letters sent by post rather than email). On consideration of the content of the additional 35 files located by QUT on external review, I am satisfied that they include communications of the type raised by the applicant in his external review application – that is, communications between relevant staff of the high school and QUT. I am unable to identify any information in the 35 files which suggests that more documents comprising or recording communications of the type raised by the applicant in his external review application should exist, but have not been located by QUT. In these circumstances, on consideration of the entirety of searches for documents conducted by QUT and the documents located, I am satisfied that QUT has ensured that relevant, competent staff have undertaken comprehensive, appropriately targeted searches of QUT’s relevant document management systems for documents responsive to the applicant’s application and no further documents exist. Accordingly, I am satisfied that: QUT has conducted all reasonable searches for documents of the type sought by the applicant in his external review application; and access to such documents may be refused under section 47(3)(e) of the RTI Act on the basis that they are non-existent under section 52(1)(a) of the RTI Act. DECISION I vary the decision under review and find that access to the documents sought by the applicant is refused under sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) on the basis that they are non-existent. I have made this decision as a delegate of the Information Commissioner, under section 139 of the Information Privacy Act 2009 (Qld). ________________________ V Corby Assistant Information Commissioner Date: 9 September 2015 APPENDIX Significant procedural steps Date Event 29 July 2014 QUT received the access application. 2 September 2014 QUT issued its decision on the access application. 10 September 2014 OIC received the applicant’s application for external review. 25 September 2014 OIC advised the applicant and QUT that the external review application had been accepted and asked QUT to provide information relevant to the review. The applicant wrote to OIC, confirming the scope of the information he sought access to on external review and asking questions about procedure and other matters outside of OIC’s jurisdiction. OIC responded to the applicant informing him that: OIC would contact him once further information was received in relation to his external review OIC could not provide him with advice but suggested he apply to another agency for the type of information he sought OIC Enquiry Service could be contacted regarding the operation and application of the legislation. The applicant wrote and informed OIC that he was certain the documents he sought were in the possession of QUT and asked what date QUT was requested to respond to OIC’s request for relevant information. 30 September 2014 OIC wrote to the applicant advising him of the date by which QUT was requested to provide OIC with information. 9 October 2014 QUT provided OIC with the requested information, including a copy of the information to which access was refused. 12 October 2014 The applicant wrote to OIC enquiring about whether QUT responded to OIC by the due date of 9 October 2014. 13 October 2014 The applicant wrote to OIC asking to whom at OIC he should address his enquiries. 14 October 2014 OIC responded to the applicant, confirming the contact person for his external review and stating it: had received the requested information from QUT would contact him once OIC had assessed the information; and required nothing further from him in the meantime. 18 October 2014 The applicant wrote to OIC about his understanding of OIC’s correspondence so far and requested an exact date by which OIC would next be in contact. 20 November 2014 OIC wrote to the applicant advising: his external review had been allocated to a review officer for progression; and OIC had completed its review of the information in issue and determined more information would be requested from QUT. 21 November 2014 The applicant wrote to OIC with a number of questions relating to timeframes and procedural matters. 25 November 2014 OIC responded to the applicant’s email of 21 November 2014, referring him to an information sheet previously provided to him and advising him it required no further information from him at that stage and it would contact him when it did. 28 November 2014 OIC had a telephone discussion with QUT about searches undertaken for particular information relevant to the applicant’s external review application. 12 December 2014 OIC made enquiries with QUT about the scope of searches undertaken for particular information in the Faculty of Education. 5 January 2015 The applicant wrote to OIC informing it of his grievance procedure with QUT Ombudsman and asking OIC for advice about matters relating to this. 13 January 2015 The applicant wrote to OIC asking a hypothetical question about procedural matters. 15 January 2015 OIC received information from QUT about the scope of searches undertaken by the Faculty of Education. 21 January 2015 OIC requested QUT undertake searches for the information specified by the applicant in his external review application. OIC wrote to the applicant informing him it had received the requested information from QUT and referred him to an information sheet previously provided to address his queries. 4 February 2015 QUT provided OIC with documents it located in its searches for information specified by the applicant on external review and requested an extension of time to provide its view on disclosure. 12 February 2015 The applicant wrote to OIC asking about written communication and timeframes on external review. 13 February 2015 OIC wrote to QUT confirming the extension of time was granted. OIC wrote to the applicant, providing an update on the progress of the external review and responding to the queries in his email of 12 February 2015. 24 February 2015 QUT provided OIC with its view on disclosure of the information located following its searches. 2 March 2015 The applicant wrote to OIC, requesting it send him everything it has received from QUT so far (including QUT’s responses to OIC’s requests) and stating that he was ‘trying to gauge the effectiveness of OIC.’ 10 March 2015 The applicant wrote to OIC requesting a response to his email of 2 March 2015. 23 March 2015 OIC wrote to third parties seeking their views on disclosure of information in accordance with section 37 of the RTI Act (consultation information) and conveying OIC’s view on disclosure of the consultation information. OIC wrote to QUT requesting it send the: consultation information to the third parties; information to the applicant that QUT had agreed to release.OIC wrote to the applicant providing him with an update on the progress of his external review and responding to his emails of 2 and 10 March 2015. 24 March 2015 The applicant wrote to OIC asking if it was in possession of copies of information OIC received from QUT and requesting OIC to send him such information. The applicant wrote to QUT asking it whether it had received OIC’s letter requesting they release information to him and whether it could email him the said information. QUT emailed OIC, providing a copy of the email it received form the applicant and stating its willingness to comply with any request OIC made. 25 March 2015 OIC received confirmation from QUT that it had sent the consultation information to the third parties and released the information as agreed to the applicant. 7 April 2015 The applicant wrote to OIC querying whether the third parties had responded to OIC’s letter of 23 March 2015. 30 April 2015 OIC wrote to the third parties requesting their advice about whether or not they object to disclosure of the consultation information. 1 May 2015 OIC received confirmation from the third parties that they did not object to the disclosure of the consultation information. OIC wrote to QUT requesting it release the consultation information to the applicant. OIC wrote to the applicant informing him that it had requested QUT send him the consultation information and advised that the next step in the external review was to convey OIC’s preliminary view to him. 2 May 2015 The applicant wrote to OIC with a procedural query. 4 May 2015 QUT informed OIC it had released the consultation information to the applicant. 6 May 2015 The applicant wrote to QUT requesting to know who the third party was, stating that not all information about himself had been provided and asking QUT’s advice about obtaining further documents. 7 May 2015 QUT responded to the applicant that the identity of the third parties was confidential, informing him that QUT believed it had located all documents relevant to his application and inviting him to provide specific information about the documents he believed had not been located. OIC wrote to third parties seeking their views on disclosure of one additional document in accordance with section 37 of the RTI Act. OIC wrote to QUT requesting it send the additional consultation information to the third parties. 10 May 2015 The applicant wrote to QUT stating that QUT’s searches should have located a ‘letter from my Supervising Teacher that explained that I was given verbal At Risk warnings (during the Interim Report meeting)’. The applicant stated this letter was referred to by [the Executive Dean, Faculty of Education] in a teleconference on 3 September 2014. 11 May 2015 QUT wrote to the applicant, informing him of its view that it had searched and located documents in accordance with the searches requested by OIC, based on the applicant’s external review application and that it would not conduct further searches unless requested by OIC. OIC received confirmation from QUT that it had sent the additional consultation information to the third parties. 13 May 2015 The applicant wrote to OIC providing a copy of his email correspondence with QUT and requesting advice about how to obtain a document he believed QUT had not located. 14 May 2015 OIC wrote to QUT: confirming that the third parties had not objected to the release of the additional consultation document and requested QUT release it to the applicant requesting clarification about the information it had released to the applicant following the first consultation informing QUT that OIC had received a copy of the applicant’s email correspondence with QUT; and confirming that the next step was for OIC to issue the applicant a preliminary view. QUT wrote to the applicant and enclosed unredacted copies (with the exception of some individuals’ personal information) of the consultation information. QUT also advised the applicant that it made enquiries with Faculty of Education staff about the existence of the document referred to in the applicant’s email to QUT of 10 May 2015 and it was determined that no such document existed however it believed that the document referred to in the teleconference was a letter to the applicant from Dr Spooner-Lane dated 18 June 2014, which had already been released to the applicant. QUT provided OIC with a copy of the above email. 15 May 2015 The third party wrote to OIC and confirmed it had no objection to the disclosure of the additional consultation document. OIC wrote to QUT, enquiring about the letter to the applicant from Dr Spooner-Lane dated 18 June 2014. 16 May 2015 The applicant wrote to QUT (copying OIC into the email) with questions about the information released to him and a second access application he had made. The applicant contended that the document referred to in his email of 10 May 2015 did exist and requested a copy of it. 18 May 2015 QUT wrote to the applicant (copying OIC into the email), responding to the applicant’s queries of 16 May 2015 and requesting the applicant to direct any further correspondence to OIC. QUT wrote to OIC, providing a copy of the letter to the applicant from Dr Spooner-Lane dated 18 June 2014 and confirming that the document had been released to the applicant in response to his access application. 21 May 2015 OIC wrote to QUT requesting information about which staff in the Faculty of Education had been asked about the existence of the document referred to by the applicant in his email of 10 May 2015. QUT responded to OIC’s email above, advising that the Faculty of Education staff member asked was Rick Maher. 22 May 2015 OIC conveyed its preliminary view to the applicant that: QUT had taken all reasonable steps to locate documents relevant to his application; and it would, on balance, be contrary to the public interest to disclose personal information of third party individuals;OIC invited the applicant to provide submissions in support of his case by 5 June 2015 if he did not accept the preliminary view. 24 May 2015 The applicant wrote to OIC requesting an extension of time until the beginning of July 2015 to provide a response to OIC’s preliminary view. 26 May 2015 OIC informed the applicant that an extension of time until 3 July 2015 was granted. 2 July 2015 OIC received the applicant’s response to OIC’s preliminary view, that he: did not accept that QUT had taken all reasonable steps to locate documents relevant to his application; and was not seeking access to third party individuals’ personal information. 3 July 2015 The applicant wrote to OIC correcting a date he had referred to in his email of 2 July 2015 and making procedural enquiries. The applicant sent an additional email to OIC with questions relating to his access application with another agency. The applicant sent a further email to OIC with comments about the agency’s conduct of his other access application. 9 July 2015 OIC wrote to the applicant responding to the issues raised in the applicant’s email of 2 July 2015: confirming OIC’s preliminary view that QUT had taken all reasonable steps to locate documents relevant to his application inviting him to provide further submissions if he did not accept this view; and advising that the next likely step in the review would be to issue a formal decision. The applicant wrote to OIC enquiring about the deidentification of parties in OIC’s formal decisions. 13 July 2015 The applicant wrote to OIC requesting further information about the deidentification of parties in OIC’s formal decisions. OIC responded to the applicant’s queries of 9 and 13 July 2015. The applicant wrote to OIC with another query regarding deidentification of parties in OIC’s formal decisions. 16 July 2015 The applicant wrote to OIC requesting he not be identified if OIC issues a formal decision on his external review and asked what information he should provide to support his request. The applicant wrote a further email to OIC requesting an extension of time to reply to OIC’s letter dated 9 July 2015. 17 July 2015 OIC wrote to the applicant granting an extension of time until 20 July 2015 to respond to OIC’s letter of 9 July 2015 and informing the applicant that, on the basis of information currently before it, OIC considered that the applicant should not be deidentified should a formal decision be issued. 20 July 2015 OIC wrote to the applicant informing him that he had a further extension of time until 23 July 2015 to respond to OIC’s letter of 9 July 2015 and advising him of the information OIC required in order to consider his request for deidentification. 23 July 2015 The applicant sought a further extension of time to respond to OIC’s letter of 9 July 2015, requested to be deidentified in any formal decision issued and submitted that information in documents released to him was incorrect. 24 July 2015 OIC wrote to the applicant and informed him: a further extension of time until 29 July 2015 was granted for him to respond to OIC’s letter of 9 July 2015 that OIC had no jurisdiction on this external review to deal with information he stated was incorrect in the documents released to him if the applicant accepted OIC’s preliminary view about the sufficiency of QUT’s searches, the external review would be resolved informally if the applicant did not accept OIC’s preliminary view, he should make further submissions and the next likely step would be for OIC to issue a formal decision that he would need to make further submissions for OIC to consider whether he should be deidentified in the decision; and that if he did not respond by 29 July 2015, OIC would decide not to deal with the external review further and close the external review on the basis that the applicant failed to cooperate in progressing his external review. 28 July 2015 The applicant wrote to OIC confirming his submission that he believed further documents responsive to his application existed and provided reasons for his request to be deidentified in the event OIC issued a formal decision on his external review. 30 July 2015 OIC wrote to the applicant asking if he was willing to have a telephone conversation to discuss informal resolution options in his review. 2 August 2015 The applicant wrote to OIC: further querying his request to be deidentified in a formal decision asking a question about a general procedural matter; and stating his preference to be emailed with informal resolution options. 3 August 2015 The applicant telephoned OIC in response to OIC’s email of 30 July 2015 but was unable to speak to the relevant review officer. 4 August 2015 OIC wrote to the applicant requesting whether or not the applicant would participate in a telephone conversation to discuss informal resolution options. The applicant telephoned OIC and it was confirmed that OIC would communicate with him in writing. 6 August 2015 The applicant wrote to OIC requesting an ‘email response to our telephone conversation on 4th August 2015.’ 11 August 2015 OIC wrote to the applicant and: informed him about informal resolution options confirmed OIC’s view that QUT had taken all reasonable steps to locate information responsive to his application requested the applicant advise OIC if he accepted OIC’s view and would like to informally resolve the external review informed the applicant that it had considered his submissions about why he should be deidentified; and stated that if OIC did not hear from the applicant, the next step would be to issue a formal decision. 13 August 2015 The applicant wrote to OIC and stated ‘I have nothing to say against the OIC publishing and [sic] formal external review.’ The applicant, again, requested to be deidentified. [1] As noted in QUT’s decision dated 2 September 2014.[2] Each file contained document/s of varying lengths. 313 Faculty of Education files, 23 IT Helpdesk files, 33 SBS student record files, 25 TRIM (QUT’s e-records system) files and 81 Student Ombudsman files were released in full. Four Faculty of Education files were released in part (subject to the removal of other individual’s personal information).[3] The applicant confirmed this scope in an email to OIC on 25 September 2014.[4] By letter dated 2 July 2015 in response to OIC’s preliminary view dated 22 May 2015, the applicant accepted that it would be contrary to the public interest to disclose other individuals’ personal information.[5]By letter dated 2 July 2015 in response to OIC’s preliminary view dated 22 May 2015.[6] Section 67 of the IP Act provides that an agency may refuse access to a document of an agency in the same way and to the same extent the agency could refuse access to the document under the RTI Act, section 47 were the document to be the subject of an access application under that Act.[7] Section 67 of the IP Act. [8] Section 52(1)(a) of the RTI Act.[9] Section 52(1)(a) of the RTI Act.[10] PDE and The University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE) at [37]-[38]. Although PDE concerned the application of section 28A of now repealed Freedom of Information Act 1992 (Qld), the requirements of that section are replicated in section 52 of the RTI Act.[11] PDE at [38]. [12] PDE at [34].[13] PDE at [35].[14] As set out in PDE at [47], [49] and [53]. In this regard, see also section 130(2) of the RTI Act. [15] PDE at [37].[16] By email to QUT on 10 May 2015, which was forwarded to OIC on 13 May 2015.[17] By email dated 14 May 2015, that was copied to OIC.[18] By email dated 14 May 2015, that was copied to OIC.[19] By letter dated 22 May 2015. [20] The applicant was also advised that general assertions that there must be more documents, without any supporting evidence, will not generally be enough for OIC to require further searches.[21] On consideration of the information released to the applicant, that his practicum commenced in May 2014 and, accordingly, any communications of the type raised by the applicant would not have occurred before this time.[22] Being the date that QUT received the access application – section 47 of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

R76 and Gold Coast Hospital and Health Service [2020] QICmr 29 (3 June 2020)

R76 and Gold Coast Hospital and Health Service [2020] QICmr 29 (3 June 2020) Last Updated: 19 August 2020 Decision and Reasons for Decision Citation: R76 and Gold Coast Hospital and Health Service [2020] QICmr 29 (26 May 2020) Application Number: 314770 Applicant: R76 Respondent: Gold Coast Hospital and Health Service Decision Date: 26 May 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO DEAL WITH APPLICATION - SUBSTANTIAL AND UNREASONABLE DIVERSION OF RESOURCES - documents relating to the applicant’s interactions with the agency - whether dealing with the access application would substantially and unreasonably divert agency resources from their use in performing its functions - sections 60 and 61 of the Information Privacy Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Gold Coast Hospital and Health Service (GCHHS) under the Information Privacy Act 2009 (Qld) (IP Act) for access, between 1 August 2014 and 10 July 2019, to: Any letter or email about [her] sent to or by: [GCHHS employees AD, JW, MS, BM, GQ, SC, NG and CO]; [(Item One)] The full names of persons who created warnings or alerts about [her] on [her] electronic medical record (eMR); [(Item Two)] All current warnings and alerts about [her] on [her] electronic medical record (eMR), including the full names of corresponding authors; [(Item Three)] and A list of dates on which [GCHHS employees AD, CG or MS] accessed [her] electronic medical record (eMR) [(Item Four)] After consulting[2] with the applicant about the scope of her access application, GCHHS decided[3] to refuse to deal with Item One of the access application[4] on the basis that doing so would substantially and unreasonably divert GCHHS’s resources from their use in the performance of its functions. The applicant applied[5] to the Office of the Information Commissioner (OIC) for external review of GCHHS’s decision. For the reasons set out below, I vary GCHHS’s decision by finding that dealing with the entirety of the access application would substantially and unreasonably divert GCHHS’s resources from their use in the performance of its functions. Preliminary Issue - Alleged bias The applicant has requested that I be removed from her matters[6] and alleged that I have an undisclosed bias against her.[7] I have issued a number of decisions involving the same applicant in which she has raised this issue.[8] As I have done on each occasion, I have carefully considered these submissions (which have not altered between reviews), 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’.[9] 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’.[10] 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.[11] In order to ensure procedural fairness (as required by both the IP Act[12] 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[13] a preliminary view to the applicant that dealing with her access application would substantially and unreasonably divert GCHHS’s resources from their use in the performance of its functions, and that GCHHS may therefore refuse to deal with the access application. My letter advised the applicant that the purpose of my view was to give her the opportunity to put forward her submission in reply, and if she provided additional information supporting her case, this would be considered and could alter the outcome.[14] For this decision, I am the delegate of the Information Commissioner.[15] 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 GCHHS’s decision refusing to deal with her access application. 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[16] might not bring an impartial and unprejudiced mind to the resolution of this matter. Accordingly, I have proceeded to make this decision. Background After receiving the applicant’s application for external review, OIC undertook preliminary inquiries[17] with GCHHS about the processing of the access application, including seeking copies of the procedural documents. Documents provided[18] in response by GCHHS revealed that GCHHS purported to issue two decisions on the access application, the first refusing to deal with Item One of the access application as set out at paragraph 2 above, and[19]he second19 refusing access to documents responding to the remaining items sought on the basis that the requested documents were non-existent. In seeking an external review, the applicant also contended[20] that GCHHS had failed to conduct all reasonable searches for documents responding to Items Two, Three and Four of the access application. Under section 65 of the IP Act, once GCHHS issued its first decision notice on 12 August 2019, GCHHS’s decision-making power was spent and there was no statutory power for GCHHS to issue the second decision notice on 13 August 2019. Therefore, OIC advised[21] the applicant and GCHHS that as both decision notices related to the one access application, OIC would only be progressing an external review in relation to the decision dated 12 August 2019. Significant procedural steps taken during the external review are set out in the Appendix. Reviewable decision The decision under review is GCHHS’s decision dated 12 August 2019. Evidence considered The applicant provided extensive submissions during the review. I have considered all this material and have relied upon those parts which have relevance to the issues to be determined in this external review. The submissions, evidence, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix). In reaching my decision, I have also had regard to the Human Rights Act 2019 (Qld) (HR Act),[22] particularly the right to seek and receive information as embodied in section 21 of the HR Act. I consider that a decision-maker will, when observing and applying the law prescribed in the IP Act, be ‘respecting and acting compatibly with’ this right and others prescribed in the HR Act.[23] I further consider that, having done so when reaching my decision, I have acted compatibly with and given proper consideration to relevant human rights, as required under section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between the Victorian equivalent of Queensland’s IP 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.’[24] Issue for determination On external review, the Information Commissioner, or her delegate, stands in the shoes of the decision-maker and looks at the whole matter afresh.[25] The issue for determination is whether GCHHS can refuse to deal with the whole access application on the basis that the work involved in dealing with the access application would, if carried out, substantially and unreasonably divert GCHHS’s resources.[26] Relevant law Under the IP Act, an agency may 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.[27] In deciding whether an agency may refuse to deal with an application on the basis that doing so would substantially and unreasonably divert the resources of the agency from their use by the agency in the performance of its functions, I must have regard to the resources that would be used for:[28] 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 have to be used in examining any documents or conducting third party consultations; or notifying any final decision on the application. Assessing whether the work involved in processing a given application would, if carried out, substantially and unreasonably divert resources is a question of fact to be appraised in each individual case, taking into account a given agency’s operations (other than IP Act processing) and resources.[29] Neither of the terms ‘substantial’ or ‘unreasonable’ are defined in the RTI Act, and are therefore to be accorded their ordinary meanings. The power to refuse to deal with an application under section 60 of the IP Act can only be exercised if an applicant has first been given an opportunity to narrow the scope of the application, so as to re-frame it into a form that can be processed by an agency.[30] An applicant is to be given the benefit of any information an agency may be able to supply to help with this narrowing process, as far as is reasonably practicable. Findings Requirement to consult I have read GCHHS’s notice[31] to the applicant (Notice). The Notice stated an intention to refuse to deal with the access application and advised the applicant that she had until a specified date[32] to consult with a view to making the access application in a form that would remove this ground as a basis for refusing to deal with the access application. GCHHS’s Notice also stated the applicant may give written notice confirming or narrowing the scope of the access application and, if the applicant did not respond, she would be taken to have withdrawn the application. Considering the content of the Notice, I am satisfied that the Notice complied with the requirements of the IP Act. I note that GCHHS’s Notice also explained to the applicant some ways that she could change her application to make it manageable, including: narrowing the date range for Item One to a period of 12 months; narrowing Item One to only include correspondence sent by email; specifying the search terms to be used in any IT searches to the applicants first and last name, rather than first and/or last names; and limiting the individuals named in Item One, for example, by only including one or two clinicians. In relation to processing the access application, GCHHS’s Notice stated: as the IT searches to retrieve electronic documents needed to include as search terms the applicant’s first and/or last names, the IT searches were likely to return a significant volume of material that was not within scope of the access application it was estimated that it would take in excess of 38 hours (being approximately 5.3 work days)[33] to download and review documents located as a result of the broad IT searches responsive documents were likely to contain third party information which may have triggered the requirement to consult under section 56 of the IP Act responsive documents were likely to contain information that may have required careful assessment and redaction; and given the five year time frame, and the reference in Item One to ‘letters’, a large volume of responsive documents may have been archived and it was estimated that the time required to access and restore those documents would be in excess of 30 days, which equated to at least 214 hours.[34] In response to the Notice, the applicant stated:[35] Send through the final decision today so OIC can begin review. You were told in advance there would be no further consultation or extension. The IP applicant [sic] would require a maximum of one hour only of searches. Previously you supplied only one of two documents at most per clinician named. You have only half a dozen listed here to search. When I made my application I refused consultation. I am entitled to around 20 hours of searches and repeatedly you refuse to even do an hour of searches ... This IP decision was due on 13/8/19. There will be no submissions from me as you were told in the application, so provide your final decision today. In relation to Item One of the access application, GCHHS has provided the applicant with information about the searches that GCHHS would be required to undertake to locate documents and suggested to the applicant ways in which Item One could be narrowed to enable GCHHS to process her request. I therefore find that, as far as was reasonably practicable, GCHHS gave provided the applicant with an opportunity to narrow the scope of Item One of the access application, so as to re-frame it into a form that GCHHS could process. In relation to Items Two and Three of the access application, I acknowledge that the applicant was not given an opportunity to narrow the scopes of those items so as to re-frame them into a form that could be processed by GCHHS. However, I also acknowledge that, as set out at paragraph 9 above, GCHHS purported to decide to refuse access to documents responding to Items Two and Three on the basis that the requested documents were non-existent. In the circumstances of this matter, I do not consider it is necessary to provide the applicant with a further opportunity to narrow the terms of the application in relation to Items Two and Three of the access application when GCHHS has already indicated that the requested documents are non-existent and when I am satisfied that processing Item One of the access application on its own would result in a substantial diversion of GCHHHS’s resources as set out below. Work required to process the access application GCHHS’s Notice estimated that it would take in excess of 38 hours (being approximately 5.3 work days)[36] to download and review documents located as a result of the broad IT searches required to be undertaken in response to Item One of the access application. Further, given the five year time frame, and the reference in Item One to ‘letters’, GCHHS’s Notice indicated that a large volume of responsive documents may have been archived and it is estimated that the time required to access and restore these documents would be in excess of 30 days, which equates to at least 214 hours.[37] In response to the Notice, the applicant submitted:[38] The IP applicant [sic] would require a maximum of one hour only of searches. ... I am entitled to around 20 hours of searches and repeatedly you refuse to even do an hour of searches ... The applicant also submitted:[39] This would total under thirty pages. The IT officer can easily retrieve from an audit the whole data of who saw what and when in my records. In other hospitals the entire personal data is given in one application decision. GCHHS released four pages only in the last 12 months. I am entitled to 80 hours. You now took a year since the original application to produce nothing just to conceal crimes against me by medical staff. In context you also refused a review of my medical records because I applied two days late and despite serious illness and disability. Take into account that GCHHS uses an external law firm and is deceitful. Take into account their billion dollar operating budget. Speed up your decision. You just wasted a year knowing this information was needed specifically for human rights complaints. If I ask for these items one at a time, they will turn up less than two pages. Could you escalate this complaint to the CEO No further submissions While I acknowledge the applicant’s concerns about the reasons for GCHHS’s decision to refuse to deal with her access application, there is no evidence before me to suggest that GCHHS’s reasons for its decision is ‘deceitful’ or that GCHHS is ‘concealing crimes’ against the applicant. Further, it is unclear to me why the applicant states that she is ‘entitled to around 20 hours of searches’ or, alternatively, ‘entitled to 80 hours’ of searches. I do not consider that searches for documents responsive to the access application could be conducted in only one hour, 20 hours or 80 hours to which the applicant variously contends she is entitled. Rather, GCHHS’s estimates of the time it would take to conduct IT searches and review documents located as a result of those searches or to access and restore documents which have been archived appear reasonable in the circumstances given GCHHS is the administrator, creator and keeper of the documents to which the applicant seeks access and is therefore well placed to provide a credible estimate. Substantial In relation to the question of whether the work involved in processing the access application would be substantial, I am satisfied that requiring GCHHS to commit at least 252 hours would comprise a substantial, or ‘considerable’ and ‘telling’,[40] diversion of GCHHS’s resources, particularly given that GCHHS’s staff who process IP and RTI applications within the Information & Access Services and Legal Services units would be diverted from working on other access applications during that time as well as from their other day to day work. In this regard, I note the observations of Senior Member Puplick of the Administrative Appeals Tribunal, in considering the equivalent Commonwealth test:[41] [101] ... for any agency, a burden in excess of 200 hours would almost certainly make the threshold of a rational and objective test. ...burdens as (relatively) small as 74 hours have been so characterised.’ (Emphasis added.) I agree. In this matter, there is nothing before me to cause me to doubt GCHHS’s estimate that processing the access application would require GCHHS to commit at least 252 hours, and I accept it as accurate. Conducting the searches required to process the access application alone would, on this figure take a GCHHS staff member just short of 7 weeks (approximately two and a half months) of full time effort, diverting limited staffing resources, including the staff members within the Legal Services unit who hold an RTI/IP delegation, from other RTI and IP access applications as well as from their other day to day work. This would place substantial strain on GCHHS’s resources, a burden that, in the circumstances of these matters, I consider would also be unreasonable. Unreasonable As for the question of “reasonableness”, there are a number of factors that may be relevant in determining reasonableness when assessing the potential resourcing burden imposed by an IP access application:[42] (a) whether the terms of the request offers a sufficiently precise description to permit the agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort (b) the public interest in disclosure of documents relating to the subject matter of the request (c) whether the request is a reasonably manageable one, giving due but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with access applications (d) the agency’s estimate as to the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost (e) the reasonableness or otherwise of the agency’s initial assessment and whether the applicant has taken a cooperative approach in redrawing the boundaries of the application (f) the timelines binding on the agency (g) the degree of certainty that can be attached to the estimate that is made as to the documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made; and (h) whether the applicant is a repeat applicant to that agency, and the extent to which the present application may have been adequately met by previous applications to the agency. I acknowledge that previous matters dealt with by OIC have considered the issue of RTI/IP staff availability vis a vis the number of full time equivalent staff employed by an agency when considering the issue of whether the work involved in processing an application would be substantial. However, in this case there are very few staff available to undertake the processing of the RTI/IP applications of the GCHHS and while there are thousands of staff members employed at the GCHHS, only a handful are available for dealing with RTI and IP Act applications, the remainder being mostly devoted to the provision of the GCHHS’ core function – healthcare. Thus, while the health service as a whole may have a large number of staff, in this case I consider it inappropriate to take that number of staff into account when determining whether processing the application would amount to a substantial and unreasonable diversion of GCHHS’s resources. Each case turns on its own facts and, in this case, the estimated processing time of at least 252 hours is considerably more than the amount of time considered in a number of previous OIC decisions to amount to a substantial and unreasonable diversion of resources.[43] Further, as set out at paragraph 35 above, I consider that the burden that would be placed on GCHHS’s limited staffing resources available for processing RTI and IP Act applications if GCHHS was to process the access application would be unreasonable. In addition, while the applicant has been provided with an opportunity to redraw the boundaries of the application, the applicant has not taken a cooperative approach to reframing the scope of the application, as demonstrated by the applicant’s submissions set out at paragraphs 30 and 31 above. In conclusion, I find that the size and scope of the access application is alone sufficient to justify a finding that processing the application would be an exorbitant and excessive,[44] and therefore unreasonable, diversion of GCHHS’s resources. DECISION For the reasons set out above, I vary GCHHS’s decision and find that GCHHS was entitled to refuse to deal with the access application on the basis that dealing with the access application would substantially and unreasonably divert GCHHS’s resources from their use in the performance of its functions. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.Assistant Information Commissioner CorbyDate: 26 May 2020 APPENDIX Significant procedural steps Date Event 13 August 2019 OIC received the applicant’s application for external review. 14 August 2019 OIC received an emailed submission from the applicant. 16 August 2019 OIC notified GCHHS and the applicant that the application for external review had been received and requested procedural documents from GCHHS. OIC received the requested procedural documents from GCHHS. 23 August 2019 OIC received an emailed submission from the applicant. 26 August 2019 OIC received an emailed submission from the applicant. 27 August 2019 OIC received an emailed submission from the applicant. 28 August 2019 OIC received two emailed submissions from the applicant. 5 September 2019 OIC received further procedural documents from GCHHS. 9 September 2019 OIC received an emailed submission from the applicant. 11 September 2019 OIC received an emailed submission from the applicant. 12 September 2019 OIC notified GCHHS and the applicant that the application for external review had been accepted. OIC received three emailed submissions from the applicant. 13 September 2019 OIC received an emailed submission from the applicant. 17 September 2019 OIC received an emailed submission from the applicant. 19 September 2019 OIC received an emailed submission from the applicant. 25 September 2019 OIC wrote to the applicant about her external reviews. 26 September 2019 OIC received an emailed submission from the applicant. 11 February 2020 OIC received further procedural documents from GCHHS. 25 February 2020 OIC conveyed a preliminary view to the applicant. 26 February 2020 OIC received two emailed submissions from the applicant. 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 her external review applications. 12 March 2020 OIC received an emailed submission from the applicant. [1] Access application dated 10 July 2019. [2] By letter dated 5 August 2019.[3] Decision dated 12 August 2019. [4] GCHHS’s letter attaching the decision notice dated 12 August 2019 stated: ‘... please find enclosed a decision notice issued under s 60 of the IP Act in relation to Item One of the Application...Please note I will be sending you a separate decision letter in relation to Items Two, Three and Four of the Application shortly.’[5] Application for external review dated 13 August 2019. [6] Emailed submission dated 27 February 2020.[7] Emailed submission dated 12 March 2020.[8] I have not identified the previous decisions as the applicant was deidentified in those decisions. To list the previous decisions would defeat the purpose of that deidentification.[9] 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.[10] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [20] per Keifel, Bell, Keane and Nettle JJ. [11] Section 108 of the IP Act.[12] Section 110 of the IP Act.[13] Letter to applicant dated 25 February 2020.[14] Footnote 1 of letter to applicant dated 25 February 2020.[15] Section 139 of the IP Act.[16] As a delegate of the Information Commissioner under section 139 of the IP Act.[17] By email dated 16 August 2019.[18] On 16 August 2019.[19] Dated 13 August 2019.[20] Application for external review dated 13 August 2019.[21] Letters dated 11 September 2019.[22] Which came into force on 1 January 2020.[23] See XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; and Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [11].[24] XYZ at [573].[25] Section 118(1) of the IP Act. [26] Under section 60 of the IP Act on the basis that this provision applies in respect of the whole of the access application.[27] Section 60 of the IP Act.[28] Section 60(2) of the Right to Information Act 2009 (Qld) (RTI Act).[29] Davies and Department of Prime Minister and Cabinet [2012] AICmr 10 (22 February 2012) at [23] and [28].[30] Section 61 of the RTI Act.[31] By letter dated 5 August 2019.[32] Stated in the Notice as 19 July 2019. The applicant’s emailed response to the Notice on 5 August 2019 at 12:35 pm stated ‘There will be no submissions from me as you were told in the application, so provide your final decision today’, I do not consider that there was a need for GCHHS to provide the applicant with an amended date for expiration of the prescribed consultation period.[33] Based on a 7.15 hour work day.[34] Based on a 7.15 hour work day.[35] Email to GCHHS dated 5 August 2019 at 12:35 pm.[36] Based on a 7.15 hour work day.[37] Based on a 7.15 hour work day.[38] Email to GCHHS dated 5 August 2019 at 12:35 pm.[39] Emailed submission dated 26 February 2020 at 3:40am.[40] ‘Substantial’ is defined as meaning ‘considerable amount, quantity, size, etc.: a substantial sum of money’ (Macquarie Dictionary, Fifth Edition) and ‘of telling effect: a substantial reform’ (Collins Dictionary, 3rd Australian Edition).[41] VMQD and Commissioner of Taxation (Freedom of information) [2018] AATA 4619 (17 December 2018). The Commonwealth Freedom of Information Act 1982 permits an agency to refuse to deal with an application where a ‘practical refusal reason’ exists. A ‘practical refusal reason’ exists where the work involved in processing the request would ‘substantially and unreasonably divert the agency’s resources from its other operations’: section 24AA(1)(a) of that Act.[42] Marigliano and Tablelands Regional Council [2018] QICmr 11 (15 March 2018) (Marigliano), at [30] citing Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1550 (29 October 2012) at [39], adapting the factors listed in Cianfrano v Premier’s Department [2006] NSWADT 137 at [62] to [63], the latter cited in Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49 at [29]. The factors are not exhaustive.[43] See Seal and Queensland Police Service (Unreported, Queensland Information Commissioner, 29 June 2007); Thomson and Lockyer Valley Regional Council (Unreported, Queensland Information Commissioner, 23 September 2010); Middleton and Building Services Authority (Unreported, Queensland Information Commissioner, 24 December 2010); Middleton and Department of Environment and Resource Management (Unreported, Queensland Information Commissioner, 30 May 2011); Mathews and University of Queensland (Unreported, Queensland Information Commissioner, 5 December 2011); Treasury Department (Fourth Party) (Unreported, Queensland Information Commissioner, 9 May 2012); Mewburn and Department of Natural Resources and Mines [2016] QICmr 31 (19 August 2016); ROM212 and Queensland Fire and Emergency Services [2016] QICmr 35 (9 September 2016); F60XCX and Office of the Queensland Parliamentary Counsel [2016] QICmr 42 (13 October 2016); Underwood and Department of Housing and Public Works [2016] QICmr 48 (9 December 2016) (which was the subject of an appeal by the applicant to QCAT; however the applicant withdrew this application); Angelopoulos and Mackay Hospital and Health Service [2016] QICmr 47 (8 November 2016); and 60CDYY and Department of Education and Training [2017] QICmr 52A (7 November 2017).[44] ‘Unreasonable’ is relevantly defined as meaning ‘exceeding the bounds of reason; immoderate; exorbitant’ (Macquarie Dictionary, Fifth Edition) and ‘immoderate; excessive: unreasonable demands’ (Collins Dictionary, 3rd Australian Edition).

queensland

court_judgement

Queensland Information Commissioner 1993-

Price and Department of Justice and Attorney-General [2002] QICmr 5 (12 March 2002)

Price and Department of Justice and Attorney-General [2002] QICmr 5 (12 March 2002) Price and Department of Justice & Attorney-General (S 295/00, 12 March 2002, Assistant Information Commissioner Moss) (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 By letter dated 8 March 1999, the applicant made an FOI access application to the Department of Justice and Attorney-General (the Department) in the following terms: I apply under the Freedom of Information Act for all documents of the agency related to myself. I specifically request all documents related to the Price v Yorkston & Brennan matter, and the Brennan v Price matter. The applicant had made a number of earlier FOI access applications to the Department seeking access to all documents concerning him held by the Department. The Department therefore treated this application as being for access to documents not dealt with by the Department in the applicant's earlier FOI access applications. By letter dated 9 October 2000, Mr B Lovi of the Department advised the applicant that he had located 50 documents which fell within the terms of the applicant's FOI access application. Mr Lovi provided the applicant with a schedule identifying the documents and advised that he had decided to give the applicant access to 9 documents, but that the remaining documents were either wholly or partially exempt from disclosure to the applicant under s.43(1) or s.45(1)(c) of the FOI Act. Mr Lovi also decided that, pursuant to the operation of s.29(2) of the FOI Act and s.6(1) of the Freedom of Information Regulation 1992 Qld (the FOI Regulation), an application fee was payable by the applicant. By letter dated 30 October 2000, the applicant applied for internal review of Mr Lovi's decision. The application for internal review sought access to all documents for which exemption had been claimed by Mr Lovi, and requested "a proper description of all documents" and "a statement of reasons for the charge". Mr D Schulz of the Department conducted the internal review and, by letter dated 2 November 2000, informed the applicant that the schedule of documents which was attached to Mr Lovi's initial decision complied with the requirements of s.34 of the FOI Act (concerning notification of decisions and reasons). Mr Schulz affirmed Mr Lovi's decision in all other respects. By letter dated 23 November 2000, the applicant applied to the Information Commissioner for review, under Part 5 of the FOI Act, of Mr Schulz's decision. External review process Copies of the documents in issue were obtained and examined. The documents were contained on a Crown Law file (numbered 1 by the Department and described as Price Temporary File No. 2 - File no. 2581) and consisted of Crown Law billing work sheets, memoranda of fees, and invoices/draft invoices, as well as internal file notes and correspondence between Crown Law and the Queensland Police Service (the QPS). (By way of background, the documents related to an application which the applicant brought in the Supreme Court (and subsequent appeal to the Court of Appeal) for a statutory order for review of a decision made by Mr Yorkston SM [personal information deleted]. Mr Yorkston and Sergeant Brennan were respondents to the applicant's application. The Crown Solicitor's office (Crown Law) acted for Sergeant Brennan and the QPS in the proceedings. The documents in file 1 relate to that representation.) By letter dated 5 September 2001, I conveyed to the applicant my preliminary view that there was at least one document in issue (e.g., a memorandum of fees from Crown Law to the QPS) which contained no information which could properly be characterised as concerning the applicant's personal affairs. Accordingly, I conveyed to the applicant my preliminary view that s.6 of the FOI Regulation required him to pay a $31 application fee in connection with his FOI access application. The applicant paid the application fee to the Department. The Department subsequently confirmed that the applicant's FOI access application had been processed, and that the applicant had been advised of the photocopying charges that were payable by the applicant if he wished to obtain copies of the documents to which the Department was prepared to give him access. Following discussions with staff of my office, the Department withdrew its claim for exemption in respect of some information contained in the billing documents and those documents or parts of documents are no longer in issue. By letter to the applicant dated 26 October 2001, I advised the applicant that I had reviewed the matter remaining in issue and formed the preliminary view that it qualified for exemption under s.43(1) or s.45(1)(c) of the FOI Act. I asked the applicant to advise me, by 12 November 2001, whether or not he wished to contest my preliminary view and, if so, to lodge, by 19 November 2001, written submissions and/or evidence in support of his case for disclosure. In a telephone message left with staff of my office on 30 October 2001, the applicant contended that he was not able to reply to my letter dated 26 October 2001 because he had not been provided with a sufficient description of the matter in issue. Specifically, the applicant stated that he had not been advised whether the relevant documents "relate to Brennan or McDonald". By letter dated 9 November 2001, I advised the applicant that, although my preliminary view was based upon an examination of the contents of the documents in issue themselves (such that it was irrelevant whether the documents related to one particular action or another), I had nevertheless asked the Department to clarify the particular action(s) to which the documents in issue related. By facsimile received at my office on 13 November 2001, the applicant raised various issues regarding the terms of his FOI access application, particularly, that he considered that there may be other documents in the Department's possession or under its control, which fell within the general terms of his FOI access application dated 8 March 1999 and which had not been located or dealt with by the Department. (As set out above, in his FOI access application, the applicant sought access generally to all documents of the Department which related to him, as well as specifically to all documents of the Department related to the 'Price v Yorkston & Brennan' matter, and the 'Brennan v Price' matter.) By letter dated 20 November 2001, I asked the Department to provide details of the particular searches which the Department had conducted in order to locate all documents falling within the terms of the applicant's FOI access application, and the results of those searches. I also asked the Department to clarify to which particular file or matter the located documents related. The Department responded by letter dated 14 January 2002, a copy of which was provided to the applicant. The Department set out a description of all files held by the Department which related to the applicant, together with a history of which particular files had been considered in response to the various FOI access applications which the applicant had made to the Department since 1996. The Department also confirmed that all of the documents in issue in this review related to the 'Price v Yorkston & Brennan' action. However, it indicated that a file (numbered 7 by the Department and described as 'Price: FOI external review/advice file no. 1740') did not appear to have been dealt with in processing any of the applicant's previous FOI access applications to the Department, and that another file (numbered 18 by the Department and described as 'Price File no. Polo 48/2586) could not be located. (All other files had been dealt with by the Department in processing earlier of the applicant's FOI access applications or, alternatively, the documents in question did not fall within the terms of the applicant's FOI access application dated 8 March 1999 because they were created subsequent to the date of the application.) I asked the Department to provide me with further information about files 7 and 18. In the meantime, I wrote to the applicant to reiterate the preliminary view which I had communicated to him in my letter dated 26 October 2001, i.e., that the matter which I had examined to date qualified for exemption under s.43(1) or s.45(1)(c) of the FOI Act. By facsimile received at my office on 22 January 2002, the applicant advised that he did not accept my preliminary view. He claimed that legal professional privilege could not apply to any of the matter in issue because it was created in furtherance of a crime or fraud. (I will discuss the applicant's submission in that regard below.) By letter dated 14 February 2002 (a copy of which was provided to the applicant), the Department advised that it had reviewed the contents of file 7. The relevant documents related to legal advice which the Department had sought from Crown Law regarding various issues arising during the course of processing the applicant's numerous FOI access applications to the Department, and, as such, appeared to fall within the terms of the applicant's FOI access application dated 8 March 1999. The Department provided a description of the documents and advised that it was prepared to give the applicant access to some documents or parts of documents, but that the remainder were claimed by the Department to be exempt from disclosure under s.43(1) and s.45(1)(c) of the FOI Act. I authorised the Department to give the applicant access to the relevant matter and it is no longer in issue in this external review. As to file 18, the Department advised that searches for file 18 had been conducted at various intervals since 1997, without success. Further searches for the file had been carried out by the Department as the result of my request, but again, without success. By letter dated 26 February 2002, I conveyed to the applicant my preliminary view that the matter remaining in issue in file 7 was exempt from disclosure to him under s.43(1) or s.45(1)(c) of the FOI Act. I asked the applicant to advise, by 4 March 2002, whether or not he wished to contest my preliminary view and if so, to lodge, by 11 March 2002, written submissions and/or evidence in support of his case for disclosure. By facsimile dated 2 February 2002 (but which was received in this office on 5 March 2002), the applicant advised that he did not accept my preliminary view. The applicant did not, however, lodge any further submissions in support of his case in this review. In making my decision in this matter, I have considered: the matter in issue; the applicant's FOI access application dated 8 March 1999; application for internal review dated 30 October 2000; application for external review dated 23 November 2000; and facsimiles dated 13 November 2001, 22 January 2002 and 2 February 2002; and the decisions of Mr Lovi and Mr Schulz dated 9 October 2000 and 2 November 2000, respectively; and letters from the Department dated 14 January 2002 and 14 February 2002. Matter in issue The matter remaining in issue from file 1 is as follows: Billing documents: Billing work sheets: parts of folios 7, 8, 9, 13, 14, 15, 21, 22, 23, 40, 41, 42 and 43 Memoranda of fees: parts of folios 10, 17, 34 and 35 Invoices/draft invoices: parts of folios 20, 25, 37 and 39 Internal file notes and correspondence: Internal Crown Law file notes: folios 26, 27, 28, 29, 33 and 44 Correspondence (b/n Crown Law and the QPS): folios 30, 46, 47 and 48 The matter remaining in issue from file 7 is as follows: Billing documents: Billing work sheets: parts of folios 5 and 6 Memoranda of fees: parts of folio 7 Invoices/draft invoices: parts of folios 2-4 Correspondence: Between Crown Law and the Department: folios 8-24 As noted above, the Department claims that the matter remaining in issue is exempt from disclosure under s.43(1) or s.45(1)(c) of the FOI Act. I will discuss the application of those exemption provisions further below. 'Sufficiency of search' issues The applicant had made a general assertion that there are documents in the Department's possession or under its control which fall within the terms of his FOI access application dated 8 March 1999 and which have not been identified and dealt with by the Department in the course of this review. The Information Commissioner explained the principles applicable to 'sufficiency of search' issues in Re Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7; (1994) 1 QAR 464 (pp. 469-470, paragraphs 18 and 19) as follows: It is my view that in an external review application involving 'sufficiency of search' issues, the basic issue for determination is whether the respondent agency has discharged the obligation, which is implicit in the FOI Act, to locate and deal with (in accordance with Part 3, Division 1 of the FOI Act) all documents of the agency (as that term is defined in s.7 of the FOI Act) to which access has been requested. ... In dealing with the basic issue referred to in paragraph 18, there are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined in s.7 of the FOI Act); and if so (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case. The applicant was asked to clarify the precise type and nature of documents which he considered should be in the possession or control of the Department and to provide all information upon which he relied in support of his assertions. However, the applicant failed to provide any specific information in response to that request. As I noted above, the Department has provided the applicant with a list of all files in its possession which contain documents relating to the applicant. The only file which cannot be located by the Department is file 18, searches for which have been carried out by the Department since 1997, including searches in the course of this review, as the result of my specific request. On the evidence before me, I am satisfied that there are no reasonable grounds for believing that additional documents, falling within the terms of the applicant's FOI access application dated 8 March 1999 (and not dealt with by the Department in response to earlier FOI access applications made by the applicant), exist in the possession, or under the control of the Department. As to file 18, I am satisfied that the search efforts made by the Department to locate that file have been reasonable in all the circumstances of this case. I am unable to identify any further search avenues which I consider it would be reasonable to ask the Department to pursue, in order to try to locate file 18. Application of s.43(1) of the FOI Act to the matter in issue 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. 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. 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). It is clear that legal professional privilege can apply to communications between legal officers of the Crown Solicitor's office (Crown Law) and their clients, or with third parties, which satisfy the tests summarised above: see Re Smith and Administrative Services Department [1993] QICmr 3; (1993) 1 QAR 22 at p.54 (paragraphs 88-90). The matter claimed by the Department to be exempt under s.43(1) may be categorised as either billing documents, or internal file notes and correspondence between Crown Law and the QPS, or between Crown Law and the Department. In relation to the billing documents, the Information Commissioner discussed the application of s.43(1) of the FOI Act to bills of costs and related legal billing documents in Re Murphy and Queensland Treasury [1998] QICmr 9; (1998) 4 QAR 446 where he said at paragraph 20: ... 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. Applying those principles to this case, and based upon my review of the matter in issue, I am satisfied that those parts of the billing documents which describe or disclose the particular nature of the professional legal advice or assistance which Crown Law provided to the QPS and/or the Department in the course of acting for those agencies in litigation and/or in providing professional legal advice, qualify for exemption from disclosure under s.43(1) of the FOI Act. In relation to the internal file notes and correspondence between Crown Law and the QPS, and between Crown Law and the Department, I have reviewed those documents and am satisfied that each comprises a confidential communication which was prepared for the dominant purpose of giving or receiving professional legal advice or assistance, or, in the case of the correspondence between Crown Law and the QPS, for use in the legal proceedings involving the applicant and Messrs Brennan and Yorkston. Accordingly, I am satisfied that each of those documents attracts legal professional privilege and qualifies for exemption from disclosure under s.43(1) of the FOI Act, subject to the application of the 'illegal/improper' purpose exception which the applicant has raised. The 'illegal/improper purpose' exception In his facsimile dated 22 January 2002, the applicant said: The matters raised by myself relate to all my files in your Office. The prosecutions bar none were in the same corrupt vein. Find a tort or fraud etc with all files and let the Crown try to have it overturned in a real court. Please do not try it on me with comments that these are just costs documents etc. They are part of the corrupt-false prosecution of myself and clearly identify matters such as who is promoting and paying the piper. All exemption claims have been waived by corrupt actions of the Crown. The applicant has repeatedly claimed in this, and in numerous other external review applications made to this office, that the information he seeks will reveal individual wrongdoing and a conspiracy between various government agencies and other persons to act against him. The Information Commissioner has addressed those claims in a number of prior decisions, particularly in the context of considering whether or not the illegal/improper purpose exception to legal professional privilege, applies. In particular, at paragraphs 62-67 of Re Price and Department of Justice and Attorney-General (S 100/97, 19 December 2000, unreported), the Information Commissioner said: It is apparent from the material provided by the applicant on 26 March 1999 that he is alleging that a tort or fraud has been perpetrated against him. I considered the 'improper purpose exception' at some length in Re Murphy and Queensland Treasury (No. 2) ([1998] QICmr 9; 1998) 4 QAR 446 at paragraphs 31-42, and the principles set out there are relevant to the applicant's contentions about illegal or improper purpose. At paragraphs 35-37 of Re Murphy (No.2), I examined the judgments of the High Court of Australia in Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500, which explain the evidentiary onus placed upon 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. The correspondence of the applicant in this and other external review applications has been filled with unsubstantiated allegations of fraud, corruption and criminal activity by a large number of public servants and private individuals. The applicant has particularly sought to rely on the material delivered to my office on 26 March 1999, 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. The submissions delivered to me on 26 March 1999 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. They are based merely on the applicant's assertion, unsupported by any credible, independent, corroborative evidence. Nothing in the documents in issue in this case, or other cases presently before me involving the applicant, tends to support the existence of a prima facie case that the documents in issue in this case were brought into existence in furtherance of an illegal or improper purpose. The applicant has supplied me with a copy of an affidavit filed by him in the High Court of Australia annexing documentation which attempts to demonstrate improper actions by Crown Law officers during the judicial review proceedings, but again, the evidence does not bear out his claims. There is no doubt that action has been taken against the applicant on a number of occasions. It is clear that some, if not all of these actions, have offended the applicant. It may well be that in dealings with Mr Price, mistakes have been made. It would be surprising if, in the myriad of interactions between Mr Price and public officials, no error was made. But even if there was evidence of such errors before me, that is not enough to amount to prima facie evidence of crime, fraud or improper purpose. There is nothing before me which gives colour to the charges made by Mr Price. The matter claimed to be exempt under s.43(1) in this case comprises the kind of privileged communications I would ordinarily expect to find in the files of solicitors preparing for, and conducting, a Supreme Court hearing. There is no prima facie evidence that the matter claimed to be exempt under s.43(1) was created in preparation for, or furtherance of, an illegal or improper purpose. I find that that matter is subject to legal professional privilege, and qualifies for exemption under s.43(1) of the FOI Act. Similarly, I am satisfied that there is nothing in the matter in issue in this case that tends to support the existence of a prima facie case that the relevant documents were brought into existence in furtherance of an illegal or improper purpose. There is nothing before me which gives colour to the charges made by the applicant. I therefore find that the relevant matter is subject to legal professional privilege, and qualifies for exemption under s.43(1) of the FOI Act. Application of s.45(1)(c) of the FOI Act to the matter in issue The Department contends that those parts of the billing documents in issue which disclose the specific hourly rates charged by Crown Law officers are exempt under s.45(1)(c) of the FOI Act. Section 45(1)(c) provides: 45.(1) Matter is exempt matter if— ... (c) its disclosure— (i) would disclose information (other than trade secrets or information mentioned in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or another person; and (ii) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to government; unless its disclosure would, on balance, be in the public interest. The correct approach to the interpretation and application of s.45(1)(c) is explained in Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 at pp.516-523 (paragraphs 66-88). In summary, matter will be exempt under s.45(1)(c) of the FOI Act if: (a) the matter in issue is properly to be characterised as information concerning the business, professional, commercial or financial affairs of an agency or another person (s.45(1)(c)(i)); and (b) disclosure of the matter in issue could reasonably be expected to have either of the prejudicial effects contemplated by s.45(1)(c)(ii), namely: (i) an adverse effect on the business, professional, commercial or financial affairs of the agency or other person, which the information in issue concerns; or (ii) prejudice to the future supply of such information to government; unless disclosure of the matter in issue would, on balance, be in the public interest. The correct approach to the characterisation test required by s.45(1)(c) of the FOI Act is explained in Re Cannon at pp.516-520 (paragraphs 67-76). I am satisfied that the matter in issue concerns the business, professional, commercial or financial affairs of Crown Law. The Deputy Information Commissioner discussed hourly charge-out rates charged by Crown Law (and private sector legal firms) in his recent decision in Re Macrossan & Amiet and Queensland Health & Ors (S 116/99, 27 February 2002, unreported) at paragraphs 104-110. The Deputy Information Commissioner accepted that Crown Law operates in a commercially competitive environment with private sector legal firms. The Deputy Information Commissioner decided that disclosure of hourly charge-out rates for professional staff of Crown Law could reasonably be expected to assist Crown Law's competitors to compete with it more effectively in the legal services market generally. I am satisfied that disclosure of references in the matter in issue to the specific hourly rates charged by Crown Law officers could reasonably be expected to have an adverse effect on the business, professional, commercial or financial affairs of Crown Law, given the competitive market in which Crown Law operates. I am unable to identify any public interest considerations favouring disclosure of that information to the applicant. I therefore find that those parts of the billing documents in issue which disclose the specific hourly rates charged by Crown Law officers, qualify for exemption under s.45(1)(c) of the FOI Act. DECISION For the foregoing reasons, I find that: the matter remaining in issue from files 1 and 7 (identified at paragraphs 22 and 23 above) qualifies for exemption from disclosure under s.43(1) or s.45(1)(c) of the FOI Act; and there are no reasonable grounds for believing that additional documents falling within the terms of the applicant's FOI access application dated 8 March 1999 (and not dealt with by the Department in response to earlier FOI access applications made to the Department by the applicant), exist in the possession, or under the control, of the Department. As to file 18, I am satisfied that the search efforts made by the Department to locate that file have been reasonable in all the circumstances of this case. I am unable to identify any further search avenues which I consider it would be reasonable to ask the Department to pursue, in order to try to locate that file.

queensland

court_judgement

Queensland Information Commissioner 1993-

Latemore and Department of Police [2011] QICmr 5 (25 February 2011)

Swales and Department of Health [2011] QICmr 5 (9 March 2011) Last Updated: 19 July 2011 Decision and Reasons for Decision Application Number: 310180 Applicant: Latemore  Respondent: Department of Police Decision Date: 25 February 2011 Catchwords: ADMINISTRATIVE LAW – INFORMATION PRIVACY ACT –section 67(1) of the Information Privacy Act 2009 (Qld) - application by former police officer for access to documents about him ADMINISTRATIVE LAW – RIGHT TO INFORMATION ACT– section 47(3)(a) and section 48 of the Right to Information Act 2009 (Qld) – exempt information – schedule 3 section 10(1)(a) – whether disclosure of the information in issue could reasonably be expected to prejudice the investigation of a contravention or possible contravention of the law in a particular case Contents REASONS FOR DECISION Summary The applicant is a former employee of the Queensland Police Service (QPS) who seeks access to a range of documents about him from QPS under the Information Privacy Act 2009 (Qld) (IP Act). QPS refused access to the documents under section 67 of the IP Act and section 47(3)(a) of the Right to Information Act 2009 (Qld) (RTI Act)[1] on the basis that: the documents relate to matters that are still under investigation disclosure of the documents could reasonably be expected to prejudice the investigation of a contravention or possible contravention of the law in a particular case; and the documents comprise exempt information under section 48 and schedule 3 section 10(1)(a) and section 10(1)(e) of the RTI Act. The applicant explains that disclosure of the documents will help him clear him name and that, in his view, there is no ongoing investigation as the matter has been finalised. He also believes that QPS does not have the power to compel his attendance at a disciplinary hearing as he is no longer a serving member of QPS and he is unable to attend a hearing due to his health. For the reasons set out below, I find that access to the relevant documents can be refused under section 47(3)(a) of the RTI Act on the basis that the documents comprise exempt information under section 48 and schedule 3 section 10(1)(a) of the RTI Act. Background Significant procedural steps relating to the application are set out in the Appendix. Reviewable decision The decision under review is QPS’ decision to refuse access to the relevant documents under section 47(3)(a) of the RTI Act on the basis that they comprise exempt information under section 48 of the RTI Act. Information in issue The information in issue in this review (Information in Issue) comprises diary notes and emails of certain QPS officers and the Sunshine Coast District Education and Training Office relating to the applicant. Evidence considered In making this decision, I have taken the following into account: the access application to QPS and the application for external review to the Office of the Information Commissioner (OIC) QPS’ decision submissions provided to OIC by QPS dated 28 July 2010, 8 September 2010 and 21 December 2010 submissions provided to OIC by the applicant dated 23 August 2010, 2 December 2010, 21 January 2011 and 27 January 2011 the Information in Issue relevant provisions of the RTI Act, IP Act and other legislation as referred to below previous decisions of the Information Commissioner as identified in this decision. Relevant law Access must be given to a document unless it contains exempt information or its disclosure would, on balance, be contrary to the public interest.[2] Schedule 3 section 10(1)(a) of the RTI Act provides that information is exempt information if its disclosure could reasonably be expected to prejudice the investigation of a contravention or possible contravention of the law (including revenue law) in a particular case. In Sheridan and South Burnett Regional Council (and Others)[3] the Information Commissioner considered the use of the phrase ‘could reasonably be expected to’ in the context of section 42(1)(ca) of the now repealed Freedom of Information Act 1992 (Qld) and found it required a consideration of whether the expectation is reasonably based. I consider that interpretation is also relevant in the context of schedule 3 section 10(1)(a) of the RTI Act. Therefore schedule 3 section 10(1)(a) of the RTI Act will apply where the following requirements are met: there is an investigation of a contravention or possible contravention of the law (including revenue law) in a particular case; and there is a reasonable expectation of prejudice to that investigation. QPS’ submissions During the course of the external review, QPS conveyed to OIC general information about the nature of the investigations relating to the applicant and provided the following reasons in support of its decision to refuse access to the Information in Issue: The applicant is the subject of several internal QPS investigations relating to activities undertaken during his employment as a police officer at QPS. The requested documents relate to matters that are still under investigation and QPS have not yet made a determination on whether to hold a post separation disciplinary hearing in accordance with Part 7A of the Police Service Administration Act 1990 (Qld) (PSA Act). In these circumstances it is reasonable to expect that prejudice could be caused to the investigation, and any possible subsequent hearing, if the documents were released prior to the completion of the investigation and eventual findings. Police investigators must be able to explore theories, discuss the strengths and weaknesses of the investigation, gather and review evidence, and discuss the direction and progress of the investigation without the spectre that such information could be released prior to its finalisation. Investigations in relation to disciplinary matters are dynamic in nature, in that the responses given by an officer whilst being interviewed will dictate what further investigations and enquiries will be undertaken by the investigating officer. Consequently, when determining if disclosure is reasonably expected to prejudice a disciplinary matter, it should be recognised that material gathered for the interview process, although seemingly innocuous, may be the starting point from which more significant information is obtained. Emails between senior officers, and their own individual diary notes, concerning the behaviour of the applicant are potentially pivotal to the QPS investigation. Premature release of these types of information has the very real propensity to severely jeopardise the integrity of the entire investigation. Such disclosure may enable persons subject to the investigation to construct defences, create alibis, tamper with evidence and interfere with witnesses. Applicant’s submissions The applicant provided the following submissions in support of his case: The decision to refuse access to the Information in Issue is a breach of natural justice, procedural fairness and his civil right to obtain the information. Disclosure of the Information in Issue will assist the applicant in his defence and to clear his name as he believes he is being treated unfairly by QPS. There is no ongoing investigation as the investigation findings have already been made and given to the applicant. The finding was that a disciplinary hearing was to be held but the applicant is no longer a serving QPS officer. As the applicant is no longer a serving member of QPS, he cannot be compelled to attend a disciplinary hearing. In any event, the applicant would be unable to attend a hearing due to his health. Findings I will now consider whether the Information in Issue comprises exempt information with reference to the requirements set out above at paragraph 12. Is there an investigation of a contravention or possible contravention of the law? Schedule 3 section 10(8) of the RTI Act provides that a reference in that section to a contravention or possible contravention of the law includes a reference to misconduct or possible misconduct under the Crime and Misconduct Act 2001 (Qld) (CM Act). Misconduct is defined in schedule 2 of the CM Act as official misconduct[4] or police misconduct.[5] Generally, if an investigation has been finalised, it is unlikely that disclosure of information relating to the investigation could reasonably be expected to prejudice that investigation.[6] QPS submits that: the applicant is the subject of several internal QPS investigations relating to activities undertaken during his employment as a police officer the requested documents relate to matters that are still under investigation and QPS have not yet made a determination on whether to hold a post separation disciplinary hearing in accordance with Part 7A of the PSA Act. The applicant submits that: there is no ongoing investigation as the investigation findings have already been made and given to him as he is no longer a serving member of QPS, he cannot be compelled to attend a disciplinary hearing and, in any event, he would be unable to attend a hearing due to his health. Where there is a complaint of official misconduct or police misconduct against a police officer, disciplinary action is conducted under the PSA Act.[7] Part 7A of the PSA Act deals with disciplinary declarations against former officers. Section 7A.1 of the PSA Act applies where a disciplinary ground arises in relation to a police officer and, after the disciplinary ground arises, the employment of the person as a police officer ends for any reason. The relevant provisions of Part 7A of the PSA Act provide: the commissioner may continue or start an investigation to decide whether a former officer is liable to disciplinary action in relation to the former officer’s conduct at any time when he or she was a police officer[8] the commissioner may make a disciplinary finding and take disciplinary action against the former officer[9] after giving the former officer notice in relation to the disciplinary ground and/or holding a disciplinary hearing in relation to the disciplinary ground,[10] the commissioner may take disciplinary action against the former officer, whether or not the former officer responds to the commissioner’s notice or attends the disciplinary hearing.[11] I have carefully considered the information provided by QPS and the applicant and the relevant sections of the PSA Act as referred to above. Based on that information, I am not satisfied that the investigations into the applicant have been finalised or will be discontinued due to the applicant no longer being a QPS officer and/or being unable to attend a disciplinary hearing. I am satisfied that: the applicant is the subject of several internal QPS investigations relating to activities undertaken during his employment as a police officer the investigations relate to matters which, if proven, could amount to misconduct as that term is defined by the CM Act and result in formal disciplinary hearings there is an investigation of a contravention or possible contravention of the law and requirement a) is satisfied in this case. Is there a reasonable expectation of prejudice to the investigation? I have carefully considered QPS’ submissions as set out above at paragraph 13 and specifically note QPS’ view that: the Information in Issue is potentially pivotal to the investigation its premature release has the very real propensity to severely jeopardise the integrity of the entire investigation by enabling persons subject to the investigation to construct defences, create alibis, tamper with evidence and interfere with witnesses. I have also carefully considered the contents of the Information in Issue with reference to the general information QPS provided about the nature of the investigations. Based on QPS’ submissions and my consideration of the Information in Issue, I am satisfied that: release of the Information in Issue before the investigations are finalised could prejudice the investigations in the circumstances, the expectation is reasonably based and requirement b) is satisfied. Conclusion For the reasons set out above, I am satisfied in the circumstances of this review that: there is an investigation of a contravention or possible contravention of the law in this particular case; and there is a reasonable expectation of prejudice to those investigations if the Information in Issue is disclosed. DECISION I affirm QPS’ decision to refuse access to the Information in Issue under section 47(3)(a) of the RTI Act on the basis that it comprises exempt information under section 48 and schedule 3 section 10(1)(a) of the RTI Act. 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: 25 February 2011 APPENDIX Significant procedural steps Date Event 2 March 2010 The applicant applies to QPS under the IP Act for certain documents about him. 6 April 2010 QPS decides to refuse access to the Information in Issue under section 47(3)(a) and section 48 of the RTI Act on the basis that it comprises exempt information under schedule 3 section 10(1)(a) and 10(1)(e) of the RTI Act. 18 April 2010 The applicant applies to OIC for external review. 30 April 2010 OIC informs QPS and the applicant that the external review application has been accepted for review. 22 June 2010 QPS provides OIC with a copy of the Information in Issue. 22 July 2010 OIC requests QPS provide information on the nature and status of the relevant investigations. 28 July 2010 QPS provides OIC with the requested information. 23 August 2010 The applicant confirms he only seeks access to diary notes and emails of certain QPS officers and the Sunshine Coast DETO office which relate to him. 30 August 2010 OIC seeks further submissions from QPS. 8 September 2010 QPS provides OIC with further submissions. 13 September 2010 OIC provides the applicant with a copy of QPS’ submissions and invites him to provide any further submissions in support of his case. 2 December 2010 The applicant provides OIC with submissions in support of his case. 14 December 2010 OIC asks QPS to confirm the status of the investigations. 21 December 2010 QPS confirms the investigations are not finalised. 22 December 2010 OIC telephones the applicant to convey the preliminary view that the Information in Issue comprises exempt information under section 48 and schedule 3 section 10(1)(a) of the RTI Act. 23 December 2010 OIC confirms the preliminary view in writing and invites the applicant to provide final submissions in support of his case if he does not accept the preliminary view. 21 January 2011 27 January 2011 The applicant advises OIC he does not accept the preliminary view and provides submissions in support of his case. [1] Section 67 of the IP Act allows an agency to refuse access to a document in the same way and to the same extent as section 47 of the RTI Act. [2] Section 44(1) of the RTI Act. [3] (Unreported, Queensland Information Commissioner, 9 April 2009) at paragraphs 189 - 191.[4] Section 15 of the CM Act defines official misconduct as conduct that could, if proved, be a criminal offence; or a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or was the holder of an appointment.[5] Police misconduct is defined in schedule 2 of the CM Act as conduct, other than official misconduct, of a police officer that is disgraceful, improper or unbecoming a police officer; or shows unfitness to be or continue as a police officer; or does not meet the standard of conduct the community reasonably expects of a police officer.[6] Gill and Brisbane City Council (2001) 6 QAR 45.[7] The PSA Act defines misconduct in the same way as police misconduct is defined in the CM Act. [8] Section 7A.1(3) of the PSA Act. [9] Section 7A.2(1) of the PSA Act. [10] Section 7A.3(1) of the PSA Act.[11] Section 7A.3(4) of the PSA Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Bradford and Department of Justice and Attorney-General [2018] QICmr 5 (6 February 2018)

Bradford and Department of Justice and Attorney-General [2018] QICmr 5 (6 February 2018) Last Updated: 15 February 2018 Decision and Reasons for Decision Citation: Bradford and Department of Justice and Attorney-General [2018] QICmr 5 (6 February 2018) Application Number: 313307 Applicant: Bradford Respondent: Department of Justice and Attorney-General Decision Date: 6 February 2018 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST - request for information about an offender convicted of theft offences at the applicant’s property - enhance accountability and transparency of corrective services agency in monitoring offenders - reveal background and contextual information to decisions relating to an offender’s supervision and parole - administration of justice for victims of crime - personal information and privacy of an offender - whether disclosure of information would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Department of Justice and Attorney-General (DJAG) under the Right to Information Act 2009 (Qld) (RTI Act) broadly seeking access to records held by Queensland Corrective Services[2] (QCS) about an individual who had previously committed offences against the applicant’s property. DJAG located approximately 1500 pages in response to the access application and decided to grant partial access to five pages only. DJAG refused access to the remaining information on the basis that its disclosure would, on balance, be contrary to the public interest, taking into account the significant weight in protecting the offender’s privacy and personal information. The applicant applied to the Office of the Information Commissioner (OIC) for external review of DJAG’s decision.[3] The applicant emphasised his status as a victim of crime and submitted that the public interest factors concerning accountability, transparency and administration of justice should be weighted above the offender’s right to privacy.[4] On external review, the applicant clarified that he was only seeking access to documents relating to the offender’s current parole arrangements.[5] This served to reduce the information in issue in this review to 154 pages. For the reasons set out below, I affirm DJAG’s decision to refuse access to the information in issue on the basis that its disclosure would, on balance, be contrary to the public interest.[6] 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 DJAG’s original decision dated 7 April 2017.[7] Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision referred to in these reasons (including footnotes and Appendix). Information in issue As noted in paragraph 4 above, information concerning the offender’s current parole/supervision arrangements in relation to the offences committed at the applicant’s property appear in 154 pages and are in issue in this review (Information in Issue). I am restricted from describing the precise content of the Information in Issue.[8] Generally, the information consists of notes, records, reports and assessments prepared by QCS officers in relation to the offender’s supervision and parole arrangements, including extracts from QCS electronic databases. Issue for determination The issue for determination is whether access to the Information in Issue may be refused on the basis that its disclosure, would, on balance, be contrary to the public interest. Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency, unless giving access would, on balance, be contrary to the public interest.[9] It is Parliament’s intention that a pro-disclosure bias is adopted in applying the RTI Act.[10] The right of access is however, subject to some limitations and exclusions, including the grounds for refusing access to information set out in section 47 of the RTI Act. One ground for refusing is where 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 many factors that may be relevant in deciding where the balance of the public interest lies[12], and explains the steps a decision-maker must take[13] as follows: identify any irrelevant factors and disregard them[14] 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. The RTI Act specifically recognises that disclosure of another individual’s ‘personal information’ is a factor favouring nondisclosure[15] which could reasonably be expected to lead to a public interest harm.[16] The term ‘personal information’ is defined in section 12 of the IP Act as follows: information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. Findings Factors favouring disclosure The applicant submitted that the offender’s supervision and monitoring by QCS represents a ‘public exercise by a government agency and should be open to some public scrutiny’.[17] In the applicant’s view, there is a public interest in the community knowing whether an offender is under supervision at the time they commit other offences, and disclosure would thereby, aid in the transparency and accountability of QCS in performing its functions.[18] I accept that there is public interest in QCS being accountable and transparent in terms of how it supervises and monitors offenders after being released from prison. To this end, I am satisfied that disclosing the Information in Issue would serve to enhance the accountability and transparency of QCS and inform the community of some of the methods adopted by QCS in supervising offenders.[19] I also accept that robust supervision of offenders is a matter of serious interest to the community and therefore, I am satisfied that disclosure of the Information in Issue could reasonably be expected to contribute to positive and informed debate on this issue.[20] Given the nature of the Information in Issue, I also consider that disclosure could reasonably be expected to reveal background and contextual information that has informed certain decisions which have been made by QCS about the offender’s supervision arrangements.[21] The type of documents which comprise the Information in Issue all personally relate to the offender. Overall, the documents are procedural in nature and while they record the steps/actions taken by QCS officers in relation to the offender’s supervision, they are do not reveal any comprehensive reasons or detailed explanations as to why QCS chose to adopt a particular course of action. For these reasons, I am satisfied that the factors discussed in the preceding paragraph each carry moderate weight in favour of disclosure. The applicant also considers that disclosure of the Information in Issue would allow him to critique whether QCS is implementing adequate supervision measures in relation to the offender.[22] The applicant believes that the offender has engaged in offending while he has been under parole and/or supervision orders, and argues that this reflects a shortcoming in QCS’ monitoring role.[23] The RTI Act recognises that where disclosure of information could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency, this will weigh in favour of disclosure.[24] For this factor to apply, it is only necessary for a reasonable expectation that disclosure would ‘allow or assist inquiry into possible deficiencies’. As such, it is not necessary for a decision maker to reach any conclusions as to whether conduct has actually been deficient. Therefore, to the extent that disclosure of the Information in Issue could allow the applicant to inquire as to the conduct of QCS in supervising the offender, I afford this factor moderate weight in favour of disclosure. In his submissions, the applicant has repeatedly emphasised that he is a victim of crime and the negative impact this has had on him personally, his business and his family. I consider that the submissions made by the applicant in this regard raise for consideration the public interest factors concerning administration of justice and procedural fairness.[25] The information available to OIC demonstrates that the offender was charged, convicted and sentenced for the offences in connection with the applicant’s property, and also, that the offender has served the requisite period of incarceration. In view of this, l am unable to see how disclosure of the Information in Issue would contribute to administration of justice for the applicant, or generally. At the time of sentencing the presiding judge or magistrate would have taken various factors and evidence into account, including any victim impact statements. While the evidence available to OIC does not confirm whether the applicant provided such a statement during the court process, that is the primary mechanism in the criminal justice system in Queensland to afford procedural fairness to a victim of crime. The applicant has not submitted that he is seeking the Information in Issue to enable him to pursue any particular remedy or recourse against the offender. Rather, the applicant has explained that he is seeking to know the details of the offender’s supervision arrangements to ‘manage our risk and make decisions for the safety of our property and children who were given little to no consideration at sentencing’.[26] The applicant has also sought to establish the legitimacy of his concerns by submitting that personal, sensitive and valuable items were stolen from his property and that this had a damaging impact on his home business. I acknowledge that the experience of being a victim of crime has been extremely stressful and upsetting for the applicant and his family. However, I do not consider that the applicant’s personal circumstances can serve to enhance the public interest factor in procedural fairness to any significant degree. For these reasons, I afford the administration of justice factors low weight in favour of disclosure. Factors favouring nondisclosure The RTI Act recognises that disclosure of another individual’s personal information[27] could reasonably be expected to cause a public interest harm and that this is a factor weighing in favour of nondisclosure.[28] The Information in Issue forms part of the offender’s file that is held by QCS. On this basis, and having examined each page comprising the Information in Issue, I am satisfied that the entirety of the Information in Issue comprises the offender’s personal information and that therefore, the public interest harm factor applies in this case. By virtue of the Information in Issue forming part of the offender’s QCS file, I consider it falls towards the higher end of the spectrum in terms of sensitivity. While I am limited in the extent to which I can describe its particular content, the Information in Issue includes details about the offender’s personal circumstances and offending history relevant to the terms of his supervision, including health, family and accommodation status. In considering the weight to be afforded to this factor, I have taken into account the particular nature of the Information in Issue and the purpose of the parole system which is to aid offender rehabilitation and foster reintegration of offenders into society. In the circumstances of this case, I am satisfied that the public interest harm that could arise from disclosure of this type of information is high and afford this factor significant weight. The RTI Act also recognises a factor favouring nondisclosure where disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy.[29] The concept of ‘privacy’ is not defined in the RTI Act, but can essentially be viewed as the right of an individual to preserve their ‘personal sphere’ free from interference from others.[30] I find that this factor applies and note that the applicant has acknowledged that the offender is ‘entitled to some degree of personal privacy’.[31] The applicant has submitted that the offender’s status as a prisoner (on parole) somewhat diminishes his right to privacy. There is however, authority for the opposite view[32] and accordingly, I do not consider this reduces the weight of this factor to any degree. The applicant further submitted that the offender’s QCS file would have been disclosed in open court during sentencing. While I accept that some of the offender’s details would have been available to the presiding judge or magistrate during sentencing and may appear in sentencing remarks, there is no evidence available to OIC to establish that the entirety of the Information in Issue was presented, deliberated over, or published in court proceedings or court documents. I have therefore, not reduced the weight of the privacy nondisclosure factor on account of this argument. The applicant suggested that the Information in Issue could be redacted or deidentified to reduce the public interest harm and intrusion into the offender’s privacy.[33] However, I am satisfied that even if the offender’s name and other personal details were redacted from the documents, I consider the level of public interest harm arising from disclosure and intrusion into the offender’s personal sphere would remain significant because the applicant knows the offender’s identity, and by virtue of the documents having been located in response to the access application which included the offender’s name. Having carefully considered the nature of the Information in Issue and taking into account the inherently personal nature of details held on the offender’s QCS file, I find that the public interest in protecting the offender’s privacy should be afforded significant weight in favour of nondisclosure. Balancing the relevant public interest factors In addition to the pro-disclosure bias, I am satisfied that the numerous public interest factors aimed at enhancing QCS accountability and transparency carry moderate weight in the circumstances of this case. I have also attributed moderate weight to the public interest in allowing inquiry into the conduct of QCS. There is also weight to be given to public interest in affording a victim of crime administration of justice and procedural fairness, however, it is low in this case. These public interest factors present a strong case in favour of disclosure. However, the crux of this case is that the Information in Issue forms part of the offender’s QCS file, which, by its very nature, contains highly personal details and inherently private information about the offender. I am satisfied that the public interest in safeguarding the offender’s personal information and protecting the offender’s privacy can only be achieved by affording significant and determinative weight in favour of nondisclosure. I find that disclosure of the Information in Issue would, on balance, be contrary to the public interest and that therefore, access to the Information in Issue may be refused under section 47(3)(b) of the RTI Act. DECISION I affirm DJAG’s decision to refuse access to information 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 Commissioner Date: 6 February 2018 APPENDIX Significant procedural steps Date Event 25 April 2017 OIC received the external review application. 26 April 2017 OIC asked DJAG to provide relevant procedural documents. 28 April 2017 OIC received the requested procedural documents from DJAG. 5 May 2017 OIC notified DJAG and the applicant that the external review application had been accepted, and asked DJAG to provide the documents located in response to the access application. OIC received a copy of the located documents from DJAG. 23 June 2017 OIC provided the applicant with an update on the status of the external review. 19 July 2017 OIC spoke to the applicant and conveyed an oral preliminary view that disclosure of the requested information would, on balance, be contrary to the public interest under the RTI Act. 11 August 2017 The applicant requested an update and a written preliminary view from OIC and OIC provided the applicant with an update on the status of the external review. 6 October 2017 OIC conveyed a written preliminary view to the applicant, confirming that disclosure of the requested information would, on balance, be contrary to the public interest, and invited him to provide submissions supporting his case. 24 October 2017 OIC granted the applicant an extension of time within which to provide submissions supporting his case. 31 October 2017 The applicant advised that he did not accept OIC’s preliminary view and provided submissions to OIC in support of his case. 3 November 2017 OIC provided the applicant with an update on the status of the external review. 19 December 2017 OIC provided the applicant with an update on the status of the external review. 9 January 2018 OIC provided QCS with an update on the status of the external review. [1] Access application dated 7 March 2017 and received by DJAG on 13 March 2017. [2] At the relevant time, QCS was a business unit of DJAG. For the purpose of this decision, the correct respondent is DJAG, as the agency which made the reviewable decision. [3] Application dated 25 April 2017. [4] External review application and attached reasons, oral submissions made on 19 July 2017 and written submissions dated 31 October 2017.[5] In his external review application dated 25 April 2017, the applicant states: ‘To avoid any confusion I am only requesting documents relating to his [the offender’s] current parole, as I am a victim or one of the victims of this offending.’ [6] Under sections 47(3)(b) and 49 of the RTI Act. [7] The applicant indicated in his external review application that he believed this decision to be issued outside the statutory timeframe. However, the information available to OIC confirms that the access application was received by DJAG on 13 March 2017 and therefore, the decision dated 7 April 2017 was issued within the 25 day processing period. [8] By section 108(3) of the RTI Act. [9] Sections 6 and 23 of the RTI Act.[10] Section 44 of the RTI Act.[11] Section 47(3)(b) of the RTI Act. [12] However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant in a particular case. [13] Section 49(3) of the RTI Act.[14] No irrelevant factors arise in the circumstances of this case and I have not taken any into account in making my decision. [15] Schedule 4, part 3, item 3 of the RTI Act.[16] Schedule 4, part 4, section 6 of the RTI Act. [17] External review application. [18] Submission dated 31 October 2017.[19] Schedule 4, part 2, items 1 and 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] External review application. [23] Submission to OIC dated 31 October 2017.[24] Schedule 4, part 2, item 5 of the RTI Act. [25] Schedule 4, part 2, items 16 and 17 of the RTI Act. These factors were considered by the Information Commissioner in Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368, cited in relation to the RTI Act in Tomkins and Rockhampton Regional Council [2016] QICmr 3 (22 January 2016) at [21].[26] Submission to OIC dated 31 October 2017. [27] See definition quoted at paragraph 16 of these reasons. [28] Schedule 4, part 4, section 6 of the RTI Act. [29] Schedule 4, part 3, item 3 of the RTI Act. [30] 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 May 2008, at paragraph 1.56. [31] Attachment to external review application. [32] See XY and Department of Corrective Services (Unreported, Queensland Information Commissioner, 23 October 2006) which confirmed the approach taken in Re Lapidos and Officer of Corrections (No. 2) (Unreported, Victorian Administrative Appeals Tribunal, 19 February 1990) in finding that information concerning what happens to a prisoner while in prison concerns the personal affairs of a prisoner. [33] Submission to OIC dated 31 October 2017.

queensland

court_judgement

Queensland Information Commissioner 1993-

The Courier Mail and Queensland Police Service [2013] QICmr 3 (15 February 2013)

The Courier Mail and Queensland Police Service [2013] QICmr 3 (15 February 2013) Last Updated: 27 August 2013 Decision and Reasons for Decision Application Number: 311142 Applicant: The Courier-Mail Respondent: Queensland Police Service Decision Date: 15 February 2013 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – GROUNDS ON WHICH ACCESS MAY BE REFUSED – EXEMPT INFORMATION – an agency may refuse access to a document to the extent the document comprises exempt information – disclosure could reasonably be expected to endanger a person’s life or physical safety – information about suicides at a specific location REASONS FOR DECISION Summary The applicant applied to the Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) for a range of documents relating to suicides at a specific location since January 2009. QPS refused access to all of the information it located in response to the access application on the basis that (i) it comprised exempt information as its disclosure could reasonably be expected to endanger a person’s life or physical safety and (ii) 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 QPS’s decision. The information in issue comprises detailed information about incidents of suicide and attempted suicide at the specific location. For the reasons set out below, disclosing this information could reasonably be expected to lead to an increase in the number of people who either attempt or complete acts of suicide at the specific location. On this basis, the information in issue comprises exempt information as its disclosure could reasonably be expected to endanger the lives or physical safety of individuals. 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 QPS’s decision dated 10 August 2012. 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 in this review (Information in Issue) comprises 1688 pages and includes a range of documents relating to incidents at the specific location, including QPS job reports and investigation reports.[1] Issues in this review The issue to be determined in this review is whether QPS is entitled to refuse access to the Information in Issue under the RTI Act. QPS refused access to the Information in Issue on the basis that: it comprises exempt information as its disclosure could reasonably be expected to endanger a person’s life or physical safety;[2] and its disclosure would, on balance, be contrary to the public interest[3] as it could reasonably be expected to prejudice security, law enforcement or public safety.[4] As I am satisfied that the Information in Issue is exempt information under schedule 3, section 10(1)(c) of the RTI Act, it is not necessary for me to consider whether its disclosure would, on balance, be contrary to the public interest.[5] Therefore, to the extent the applicant’s submissions go to the public interests factors favouring disclosure of the Information in Issue, I have not taken them into account in reaching this decision. However, where the applicant’s submissions are relevant to determining whether disclosing the Information in Issue could reasonably be expected to endanger a person’s life or physical safety, I have addressed them below. Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[6] However, this right is subject to other provisions of the RTI Act including the grounds on which an agency may refuse access to documents.[7] Relevantly, the RTI Act provides that access may be refused to documents to the extent that they comprise exempt information.[8] Schedule 3 sets out categories of information the disclosure of which Parliament has deemed to be contrary to the public interest, and therefore exempt from disclosure.[9] Schedule 3, section 10(1)(c) of the RTI Act provides that information will be exempt if its disclosure could reasonably be expected to endanger a person’s life or physical safety. The term ‘could reasonably be expected to’ requires an expectation that is reasonably based, that is, neither absurd, irrational or ridiculous,[10] nor merely a possibility.[11] Whether the expected consequence is reasonable requires an objective examination of the relevant evidence.[12] 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.[13] The expectation must arise as a result of the disclosure, rather than from other circumstances.[14] Accordingly, to determine whether information is exempt from disclosure for the purposes of schedule 3, section 10(1)(c) of the RTI Act there must be real and substantial grounds for believing that disclosing the Information in Issue will endanger a person’s life or physical safety. Findings In summary, QPS submits that release of the Information in Issue, and the inevitable reporting of the Information in Issue, will lead to an increase in the number of people who either attempt or complete acts of suicide at the specific location. QPS provided a detailed submission and persuasive evidence supporting this view. The RTI Act prohibits the Information Commissioner from including information that is claimed to be exempt in reasons for a decision on external review.[15] QPS’s submission is sensitive and goes directly to the content of the Information in Issue. In my view, disclosing the detailed evidence provided by QPS in its submission could also reasonably be expected to endanger a person’s life or physical safety for the same reasons that the Information in Issue comprises exempt information. This prevents me from including details of some of QPS’s submission in this decision. QPS referred to two documents in its submission which are publicly available resources for the police and media. The relevant extracts of these documents are set out below. Mental illness & suicide in the media: a Mindframe resource for police[16] provides guidance to police on media reporting of mental illness and suicide. This guideline relevantly states:[17] Research has demonstrated that the way in which suicide is reported is significant. While some styles of reporting have been linked to increased rates of suicide, appropriate reporting may help rates of suicide. People in despair may be influenced by media coverage of suicide, particularly where they identify with the person in the report. Characteristics of reporting associated with increased rates of suicide include: detailed description of method and/or location; and or prolonged or repetitive reporting. Characteristics of reporting associated with decreased rates of suicide include: portrayals that position suicide as a tragic waste and an avoidable loss; those that focus on the impact of others; and reports where method and location and not disclosed. [my emphasis] Reporting suicide and mental illness: a Mindframe resource for media professionals also states that ‘explicit descriptions of method or location have been linked to increased rates of suicide by that particular method or at that particular location’.[18] The applicant has provided submissions and supporting evidence about the benefits of reporting on suicide and suicide related issues and has indicated it intends to report on the Information in Issue to campaign in favour of constructing suicide prevention barriers at the specific location.[19] The applicant has provided a link to the Border Mail’s End the Suicide Silence campaign as an example of positive reporting on suicide related issues.[20] The applicant also provided OIC with a letter from Professor Patrick McGorry AO MD PhD FRCP FRANZCP, Professor of Youth Mental Health, University of Melbourne, in which he states that there is very little evidence to support the argument that reporting on specific locations leads to an increase in risks.[21] Professor McGorry refers to the revised Press Council guidelines[22] for reporting on suicide and associated issues and says that the guidelines emphasise the positive effects of reporting on suicide and related issues. I acknowledge Professor McGorry’s views on this issue and accept the applicant’s submission that reporting on suicide can be positive in some circumstances. I have also reviewed the recently revised Press Council guidelines on this issue. While the Press Council guidelines acknowledge the substantial public benefit from general reporting on suicide and suicide related issues, I note that the guidelines continue to caution against describing particular locations for suicide, stating: The method and location of a suicide should not be described in detail (eg, a particular drug or cliff) unless the public interest in doing so clearly outweighs the risk, if any, of causing further suicides. This applies especially to methods or locations which may not be well known by people contemplating suicide. The applicant also provided[23] a copy of a recent finding by the Office of the State Coroner in relation to individuals who had taken their own lives at a separate location. I acknowledge that the published coronial finding included details about the method and the location at which the deaths occurred and made recommendations about the installation of suicide prevention barriers at that location. Professor McGorry’s letter also notes the importance of obtaining statistics about the number of persons who suicide or attempt to suicide from the particular location to enable the applicant to publicly advocate in favour of suicide prevention barriers at the specific location. However, the access application is not for statistics but rather for a broad range of documents. While it may be possible to compile statistics from the Information in Issue, it encompasses a broader category of information, in particular, QPS job reports and investigation reports. This broader range of information is sensitive, specific and personal in nature. It also provides a detailed description of the circumstances surrounding each incident including, in many cases, the methods and locations used in suicides or attempted suicides and QPS’s response to these incidents. The applicant submits[24] that it: would comply with the guidelines established by the National Media and Mental Health Group as well as the Australian Press Council when reporting on the Information in Issue; and is committed to consulting experts in suicide prevention prior to publishing any of the Information in Issue. In the decision of OKP and Department of Communities[25] 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 acknowledge that the applicant’s intention is to report on the Information in Issue in a way that positively impacts on vulnerable people. However, I note that it is not possible to place restrictions on the use, dissemination or republication of information released under the RTI Act. Accordingly, while I have taken the applicant’s submission on this point into account, I am still satisfied that it is reasonable to expect that disclosing the Information in Issue could prejudice the life or physical safety of individuals. The applicant has specifically excluded (i) identifying information of victims and (ii) information that would compromise a police investigation from the scope of its request. However, given the nature of the Information in Issue it would not be possible to delete this type of information from the documents. In any event, I do not consider that deleting this type of information from the documents would remove the basis for refusing access to the Information in Issue as disclosure of the remaining information could still reasonably be expected to endanger a person’s life or physical safety given that it would reveal detailed information about incidents of suicide and attempted suicide at the specific location. Having carefully considered the submissions provided by the applicant and QPS, I am satisfied that disclosing the Information in Issue which comprises detailed information about incidents of suicide and attempted suicide at the specific location could reasonably be expected to lead to an increase in the number of people who either attempt or complete acts of suicide at the specific location. For these reasons, I find that: disclosing the Information in Issue could reasonably be expected to endanger the lives or physical safety of individuals; and the Information in Issue comprises exempt information under schedule 3, section 10(1)(c) of the RTI Act. DECISION I affirm the decision under review and find, for the reasons set out above, that QPS is entitled to refuse access to the Information in Issue under sections 47(3)(a) and 48 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: 15 February 2013APPENDIX Significant procedural steps Date Event 18 June 2012 QPS received the applicant’s access application. 10 August 2012 QPS issued its decision to the applicant. 16 August 2012 OIC received an application for external review from the applicant along with supporting information. 24 August 2012 OIC notified QPS and the applicant that the external review application had been accepted and requested QPS provide OIC with a copy of the Information in Issue and a submission outlining the basis for refusing access. 10 September 2012 QPS provided OIC with a copy of the Information in Issue. 13 September 2012 QPS provided OIC with a submission. 16 November 2012 OIC conveyed a view to the applicant and invited the applicant to make submissions if it did not agree with the view. 19 November 2012 The applicant advised OIC that it did not accept OIC’s view and provided submissions. The applicant requested the opportunity to provide further submissions. 22 November 2012 OIC sought QPS’s views on disclosing aspects of QPS’s submissions to the applicant. 23 November 2012 QPS advised OIC it considered the relevant parts of QPS’s submissions comprise exempt information. 23 November 2012 OIC telephoned the applicant to confirm OIC’s view and the applicant made oral submissions. 26 November 2012 OIC confirmed the view and invited the applicant to make further written submissions. 10 December 2012 The applicant provided further written submissions and supporting evidence. 1 February 2013 The applicant provided further written submissions and supporting evidence. [1] The applicant did not seek access to identifying information of victims and excluded information that would compromise a police investigation from the scope of the external review. [2] Sections 47(3)(a), 48 and schedule 3 section 10(1)(c) of the RTI Act.[3] Sections 47(3)(b) and 49 of the RTI Act. [4] Schedule 4, part 3, item 7 of the RTI Act. [5] In 7CLV4M and Department of Communities (Unreported, Queensland Information Commissioner, 21 December 2011) at paragraph 20, Assistant Information Commissioner Jefferies explained that when considering non-disclosure, the appropriate first step is to consider whether the information comprises exempt information and, only if it does not, is it appropriate and necessary to complete the steps set out in section 49 of the RTI Act to decide whether disclosing particular information is contrary to the public interest. This approach was referred to with approval on appeal to the Queensland Civil and Administrative Tribunal. See BL v Office of the Information Commissioner, Department of Communities [2012] QCATA 149 at paragraphs 15 and 16.[6] Section 23 of the RTI Act.[7] As set out in section 47 of the RTI Act.[8] Section 47(3)(a) of the RTI Act. [9] Section 48(2) of the RTI Act. [10] Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97 at 106.[11] Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744 (Murphy). [12] Murphy at [45-47].[13] Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009).[14] Murphy at [54].[15] Section 108(3) of the RTI Act.[16] http://www.mindframe-media.info/__data/assets/pdf_file/0018/6057/Police-Resource-Book.pdf (Police Resource Book). [17] Police Resource Book at page 5. [18] http://www.mindframe-media.info/__data/assets/pdf_file/0018/5139/Media-Book-col.pdf at page 5.[19] Applicant’s external review application received on 16 August 2012 and oral submissions to OIC on 23 November 2012.[20] Submission to OIC dated 10 December 2012.[21] Letter dated 5 December 2012, provided to OIC as part of the applicant’s submissions dated 10 December 2012.[22] http://www.presscouncil.org.au/document-search/standard-suicide-reporting/.[23] Submission to OIC dated 1 February 2013.[24] Submission to OIC dated 19 November 2012.[25] (Unreported, Queensland Information Commissioner, 9 July 2009) at [119]-[131]. Referring to the Victorian Court of Appeal decision in Victoria Police v Marke [2008] VSCA 218.

queensland

court_judgement

Queensland Information Commissioner 1993-

Y46 and Queensland Police Service [2020] QICmr 3 (4 February 2020)

Y46 and Queensland Police Service [2020] QICmr 3 (4 February 2020) Last Updated: 22 April 2020 Decision and Reasons for Decision Citation: Y46 and Queensland Police Service [2020] QICmr 3 (4 February 2020) Application Number: 314422 Applicant: Y46 Respondent: Queensland Police Service Decision Date: 4 February 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST third party names and signatures - 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) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - DOCUMENT OF AN AGENCY - DOCUMENT TO WHICH ACT DOES NOT APPLY - document relating to testing of speed camera device - whether document of an agency - section 12 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION -PREVENTION OR DETECTION OF POSSIBLE CONTRAVENTION OF THE LAW - information about QPS procedural information relating to road safety - prejudice prevention or detection of a possible contravention of the law - whether exempt - sections 47(3)(a) and 48 and schedule 3, section 10(1)(f) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - MAINTENANCE OR ENFORCEMENT OF A LAWFUL METHOD OR PROCEDURE - information about QPS procedural information relating to road safety - prejudice maintenance or enforcement of a lawful method or procedure for protecting public safety - whether exempt - sections 47(3)(a) and 48 and schedule 3, section 10(1)(g) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) for access to: the following documents relating to a particular Vitronic’s Policeman Speed Photographic device [PS 783500]: Test Report (Test Report) Calibration Report containing device under test, test equipment, environmental conditions, test results/data and speed simulator test results by authorised testing authority (Calibration Report) the relevant QPS Officer’s digital mobile speed camera record of operation (together with site deployment sketch) – Reference Notice Number (Infringement) 2067278323, date of operation 22 October 2018, site #719141801, Hale Street (Record of Operation); and Vitronic Operator’s Manual – Operation (Chapter Six) (Chapter Six of the Manual). QPS did not provide the applicant with a written notice of its decision by the end of the statutory processing period and, as a result, on 18 January 2019 QPS were taken to have made a decision (a deemed decision) refusing access to the documents in the applicant’s access application.[2] As required by the RTI Act,[3] QPS provided notice to the applicant of the deemed decision.[4] The applicant then sought external review of QPS’s deemed decision.[5] During the external review QPS located the Test Report, the Record of Operation and Chapter Six of the Manual. For the reasons set out below, I vary QPS’s decision by finding that: access to some of the information in the Test Report may be refused on the basis disclosure would, on balance, be contrary to the public interest access to some information in the Record of Operation may be refused on the grounds that it comprises exempt information access to Chapter Six of the Manual may not be refused. The applicant is therefore entitled to access Chapter Six of the Manual, in accordance with the right of access prescribed in section 23 of the RTI Act; and the Calibration Report is not a document of QPS for the purposes of the RTI Act. Accordingly, access to it cannot be granted under the RTI Act. Background Significant procedural steps relating to the external review are set out in the Appendix. During the external review, there were several significant delays in QPS providing requested information and documents to this Office (OIC).[6] In summary, the substantive steps taken were: OIC initially requested[7] that QPS provide OIC with a copy of the documents responsive to the applicant’s access application by 17 April 2019. OIC also stated that if QPS objected to the disclosure of any documents/parts of documents to provide OIC with a submission setting out the ground/s for refusal upon which QPS sought to rely. QPS did not provide the requested documents to OIC, despite OIC contacting QPS on numerous occasions to obtain a response to OIC’s initial letter. As a result, on 26 June 2019 OIC served on QPS a Notice to Provide Information and Produce Documents to OIC.[8] Three months after OIC initially requested the documents, QPS located and provided OIC[9] with a copy of two of the documents responsive to the applicant’s access application, namely the Test Report and a redacted copy of the Record of Operation. QPS made a submission (Initial Submission) about its view on disclosure of those two documents but indicated that it wished to make a further submission. After OIC requested that QPS provide a full copy of the documents, QPS indicated that it was not agreeable to providing OIC with a full copy of the Record of Operation due to the sensitive nature of the information contained within the document. QPS stated that it only wished to provide OIC with a copy of the document with a small amount of information redacted.[10] QPS submitted that it considered that even full disclosure of the Record of Operation to OIC would impact on this particular method of QPS’s road safety procedures. QPS suggested that it was agreeable to one employee within OIC being privy to the information in an attempt to reduce the prejudice that disclosure of the information may cause. QPS adopted this position, despite section 100 of the RTI Act, which provides: If an external review application is made, the information commissioner is entitled to full and free access at all reasonable times to the documents of the agency or Minister concerned, including documents protected by legal professional privilege. Subsequently, QPS contacted OIC[11] and requested that a meeting take place between the Assistant Information Commissioner and the Director of the Road Safety Camera Office at QPS, as the Director was best placed to provide further information regarding the Calibration Report. OIC indicated that it was agreeable to meeting with the Director, however in view of Justice Daubney’s observations in SJN and Office of the Information Commissioner,[12] Assistant Information Commissioner Rickard advised QPS that if it wished to rely on the submission that it made during the meeting, then procedural fairness required that the submission be put to the applicant for a response. OIC also requested that QPS provide OIC with a copy of the Record of Operation at the meeting. I met with the Director of the Road Safety Camera Office, a QPS Legal Officer and a member of QPS’s Right to Information and Privacy Unit on 10 September 2019. I will address the oral submission (Oral Submission) made by QPS during the meeting later in this decision. During the meeting QPS indicated that it wished to make a further submission with regard to a small amount of information in the Record of Operation (referred to as the Category B Information later in this decision), on the basis that QPS considered that on balance, disclosure of this information would be contrary to the public interest (public interest factor submission). Despite OIC providing QPS with a record of its Oral Submission from the meeting and requesting QPS confirm whether it considered the record accurately reflected its Oral Submission, QPS has not provided any confirmation to OIC as requested. Also,despite indicating during the meeting on 10 September 2019, that it wished to make a further public interest factor submission and requesting an extension to file that submission by 25 October 2019, QPS has failed to provide OIC with a public interest factor submission. As no public interest factor submission had been received from QPS, I conveyed to QPS[13] my view that I considered QPS had not met the onus of establishing that it was justified in refusing access to the Record of Operation or that the Information Commissioner should make a decision adverse to the applicant in relation to two words in the Record of Operation. OIC requested on four occasions[14] that QPS disclose the documents to the applicant as per my preliminary view to the applicant. OIC also requested QPS contact the applicant to facilitate an inspection of Chapter Six of the Manual. Notwithstanding these requests, QPS has failed to provide OIC with confirmation that it has disclosed the documents to the applicant or facilitated an inspection of Chapter Six of the Manual. Despite the efforts made by OIC to informally resolve this matter, QPS has failed to participate in a way that would enable the matter to be progressed informally. Consequently, I must now issue a formal decision to progress and finalise this external review. Reviewable decision The decision under review is QPS’s decision dated 21 January 2019 in which QPS was deemed to have refused access to the requested documents. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are set out in these reasons (including footnotes and Appendix). Information in issue As previously noted above, QPS has not confirmed whether the Test Report and Record of Operation have been disclosed to the applicant, nor whether QPS has arranged for the applicant to inspect Chapter Six of the Manual. In the absence of any response from QPS and in order not to disadvantage the applicant any further, I am proceeding on the basis that QPS has not released the documents to the applicant or arranged an inspection of Chapter Six of the Manual. Accordingly, the Information in Issue is comprised of the following documents: the Test Report; the Calibration Report; a small amount of information in the Record of Operation; and Chapter Six of the Manual. Issues for determination The main issues for determination are: whether QPS has met the onus of establishing that the decision to refuse access to the Information in Issue was justified or that the Information Commissioner should give a decision adverse to the applicant under section 87(1) of the RTI Act; and if QPS has not met the onus, whether QPS may refuse access to the Information in Issue to the extent that: the Information in Issue comprises exempt information under sections 47(3)(a) and 48 of the RTI Act; or disclosure of the Information in Issue would, on balance, be contrary to the public interest under sections 47(3)(b) and 49 of the RTI Act. For ease of reference I will discuss each document individually. Test Report Relevant law Under the RTI Act, an individual has a right to be given access to documents held by a government agency.[15] However, this right is subject to the other provisions of the RTI Act, including the grounds on which an agency may refuse access.[16] Relevantly, access to a document may be refused to the extent it comprises information the disclosure of which would, on balance, be contrary to public interest.[17] 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.[18] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[19] identify factors irrelevant to the public interest and disregard them identify factors in favour of disclosure of information identify factors in favour of nondisclosure of information; and decide whether, on balance, disclosure of the information would be contrary to the public interest. Schedule 4 of the RTI Act contains non-exhaustive lists of factors that may be relevant in determining where the balance of public interest lies in a particular case. I have 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[20] and Parliament’s requirement that grounds for refusing access to information be interpreted narrowly,[21] and have not taken into account any irrelevant factors. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act),[22] 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, an RTI decision-maker will be ‘respecting and acting compatibly with’ this right and others prescribed in the HR Act,[23] 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 equivalents 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.[24] Findings In its Initial Submission to OIC,[25] QPS indicated that it was willing to provide partial access to the Test Report. The information to which QPS proposes to refuse access comprises the names and signatures of the Testing Officer and Approved Signatory (Third-Party Information) of the speed camera device. QPS stated that the Testing Officer and Approved Signatory are not QPS employees under the Police Service and Administration Act 1990 (Qld) and are employees of SGS Australia Pty Ltd (SGS), the speed camera device testing company.[26] As a consequence of QPS’s position on disclosure of all but the Third-Party Information, only the Third-Party Information remains in issue in this review. QPS submitted that access to the Third-Party Information should be refused on the basis that access would, on balance, be contrary to the public interest. In particular, QPS submitted that disclosure of the names and signatures could reasonably be expected to cause a public interest harm, as disclosure would disclose the personal information of a person, whether living or dead.[27] QPS did not address whether any factors favouring disclosure may apply. Further, QPS made no submission regarding where the balance of the public interest lies. I conveyed my preliminary view to the applicant,[28] that the disclosure of the Third-Party Information would, on balance, be contrary to the public interest. Although the applicant provided a response to my preliminary view, he did not specifically address my view that access to the Third-Party Information may be refused, merely stating his desire that the whole Test Report be provided to enable him to confirm that the speed camera device had been tested and the results checked. The applicant stated that, in his opinion, QPS were deliberately withholding information as a tactic to mislead alleged offenders and judicial officers. The applicant also described his previous experiences of attempting to obtain documents from QPS and stated, that in his view, QPS’s continual delays in responding to OIC suggested that QPS were ‘playing pathetic games’. Having carefully considered all material before me, I will now set out my reasons regarding whether disclosure of the Third-Party Information would, on balance, be contrary to the public interest. Factors favouring disclosure There is a general public interest in advancing public access to government held information, and the RTI Act is administered with a ‘pro-disclosure bias’, meaning that an agency should decide to give access to information, unless giving access would, on balance, be contrary to the public interest.[29] QPS must be transparent and accountable[30] in ensuring that its speed camera devices are accurate and correctly calibrated, particularly when enforcing motor vehicle offences against members of the public. However, I do not consider that disclosing the names of the Testing Officer or Approved Signatory at SGS would advance QPS’s accountability or transparency for ensuring that speed camera devices are correctly tested and calibrated. I afford this factor low weight, as, in my view, the balance of the information in the Test Report serves that purpose. Factors favouring nondisclosure The RTI Act recognises that disclosing an individual’s personal information to another person can reasonably be expected to cause a public interest harm,[31] 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.[32] Personal Information The term ‘personal information’ is defined as follows in the RTI Act:[33] 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. Information about an individual which includes their name will ordinarily be identifying, because the individual’s identity is apparent from that information.[34] I also consider that a person’s signature forms part of their personal information. OIC has previously found[35] the fact that an individual works for a private sector business is their personal information, disclosure of which gives rise to a public interest harm factor favouring nondisclosure. The Assistant Information Commissioner acknowledged that there may be instances where, for example, the individual concerned is a senior manager of the business and their name, title and contact details are accessible through the business website and this may reduce the privacy attaching to an individual’s private sector employment information.[36] In this case the SGS employees concerned are not in a senior or managerial role. I note one of the employees has a LinkedIn page that refers to their employment at SGS. I am satisfied that the Third-Party Information solely comprises the personal information of the third parties who are not public service officers. As noted above, one of the employees has a LinkedIn page that refers to their employment at SGS, which would slightly lower the weight of the nondisclosure factor for this particular employee with regard to their private sector employment details, however, I still afford this nondisclosure factor significant weight for both employees. Privacy A separate factor favouring nondisclosure will arise where disclosure of the relevant information could reasonably be expected to prejudice the protection of an individual’s right to privacy. The concept of ‘privacy’ is not defined in the RTI Act. It can, however, be viewed as the right of an individual to preserve their ‘personal sphere’. There is a community expectation that government agencies will protect the personal information it receives of private citizens. There is also an expectation that any information received will be used for limited purposes only and not subject to unrestricted dissemination. I am satisfied that disclosure of the Third-Party Information would interfere with the personal sphere of the SGS employees. I consider that disclosure of the information could reasonably be expected to prejudice the protection of the right to privacy of those individuals. I afford this nondisclosure factor significant weight. Balancing the public interest I have considered the pro-disclosure bias in deciding access to information.[37] On balance, considering the particular nature of the Third-Party Information (that is, the names, signatures and private sector employment information of the third parties), I consider the nondisclosure factors regarding prejudice to privacy and the harm associated with the disclosure of others’ personal information outweigh the disclosure factor related to transparency and accountability. Accordingly, the Third-Party Information may be refused on the basis that its disclosure would, on balance, be contrary to the public interest. In relation to the Third-Party Information, I have carefully considered all other factors listed in schedule 4 of the RTI Act, and have not identified any other factors as relevant in the circumstances of this review. In terms of the factors favouring disclosure for example, I have noted that the applicant’s submissions have at no stage raised matters that could reasonably be viewed as necessitating consideration of the factors listed in schedule 4, part 2, items 2 to 19 or any other public interest factors favouring disclosure not listed in the RTI Act.[38] Accordingly, I can identify no other public interest considerations telling in favour of disclosure of the Third-Party Information. Calibration Report Relevant law For the purposes of the RTI Act, a document of an agency means:[39] 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 access; and (b) a document in the possession, or under the control, of an officer of the agency in the officer’s official capacity. Findings QPS submitted to OIC[40] that the Calibration Report[41] is not in the possession of QPS and suggested the applicant contact SGS (the company performing the testing) to obtain a copy.[42] Assistant Information Commissioner Rickard advised QPS that physical possession is not the sole test as to whether a document is a document of an agency which is subject to the RTI Act. A document not in the physical possession of an agency may nevertheless be a ‘document of an agency’ for the purposes of the RTI Act, if it is under the control of an agency or is a document to which the agency is entitled to access. The Information Commissioner has previously found that a document will be under the control of an agency[43] where the agency has a present legal entitlement to take physical possession of the document.[44] During my meeting with QPS, QPS submitted to OIC that it is not entitled to access to the Calibration Report, nor is the Calibration Report under the control of QPS, as QPS does not have a contractual relationship with SGS. In summary QPS submitted that: the testing and calibration of the Vitronic speed cameras is conducted by SGS entirely independently of QPS. QPS does not have a contractual relationship with SGS QPS has a contract with Vitronic (the manufacturer of the cameras). The contract requires Vitronic to supply QPS with calibrated cameras the contract between QPS and Vitronic does not contain any provision enabling QPS to access any documents held by SGS relating to the testing and/or calibration of the speed cameras, nor does it place any obligation on Vitronic to provide QPS with such documents SGS provide testing and calibration services to Vitronic, via a direct contract between SGS and Vitronic in proceedings for an offence involving a motor vehicle under the Transport Operations (Road Use Management) Act 1995 (Qld) (TO(RUM) Act), the prosecution is not required to produce the testing and/or calibration certificates/reports to the court. The prosecution can produce a certificate purporting to be signed by an official,[45] as evidence that the speed camera was producing results when it was tested;[46] and the SGS report is not under the ‘possession’ or ‘under the control’ of QPS under the dictionary definitions of those terms or the expanded definition contained in the RTI Act. I advised the applicant of QPS’s Oral Submission in relation to the Calibration Report in my preliminary view. I also conveyed my view, that based on the submission provided to me by QPS, my preliminary view was that the Calibration Report is not a document in the possession or under the control of QPS,[47] and was not therefore subject to the RTI Act. In his response to my preliminary view, the applicant advised that in a Magistrates Court Hearing[48] the QPS Prosecutor at the time submitted the ‘actual laboratory report’[49] to the Court and provided the applicant with a copy of the laboratory report. Conclusion Whilst I acknowledge the applicant’s comment that a QPS Prosecutor provided the applicant with a copy of a report in 2016, I am not aware of the factual circumstances of the case in 2016 that led to the applicant being provided with a copy of a report. There may have been specific reasons related to the prosecution of that case that necessitated QPS obtaining a copy of the report from the testing company, for example by way of subpoena. The fact that the applicant was provided with a copy of a report in 2016, does not equate to the Calibration Report being a document of the agency for the purposes of the RTI Act in this review. Based on the information before me, I am satisfied that QPS does not enjoy a present legal entitlement to take physical possession of the Calibration Report held by SGS. I accept the submission from QPS regarding the contractual arrangements between QPS and Vitronic and Vitronic and SGS. I also accept QPS’s submission that as part of those contractual arrangements, QPS is not entitled to access to the Calibration Report. In these circumstances, I consider that the Calibration Report held by SGS is not a document in the possession or under the control of QPS and is therefore not a ‘document of an agency’ for the purposes of the RTI Act. Accordingly, access cannot be granted under the RTI Act. Record of Operation Relevant law Access to information may also be refused where information comprises exempt information.[50] Schedule 3 of the RTI Act sets out the categories of information, the disclosure of which Parliament has considered would, on balance, be contrary to the public interest.[51] Schedule 3 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 ... ; or (g) prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety ... Discussion QPS submitted that the applicant should be refused access to two pieces of information contained within the Record of Operation, on the basis the information was exempt information.[52] I will refer to these two pieces of information as the Category A Information and Category B Information. While section 108(3) of the RTI Act prevents me from providing a detailed description of information which is claimed to be exempt, I can say that the Category A Information comprises QPS operational information and the Category B information comprises two words that appear at the side of the words ‘Posted Speed’ on the Record of Operation. QPS initially submitted[53] that the Category A Information and Category B Information were exempt information as they fell within three categories of exempt information as referred to in Schedule 3 of the RTI Act. However, during my meeting with QPS, QPS’s Oral Submission focussed on the Category A Information and Category B Information being exempt information on the basis that 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.[54] Category A Information QPS submitted in its Oral Submission to OIC that the Category A Information comprises operational information that is relevant to the enforcement of the law concerning motor vehicle offences. As noted at paragraph 8 above, QPS were unwilling to disclose this small amount of operational information to OIC, but QPS provided me with a description of the operational information. In an attempt to progress the review as quickly as possible, I did not press to see this information, despite my entitlement to do so under section 100 of the RTI Act. Whilst I have not been privy to viewing this small amount of operational information, I am satisfied from its context and the description provided to me by QPS about the content that I have a good understanding of the nature of the information which is sufficient to allow me to consider whether the claimed ground of refusal applies. QPS in its Oral Submission provided its view the Category A Information was exempt information for the following reasons: The Category A Information is only known internally within QPS. Disclosure of the Category A Information would undermine road safety programmes and impact on the safety of the public. QPS provided an explanation as to why it considered the disclosure of the information would undermine road safety programmes, however due to the nature of the information, I am unable to describe in detail QPS’s explanation without revealing what the Category A Information is.[55] I conveyed QPS’s Oral Submission to the applicant in my preliminary view. I also conveyed that my preliminary view was that access to the Category A Information may be refused on the basis that it is exempt information.[56] In his response, the applicant advised that he had previously received full copies of records of operation from QPS, but he did not address QPS’s submission specifically. Whilst I acknowledge that the applicant may have obtained copies of records of operation for previous motoring offences, this decision applies with respect to accessing the Record of Operation under the RTI Act. Category B Information Again, in its Oral Submission QPS argued that the Category B Information comprises operational information that is relevant to the enforcement of the law concerning motor vehicle offences. QPS submitted[57] that in its view the Category B Information was exempt information for the following reasons: Disclosure of the Category B Information would undermine road safety programmes and impact on the safety of the public. QPS do not disclose the Category B Information and QPS employees have been disciplined for disclosing the Category B Information. QPS also made an Oral Submission that, in the alternative, disclosure of the Category B information would, on balance, be contrary to the public interest.[58] QPS indicated that it would provide OIC with a further written submission and would also provide data research that supported QPS’s view. As noted at paragraph 8 above, OIC has not received a public interest factor submission from QPS in relation to the Category B Information or the research to which it referred in the meeting. Findings As stated above, information will be exempt information if 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;[59] or maintenance or enforcement of a lawful method or procedure for protecting public safety.[60] These provisions will apply if the following requirements are met: there exists an identifiable lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention or possible contravention of the law, or for protecting public safety; and disclosure of the documents to which the application relates could reasonably be expected to prejudice the effectiveness or maintenance of that method or procedure. I will examine each of these requirements as they relate to the categories of information in turn. Category A Information Is there an identifiable lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law, or for protecting public safety? Yes, for the reasons that follow. The use of speed cameras is regulated by the TO(RUM) Act. The TO(RUM) Act establishes a scheme to allow for monitoring of compliance with the Act.[61] I am satisfied that the process of QPS using speed cameras to identify individuals committing motor vehicle offences is a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention of the law. I also consider that the use of speed cameras is a lawful method or procedure for protecting public safety, on the basis that the use of speed cameras encourages drivers to drive within the set speed limits, therefore reducing the number of road traffic accidents and fatalities. I am satisfied that the road safety programme is an integral part of the methods and procedures used by QPS to detect a contravention or possible contravention of the law and to protect public safety. Could disclosure of the Category A Information reasonably be expected to prejudice the effectiveness or maintenance of the method or procedure? I have considered whether prejudice could reasonably be expected to occur as a result of the disclosure of the Category A Information. The Category A Information is information that is not publicly known. I note QPS’s submission regarding the manner in which it expects prejudice would arise if the Category A Information was released and I am satisfied that QPS’s expectation is reasonably based. As noted at paragraph 52 above, I am unable to describe in detail QPS’s submission without revealing what the Category A Information is.[62] Accordingly, I am satisfied that disclosure of the information could reasonably be expected to prejudice QPS’s road safety programme and as a result impact on public safety. Category B Information Is there an identifiable lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law, or for protecting public safety? Yes, for the reasons noted above.[63] Could disclosure of the Category B Information reasonably be expected to prejudice the effectiveness or maintenance of the method or procedure? I have considered whether prejudice could reasonably be expected to occur as a result of the disclosure of the Category B Information. As previously noted, whilst the legislation[64] prevents me from providing a detailed description of information which is claimed to be exempt, I can say that the Category B information comprises two words that appear at the side of the words ‘Posted Speed’ on the Record of Operation. In its Oral Submission, QPS stated that disclosure of the Category B Information would undermine its road safety programmes as it would reveal operational information used by QPS, as part of its enforcement of motor vehicle offences. Since the meeting with QPS, it has come to my attention that more detailed information than that contained in the Category B Information is publicly available on QPS’s own website.[65] Again, as noted at paragraph 52 above, I am unable to describe in detail the information that OIC has located from QPS’s website without revealing what the Category A Information is. However, based on the information on QPS’s website, I do not accept QPS’s submission that QPS does not reveal this operational information to the public. On the basis that QPS’s own website contains more comprehensive references to the operational information, I do not consider that any prejudice could reasonably be expected to flow from the disclosure of the Category B Information. Would disclosure of the Category B Information, on balance, be contrary to the public interest? During my meeting with QPS, QPS indicated that it also considered that disclosure of the Category B Information would, on balance, be contrary to the public interest[66] and wished to provide OIC with a written submission addressing this. Despite OIC requesting QPS provide a submission by 25 September 2019 and providing an extension until 25 October 2019, as at the date of this decision QPS has not provided OIC with a public interest factor submission. As a result, it is necessary for me to determine whether disclosure of the Category B Information would, on balance, be contrary to the public interest in the absence of any submission from QPS. I repeat and rely on the matters set out at paragraphs 17 to 22 above. Factors favouring disclosure The applicant has submitted that he should have access to the Record of Operation to ascertain that the speed camera has been correctly tested and calibrated. The applicant expressed the view that QPS’s refusal to provide access to the Record of Operation was a ‘deliberate and calculated tactic’[67] to prevent the applicant being able to verify if the speed camera was set up in accordance with the manufacturer’s requirements. As stated earlier in this decision, QPS must be transparent and accountable[68] in ensuring that its speed cameras are accurate and correctly calibrated, particularly when a member of the public may be seeking to challenge the accuracy of the speed camera’s measurements. Whilst I do not consider that disclosure of the Category B Information will in itself assist the applicant to ascertain if the speed camera has been set up in accordance with the manufacturer’s requirements, I consider that disclosure of the information will enhance QPS’s transparency and accountability. The disclosure of the Category B Information may also go some way to assuaging the applicant’s concern that QPS are refusing access to information as a ‘deliberate and calculated tactic’. I afford the transparency and accountability factor substantial weight. Factors favouring nondisclosure A factor favouring nondisclosure will arise where disclosure could reasonably be expected to prejudice security, law enforcement or public safety.[69] I do not consider that the disclosure of the Category B Information could prejudice law enforcement or public safety, when QPS’s website provides more comprehensive information than that contained in the Category B Information. I am therefore of the view that this nondisclosure factor is not applicable to this review. However, if I am wrong in this view, I do not consider that the two words contained in the Record of Operation are of such significance on their own, and in circumstances where the Category A Information is not disclosed, that disclosure could reasonably be expected to prejudice QPS’s enforcement of motor vehicle offences or QPS’s road safety programmes and therefore prejudice public safety. I would therefore afford this nondisclosure factor very low weight. Balancing the public interest In summary, I am satisfied that the factor favouring nondisclosure of the Category B Information warrants no to low weight and I afford substantial weight to the public interest factor relating to promoting open discussion of public affairs and enhancing government’s accountability. In relation to the Category B Information, I have carefully considered all other factors listed in Schedule 4 of the RTI Act, and have not identified any other factors as relevant in the circumstances of this review. In terms of the factors favouring nondisclosure for example, I have noted that QPS’s submissions have at no stage raised matters that could reasonably be viewed as necessitating consideration of the factors listed in schedule 4, part 3, items 1 to 6 and 8 to 22 or schedule 4, part 4, sections 1 to 10 or any other factors favouring nondisclosure not listed in the RTI Act.[70] Conclusion I do not consider that QPS has discharged its onus of establishing QPS’s decision to refuse access to the Category A Information or Category B Information was justified or that the Information Commissioner should give a decision adverse to the applicant with regard to either category of information.[71] However, as external review is merits review, and for the sake of completeness, I have considered the application of the RTI Act to all Category A Information and Category B Information in the Record of Operation and based on the information before me I am satisfied that: access to the Category A Information may be refused on the basis that the Category A Information comprises exempt information; and the Category B Information is not exempt information, nor would its disclosure, on balance, be contrary to the public interest. Consequently, access to the Category B Information cannot be refused. Chapter Six of the Manual Relevant law The RTI Act provides that access to a document of an agency may be given to a person in more than one form, including providing an applicant with a copy of the document[72] or providing a reasonable opportunity for the applicant to inspect the document.[73] Finding QPS originally submitted that Chapter Six of the Manual ‘is protected by copyright and is only licensed to QPS; its unauthorised storage, printing or redistribution is prohibited’ and it refused the applicant access on that basis.[74] QPS suggested that the applicant direct his enquiries to the manufacturer of the speed camera, if he wished to obtain access to Chapter Six of the Manual. Assistant Information Commissioner Rickard conveyed a preliminary view to QPS,[75] that whilst Chapter Six of the Manual may be subject to copyright and therefore reproduction is prohibited, the RTI Act provides that access may be given in more than one form.[76] Assistant Information Commissioner Rickard suggested that, QPS provide the applicant with a reasonable opportunity to inspect Chapter Six of the Manual. QPS agreed to this suggestion.[77] I note that despite agreeing to facilitate an inspection of Chapter Six of the Manual and being requested by OIC to arrange for the applicant to inspect Chapter Six of the Manual on four occasions, QPS has not done so. As QPS has not facilitated the informal resolution option that it agreed to, it is necessary for me to determine whether access to Chapter Six of the Manual should be provided to the applicant. QPS have made no submissions objecting to the disclosure of Chapter Six of the Manual. As a result, it is necessary for me to determine whether disclosure of Chapter Six of the Manual would, on balance, be contrary to the public interest in the absence of any submission from QPS. I repeat and rely on the matters set out at paragraphs 17 to 22 above. Factors favouring disclosure In his submission, the applicant stated that Chapter Six of the Manual should be disclosed to enable the set up and operation of the speed camera to be cross-checked and examined. As speed cameras are used by QPS to detect individuals committing motor vehicle offences, it is imperative that the speed camera is set up in accordance with the manufacturer’s guidelines and subsequently operated within those guidelines. QPS must be transparent and accountable in how it achieves this.[78] I understand that Chapter Six of the Manual contains information relating to the correct set up and safe operation of the speed camera. I consider disclosure of this information will go some way towards enhancing QPS’s transparency and accountability as to how it sets up and operates its speed cameras. I therefore afford this disclosure factor significant weight. Factors favouring nondisclosure I acknowledge that disclosure of a manufacturer’s operational manual could reasonably be expected in some circumstances to cause prejudice or a public interest harm because disclosure of the information would disclose the ‘trade secrets’ of the manufacturer for example the design of the speed camera or a uniqueness in how it is operated.[79] I am of the view that the weight to be given to these nondisclosure factors is reduced somewhat by a version of the Vitronic Manual being publicly available on the internet.[80] I acknowledge that the copy of the manual available online may not be the latest version produced by the manufacturer,[81] however I consider any prejudice or public interest harm that could reasonably be expected to occur by disclosure of Chapter Six of the Manual to the applicant is significantly reduced when a full version of the manufacturer’s manual is accessible by the public online. I therefore afford these nondisclosure factors moderate weight. Balancing the public interest On balance, considering the particular nature of Chapter Six of the Manual, I am of the view that the disclosure factor regarding QPS’s transparency and accountability outweighs the nondisclosure factors. In relation to Chapter Six of the Manual, I have carefully considered all other factors listed in Schedule 4 of the RTI Act, and have not identified any other factors as relevant in the circumstances of this review. In terms of the factors favouring nondisclosure for example, I have noted that I have received no submissions that could reasonably be viewed as necessitating consideration of the factors listed in schedule 4, part 3, items 1 to 14 and 16 to 22 or schedule 4, part 4 sections 1 to 6 and 8 to 10.[82] Accordingly, I can identify no other factors favouring nondisclosure in relation to Chapter Six of the Manual. Conclusion In the absence of any public interest factor submission from QPS, I have concluded that disclosure of Chapter Six of the Manual would not, on balance, be contrary to the public interest. I accept QPS’s submission that Chapter Six of the Manual is subject to copyright, I therefore find that access to Chapter Six of the Manual should be provided to the applicant by way of inspection.DECISION For the reasons set out above, I vary QPS’s decision by finding that: access to some of the information in the Test Report may be refused on the basis disclosure would, on balance, be contrary to the public interest access to some information in the Record of Operation may be refused on the grounds that it comprises exempt information access to Chapter Six of the Manual may not be refused. The applicant is therefore entitled to access Chapter Six of the Manual, in accordance with the right of access prescribed in section 23 of the RTI Act; and the Calibration Report is not a document of QPS for the purposes of the RTI Act. Accordingly, access to it cannot be granted under 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 February 2020 APPENDIX Significant procedural steps Date Event 4 February 2019 OIC received the application for external review. 3 April 2019 OIC notified the applicant and QPS that the application for external review had been received. OIC requested the procedural documents from QPS by 17 April 2019. 8 May 2019 OIC contacted QPS about the overdue procedural documents requested in OIC’s letter dated 3 April 2019. 9 May 2019 OIC contacted the applicant to obtain further information about his access application. 9 May 2019 OIC contacted QPS to convey the further information provided by the applicant regarding his access application and requested QPS provide the overdue procedural documents to OIC by 23 May 2019. 24 May 2019 OIC contacted QPS about the overdue procedural documents. 28 May 2019 OIC contacted QPS about the overdue procedural documents and requested QPS provide the procedural documents to OIC by 4 June 2019. 10 June 2019 OIC contacted QPS about the overdue procedural documents and requested QPS provide the procedural documents to OIC by no later than 24 June 2019. 26 June 2019 OIC served on QPS a Notice to Produce Information and Documents pursuant to section 103 of the RTI Act, requiring the procedural documents to be provided by 17 July 2019. 17 July 2019 QPS provided OIC with the Test Report and redacted copy of the Record of Operation, however QPS advised that it had requested a full copy of the documents from the Road Safety Camera Office and would provide a full view on disclosure of the documents once a full copy of the documents was received from the Road Safety Camera Office. 24 July 2019 OIC contacted QPS requesting QPS provide, by 7 August 2019: a full copy of the documents, together with QPS’s view on disclosure a copy of the Calibration Report; and confirmation of whether QPS would offer the applicant an inspection of Chapter Six of the Manual. 22 August 2019 OIC contacted QPS about QPS’s overdue response. Assistant Information Commissioner Rickard conveyed a preliminary view to QPS, that as QPS had provided limited information about its views on disclosure of the documents to the applicant, QPS had not satisfied the onus that the Information Commissioner should give a decision adverse to the applicant.[83] OIC requested a response by 29 August 2019. 28 August 2019 QPS contacted OIC to indicate that QPS was not agreeable to providing OIC with a full copy of the Record of Operation due to the sensitive nature contained within the Record of Operation. However, QPS stated it was agreeable to arranging for the applicant to inspect Chapter Six of the Manual. 29 August 2019 OIC contacted QPS to request QPS arrange for an OIC Review Officer to view the Record of Operation by 12 September 2019. OIC also indicated to QPS that it was still not satisfied that the Calibration Report was not a document of QPS and sought a response to this view by 12 September 2019. 31 August 2019 QPS requested that a meeting take place between the Assistant Information Commissioner and the Director of the Road Safety Camera Office. 4 September 2019 OIC indicated to QPS that the Assistant Information Commissioner was agreeable to meeting with the Director of the Road Safety Camera Office. 10 September 2019 Meeting between Assistant Information Commissioner Corby and QPS. 12 September 2019 OIC contacted QPS with a record of the Oral Submission made by QPS, during the meeting on 10 September 2019. OIC requested QPS confirm by 16 September 2019 whether it considered the record accurately reflected QPS’s Oral Submission and whether QPS wished to rely on the Oral Submission as part of this review. OIC also requested QPS provide a further public interest factor submission by 25 September 2019. 4 October 2019 OIC contacted QPS about QPS’s overdue response to OIC’s letter dated 12 September 2019. OIC advised QPS that as it had not received a response from QPS, that OIC would take QPS’s lack of response to mean that QPS accepted that the points referred to in OIC’s letter accurately reflected the Oral Submission made by QPS during the meeting. 9 October 2019 Following a request from QPS, OIC granted an extension of time for QPS to respond to OIC’s letter dated 12 September 2019 until 25 October 2019. 6 November 2019 OIC contacted QPS about QPS’s overdue response to OIC’s letter dated 12 September 2019. OIC advised that it did not consider that QPS had met the onus of establishing that the Information Commissioner should make a decision adverse to the applicant in relation to two words (Category B Information) in the Record of Operation. OIC provided QPS with a copy of its draft preliminary view and advised that the next step in the review would be to issue a preliminary view to the applicant. QPS were given the opportunity to provide a submission by 11 November 2019. 12 November 2019 As no public interest submission was received from QPS, OIC conveyed a preliminary view to the applicant. The applicant was provided with an opportunity to respond to OIC’s preliminary view by 26 November 2019. OIC also wrote to QPS: advising that the preliminary view had been conveyed to the applicant; providing QPS with a marked up copy of the documents as per OIC’s preliminary view to the applicant.OIC requested QPS release the marked up copy of the documents to the applicant and to arrange for the applicant to inspect Chapter Six of the Manual by 19 November 2019. 22 November 2019 OIC received a response from the applicant to OIC’s preliminary view. The applicant also advised that he had not received any contact or documents from QPS. 26 November 2019 OIC contacted QPS about QPS not complying with OIC’s email dated 12 November 2019. OIC requested QPS release the marked up copy of the documents to the applicant and to arrange for the applicant to inspect Chapter Six of the Manual by 2 December 2019. 13 December 2019 OIC contacted QPS about QPS not complying with OIC’s email dated 12 November 2019. OIC requested QPS release the marked up copy of the documents to the applicant and to arrange for the applicant to inspect Chapter Six of the Manual by 17 December 2019. 20 December 2019 OIC contacted QPS to request QPS’s urgent attention to OIC’s requests that documents be released to the applicant and that QPS arrange an inspection of Chapter Six of the Manual. OIC advised QPS that in the absence of a response and in view of the ongoing delays, OIC would proceed to issue a formal decision to finalise the external review. [1] By access application dated 6 November 2018.[2] Under section 46(1) of the RTI Act.[3] Under section 46(2) of the RTI Act.[4] On 21 January 2019[5] On 4 February 2019.[6] As recorded in the Appendix to this decision. Appendices to Office of the Information Commissioner (OIC) decisions do not usually record communications between OIC and agencies regarding overdue responses. However, in this review, these communications are considered significant, given the number and length of the delays caused by QPS’s overdue responses.[7] On 3 April 2019.[8] Section 103 of the RTI Act.[9] On 17 July 2019.[10] On 28 August 2019.[11] On 31 August 2019.[12] [2019] QCATA 115 at [90]- [97].[13] On 6 November 2019.[14] On 12 November 2019, 26 November 2019, 13 December 2019 and 20 December 2019.[15] Section 23 of the RTI Act.[16] Section 47(3) 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.[20] Section 44 of the RTI Act.[21] Section 47(2) of the RTI Act.[22] Which came into force on 1 January 2020.[23] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [11].[24] XYZ at [573].[25] On 17 July 2019.[26] On 28 August 2019.[27] Schedule 4, part 4, section 6(1) of the RTI Act.[28] On 12 November 2019.[29] Section 44(1) of the RTI Act.[30] Schedule 4, part 2, item 1 of the RTI Act.[31] Schedule 4, part 4, section 6(1) of the RTI Act.[32] Schedule 4, part 3, item 3 of the RTI Act.[33] See schedule 5 of the RTI Act which refers to section 12 of the Information Privacy Act 2009 (Qld).[34] Mahoney and Ipswich City Council (Unreported, Queensland Information Commissioner, 17 June 2011) at [20].[35] Underwood and Department of Housing and Public Works (Unreported, Queensland Information Commissioner, 18 May 2012) at [67] (Underwood)[36] Underwood at [67].[37] Section 44 of the RTI Act.[38] Which I must also consider, given that the public interest factors listed in the RTI Act are non-exhaustive – see section 49(3)(a), (b) and (c) of the RTI Act.[39] Section 12 of the RTI Act.[40] On 17 July 2019.[41] The Test Report contains a heading which states ‘Test Results’ and refers to the Calibration Report (SGS Report TC180147). [42] Memorandum from the Director, Road Safety Camera Office to Principal RTI Officer, Right to Information & Privacy Unit, QPS dated 12 July 2019.[43] Or one which it is entitled to access – Queensland Newspapers Pty Ltd and Ipswich City Council [2015] QICmr 30 (26 November 2015) at [15].[44] Price and the Nominal Defendant (Unreported, Information Commissioner, 24 November 1999) at [35].[45] Which generally means the commissioner or chief executive – section 120(9)(a) of the TO(RUM) Act.[46] Section 120(2A) of the TO(RUM) Act.[47] Section 12 of the RTI Act.[48] Which appears to have been in 2016 from the information provided by the applicant.[49] I assume this reference to mean a calibration report.[50] Sections 47(3)(a) and 48 of the RTI Act.[51] See section 48(2) of the RTI Act.[52] Schedule 3, sections 10(1)(f), 10(1)(g) and 10(1)(i) of the RTI Act.[53] On 28 August 2019.[54] Schedule 3, section 10(1)(f) of the RTI Act.[55] Section 108(3) of the RTI Act.[56] Sections 47(3)(a) and 48 of the RTI Act.[57] On 10 September 2019.[58] Sections 47(3)(b) and 49 of the RTI Act.[59] Schedule 3, section 10(1)(f) of the RTI Act.[60] Schedule 3, section 10(1)(g) of the RTI Act.[61] Section 3(2)(d) of the TO(RUM) Act.[62] Section 108(3) of the RTI Act.[63] At [66]-[67].[64] Section 108(3) of the RTI Act.[65] QPS has been provided with the details of where OIC located this information on QPS’s website.[66] Sections 47(3)(b) and 49 and schedule 4, part 3, item 7 of the RTI Act.[67] On 20 November 2019.[68] Schedule 4, part 2, item 1 of the RTI Act.[69] Schedule 4, part 3, item 7 of the RTI Act.[70] Which I must also consider, given that the public interest factors listed in the RTI Act are non-exhaustive – see section 49(3)(a), (b) and (c) of the RTI Act.[71] Section 87(1) of the RTI Act.[72] Section 68(1)(b) of the RTI Act[73] Section 68(1)(a) of the RTI Act.[74] On 17 July 2019.[75] On 24 July 2019.[76] Section 68 of the RTI Act.[77] On 28 August 2019.[78] Schedule 4, part 2, item 1 of the RTI Act.[79] Schedule 4, part 3, item 15 and schedule 4, part 4, section 7 of the RTI Act.[80] And can be accessed as <https://www.scribd.com/document/382267391/VictronPloisacn-Manual>. [81] The manual refers to Revision 3.0.0 and is dated June 2010.[82] Which I must also consider, given that the public interest factors listed in the RTI Act are non-exhaustive – see section 49(3)(a), (b) and (c) of the RTI Act.[83] Section 87(1) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

S55 and Queensland Police Service [2023] QICmr 3 (30 January 2023)

S55 and Queensland Police Service [2023] QICmr 3 (30 January 2023) Last Updated: 14 April 2023 Decision and Reasons for Decision Citation: S55 and Queensland Police Service [2023] QICmr 3 (30 January 2023) Application Number: 316815 Applicant: S55 Respondent: Queensland Police Service Decision Date: 30 January 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - NONEXISTENT OR UNLOCATABLE DOCUMENTS - application for documents relating to death of applicant’s father - whether agency has conducted reasonable searches - whether access to documents may be refused on the basis they are nonexistent or unlocatable - sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) for access to ‘...all police site reports incident reports, internal memos, phone record memos, coroner’s communications, witness statements, reports, and any finalised reports’ relating to the death of the applicant’s father, which occurred within the Wide Bay Burnett Region, Queensland in 1986. QPS conducted searches in response to the application and no documents were located as a result of those searches. Accordingly, QPS decided[2] to refuse access to the requested information on the ground that the documents were nonexistent or unlocatable.[3] The applicant applied[4] for internal review of QPS’ decision. QPS conducted further searches in response to the internal review application and decided to affirm its original decision.[5] The applicant then applied[6] to the Office of the Information Commissioner (OIC) for external review of QPS’ decision. For the reasons set out below, I affirm QPS’ decision that access to the requested information may be refused on the grounds that the documents are nonexistent or unlocatable. I am satisfied that QPS has taken all reasonable steps to locate and identify the documents applied for by the applicant. Background Significant procedural steps are set out in the Appendix to this decision. Reviewable decision and evidence considered The decision under review is QPS’ internal review decision dated 20 July 2022. 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). 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. I consider that in observing and applying the law prescribed in the RTI Act, a RTI decision-maker will be ‘respecting and acting compatibly with’ this right and others prescribed in the HR Act, 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.’ [7] Issue for determination The issue for determination is whether QPS has taken all reasonable steps to identify and locate information applied for by the applicant and if access may be refused on the ground the information is nonexistent or unlocatable.[8] On external review, the applicant raised concerns about the conduct of a QPS staff member, QPS’ response to his complaint about that staff member and QPS’ record keeping practices. The RTI Act does not give OIC jurisdiction to investigate complaints about an agency’s conduct or processes, which I explained to the applicant in my preliminary view to him.[9] Therefore, I cannot consider the applicant’s concerns in this regard. I have taken account of the applicant’s submissions to the extent that they are relevant to the issue for determination in this review. Relevant law The RTI Act provides a general right of access to documents of an agency,[10] however, this right is subject to limitations, including grounds for refusal of access.[11] Access to a document may be refused if the document is nonexistent or unlocatable.[12] A document is nonexistent if there are reasonable grounds to be satisfied that the document does not exist.[13] To be satisfied documents are nonexistent, a decision-maker must rely on their particular knowledge and experience and have regard to a number of key factors, including:[14] the administrative arrangements of government the agency’s structure the agency’s functions and responsibilities[15] the agency’s practices and procedures (including, but not limited to, its information management approach); and other factors reasonably inferred from information supplied by the applicant (including the nature and age of the requested documents). An agency may rely on an explanation of its recordkeeping systems to justify the nonexistence of particular documents. If searches are relied on to justify a decision 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. A document is unlocatable if a decision-maker is satisfied that the requested document has been or should be in the agency’s possession, and the agency has taken all reasonable steps to find the document and it cannot be located.[16] To determine if documents are unlocatable, regard should again be had to the circumstances of the case and the above key factors.[17] Generally, the agency that made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[18] However, where an external review involves the issue of missing documents, as is the case here, 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. Suspicion and mere assertion will not satisfy this onus.[19] Findings Applicant’s submissions In response to QPS’ internal review decision, the applicant raised concerns about QPS search processes.[20] The applicant contends[21] that QPS should have documents responsive to his application because: he is aware that his step-mother and her brother both provided statements about his father’s death to police searches were conducted at Bargara Police Station, a station with limited resources, and it is more likely that searches of Bundaberg Police Station’s records would be successful given the public nature of his father’s death, it is ‘highly unlikely and extremely improbable that no Queensland Police Service...report was written or no eye witness statements were taken’; and QPS may have checked current and previous electronic records but if the documents have been lost or destroyed (accidentally or in accordance with a retention and disposal policy), there should be documents detailing their loss or destruction. Searches undertaken by QPS QPS has provided OIC with a copy of its search records and certifications for processing the application. The documents provided show that searches were conducted by officers at Wide Bay Burnett District Office, and the searches encompassed both Bargara Police Station and Bundaberg Police Station, as well as relevant databases where the requested documents could reasonably be expected to be located. No records were located as a result of these searches. Following receipt of the applicant’s internal review application, further inquiries were also made with Bargara Police Station, based on the details contained within the ‘Post-Mortem Examination Report’ provided by the applicant to QPS. Searches were also conducted by QPS’ Information Management Unit which indicated that ‘no record has ever existed on their indices in relation to this matter.’[22] QPS relied on searches conducted by its officers to justify its position that reasonable steps have been taken to locate documents responsive to the applicant’s application. Analysis In reaching my decision, I have considered the applicant’s submissions, the scope of the access application, the searches undertaken by QPS during the original processing of the access application and the additional searches undertaken during the internal review of its original decision. I am also mindful that the documents sought, if they exist, relate to an incident that occurred just over 36 years ago, which diminishes the likelihood of their current existence and recoverability as QPS record keeping practices have changed over this period. In reaching this decision, I have also had regard to Justice McGill’s comments[23] that a finding that all reasonable steps have been taken by an agency is open to reach ‘even if, at least in theory, further and better searches might possibly disclose additional documents.’[24] That is, I must answer the question of whether QPS has taken all reasonable steps to identify documents, as opposed to all possible steps. The applicant also contends that if relevant documents were lost or destroyed, there should be documents detailing this. However, even if these documents existed at some point in time and QPS was required to retain them or maintain records of their loss or destruction, QPS’ searches have failed to locate them. On the material presently before me, I consider QPS has conducted appropriately targeted searches of locations where it would be reasonable to expect the requested information to be located. It is my view that QPS has taken all reasonable steps to locate responsive documents, and access to the requested information may therefore be refused on the ground it is nonexistent or unlocatable.[25]DECISION For the reasons set out above, I am satisfied that QPS has taken all reasonable steps to locate and identify the documents applied for by the applicant. I therefore affirm QPS’ decision and find that access to the requested information may be refused on the grounds that the documents are nonexistent or unlocatable pursuant to sections 47(3)(e) and 52 of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.S MartinAssistant Information Commissioner Date: 30 January 2023 APPENDIX Significant procedural steps Date Event 21 July 2022 OIC received the application for external review. OIC requested preliminary documents from QPS. 30 July to 2 August 2022 OIC received the requested preliminary documents from QPS. 4 August 2022 OIC advised the applicant and QPS that the application for external review had been accepted. OIC requested QPS provide further information. 20 August 2022 QPS provided submissions to OIC. 23 August 2022 OIC requested further information from QPS. 5 September 2022 QPS provided the further requested information to OIC. 16 September 2022 OIC conveyed a preliminary view to the applicant. The applicant advised that he wished to proceed with the review in response to OIC’s preliminary view. 14 October 2022 The applicant provided verbal and written submissions in response to OIC’s preliminary view. 20 October 2022 OIC conveyed a further preliminary view to the applicant. OIC provided QPS with an update. The applicant requested the matter proceed to formal decision. 27 October 2022 OIC requested QPS provide search certification and record forms and advised QPS that the matter would proceed to a formal decision. 14 December 2022 QPS provided completed search certification and record forms to OIC. [1] Access application dated 16 May 2022. [2] Decision dated 6 July 2022. [3] Pursuant to sections 47(3)(e) and 52 of the RTI Act. [4] Internal review application dated 6 July 2022. [5] Internal review decision dated 20 July 2022. [6] External review application dated 21 July 2022. [7] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111]. I further note that OIC’s approach to the HR Act set out in this paragraph was considered and endorsed by the Queensland Civil and Administrative Tribunal in Lawrence v Queensland Police Service [2022] QCATA 134 at [23] (where Judicial Member McGill saw ‘no reason to differ’ from our position).[8] Sections 47(3)(e) and 52 of the RTI Act.[9] Preliminary view dated 16 September 2022.[10] Section 23(1)(a) of the RTI Act. What comprises a ‘document of an agency’ is defined in section 12 of the RTI Act. [11] The grounds on which an agency may refuse access are set out in section 47 of the RTI Act. [12] Sections 47(3)(e) and 52 of the RTI Act. [13] Section 52(1)(a) of the RTI Act.[14] 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]. These factors were more recently considered in Van Veendendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017) and Y20 and Department of Education [2021] QICmr 20 (11 May 2020) at [45].[15] Particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it. [16] Section 52(1)(b) of the RTI Act.[17] Pryor at [20]-[21].[18] Section 87(1) of the RTI Act. [19] Parnell and Queensland Police Service [2017] QICmr 8 (7 March 2017) at [23]; Dubois and Rockhampton Regional Council [2017] QICmr 49 (6 October 2017) at [36]; Y44 and T99 and Office of the Public Guardian [2019] QICmr 62 (20 December 2019) at [38].[20] In the internal review application dated 6 July 2022. [21] In submissions dated 14 October 2022. [22] Submissions dated 20 August 2022. [23] Webb v Information Commissioner [2021] QCATA 116 (Webb).[24] Webb at [6]. [25] Under sections 47(3)(e) and 52 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Food business and Gold Coast City Council; Seven Network Operations (Third Party) [2011] QICmr 37 (14 September 2011)

Food business and Gold Coast City Council; Seven Network Operations (Third Party) [2011] QICmr 37 (14 September 2011) Last Updated: 21 October 2011 Decision and Reasons for Decision Application Number: 310352 Applicant: Food business  Respondent: Gold Coast City Council Third Party Seven Network Limited Decision Date: 14 September 2011 Catchwords: RIGHT TO INFORMATION – REFUSAL OF ACCESS – applicant sought information about failed food and health safety audits of a food business held by Gold Coast City Council – whether disclosure of 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 Seven Network Pty Ltd (Seven) applied to Gold Coast City Council (Council) for documents about failed health and safety audits in relation to a food business.[1] After consulting with the food business as an interested third party, Council decided to grant access to the documents on the grounds that their release would not, on balance, be contrary to the public interest.[2] The food business applied to Council for internal review of their decision. Council responded by affirming their original decision.[3] The food business then applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision. On external review, OIC issued a preliminary view to the food business that releasing the documents would not, on balance, be contrary to the public interest.[4] On 20 May 2011, the food business provided submissions in response to OIC’s preliminary view. In summary, the food business contends that relevant documents do not fall within the scope of Seven’s access application, and in any event, that the prejudice to its business and privacy outweigh any other factors favouring disclosure in the public interest and access to the information should therefore be refused. For the reasons set out below, I affirm Council’s decision granting access to the information in issue. Significant procedural steps Significant procedural steps relating to the application and external review are set out in the Appendix. Reviewable decision The decision under review is Council’s internal review decision dated 4 August 2010 granting access to information[5] on the basis disclosure would not, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching my decision is disclosed in these reasons (including footnotes and appendix). Findings What is the scope of this application? The terms of the access application are: Specifically I am seeking access to documents produced in the last 3 years showing information about [food business]. I am seeking copies of all failed food, health and or safety issues audits in relation to the shop at [location] Queensland. Council identified 29 pages as responsive to the access application. These documents comprise: audit reports letters and an Improvement Notice[6] to the food business following up on audit reports; and letters and accompanying documents to an entity associated with the food business about environmental issues relating to the food business. The food business submits[7] that none of the documents the subject of this external review fall within the scope of the access application because: none of the information relates to ‘failed’ food health and or safety audits, rather they relate to levels of compliance and therefore they cannot fall within the scope of the application in relation to the correspondence, it comprises requests for action to be undertaken, not ‘failed audits’; and the letters and documents to the entity associated with the food business are not addressed to the food business itself and do not relate to ‘food, health or safety issues audits’. Essentially, the food business contends that the information identified by the Council is not within scope because it does not relate to ‘failed’ audits and requests for action. I do not accept the food business’ submission in this regard. It may be technically correct to state that the information identified by Council does not relate to ‘failed’ audits, but only because the Food Act 2006 (Qld) (Food Act) and the Environmental Protection Act 1994 (Environmental Protection Act) do not provide for ‘failed’ audits as such. These Acts are drafted with reference to food safety and environmental standards, and provide for a scheme of breaches and recommended corrective actions. Audits do not result in overall pass or fail marks, but identification of breaches and requirements for remedial action selected from a range of possible measures. An access applicant is not required to frame an application using the specific technical terminology contained in particular legislation or as used by government agencies. An applicant is merely required to provide enough information to allow an agency to identify requested documents.[8] Interpreting an access application is not an exercise equivalent to construing a statute or other legal document; the object is to ascertain the applicant’s intention,[9] and generally an application should be interpreted broadly.[10] The information in issue contains audit information and correspondence where remedial action has been recommended, or required. I am satisfied that the applicant, in using the word ‘failed’, was seeking to access information documenting unsatisfactory audit results. All of the information in issue comprises information of this kind – references to breaches of the relevant Acts, and audit information and correspondence recommending or requiring remedial action. The application provided sufficient information to allow the Council to identify this information, and it falls within the scope of the access application. The letters which are not addressed to the food business are about the food business and concern breaches of the Environmental Protection Act. Equally, I am satisfied that these documents also fall within the scope of the access application. Information in Issue The information in issue in this review is the 29 pages of documents described at paragraph 12. It does not include a small amount of information about the food business’ employee, which the applicant does not seek[11]o access.11 Would release of the information be contrary to the public interest? Under the RTI Act, a person has a right to be given access to documents of an agency.[12] However, this right is subject to other provisions of the RTI Act including the grounds on which an agency may refuse access to documents.[13] Relevantly, access may be refused where disclosure would, on balance, be contrary to the public interest.[14] How is the balance of the public interest determined? Schedule 4 to the RTI Act sets out non-exhaustive lists of factors that may be relevant to deciding the balance of the public interest.[15] The Act also explains the steps that a decision-maker must take in deciding the public interest. To decide whether disclosure of the information in issue would be contrary to the public interest, I must:[16] identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information, on balance, would be contrary to the public interest. Where does the balance of the public interest lie in this matter? I am satisfied that disclosure of the information in issue would not, on balance, be contrary to the public interest for the reasons that follow. I have examined the irrelevant factors in schedule 4 of the RTI Act and do not consider that any irrelevant factors arise here. I consider that 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[17] I am satisfied disclosure of the information in issue could reasonably be expected[18] to promote open discussion of public affairs and enhance the Government’s accountability. The information in issue comprises letters outlining breaches of the Food Act, an Improvement Notice relating to the food business issued under the Food Act and letters and accompanying documents outlining breaches of the Environmental Protection Act. Disclosure of this information will advance this public interest factor, by allowing the community to have a greater understanding of the way in which Council performs the significant regulatory functions conferred on it by both Acts, and enhancing Council’s accountability for specific decisions and actions taken in discharge of those functions. The food business disputes the application of this public interest factor. The food business essentially argues[19] that as the information concerns the application and enforcement of the relevant legislation in a discrete context, that is, as against the food business (rather, presumably, than comprising an overview of the Council’s regulatory activities in this regard) public scrutiny of Council would not be enhanced by disclosure of the information in issue. Alternatively, the food business contends any scrutiny of Council (in contrast to the food business itself) would be minimal and that accordingly the factor should be afforded little weight. I reject this submission insofar as it argues that the factor does not arise at all for consideration. As noted above, I am satisfied disclosure could reasonably be expected to arm the community with information sufficient to allow it to consider and discuss the Council’s discharge of specific regulatory functions and powers, and enhance the Council’s accountability for its actions in that regard. That the information relates to the exercise of such powers in a discrete context – that is, as against the food business – in my view only serves to advance this public interest further, by permitting community insight into the practical manner in which such powers are actually exercised – a case study, in effect, of the enforcement of the relevant regulatory frameworks. This will allow the public to ‘see’ and discuss how Council has discharged its responsibilities in relation to the food business. As releasing the information in issue could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability, I now consider the weight to be attributed to these factors. The Food Act is intended to ensure that food is safe and suitable for human consumption, to prevent misleading conduct relating to the sale of food, and to apply the food standards code.[20] The object of the Environmental Protection Act is to protect Queensland’s environment.[21] These objectives are achieved by, among other things, charging local Councils with obligations to monitor and enforce compliance with the Food Act and parts of the Environmental Protection Act. [22] Council performs an important function under the Food Act in regulating food businesses to ensure that food is handled and prepared in a way that does not jeopardise consumer health. Council also performs an important public safety function under the Environment Act by ensuring that businesses comply with environmental safety standards. Each are significant regulatory responsibilities, the adequate discharge of which has a significant role to play in protecting individual and community health and welfare. Contrary to the food business’ submissions, I do not consider public scrutiny of the Council’s regulatory performance will be minimal, but will in fact be increased, both by consideration of the Council’s actions as described in the information in issue, and by drawing attention to its ongoing monitoring of food safety and environmental compliance. Given the above, I am satisfied that: allowing members of the community to examine and discuss, and enhancing the Council’s accountability for, performance of its regulatory functions are in this context public interest factors deserving of significant weight. Revealing environmental or health risks or measures relating to public health and safety[23] I am satisfied that disclosure of the information in issue could reasonably be expected to reveal environmental or health risks or measures relating to public health and safety. The food business submits[24] that disclosure of the information in issue could not reasonably be expected to reveal environmental or health risks because the information in issue: ...relates to reviews which happened many months ago where review matters raised and action requests have been answered and where there currently exists no outstanding action.[25] This is a submission essentially going to the weight of the relevant public interest factor, rather than challenging whether it arises for consideration in this review. I have considered weight below. However, insofar as the food business submits the factor does not arise, I note that the wording of the factor is not temporally qualified, that is, it does not strictly require disclosure of ‘current’ or ‘present’ health risks, but simply the revelation of ‘environmental or health risks’. Disclosure of the information in issue would appear to achieve this end, discussing as it does breaches of public health and environmental obligations. In any event, the factor will also be enlivened where disclosure of relevant information could reasonably be expected to reveal measures relating to public health and safety; the information in issue reveals various actions taken by the Council – monitoring, auditing, recommending or requiring remedial action – steps which can only be described as public health and safety measures. I am therefore satisfied the factor arises for consideration. I accept, however, that the information is relatively old and note that the issues raised by the Council have since been addressed by the food business. Given disclosure of the information would not, therefore, reveal an immediate or ongoing environmental or health risk, I consider the weight to be attributed to this factor is low. Safe, informed and competitive markets In Seven and Redlands, I noted the public interest in safe, informed and competitive markets. I remarked that competitive markets require both multiple participants and informed consumers. I recognised a public interest in disclosing information where that disclosure could reasonably be expected to inform consumers about the marketplace – including particular participants in a specific market – so as to empower consumers to make more informed decisions about such participants, their products and their services.[26] As in Seven and Redlands, the food business in this case contends that this factor is not listed in Schedule 4 to RTI Act, and therefore I cannot rely on it. Further, the food business argues any public interest in competitive and informed markets is the responsibility of organisations such as the Australian Competition and Consumer Commission, not decision-makers applying the RTI Act.[27] I addressed these submissions in Seven and Redlands at paragraphs 35-36 and found that I was not precluded from considering this factor in that review. For the same reasons I am satisfied that I can consider whether the factor arises in this case. Similarly, I consider the factor does actually arise, as it did in Seven and Redlands, for consideration in this case. The information on its face comprises technical data and/or conclusions based upon that data as formed by qualified officers with appropriate competence. Disclosing the information would provide the community with sound empirical information detailing key aspects of the food business’ compliance history, operations and performance as they relate to the safe handling and production of food and observance of environmental obligations. As I said in Seven and Redlands, this will, in turn, give consumers a more informed understanding of how the food business discharges its public health and environmental responsibilities and risks relevant to individual purchasing decisions. As to weight, I consider this public interest factor merits considerable weight in the circumstances of this case. Disclosure of the information in issue will increase considerably the information available to consumers, and will therefore significantly advance the public interest in informed and transparent markets. Additionally, disclosure will notify the food business and others within the industry that information relating to the way they meet their obligations under the Food Act and the Environmental Protection Act is open to public exposure, which of itself could reasonably be expected to increase compliance in the food services industry generally, and lead to a concomitant reduction in public health issues.[28] In view of the above, I am satisfied that significant weight should be attributed to this public interest factor. Factors favouring nondisclosure Prejudice the business, commercial or financial affairs of an entity or a person The food business submits that releasing the information in issue could reasonably be expected to prejudice its privacy and business affairs.[29] There is a public interest in nondisclosure of information where its release could reasonably be expected to prejudice the private, business, commercial or financial affairs of persons or entities.[30] The reference to ‘private’ in the context of a nondisclosure factor aimed at otherwise avoiding business or commercial prejudice to an ‘entity’ is somewhat incongruous, given the common understanding of privacy as a human right limited to natural persons.[31] However, the reference to ‘private’ in this context does make sense if seen as a reference to an increase of scrutiny or public attention. In this sense, I accept that disclosing the information in issue could reasonably be expected to prejudice the food business’ commercial reputation by revealing its identity in connection with food and environmental safety audit findings. This is likely to increase public scrutiny of the food business, thus potentially impairing its business or commercial affairs. I also accept that given the information in issue relates to breaches by the food business of the Food Act and the Environmental Protection Act, disclosure could reasonably be expected to prejudice the business affairs of the food business, by, for example, damaging the food business’ reputation and possibly deterring existing or potential customers from patronising the business. As I am satisfied these factors apply, I must consider the extent of the prejudice and therefore the weight to be attributed to these factors. In this case, I consider the age of the information, and the fact that the food business has subsequently addressed the various issues canvassed in the information and performed satisfactorily in later audits (information which, as noted in Seven and Redlands, it is open for the food business to disclose and publicise) are such that any prejudicial effect that may now flow from disclosure of the information would be moderate. I also note my discussion at paragraphs 56-61 in Seven and Redlands of the possible prejudice flowing from ‘piecemeal’ disclosure under the RTI Act compared with publication under systematic ‘name and shame’ schemes such as that operating in New South Wales. As explained in Seven and Redlands, it is my understanding the food business contends that, given the difference between regulatory regimes, disclosure of the information in issue under the RTI Act is not equivalent to ‘naming and shaming’ under such schemes, and would therefore be ‘unfair’, imposing on the food business a greater level of prejudice. As in Seven and Redlands, I am satisfied that, while differences exist, relevant information disclosed in each case either comprises information recorded by authorised officers who have formed a reasonable belief as to the commission of an offence under the particular Act, or technical information relating to waste water levels on which such beliefs are based. I am not satisfied the level of prejudice flowing from disclosure of this type of information under the RTI Act would be any higher, and accordingly, do not consider this submission of itself warrants attribution of any additional weight to the relevant nondisclosure factors. In this regard, I afford these factors moderate weight. Prejudice the effectiveness of testing or auditing procedures[32] A public interest factor favouring nondisclosure will arise for consideration where disclosure of the information could reasonably be expected to prejudice the effectiveness of testing or auditing procedures. The food business listed this factor in their original submission to Council objecting to disclosure of the information in issue. The submission did not, however, contain any supporting evidence or reasoning explaining the application or relevance of the factor in this case. The information in issue does contain some audit material, in the form of standard forms completed by Council auditors during inspections under the Food Act. There is nothing on the face of that information, or otherwise before me, to suggest that its disclosure could reasonably be expected to prejudice the effectiveness of relevant audit processes. The material is routine in nature and follows the general requirements of the Food Act. Importantly, Council obviously saw no risk of prejudice to its audit procedures, as it decided to disclose the information. In the circumstances, I am satisfied the factor does not arise for consideration in this case (and it therefore obviously deserves no weight). Conclusion – balancing competing public interest factors I have identified four factors favouring disclosure of the information in issue and two factors favouring nondisclosure. Of the factors favouring disclosure, I consider that the public interest in revealing health risks should in the circumstances of this case be afforded marginal weight (due to the age of the relevant information). However, I consider that the public interest in enhancing Council’s accountability, promoting public discussion about the way in which Council performs its roles under the Food Act and the Environmental Protection Act, and having safe, informed and competitive marketplaces should each be afforded significant weight. Weighing against these public interests is the public interest in avoiding prejudice to the food business’ commercial and business affairs. I consider that these nondisclosure factors should be afforded moderate weight, and do not outweigh the factors favouring disclosure discussed above. I am therefore satisfied that disclosure of the information in issue would not, on balance, be contrary to the public interest. The applicant is therefore entitled to access the information, in accordance with the right of access conferred by section 23 of the RTI Act. DECISION I affirm Council’s decision to grant access to the information in issue and find that disclosure would not, 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 145 of the Right to Information Act 2009 (Qld). ________________________ Jenny Mead Right to Information Commissioner Date: 14 September 2011 APPENDIX Significant procedural steps Date[33] Event 15 March 2010 Seven Network applied to Gold Coast City Council (Council) under the RTI Act for documents about failed health and safety audits in relation to a food business. 20 May 2010 Council consulted the food business regarding the release of the information requested by the applicant. 31 May 2010 The food business responded objecting to release of the information requested by the applicant. 17 June 2010 Council issued its decision (access decision). 15 July 2010 The food business applied to Council for internal review of the access decision. 4 August 2010 Council’s issued an internal review decision affirming the access decision. 1 September 2010 The food business applied to the Office of the Information Commissioner (OIC) for an external review of Council’s access decision. 24 September 2010 OIC informed Council and the food business that the application had been accepted for external review. 21 April 2011 OIC conveyed a written preliminary view the food business and invited it to provide submissions in support of its’ case it did not accept the preliminary view. 20 May 2011 OIC received submissions from the food business in response to the preliminary view. 28 July 2011 Seven Network indicated that it would like to be included as a third party in the review. [1] As the name of the food business forms part of the information in issue, I cannot reveal it in this decision. See section 108(3) of the Right to Information Act 2009 (Qld) (RTI Act). [2] Council’s decision dated 17 June 2010. [3] In a decision dated 4 August 2010. [4] The food business in this review is the same entity which participated as a third party in the external review the subject of my recent decision Channel Seven and Redland City Council (Unreported, Queensland Information Commissioner, 30 June 2011) (Seven and Redlands). The food business has made identical submissions on the public interest in this review as in Seven and Redlands. Therefore, much of my reasoning in Seven and Redlands is applicable in this case, and is referred to as relevant throughout these reasons. [5] In accordance with the right of access contained in section 23 of the RTI Act.[6] Issued under section 209 of the Food Act 2006 (Qld). [7] In its’ submission to Council dated 31 May 2010. [8] Section 24(2)(b) of the RTI Act.[9] For the principles applicable to the interpretation of access applications see Cannon v Australia Quality Egg Farms Ltd [1994] QICmr 9; (1994) 1 QAR 491 at paragraph 10. [10] See Wenzel and Secretary, Department of Defence [2005] AATA 1174 at paragraph 9. [11] This information appears in the information in issue in a letter dated 22 September 2009. The applicant confirmed this on external review in a telephone discussion on 28 July 2011.[12] Section 23 of the RTI Act.[13] As set out in section 47 of the RTI Act. [14] Sections 44, 48 and 49 of the RTI Act. For a brief overview of the concept of the ‘public interest’, see Seven and Redlands, paragraph 13. [15] The applicant's submissions to Council objecting to disclosure of the information in issue dated 31 May 2010 also note an ‘expectation’ that matter such as that in issue would ‘retain [its] confidential and private nature' so as to ensure, in essence, frank dealings between entities such as the food business and regulatory authorities such as the Council. It is arguable a submission of this kind could be construed as seeking to raise additional nondisclosure factors regarding confidential information and preserving the flow of information to government. I have not considered those factors in this case because the food business did not expressly seek to raise them and has provided no information either to Council or on external review to substantiate any such claims. In any case, Council has mandatory powers under the relevant Acts. Businesses must cooperate with Council investigators or face a penalty. In these circumstances, there can be no expectation of confidentiality nor prejudice to the future supply of like information to Council. [16] Section 49(3) of the RTI Act. [17] Schedule 4, part 2, item 1 and item 2 of the RTI Act. [18] Noting that the phrase ‘could reasonably be expected to’ requires an expectation that is reasonably based, ie. neither absurd, irrational or ridiculous: see my decision in Seven and Redlands at paragraph 20 for a contemporary restatement of principles applying to the interpretation of this phrase as it used throughout the RTI Act.[19] As it did in Seven and Redlands: see paragraph 21-22 of that decision for the full text of the food business’ submissions dated 20 May 2011 in this regard.[20] See section 8 of the Food Act. [21] Section 3 of the Environmental Protection Act.[22] In this case, parts to do with the regulation of wastewater – see Part 3C of the Environmental Protection Act. [23] Schedule 4, part 2, item 14 of the RTI Act. [24] Food business’ submission to Council dated 31 May 2010. [25] Food business’ submission to Council dated 31 May 2010. [26] Seven and Redlands at paragraph 33. [27] Food business’ submission to OIC dated 20 May 2011.[28] In this regard I note the comments of Consumer Focus UK and the study of health inspection scoring in Los Angeles County discussed and relied on by me in Seven and Redlands: see paragraph 45 and note 36 of that decision.[29] Certain of the documents in issue contain a small amount of personal information concerning an employee of the food business. The applicant indicated during the course of this external review it did not seek access to this information, and it is no longer in issue. It is therefore unnecessary to consider the personal information and personal privacy nondisclosure factors contained in the RTI Act.[30] Schedule 4, part 3, item 2 and the substantially similar item 15 of the RTI Act., which was also cited by the food business. This latter factor also encompasses prejudice to ‘trade secrets’ and ‘research’; the food business simply cited the factor without supporting argument or evidence; given the information in issue cannot be characterised as either a trade secret or research, I assume the food business relies on this factor in support of its claim disclosure of the relevant information will prejudice its business affairs.[31] An understanding restated with some emphasis by the Australian Law Reform Commission in its relatively recent review of Australian privacy law and practice, ‘For your information: Australian Privacy Law and Practice’, Report No. 108. 11 August 2008. In considering the extension of the Commonwealth Privacy Act 1988 to corporate and commercial entities, the Commission stated that it was ‘not appropriate to extend privacy protection to corporations and other commercial entities Extending the protection of a human right to an entity that is not human is inconsistent with the fundamental approach of Australian privacy law.’: at paragraph 7.58.[32] Schedule 4, part 3, item 21 of the RTI Act. [33] Of correspondence or relevant communication unless otherwise stated.

queensland

court_judgement

Queensland Information Commissioner 1993-

Serratore and Department of Transport and Main Roads [2013] QICmr 27 (10 September 2013)

Serratore and Department of Transport and Main Roads [2013] QICmr 27 (10 September 2013) Last Updated: 7 August 2014 Decision and Reasons for Decision Application Number: 311428 Applicant: Serratore Respondent: Department of Transport and Main Roads Third Parties: Queensland Rail Crown Law Decision Date: 10 September 2013 Catchwords: ADMINISTRATIVE LAW – INFORMATION PRIVACY ACT – REFUSAL OF ACCESS – EXEMPT INFORMATION – applicant seeks access to correspondence created or received by certain employees of an agency and correspondence between the agency’s Legal Services and third parties – whether the information would be privileged from production in a legal proceeding on the ground of legal professional privilege – section 67(1) of the Information Privacy Act 2009 (Qld) and section 47(3)(a) and schedule 3, section 7 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Department of Transport and Main Roads (Department) under the Information Privacy Act 2009 (Qld) (IP Act) for access to documents created or received by certain officers of the Department and communications between the Department’s Legal Services, Queensland Rail (QR) and Crown Law[1] between 1 April 2009 and 11 December 2012. The Department located 246 pages and, after consulting[2] with QR and Crown Law, decided to refuse access to 48 full pages and 35 part pages on the basis that the information was exempt from disclosure on the grounds of legal professional privilege. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision to refuse access to information. As a result of further searches, the Department located an additional 13 pages and agreed to release those pages to the applicant, subject to the deletion of irrelevant information. The Department also agreed to release some further information to the applicant which the Department had previously found to be exempt.[3] OIC consulted QR and Crown Law; they did not object to the release of this further information. The Department’s decision is varied by finding that access to the remaining information in issue can be refused as it would be privileged from production in a legal proceeding on the ground of legal professional privilege. 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 decision dated 21 February 2013. 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 remaining under consideration in this external review consists of 3 full pages and 57 part pages (Information in Issue). Relevant law Under the IP Act, a person has a right to access documents of an agency[4] subject to other provisions of the IP Act and the Right to Information Act 2009 (Qld) (RTI Act) including grounds on which an agency may refuse access to documents. 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, the RTI Act provides that access may be refused to documents to the extent that they comprise exempt information.[5] Schedule 3, section 7 of the RTI Act provides that information will be exempt from disclosure if it would be privileged from production in a legal proceeding on the ground of legal professional privilege. It is well settled law 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; or, for use, or obtaining material for use, in legal proceedings that have commenced, or were reasonably anticipated, at the time of the relevant communication.[6] The privilege also extends to any document which directly reveals, or which allows a reader to infer, the content or substance of a privileged communication.[7] However, it will not attach to administrative advice.[8] Findings Does the Information in Issue attract legal professional privilege? Yes, for the reasons that follow. The Information in Issue is communications between the Legal Services Unit of the Department, QR and/or Crown Law which are about infrastructure projects being conducted jointly by the Department and QR.[9] The applicant submits:[10] ... I genuinely believe the subject documents were not created for the dominant purpose of seeking advice on behalf of the Department. These documents were created by the Department's in-house lawyers for administrative purposes only and the information sought directly relates to me (the applicant). No particular or specific legal advice was being sought on behalf of the Department and accordingly, I submit that these documents should be produced in its original and clean format. I have considered the Information in Issue.[11] I am satisfied that the communications were confidential communications made for the dominant purpose of seeking or giving legal advice in relation to major infrastructure or are of such a nature as would allow the reader to infer the content of substance of other privileged communications. Information of an administrative nature has been released to the applicant by the Department and does not form part of the Information in Issue. I am also satisfied that the legal officers involved in the communications have the necessary degree of independence required to attract legal professional privilege. The applicant was the author or recipient of some of the Information in Issue in her then capacity as a dedicated legal officer from Crown Law placed with the Department or upon her return to Crown Law following the cessation of the placement. I am satisfied that the applicant was in a position of providing legal services to the Department in those capacities. Accordingly, the Information in Issue attracts legal professional privilege. Does an exception to legal professional privilege apply? No, for the reasons that follow. There are two exceptions to legal professional privilege. The first exception is where a client waives privilege in relation to a privileged communication. In that circumstance the communication is no longer subject to legal professional privilege, and consequently, is no longer exempt from disclosure.[12] Privilege will be waived where there is conduct on the part of the client (in this case, the Department) which is inconsistent with the maintenance of privilege over a communication.[13] The applicant submits[14] that as she was the author of the documents and/or she was aware of the content of the documents, legal professional privilege would not apply presumably because she believes that the documents are not confidential to her. The duty of confidentiality is owed by the lawyer to the client. Privilege belongs to the client (in this case, the Department) and only the client can waive legal professional privilege. As the applicant is no longer a dedicated legal officer placed with the Department, her involvement with these matters has ceased. However, the applicant continues to owe a duty as a lawyer, and as a former employee of the Department, to maintain confidentiality in relation to matters she gained knowledge of as a part of her duties as an employee of or engaged by the Department. The applicant has not sought access to the Information in Issue in the capacity of a legal advisor acting for the Department. Rather, she is seeking access to the Information in Issue in her private capacity. If the Department had given the Information in Issue to the applicant in these circumstances, I am satisfied that such action would be considered to be a waiver of legal professional privilege. In this case, there is no evidence of such conduct on the part of the Department and I am satisfied the communications contained within the Information in Issue remain confidential. The second exception is where a communication is made in furtherance of an improper purpose, a crime, or fraud, privilege cannot be maintained in respect of the communication.[15] There is no material before me which would suggest the Information in Issue was created in furtherance of an improper purpose, a crime, or fraud. Accordingly, I consider that none of the exceptions apply to the Information in Issue. Conclusion I am satisfied that the Information in Issue attracts legal professional privilege and none of the exceptions to legal professional privilege apply to the Information in Issue. Accordingly, I find that the Information in Issue is exempt from disclosure on the basis that it would be privileged from production in a legal proceeding on the ground of legal professional privilege. DECISION I vary the Department’s decision dated 21 February 2013 by finding that the Department is entitled to refuse access to the Information in Issue pursuant to section 67(1) of the IP Act and section 47(3)(a) and schedule 3, section 7 of the RTI Act. I have made this decision as a delegate of the Acting Information Commissioner, under section 139 of the IP Act. ________________________ Assistant Information Commissioner Corby Date: 10 September 2013APPENDIX Significant procedural steps Date Event 11 December 2012 The Department receives the access application. 10 January 2013 The application becomes valid. 21 February 2013 The Department issues its decision. 18 March 2013 OIC receives the applicant’s request for external review. 3 April 2013 OIC informs the applicant and the Department that the external review application has been accepted. 18 April 2013 OIC conveys a view to the applicant that the Department is entitled to refuse access on the basis that the information is subject to legal professional privilege. The applicant is invited to provide a submission if she does not accept the view. 2 May 2013 The applicant provides a submission and questions the sufficiency of searches conducted by the Department. OIC requires the Department to conduct further searches for documents responding to the access application. 9 May 2013 The Department advises that a further 13 pages had been located. The Department agrees to release this information to the applicant subject to the deletion of information which is irrelevant to the access application. 16 May 2013 OIC conveys a view to the applicant that the Department has taken all reasonable steps to locate documents which respond to her sufficiency of search issues and access to further documents can be refused on the basis that they are nonexistent or unlocatable. The applicant is invited to provide a submission if she does not accept the view. 30 May 2013 The applicant provides a further submission. 14 June 2013 OIC conveys a view to the Department that some of the information can be released to the applicant as it does not comprise confidential communications made for the dominant purpose of seeking or obtaining legal advice, rather it is information which is administrative in nature. The Department is invited to make a submission if it does not accept the view. 3 July 2013 The Department provides a submission accepting the majority of OIC’s view and submits that some further information is subject to legal professional privilege. The Department also requests that OIC consult with QR and Crown Law. 12 July 2013 OIC consults with QR and Crown Law and invites them to provide a submission if they do not accept OIC’s view. 22 July 2013 QR advises OIC that it does not object to release of the further information proposed for release. 30 July 2013 Crown Law advises OIC that it does not object to release of the further information proposed for release. [1] Crown Law is a business unit of the Department of Justice and Attorney-General and is a principal provider of legal services to the Queensland Government.[2] Under section 56 of the IP Act.[3] By letter dated 3 July 2013.[4] Section 40 of the IP Act.[5] Section 47(3)(a) of the RTI Act. [6] Esso Australia Resources Ltd v Commission of Taxation [1999] HCA 67; (1999) 74 ALJR 339.[7] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 569 (Propend); AWB v Cole (No.1) (2006) 152 FCR 382, 417 [132].[8] Waterford v Commonwealth [1987] HCA 25; (1986) 163 CLR 54, 77, 85.[9] In the circumstances of this matter, common interest privilege arises as the Department and QR have a shared or similar interest in the subject of the communications between one or more of them and Crown Law. For a decision on common interest privilege, see Rich V Harrington [2007] FCA 1987.[10] Submission dated 30 May 2013.[11] I am unable to discuss the content of the information in detail without revealing information that is claimed to be exempt information – see section 121(3) of the IP Act.[12] Osland v Secretary, Department of Justice (2008) 234 CLR 275, 287 (Osland).[13] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, Osland.[14] In a telephone discussion with an officer of the Department on 25 January 2013. [15] Propend.

queensland

court_judgement

Queensland Information Commissioner 1993-

Cherry and Department of Justice and Attorney-General [2021] QICmr 26 (4 June 2021)

Cherry and Department of Justice and Attorney-General [2021] QICmr 26 (4 June 2021) Last Updated: 19 August 2021 Decision and Reasons for Decision Citation: Cherry and Department of Justice and Attorney-General [2021] QICmr 26 (4 June 2021) Application Number: 315260 Applicant: Cherry Respondent: Department of Justice and Attorney-General Decision Date: 4 June 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - personal information of other individuals, including deceased persons - safeguarding personal information and the right to privacy of other individuals - avoiding prejudice to flow of information to law enforcement agencies - whether disclosure would, on balance, be contrary to the public interest - section 47(3)(b) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary 1. The applicant applied[1] to the Department of Justice and Attorney-General (the Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to witness statements ‘tendered or referred to’ during the committal and trial of the applicant for the murder of two individuals to whom he was related.[2] 2. The Department located various witness statements relevant to the access application. By decision dated 26 February 2020, the Department decided[3] to: refuse to deal with the access application, insofar as it sought access to 75 pages of witness statements, on the basis these statements were the subject of a previous application for the same documents (Category 1 Information); and refuse access to 297 full pages and parts of 43 pages, on the ground disclosure of this latter information would, on balance, be contrary to the public interest (Category 2 Information). 3. By application dated 4 March 2020,[4] the applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision.[5] 4. During the review, I accepted submissions from the applicant[6] that his access application was not a previous application for same documents subject to the application of section 43 of the RTI Act, to the extent it requested access to the Category 1 Information. I advised the Department of my view in this regard,[7] which it did not contest.[8] 5. The consequence of the above is that no grounds exist to refuse to deal with that part of the applicant’s access application that seeks access to the Category 1 Information. For the reasons set out below, however, I find that: Access to those pages of the Category 1 Information to which the applicant continues to seek access[9] may, however, be refused, on the ground that disclosure would, on balance, be contrary to the public interest. Access may also, as the Department decided, be refused to the Category 2 Information, on the same grounds. Background 6. Significant procedural steps are set out in the appendix to this decision. Reviewable decision 7. The decision under review is the Department’s decision dated 26 February 2020. Evidence considered 8. Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). 9. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[10] A decision maker will be ‘respecting, and acting compatibly with’ that right and others prescribed in the HR Act when applying the law prescribed in the Information Privacy Act 2009 (Qld) (IP Act) and RTI Act.[11] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[12] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[13] 10. The applicant’s submissions[14] refer to section 59(2) and (4) of the HR Act. Respectively, these provisions note that a person can seek relief regarding the unlawfulness of a public entity’s conduct under section 58 of the HR Act even if the other cause of action on which that action is ‘piggybacked’ is unsuccessful; and that section 59 does not affect the person’s right to seek other relief regarding a public entity’s conduct, including judicial review and declaratory remedies. While these provisions clarify avenues for relief, they have no bearing on the operation of section 58 of the HR Act itself – which, as noted above, I have acted in accordance with in making this decision. Information in issue 11. The ‘information in issue’ comprises the 42 pages of Category 1 Information to which the applicant continues to seek access,[15] and all of the Category 2 Information:[16] in total, 339 full pages and 43 part pages of various witness statements. Issue for determination 12. The issue for determination in this review is whether disclosure of the information in issue would, on balance, be contrary to the public interest. Relevant law 13. Under the RTI Act, a person has a right to be given access to documents of an agency.[17] This right is, however, subject to limitations, including grounds for refusal of access.[18] Relevantly, access may be refused to documents where disclosure would, on balance, be contrary to the public interest.[19] 14. The RTI Act requires a decision-maker to take the following steps in deciding the public interest:[20] identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure of relevant information balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to the public interest. 15. Schedule 4 to the RTI Act contains non-exhaustive lists of irrelevant factors, and factors favouring disclosure and nondisclosure. I have had regard to the entirety of schedule 4 in reaching this decision, considered whether any other public interest considerations may be relevant,[21] and disregarded irrelevant factors stated in schedule 4, part 1 of the RTI Act. I have followed the steps prescribed in section 49 of the RTI Act, and also kept in mind both the RTI Act’s pro-disclosure bias,[22] and Parliament’s intention that grounds for refusing access to information be interpreted narrowly.[23] Findings Factors favouring disclosure 16. I recognise the general public interest in promoting access to government-held information,[24] and the public interest in: disclosing to a person their own personal information[25] and disclosing to eligible family members personal information of deceased persons.[26] 17. As a general public interest factor, the public interest in advancing access to government-held information warrants a concomitantly ‘general’, or modest, weight. 18. As for the remaining factors identified in paragraph 16, the substance of the information in issue concerns events the subject of committal, trial and appeal proceedings. While I note the applicant’s protestations that he has not had access to this i[27]ormation,27 I am satisfied that he has a more than passing knowledge of matters traversed in this information, as a consequence of his status as defendant and appellant and via the operation of relevant rules of criminal practice and procedure. 19. Given this, I am not persuaded that disclosure to the applicant of the information in issue is likely to significantly enhance his knowledge or comprehension of the events to which it relates. Accordingly, I attribute only moderate weight to each factor. 20. In conducting this review, I originally considered that several ‘administration of justice factors’[28] and considerations[29] may apply to favour release of information to the applicant.[30] However, having had the opportunity to further consider the information in issue, and the applicant’s submissions, my view now is that none of these factors apply to favour disclosure of any of the information in issue. There is, in short, no probative material before me justifying the application of any of these considerations. 21. The applicant speculates that the information in issue may contain exculpatory information, disclosure of which may assist him in pursuing an application for special leave to appeal to the High Court, a re-opening of a coronial inquest into the death of one of the persons for whose murder he was convicted, or a possible pardon.[31] I can, however, identify nothing in the information in issue – all of which, as I understand, existed at the time of the applicant’s trial and subsequent appeal against conviction – which might assist the applicant in any of these endeavours. 22. Nor can I identify any objective material tending to substantiate his related avowals that he has been denied fair treatment,[32] or subject to a maladministration of the law. Further, in terms of the applicant’s submissions about the denial of his right to liberty, I am unable to identify any objective material to indicate that he has been deprived of liberty other than on grounds, and in accordance with procedures, established by law.[33] On the contrary, I note that the applicant was convicted following a lawful trial, an appeal against which was subsequently dismissed.[34] 23. Additionally, there is no aspect of the criminal law, enforcement of which could reasonably be expected[35] to be aided by disclosure to the applicant of the statements of others.[36] 24. None of these administration of justice factors or considerations operate to favour disclosure of the information in issue. Factors favouring nondisclosure 25. As for factors favouring nondisclosure, the information in issue comprises both the personal information of the individuals who made relevant statements, and others the subject of those individuals’ statements: including the individuals in relation to whose deaths the applicant was convicted.[37] This information contains sensitive private information about others’ personal circumstances, such as their daily activities, expressions of emotion and feelings. Given the very sensitive and private nature of the information discussed, my view is that the public interest harm resulting from unrestricted disclosure[38] of this personal information would be significant.[39] 26. A public interest factor favouring nondisclosure will arise if disclosing information could reasonably be expected to prejudice the protection of an individual’s right to privacy.[40] An additional factor favouring nondisclosure arises 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.[41] 27. The information in issue concerns sensitive information about traumatic events affecting the lives of those giving the statements,[42] and those the subject of those statements, including the applicant’s deceased wife and stepdaughter. I am satisfied relevant information comes well within the personal sphere of those involved – including the deceased eligible family members – such that disclosure could, as the case may be, reasonably be expected to prejudice protection of an individual’s right to privacy or impact on the deceased person’s privacy if the deceased person were alive. 28. The two nondisclosure factors identified in paragraph 26 therefore also apply to favour nondisclosure of the information in issue. 29. The applicant submits[43] ‘[n]o statement that I have requested can expose the identity of the provider/witness of that statement because I have provided the identity of that provider/witness’. The statements comprising the information in issue do not convey just the identities of the relevant individuals; rather, they convey those individuals’ recollections regarding particular events. Even so, I acknowledge that the applicant has or had knowledge of much of the information in issue as a consequence of his central role in relevant criminal proceedings – which proceedings, the events giving rise to them, and witnesses’ recollections of those events – were also the subject of contemporaneous media coverage. These considerations attenuate the very substantial privacy interests that might ordinarily affix to personal information of the kind in issue. 30. The applicant also submits[44] ‘[t]he right to privacy today is as equal to the privacy surrendered by each witness when they gave the statement when the cause of that statement would have been identified to them.’ It is my understanding that the applicant contends that each individual who provided a statement ‘surrendered’ their privacy, and presumably the privacy of other individuals referred to in their statement, because they would have been made aware of ‘the cause of that statement’. It is reasonable to expect that the individuals in question provided their statements in the knowledge that they may be used in an investigation, and possibly a prosecution. This, however, cannot be equated with the individuals giving up for all time their right to privacy regarding the statements. 31. More than two decades have now passed since relevant proceedings and media coverage, such that I think it reasonable to consider the privacy interests attaching to the statements in issue have gained potency or strengthened somewhat in the many years between then and today. On the other hand, as noted above, I recognise that the use of the statements in the proceedings, and the applicant’s (and others) consequent knowledge of information in those statements, somewhat attenuates the very substantial privacy interest that generally attaches to such sensitive personal information. 32. I am satisfied that the extent to which the statements were used does not, however, attenuate that privacy interest to any significant degree – or if it did, then, as noted above, my view is the effluxion of time between that use and today has substantially restored that interest. Given the sensitive nature of the information in the statements and the traumatic events they record, I am satisfied that these interests are only minimally reduced and remain significant. Accordingly, the public interest in avoiding prejudice to the protection of the privacy of others, both living and deceased, should be afforded substantial weight. 33. Much of the information in issue comprises information provided to the Queensland Police Service (QPS) by members of the public. A public interest factor favouring nondisclosure arises if disclosing information could reasonably be expected to prejudice the flow of information to a law enforcement or regulatory agency.[45] 34. There is a strong public interest in protecting the free flow of information to regulatory and enforcement agencies such as QPS, to enable them to fulfil their functions, particularly in respect of issues regarding public safety. Such information is often provided in the expectation it will be treated as confidential and be used only for the purpose of enforcing the law and protecting public safety. Routinely disclosing such information would tend to discourage individuals from coming forward with such information if they believe their personal information will be released. As such, I do not consider it irrational, absurd, remote or fanciful to expect that disclosing the information may deter others from supplying similar information to QPS in the future. This in turn would significantly prejudice QPS’s ability to effectively discharge its law enforcement functions, for example, the investigation of serious crimes. 35. Given, however, the age of the information in issue, the fact that, as noted, it (or at least its substance) has been the subject of criminal court proceedings, and the general preparedness of many in the community to assist law enforcement in the investigation of serious crimes such as those of which the applicant was convicted, I do not wish to overstate the extent of this specific prejudice. I therefore afford it only moderate weight in balancing the public interest. Public interest balancing 36. As discussed above, in my view the only considerations favouring disclosure of the information in issue are the general public interest in promoting access to government-held information, and, as regards some of the information in issue, the public interest in disclosing to an individual their own personal information and the personal information of a deceased family member. As noted, I afford these considerations moderate weight. 37. These pro-disclosure considerations are comfortably displaced by the strong public interest in safeguarding personal information[46] and protecting individual privacy (including the privacy of deceased persons): considerations of themselves sufficient, in my view, to tip the balance of the public interest in favour of nondisclosure. As noted, I afford these considerations significant weight. To these, however, may also be added the – in this case – moderately-weighted public interest in preserving the flow of information to law enforcement agencies. 38. There is a clear public interest in ensuring that government protects privacy and treats with respect the personal information it collects from members of the community.[47] This is particularly so in relation to information collected in a police investigation of very serious criminal offences. 39. Further, an important principle underpinning both the RTI Act and the IP Act is that individuals should have a measure of control over their own personal information, and, by extension, an access applicant should not be put in a position to control dissemination of the personal information of other individuals, unless the balance of the public interest requires otherwise in the circumstances of a particular case. Disclosure to the applicant of the personal information in issue in this case would prejudice that control, in circumstances where there are insufficient reasons to justify such prejudice. 40. In the circumstances, my view is that disclosure of the information in issue would, on balance, be contrary to the public interest. Access to that information may therefore be refused.[48] Applicant’s submissions 41. The substance of the reasoning at paragraphs 16-40 was conveyed to the applicant by way of my letters dated 16 October 2020 and 23 April 2021. 42. The applicant’s submissions in reply[49] (to the extent they remain relevant)[50] largely comprise assertions as to his innocence, seek to revisit other issues determined at trial (and on appeal),[51] and/or to agitate forensic and evidentiary matters. 43. These are, in the main, matters well outside my jurisdiction; to the extent they do bear on public interest considerations within my authority to consider, I have addressed them above. 44. Finally, in submissions dated 10 November 2020 the applicant indicated that if refused access to the information in issue under the RTI Act, he would nevertheless explore alternative avenues. As I advised the applicant in my reply dated 23 April 2021, that is entirely a matter for the applicant, and of no relevance to the issues I am required to determine in this review. DECISION 45. I vary that part of the Department’s decision refusing to deal with part of the access application under section 43 of the RTI Act, and find instead that access to relevant information[52] may be refused under section 47(3)(b) of the RTI Act, on the ground that disclosure would, on balance, be contrary to the public interest. 46. I otherwise affirm the Department’s decision to refuse access and find that the balance of the information in issue, on the same ground; ie that disclosure would, on balance, be contrary to the public interest. 47. 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 RickardAssistant Information CommissionerDate: 4 June 2021 APPENDIX Significant procedural steps Date Event 11 March 2020 OIC received the applicant’s application for external review dated 4 March 2020. 18 March 2020 OIC requested procedural documents from the Department. 19 March 2020 The Department supplied the requested procedural documents. 27 March 2020 OIC advised the applicant that as a consequence of COVID-19 lockdown measures, staff were working remotely and unable to send correspondence by post. OIC requested the applicant’s agreement to suspension of the external review. 22 April 2020 OIC received a letter from the applicant, agreeing to suspend the external review. 29 April 2020 OIC advised the Department that the applicant’s application for external review had been accepted, and requested a copy of the information in issue and other information. 1 May 2020; 19 May 2020 The Department supplied the requested information. 22 September 2020 OIC advised the applicant and the Department that the review was no longer suspended. 29 September 2020 OIC requested further information from the Department. 14 October 2020 The Department contacted OIC to clarify the status of requested information. 16 October 2020 OIC wrote to the applicant, conveying a preliminary view. 10 November 2020 OIC received submissions from the applicant in reply to OIC’s preliminary view. 23 April 2021 OIC wrote to the applicant and the Department, conveying a further preliminary view. 29 April 2021 The Department advised OIC that it did not wish to make any submissions in reply to OIC’s 23 April 2021 preliminary view. 12 May 2021 OIC received submissions from the applicant, dated 6 May 2021, in reply to OIC’s 23 April 2021 preliminary view. [1] Application dated 19 November 2019.[2] The statements were listed in an annexure to the applicant’s access application.[3] Decision dated 26 February 2020. Under section 43 and sections 47(3)(b) and 49 of the RTI Act respectively. The Department also decided to release 31 pages in full, and refuse access to five witness statements under sections 47(3)(e) and 52(1) of the RTI, on the basis these statements were nonexistent or unlocatable. [4] Received 11 March 2020.[5] In his application for external review, the applicant stated that he did not seek review of the Department’s decision to refuse access to five witness statements under sections 47(3)(e) and 52(1) of the RTI, and I have therefore not addressed that aspect of the Department’s decision in these reasons.[6] Dated 10 November 2020.[7] Email dated 23 April 2021.[8] Email from the Department dated 29 April 2021.[9] In his application for external review, the applicant stated that he did not seek access to the statements of certain individuals that the Department’s decision decided to refuse to deal with under section 43 of the RTI Act. In my letter to the applicant dated 16 October 2020, I noted this advice and identified the statements remaining in issue. These comprise 42 of 75 pages dealt with in this aspect of the Department’s decision.[10] Section 21 of the HR Act. [11] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[12] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic).[13] XYZ at [573].[14] Dated 10 November 2020.[15] See footnote 9.[16] 297 pages and 43 part pages.[17] Section 23(1)(a) of the RTI Act.[18] Section 47 of the RTI Act sets out the grounds on which access may be refused to information.[19] Section 47(3)(b) 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. 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.[20] Section 49 of the RTI Act.[21] Ie, considerations beyond the factors expressly prescribed in the lists stated in schedule 4 of the RTI Act.[22] Section 44 of the RTI Act.[23] Section 47(2)(a) of the RTI Act.[24] Implicit in, for example, the objects of the RTI Act.[25] Schedule 4, part 2, item 7 of the RTI Act. Personal information is ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’: section 12 of the IP Act, schedule 5 of the RTI Act.[26] Schedule 4, part 2, item 9 of the RTI Act. Significant portions of the information in issue comprise information about two persons who are deceased, being the applicant’s wife and stepdaughter. As a spouse and parent of those deceased persons, the applicant is an ‘eligible family member’ within the meaning of the definition stated in schedule 5 of the RTI Act.[27] Submissions dated 6 May 2021, received on 12 May 2021.[28] 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 or conviction access to information that may assist them in mounting a defence or clearing their name: schedule 4, part 2, item 17 of the RTI Act. Similar factors arise for consideration where disclosure could reasonably be expected to enhance the fair treatment of individuals in accordance with the law in their dealings with agencies (schedule 4, part 2, item 10 of the RTI Act), contribute to the administration of justice generally including procedural fairness (schedule 4, part 2, item 16 of the RTI Act), or contribute to the enforcement of the criminal law (schedule 4, part 2, item 18 of the RTI Act).[29] Arguably arising under provisions of the HR Act, such as sections 29(3) and 59.[30] See my letter to the applicant dated 16 October 2020.[31] Submissions dated 6 May 2021, received on 12 May 2021.[32] Noting, again, the fact that the applicant had the opportunity to test relevant matters by way of appropriate appeal processes, which opportunity he pursued.[33] Section 29(3) of the HR Act. [34] R v Cherry [2004] QCA 328 (Cherry).[35] The phrase ‘could reasonably be expected’ requires a decision-maker to distinguish ‘between what is merely possible ... and expectations that are reasonably based’ and for which ‘real and substantial grounds exist’: B and Brisbane North Regional Health Authority [1994] QICmr 1, a decision of the Information Commissioner analysing the equivalent exemption in the repealed Freedom of Information Act 1992 (Qld), at [154]-[160]. Other jurisdictions have similarly interpreted the phrase ‘as distinct from something that is irrational, absurd or ridiculous’: See Smolenski v Commissioner of Police, NSW Police [2015] NSWCATAD 21 at [34], citing Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [28], McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] and Attorney-General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at [190].[36] In this regard, I note the applicant’s submission dated 10 November 2020 contends that police did not act on crucial information conveyed by him. Even if there existed objective material to support these submissions, it is not in any way apparent to me how disclosure to him of information conveyed by others would address his assertions about the manner in which QPS handled a firearm, or his allusion to a failure on QPS’s part to consider a missing individual in its investigations.[37] This information satisfying the definition in section 12 of the IP Act, it being, in short, about individuals whose identity is apparent (or reasonably ascertainable) from the information.[38] As Judicial Member McGill SC recently observed ‘... the effect of the IP Act is that, once information has been disclosed, it comes under the control of the person to whom it has been disclosed. There is no provision of that Act which contemplates any restriction or limitation on the use which that person can make of that information, including by way of further dissemination.’: FLK v Information Commissioner [2021] QCATA 46, [17]. These comments are equally applicable to access obtained via the cognate mechanisms of the RTI Act.[39] Even allowing for considerations discussed below, at paragraph 29.[40] Schedule 4, part 3, item 3 of the RTI Act. The concept of ‘privacy’ is not defined in the IP Act or RTI Act. It can, however, be viewed as the right of an individual to preserve their personal sphere free from interference from others – see the Australian Law Reform Commission’s definition of the concept in “For your information: Australian Privacy Law and Practice” Australian Law Reform Commission Report No. 108 released 11 August 2008, at paragraph 1.56.[41] Schedule 4, part 3, item 5 of the RTI Act.[42] In this regard, I note that certain statements are those of professional law enforcement or forensic officers; while their personal information, I would not wish to contend that events traversed in their statements - generally, professional discharge of duties - traumatised those officers. The statements contain, however, sensitive personal information, including health information, about individuals other than the applicant. [43] External review application at page 11.[44] External review application at page 11. Applicant’s emphasis.[45] Schedule 4, part 3, item 13 of the RTI Act. [46] As I explained to the applicant in my letters dated 16 October 2020 and 23 April 2021, the nature of the information in issue is such that it is not possible to separate his personal information from the personal information of others. Disclosure to him, therefore, of any his own personal information would entail disclosure of the personal information of others, thereby giving rise to a public interest harm.[47] An expectation recognised by Parliament in enacting the IP Act. [48] Under section 47(3)(b) of the RTI Act.[49] Dated 10 November 2020 and 6 May 2021, received 12 May 2021.[50] Noting parts of his 10 November 2020 submissions sought to contest the application of section 43 of the RTI Act (previous application for same documents) to part of his access application, which submissions I, as noted above, accepted.[51] See in this regard the ‘thorough and exhaustive analysis’, to quote McPherson JA at [1], of relevant facts, inferences and conclusions as to criminal responsibility set out in the 30-plus page judgment of Jerrard JA in Cherry, at [4]-[124].[52] Ie, the Category 1 Information discussed above.

queensland

court_judgement

Queensland Information Commissioner 1993-

G46 and Queensland Police Service [2020] QICmr 11 (24 February 2020)

G46 and Queensland Police Service [2020] QICmr 11 (24 February 2020) Last Updated: 12 May 2020 Decision and Reasons for Decision Citation: G46 and Queensland Police Service [2020] QICmr 11 (24 February 2020) Application Number: 314572 Applicant: G46 Respondent: Queensland Police Service Decision Date: 24 February 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO DEAL WITH APPLICATION - SUBSTANTIAL AND UNREASONABLE DIVERSION OF RESOURCES - documents relating to the applicant and their interactions with the agency - whether dealing with the access application would substantially and unreasonably divert agency resources from their use in performing its functions - sections 60 and 61 of the Information Privacy Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act), for the period 1 January 2011 to 20 February 2019, for access to: All ministerial emails and documents about me. All documents, texts and emails about me to or from Gold Coast Bulletin, or any of their staff or other media. All documents and emails about me generated or received or sent by police media officers All emails and documents organised for, searched for and related to my Blue Card application 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 I am a danger to others. My ESC file. All documents and communications about me and my complaints made to Ethical Standards, including all emails and other documents relating to my ESC complaints, and related evidence collected. If complaints were referred to ESC on my behalf such as from CCC or CMC or anyone else, for example, ministers' offices or any public servants or medical staff etc, I would like to have all related documents. QPS decided[2] to refuse to deal with the access application on the basis that dealing with it would substantially and unreasonably divert the resources of QPS from their use in the performance of its functions. The applicant applied[3] to the Office of the Information Commissioner (OIC) for external review of QPS’s decision refusing to deal with the access application. For the reasons set out below, I set aside QPS’s decision and find that QPS cannot refuse to deal with the access application on the basis that to do so would result in a substantial and unreasonable diversion of resources. Background Significant procedural steps relating to the external review are set out in Appendix 1. Reviewable decision The decision under review is QPS’s decision dated 24 April 2019. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are set out in these reasons (including footnotes and Appendices). During the review the applicant provided extensive submissions. I have considered all this material and have extracted those parts which have relevance to the issue to be determined in this external review. Issue for determination The issue for determination is whether QPS can refuse to deal with the access application under section 60 of the IP Act on the basis that dealing with it would substantially and unreasonably divert QPS’s resources from the performance of its usual functions under the IP Act. Relevant law Parliament intends that an agency receiving an access application will deal with that application unless dealing with the application would, on balance, be contrary to the public interest.[4] Relevantly, 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. The phrase ‘substantially and unreasonably’ is not defined in either the IP Act or its companion legislation, the Right to Information Act 2009 (Qld) (RTI Act). It is therefore appropriate to consider the ordinary meaning of these words. ‘Substantial’ is relevantly defined as meaning ‘considerable amount, quantity, size, etc.’.[5] ‘Unreasonable’ is relevantly defined as meaning ‘exceeding the bounds of reason; immoderate; exorbitant.’[6] In deciding whether an agency may refuse to deal with an application on the basis that doing so would substantially and unreasonably divert the resources of the agency from their use by the agency in the performance of its functions, I must have regard to the resources that would be used for:[7] 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. The power to refuse to deal with an application under section 60 of the IP Act can only be exercised if the preconditions set out by section 61 of the IP Act has been met. Section 61 sets out the procedural steps that an agency must take before deciding to refuse to deal with an application on this basis, being to: give the applicant written notice[8] give the applicant a reasonable opportunity to consult with the agency;[9] and as far as reasonably practicable, give the applicant any information that would help the making of an application in a form that would remove the ground for refusal.[10] The written notice must:[11] state an intention to refuse to deal with the application advise that, for the prescribed consultation period[12] for the notice, the applicant may consult with the agency with a view to making an application in a form that would remove the ground for refusal; and state the effect of sections 61(2) to (6) of the IP Act, which is as follows: following any consultation, the applicant may give the agency written notice either confirming or narrowing the application if the application is narrowed, section 60 applies in relation to the changed application, but the procedural requirements in section 61 do not apply to it if the applicant fails to consult[13] after being given the notice, the applicant is taken to have withdrawn the application at the end of the prescribed consultation period. Findings Requirement to consult I have read QPS’s notice sent[14] to the applicant (Notice). The Notice stated QPS’s intention to refuse to deal with the application under section 60 of the IP Act, and advised the applicant that they had until a specified date[15] to consult with a view to making their application in a form that would remove this ground as a basis for refusing to deal with the application. The Notice also stated that the applicant may give written notice confirming or narrowing the scope of the access application and, if they did not respond, they would be taken to have withdrawn their application. Considering the content of the Notice, I am satisfied that the Notice complied with the requirements of the IP Act. QPS’s Notice explained to the applicant ways that the applicant could change their access application to make it manageable, including: reducing the scope of the application in relation to the applicant’s ‘ESC file’ to a summary/outcome for each complaint; and requesting specific information. Based on the above, I find that QPS, as far as was reasonably practicable, gave the applicant information that would help them to make an access application in a form that removed the ground for refusal. In response to the Notice, the applicant stated[16] ‘[just] numbers 3 and 4 listed’ in the scope as set out at paragraph 1 above or, if QPS ‘still find that too much please do number 3 only...’ In response, QPS asked[17] the applicant to ‘clearly identify what you wish to change your scope to.’ The applicant responded[18] ‘I believe I set out my response with certainty’ and invited QPS to call if QPS ‘do not understand the options I gave you...’. QPS responded[19] to the applicant stating: Unfortunately your email does not assist with narrowing the scope of your application to remove the grounds for the substantial and unreasonable diversion notice being issued to you, pursuant to section 60 of the Information Privacy Act 1999 (Qld). To meet the requirements of the notice, the Act requires that you provide written notice of your narrowed application scope so that this Unit can consider whether the narrowed application removes the grounds of the substantial and unreasonable diversion notice. Based on the above, while the applicant has indicated that they are open to further narrowing of the scope if it remains unmanageable (i.e., to request 3. only), I am satisfied[20] that the applicant has narrowed the scope of the application to requests 3. and 4. as set out at paragraph 1 above—that is: 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 I am a danger to others. My ESC file. All documents and communications about me and my complaints made to Ethical Standards, including all emails and other documents relating to my ESC complaints, and related evidence collected. If complaints were referred to ESC on my behalf such as from CCC or CMC or anyone else, for example, ministers' offices or any public servants or medical staff etc, I would like to have all related documents. What work would be required to process the access application? In summary, QPS initially submitted[21] that processing the application would be a substantial and unreasonable diversion of its resources because it would require ‘at least’ a further 48 hours, plus ‘at least’ 6.5 hours for consultation, as follows: 25 hours to examine the 378 pages located and determine whether they should be disclosed, based on a rate of 15 pages per hour (being approximately 3.5 work days)[22] which was revised from an original estimate of 21 hours, based on a rate of 18 pages per hour[23] 23 hours to conduct initial examination, editing and review of 6.5 hours of audio/video recordings (being approximately 3.2 work days) 6.5 hours to conduct consultations with relevant third parties (being approximately 0.9 work days); and an unspecified amount of additional time to conduct research for and prepare a considered decision. QPS also noted that it had already taken around 6 hours[24] (that is, about 0.8 work days) to retrieve documents located within the Ethical Standards Command (ESC) unit from an electronic database and compile a schedule of documents. In terms of the estimates of both 25 hours and 21 hours, there was no detail before OIC as to how either estimate was calculated. Based on the descriptions of the 378 pages,[25] a preliminary view[26] was conveyed to QPS that: some of the pages appeared to comprise correspondence between QPS and the applicant[27] it is likely that QPS’s determination of whether to grant access to those pages would take very little time[28] some pages appeared to comprise information in the public domain[29] and, again, it is likely that QPS’s determination of whether to grant access to those pages would take very little time some of the pages appeared to comprise medical or QPS administrative/documents about the applicant,[30] it is likely that such information would generally be provided to an applicant, and therefore QPS’s determination of whether to grant access to those pages should take relatively little time; and other pages appeared to comprise specific types of documents used by QPS when dealing with complaints[31] and it is likely that the QPS officer processing such documents would have familiarity with the layout and content of such documents, and therefore would be likely to take less time than anticipated by QPS to identify information that QPS considers warrants redaction.[32] In these circumstances, and in the absence of any detailed basis for the 25/21 hour estimates, OIC’s preliminary view concluded that it appeared reasonable to expect that QPS could deal with the 378 pages, and any further pages located as a result of further searches, at a rate somewhat faster than 15/18 pages per hour and, therefore, QPS’s estimate for examining and deciding whether to give, refuse or defer access to hardcopy documents was not reasonable. In response, QPS further submitted:[33] ‘The initial estimate of examining 18 pages per hour was overly optimistic ... 15 pages is a more accurate reflection of the amount of time examining documents and includes sufficient time to review final documents. Previous experience involving large numbers of documents have shown that a considerably longer time is undertaken to examine documents, with multiple reviews undertaken.’ information regarding third parties, including information ‘outside what is considered routine work information’, such as complaint information, would need to be redacted information contained within the documents is likely to be of a varying nature and involve complexity and third parties, therefore careful consideration would need to be given in deciding whether access can be given to the applicant information identified by OIC as appearing to comprise information in the public domain may have since been archived and no longer be readily available therefore making it necessary to assess in the current context; and documents created by Gold Coast University Hospital (GCUH) would require consideration of third party information and GCUH would need to be consulted prior to release of any of these documents. I acknowledge the concerns raised in the above submission by QPS about identifying information which would, on balance, be contrary to the public interest to disclose and accept that this may slightly increase the time it would take QPS to deal with the 378 pages. In relation to QPS’s submission about documents within the public domain, I do not consider that the fact that those documents may have since been archived and are now not readily available would shift the balance of the public interest such that disclosure would not be in the public interest as, for example, it is unlikely that disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy[34] or the management functions of QPS[35] given the information has previously been within the public domain. The issue of consultation with relevant third parties is discussed at paragraphs 35 to 38 below. Based on my observations at paragraph 28 above, I do not consider that QPS’s further submissions on these issues alters the conclusion reached in paragraph 26 above and I therefore remain satisfied that QPS’s estimate for examining and deciding whether to give, refuse or defer access to hardcopy documents is not reasonable. In terms of the estimate of ‘23 hours to conduct an initial examination, edit and review the 6.5 hours of audio/video recordings’, there was no detail before OIC as to how this estimate was calculated. Based on the material before OIC, OIC’s preliminary view to QPS noted that it appeared possible that: some of the audio and video recordings could comprise interviews with the applicant. It appeared that QPS’s determination of whether to grant access to such interviews would take very little time beyond that required to listen to (and, for videos, watch), the recordings; however, the process of redacting audio which identifies the subjects of the applicant’s complaints[36] may take some time some of the audio and video recordings could comprise interviews with individuals other than the applicant. It appeared likely that QPS’s determination of whether to grant access to such interviews would take very little time beyond the time required to listen to (and, for videos, watch), the recordings some of the video recordings could comprise CCTV obtained by QPS as evidence or recorded on QPS premises. It appears likely that all individuals, except for the applicant and QPS officers acting in their routine capacity, would require pixellation, and therefore that QPS’s determination of parts of the footage to required pixellation would take very little time beyond that involved in watching the recordings. However, the process of pixellating individuals other than the applicant and QPS officers from the footage may take some time; and some of the video recordings could comprise segments broadcast on local news programs regarding incidents involving the applicant. Given such material is in the public domain, it appeared that QPS’s determination of whether to grant access to such footage would take very little time. In these circumstances, and in the absence of any detailed basis for the 23 hour estimate, OIC’s preliminary view concluded that it appeared reasonable to expect that it would take less time to deal with the audio and video recordings than QPS anticipated and, therefore, QPS’s estimate for examining, editing and reviewing the 6.5 hours of audio/video recordings was not reasonable. In response, QPS provided a detailed list of the video and audio documents located, as set out in Appendix 2, and further submitted:[37] QPS’s current operating system requires redaction of audio and visual separately, which would necessitate at least tripling the time of the 18.75 hours of Watchhouse CCTV footage located the 2.5 hours of audio ‘would require to be fully reviewed prior to being finalised. This would entail at least 7.5 hours (2.5 listening to identify redactions required/minimum of 2.5 hours to undertake redactions/2.5 hours to review final documents).’ initial consideration of the combined audio and visual documents would take 20.25 hours, and additional ‘time would need to be considered for any redactions required to be made for release, and review of final documents.’ Based on the above, I understand QPS’s submission to be that dealing with the video and audio recordings would take at least 60.75 hours due to the need to assess, redact and review all recordings. I accept QPS’s submission that the time required to conduct an initial examination of the audio/video recordings would require approximately 20.25 hours based on the details as set out in the table in Appendix 2. I also accept that the process of applying redactions to the audio/video recordings may take some time. However, given the nature of the recordings, it appears likely that a significant proportion of the recordings would predominantly involve the applicant alone or with officers undertaking routine work duties. Further, if any of the videos and audio recordings were used for the purposes of an investigation regarding the conduct of officers appearing in those recordings, this information may fall within some of the types of exempt information in schedule 3, section 10(1) or (4) of the RTI Act. On this basis, it does not appear to be likely that significant amounts of redaction will be required as the whole recording would likely be exempt. Accordingly, I am not satisfied that QPS’s estimate for examining, editing and reviewing the audio/video recordings is reasonable. In terms of the estimate of 6.5 hours to conduct third party consultation, QPS initially submitted[38] that the ‘nature of the consultation relates to allegations that [the applicant] has made against a number of external people/organisations as well as QPS members...’ and identifies that consultation will need to be undertaken with: the Department of Health; several individuals from Bond University (at least 3); At least 4 individuals nominated as offenders by [the applicant] Southport Magistrate CCC Gold [Coast] City Council Gold Coast Bulletin and possibly other media outlets NSW Police. Consultation under section 56 of the IP Act is only required in respect of documents considered for release to an applicant where disclosure could reasonably be expected to be of concern to a third party. It is anticipated that QPS would not decide to release information which is subject to any of the law enforcement exemptions in schedule 3, section 10(1) of the RTI Act, or the crime body exemption in schedule 3, section 10(4) of the RTI Act. It is also anticipated that QPS would not decide to disclose information about the subjects of the applicant’s complaints, including unsubstantiated allegations. On the other hand, it is anticipated that disclosure of routine work information of agency officers dealing with the applicant’s complaints could not reasonably be expected to be of concern to those individuals, and would not require consultation with those individuals. Also, it is anticipated that disclosure of information published by media outlets or other entities could not reasonably be expected to be of concern to those entities, and would not require consultation with those entities. Based on this, OIC’s preliminary view to QPS set out that it was unlikely that QPS would need to undertake consultation with many of the individuals and entities named at paragraph 35 above and, therefore, QPS’s estimate of 6.5 hours to conduct consultation was not reasonable. In response, QPS further submitted[39] that as a detailed examination had not been undertaken, it was ‘impossible to assess the estimated volume of the relevant information subject to third party consultation without further examination of the documents. Whilst your preliminary findings suggest third party consultation would not be required, it is assuming without actual examination of the documents.’ QPS proposed that 3 hours would be required for any consultation. Based on the information before me and without the benefit of being able to review documents which respond to the scope of the access application, I accept that QPS’s revised estimate of 3 hours to conduct any necessary consultation is reasonable in the circumstances. Although QPS had not provided an estimate of time to conduct research for and prepare a considered decision, OIC’s preliminary view concluded that this task would take some time, but no more than one day. QPS has not provided any further submissions in response to this view. As set out at paragraphs 23 and 24 above, QPS’s initial total processing time estimate was ‘at least’ 60.5 hours. In summary, I: do not accept QPS’s revised estimate in relation to processing the 378 pages, being 25 hours at a rate of 15 pages per hour accept that the processing time in relation to the audio/video recordings is longer than previously estimated, however do not accept QPS’s revised estimate of at least 60.75 hours as being reasonable; and accept QPS’s revised estimate of 3 hours for conducting third party consultations. For the reasons set out above, I do not consider that QPS’s estimate of a total of 88.75 hours is a reasonable estimate of the time required to process the application. Rather, I consider that the processing time would be somewhat closer to that originally estimated by QPS. On 9 September 2019 OIC received another application for external review from the applicant relating to a subsequent decision of QPS. The scope of the access application (later application) considered in that decision was materially the same as the scope for the access application the subject of this external review as set out at paragraph 1 above, except in relation to the time period for which access was sought, being for the shorter period of 1 July 2011 to 1 July 2013, which is entirely within the time period for the access application the subject of this external review, being 1 January 2011 to 20 February 2019. Accordingly, QPS was advised[40] that its decision to process the later application impacts the scope of the access application the subject of this external review given that part of the scope has now been dealt with thus removing the need to deal with those documents again (i.e., documents falling within the period 1 July 2011 to 1 July 2013) and that this removed any claim that processing the earlier application would be a substantial and unreasonable diversion of resources. In response, QPS submitted:[41] The QPS acknowledges the requested information for [the later application], is similar in scope to this review, aside the scope on the period of time the information is sought. The scope in relation to the time period is clearly considerably longer, which was the reason for the initial [decision]. The QPS remains unchanged on the submissions provided in the QPS letter dated 23 August 2019. As QPS has processed the later application, and the decision on that later application is the subject of a current external review by OIC, I consider that information responding to the later application can be carved out of the scope of the access application the subject of this external review. In the decision on the later application, QPS relevantly: refused access to information which corresponds with the applicant’s request at item 3. as set out at paragraph 1 above on the basis that it is exempt from disclosure under section 47(3)(a) and schedule 3, section 10(f) of the RTI Act; and located 30 pages and decided to refuse access to 5 pages and parts of 21 pages which corresponds with the applicant’s request at item 4. as set out at paragraph 1 above on the basis that it is contrary to the public interest to disclose under section 47(3)(b) of the RTI Act. I am satisfied that by carving out the request to the extent it has been addressed by the decision on the later application, this will somewhat reduce the estimated processing time in relation to the current application. Would the impact on QPS’s functions be substantial and unreasonable? No, for the following reasons. Under section 22 of the IP Act, the usual time allowed for processing an application is 25 business days. Whilst this period can be extended in certain circumstances,[42] it is relevant to have regard to this timeframe when considering whether the time involved in processing a single access application will have a substantial impact on an agency’s resources. QPS initially submitted[43] that processing the application would have a substantial and unreasonable impact on QPS’s resources because: ‘There is a community expectation that the QPS provides timely and professional responses to calls for service to maintain community confidence.’ ‘the resources allocated to the QPS Right to Information and Privacy Unit [RTI&P Unit] are finite.’ the QPS RTI&P Unit comprises 10 members and, at the time of the submission, had more than 611 active files (consisting of access applications, internal reviews and external reviews); and given the estimate of at least 48 hours to examine documents plus additional time to conduct third party consultations and conduct research for and preparation of, a considered decision, processing the application would ‘significantly affect the business of the RTI&P Unit and would cause disruption to and interference with its normal functions and would significantly impact on the processing of other applicants’ access applications.’ In response to OIC’s preliminary view, QPS further submitted:[44] Whilst the QPS is a large organisation, the RTI&P unit has finite resources to meet this function of the service. The ordinary allocation of resources within the work unit are not best placed to manage a file such as this with the required time undertaking. The QPS’ primary role is stopping crime and making the community safer, it would be problematic to reallocate members from other areas without impacting on the functions of the service. Additionally, the nature of the work undertaken by the RTI&P Unit is a specialised area with a knowledge set that is not readily transferrable to enable a short-term relief option to process a single application. The impact of taking one member from the RTI&P unit offline for the initially estimated 8.3 work days to solely deal with one application impedes the function of the unit and would affect the processing of all other applications allocated to that decisionmaker. It is not feasible to reallocate applications to other decision makers due to the workload of each member within the unit. Therefore, in excess of 100 other applications would not be actioned during the 8.3 days (initial estimate) and this would unfairly disadvantage other applicants. The review of the video/audio holdings has identified a substantial increase from 6.5 to 20.25 hours, thereby significantly increasing the processing times. Even in isolation this would be considered to be an unreasonable disruption to the performance of this unit’s daily activities and core functions. Given the current volume of access applications and external reviews on foot, this extrapolates the time, both current and deferred, consequent to primarily focus on this file. It is respectfully further submitted that the release of such information would not significantly advance public interest. When considering previous OIC decisions regarding the significantly longer length of time estimates, it would be pertinent to consider these contextually with respect to the relevant agency’s RTI workload and number of decision-makers. While I appreciate the impact that processing this application will place on the small team within QPS (as noted in the third dot point in paragraph 51 above) this must be tempered with a consideration of the size of the organisation as a whole. As at 30 June 2019 QPS employed 15,285.27 full-time equiva[45]nt staff.45 Consequently, I accept that the work involved in dealing with the access application would, if carried out, divert the resources of the QPS’s RTI&P Unit from their use in relation to other access applications, internal and external reviews. However, I am not satisfied that this diversion would be substantial or unreasonable when looking at the size of the organisation as a whole. I acknowledge that the phrase ‘substantial and unreasonable’ ‘admits of no ready or precise measure’[46] and it ‘is not possible to specify an indicative number of hours of processing time that would constitute’[47] a substantial and unreasonable diversion of resources. Having said that, whether it be the 88.75 hours (which I do not accept) or 60.5 hours—that is, 8.3 work days—estimated by QPS to process the application, the estimates are less than the amount of time considered in a number of previous OIC decisions to amount to a substantial and unreasonable diversion of resources.[48] In conclusion, while I accept that processing the application will divert the resources of the QPS’s RTI&P Unit from their use in relation to other access applications, internal and external reviews, ultimately, I find that the diversion is not substantial or unreasonable when considering the size of the organisation as a whole, the number of hours required to process the application and the pro-disclosure bias in deciding to deal with applications under the RTI and IP Acts.[49]DECISION For the reasons set out above, I set aside QPS’s decision and find that dealing with the application would not be a substantial and unreasonable diversion of QPS’s resources from the performance of its usual functions 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.Assistant Information Commissioner CorbyDate: 24 February 2020 APPENDIX 1 Significant procedural steps Date Event 24 April 2019 OIC received the applicant’s application for external review. 28 April 2019 OIC received emailed submissions from the applicant. 29 April 2019 OIC notified the QPS and the applicant that the application for external review had been received and requested procedural documents from QPS. 2 May 2019 OIC received emailed submissions from the applicant. 8 May 2019 OIC received the requested documents from QPS via two emails. 15 May 2019 OIC notified QPS and the applicant that the application for external review had been accepted. 24 May 2019 OIC requested a submission from QPS. 20 June 2019 OIC received the requested submission from QPS dated 18 June 2019. 12 July 2019 OIC conveyed a written preliminary view to QPS. 8 August 2019 OIC received emailed submissions from the applicant. 19 August 2019 OIC received emailed submissions from the applicant. 23 August 2019 OIC received a submission from QPS. 27 August 2019 OIC received emailed submissions from the applicant. 28 August 2019 OIC received two emailed submissions from the applicant. 11 September 2019 OIC received emailed submissions from the applicant. 12 September 2019 OIC received emailed submissions from the applicant. 17 September 2019 OIC received emailed submissions from the applicant. 19 September 2019 OIC received emailed submissions from the applicant. 20 September 2019 OIC received emailed submissions from the applicant. 25 September 2019 OIC wrote to the applicant about their external reviews. 26 September 2019 OIC received emailed submissions from the applicant. 22 October 2019 OIC conveyed a written preliminary view to QPS. 4 November 2019 OIC received a submission from QPS. 25 January 2020 OIC received emailed submissions from the applicant. APPENDIX 2 Table as set out in QPS’s submission dated 23 August 2019 2017_01024 Disc 1 Duration charge reception counter 00:19 cell17 02:08:15 charge reception counter 01:03:05 cell 9 40:01: wh lift and lobby grnd 00:19 holding cell b 10:45 charge counter 03:06 charge counter 17-05 03:05 lock whouse 03:45 lock whouse 20:45 02:20 charge counter 2047 01:40 charge reception counter 20:48 03:29 EST DISC 1 VIEWING 4HRS Disc 2 cell17 0:48:34 charge recp 10_11 00:36 release counter 01:32 charge reception 00:30 cell17 16/2 10.13 02:50 charge reception 00:20 release counter 3:26 EST DISC 2 viewing 1 hr Disc 3 15/2 wh lobby 00:19 15/2 w/house holding cell B 10:45 charge counter 03:06 vlock qas 03:45 cell 17 09:55:09 ex yard 01:16 cell 17 02:06:35 16/2 recept counter 00:55 charge 16/02/2019 08:52 00:14 charge counter 16/2 00:24 16/2 w/house lift and lobby arrive 00:30 lift and lobby leave 00:30 charge rece return to cell 00:35 EST DISC 3 viewing only 12.25 hrs DISC 4 LIFT LOBBY 16/2 04:00 EST DISC 4 viewing 4 minutes DISC 5 LIFT LOBBY 04:00 EST DISC 5 viewing 4 minutes DISC 6 LEVEL 1 ACCESS 16:59 EX YARD 16:59 EST DISC 6 VIEWING 34 minutes DISC 7 W/HOUSE HOLDING CELL A 08:00 W/HOUSE HOLDING CELL B 07:59 PROPERTY 09:59 CHARGE COUNTER A 04:00 CHARGE COUNTER B 04:00 EST DISC 7 viewing 34 minutes DISC 8 CELL 9 16:01 EST DISC 8 viewing 16 minutes DISC 9 PADDED CELL 02:00 EST DISC 9 viewing 2 minutes 2013-01290 00:28:55 INITIAL DISCUSSION WITH [the applicant] AUDIO 2017-02065 - [The applicant] DISCUSSION AUDIO 02:04:43 [1] Access application dated 20 February 2019.[2] Decision dated 24 April 2019.[3] External review application dated 24 April 2019.[4] Section 58 of the IP Act.[5] Susan Butler (ed), Macquarie Dictionary (7th ed, 2017) at page 1492.[6] Susan Butler (ed), Macquarie Dictionary (7th ed, 2017) at page 1645.[7] Section 60(2) of the IP Act. [8] Section 61(1)(a) of the IP Act.[9] Section 61(1)(b) of the IP Act.[10] Section 61(1)(c) of the IP Act.[11] Section 61(1)(a) of the IP Act.[12] Under section 61(6) of the IP Act, the ‘prescribed consultation period’ for a written notice under section 61(1)(a) is ten business days after the date of the notice, or the longer period agreed by the agency and the applicant (whether before or after the end of the 10 business days).[13] Under section 61(5) of the RTI Act, failure to consult includes the applicant not giving written notice either confirming or narrowing the application under section 61(2) of the RTI Act.[14] On 5 April 2019.[15] Being 23 April 2019.[16] Email to QPS dated 5 April 2019.[17] Email dated 10 April 2019.[18] Email dated 10 April 2019.[19] Email dated 13 April 2019.[20] This was conveyed to QPS in a preliminary view on 12 July 2019. QPS did not object to this preliminary view.[21] Based on the Notice issued to the applicant dated 5 April 2019 and the further details provided in QPS’s letter to OIC dated 18 June 2019.[22] Based on a 7.15 hour work day.[23] In the PDF titled ‘Time Estimate FINAL’ provided to OIC on 8 May 2019.[24] QPS also stated ‘the initial processing and related searches conducted in relation to this application currently exceeds 6 hours.’[25] In the PDF titled ‘Time Estimate FINAL’ provided to OIC on 8 May 2019.[26] By letter dated on 12 July 2019.[27] For example, documents identified as being letters to the applicant, some of the outcome notices and possibly some of the emails. [28] Noting that providing unredacted copies of correspondence already sent or received by the applicant: would not be disclosing personal information of the other individuals to the applicant, as the information is already known to them – see Australian Broadcasting Corporation and Department of Child Safety, Youth and Women [2018] QICmr 47 (21 November 2018) at [107] and Seven Network (Operations) Limited and Department of Justice and Attorney-General; Department of Child Safety, Youth and Women [2018] QICmr 48 (29 November 2018) at [45]. In these decisions, the Right to Information Commissioner observed that, 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. does not, in the present circumstances, appear to intrude into the privacy of the individuals concerned, and therefore the right to privacy of those individuals could not reasonably be expected to be prejudiced as a result of access. [29] For example, Gold Coast Bulletin / Facebook pages and possibly the local management plan.[30] For example, undertaking to bail, GCUH notes, prisoner medical and prisoner custody documents. [31] For example, CSS summary reports, mars documents and various outcome notices to parties other than the applicant.[32] For example, the personal information of individuals other than the applicant, and possibly information falling within some of the types of exempt information in schedule 3, section 10(1) or (4) of the RTI Act.[33] Submission to OIC dated 23 August 2019.[34] Schedule 4, part 3, item 3 of the RTI Act.[35] Schedule 4, part 3, item 19 of the RTI Act.[36] Which is generally the approach taken regarding recordings of discussions with an applicant (cf. correspondence to or from an applicant, where the approach is that mentioned at footnote 28 above). This is because an applicant’s recall of recorded discussions is necessarily less complete and specific than their knowledge of correspondence sent or received by them, and the recordings are therefore relatively likely to disclose the personal information of other individuals and prejudice their privacy. [37] Submission dated 23 August 2019.[38] Submission dated 18 June 2019.[39] Submission dated 23 August 2019.[40] Letter dated 22 October 2019.[41] Submission dated 4 November 2019.[42] Such as consultation with third parties which extends the processing period by a further 10 business days: section 22 of the IP Act.[43] Submission dated 18 June 2019.[44] Submission dated 23 August 2019.[45] As set out at page 87 of QPS’s 2018-19 Annual Report (Accessed at https://www.police.qld.gov.au/qps-corporate-documents/reports-and-publications/annual-report-2018-2019 on 17 January 2019).[46] Cianfrano v Director General, Premier’s Department [2006] NSWADT 137 (Cianfrano) at [44].[47] NX and Australian Trade and Investments Commission [2018] AICmr 18 at [28].[48] See Seal and Queensland Police Service (Unreported, Queensland Information Commissioner, 29 June 2007); Thomson and Lockyer Valley Regional Council (Unreported, Queensland Information Commissioner, 23 September 2010); Middleton and Building Services Authority (Unreported, Queensland Information Commissioner, 24 December 2010); Middleton and Department of Environment and Resource Management (Unreported, Queensland Information Commissioner, 30 May 2011); Mathews and University of Queensland (Unreported, Queensland Information Commissioner, 5 December 2011); Kalinga Wooloowin Residents Association Inc and Brisbane City Council; City North Infrastructure Pty Ltd (Third Party); Treasury Department (Fourth Party) (Unreported, Queensland Information Commissioner, 9 May 2012); Mewburn and Department of Natural Resources and Mines [2016] QICmr 31 (19 August 2016); ROM212 and Queensland Fire and Emergency Services [2016] QICmr 35 (9 September 2016); F60XCX and Office of the Queensland Parliamentary Counsel [2016] QICmr 42 (13 October 2016); Underwood and Department of Housing and Public Works [2016] QICmr 48 (9 December 2016) (which was the subject of an appeal by the applicant to QCAT; however the applicant withdrew this application); Angelopoulos and Mackay Hospital and Health Service [2016] QICmr 47 (8 November 2016); 60CDYY and Department of Education and Training [2017] QICmr 52A (7 November 2017); and Marigliano and Tablelands Regional Council [2018] QICmr 11 (15 March 2018).[49] Cianfrano at [58].

queensland

court_judgement

Queensland Information Commissioner 1993-

TerraCom Limited and Department of Transport and Main Roads; Office of the Leader of the Opposition (Third Party) [2019] QICmr 15 (9 May 2019)

TerraCom Limited and Department of Transport and Main Roads; Office of the Leader of the Opposition (Third Party) [2019] QICmr 15 (9 May 2019) Last Updated: 23 May 2019 Decision and Reasons for Decision Citation: TerraCom Limited and Department of Transport and Main Roads; Office of the Leader of the Opposition (Third Party) [2019] QICmr 15 (9 May 2019) Application Number: 314347 Applicant: TerraCom Limited (ACN 143 533 537) Respondent: Department of Transport and Main Roads Third Party: Office of the Leader of the Opposition Decision Date: 9 May 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - EXEMPT INFORMATION - BREACH OF CONFIDENCE - information about a road use direction - whether disclosure of information would found an action for breach of confidence - whether exempt information to which access may be refused - sections 47(3)(a) and 48 and schedule 3, section 8 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - CONTRARY TO THE PUBLIC INTEREST - information about a road use direction - accountability, transparency and informed public debate - prejudice to business and commercial affairs of entities and future supply of information - whether disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The Office of the Leader of the Opposition (OLO) applied to the Department of Transport and Main Roads (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to a road use direction, a briefing paper and related correspondence with the owner or operator of the Blair Athol Mine (Mine).[1] The Department located 15 pages of information responding to the access application and consulted TerraCom Limited (TerraCom)[2] under section 37 of the RTI Act about its proposed disclosure of information in five pages. TerraCom objected to disclosure of all responsive information.[3] The Department decided[4] to grant access to most of the information in the 15 pages,[5] contrary to TerraCom’s objections. TerraCom sought internal review of that decision[6] and, on internal review, the Department decided[7] to disclose all information in the 15 pages, apart from signatures and mobile telephone numbers.[8] TerraCom then applied[9] to the Office of the Information Commissioner (OIC) for external review. During the course of the review, OLO was joined as a participant.[10] For the reasons set out below, I find that TerraCom has not discharged the onus, imposed by section 87(2) of the RTI Act, of establishing that a decision not to disclose information is justified. I affirm the Department’s internal review decision to disclose information to OLO, as the information is not exempt information and its disclosure would not, on balance, be contrary to the public interest. Background Significant procedural steps relating to the external review are set out in the Appendix. Queensland’s roads are a public resource and the State’s road network includes State-controlled roads, which are managed by the Department.[11] Certain uses of the road network are regulated by the Mineral and Energy Resources (Common Provisions) Act 2014 (Common Provisions Act). Under that regulatory framework, the holder of a resource authority, such as a mining lease, must not use a public road[12] for a ‘notifiable road use’[13] unless: it has given notice of such proposed use to the relevant public road authority;[14] and one of the following has occurred—(i) the relevant public road authority has provided consent to the carrying out of the use; (ii) a compensation agreement for the use has been signed; or (iii) an application has been made to decide the holder’s compensation relating to the road. A public road authority may also issue a road use direction[15] about the way the resource authority holder may use the road for the notifiable road use.[16] This is of particular relevance, given the information requested in the access application included the ‘Road use direction issued to Orion Mining Pty Ltd/Terracom in relation to the Blair Athol mine pursuant to the Mineral and Energy Resources (Common Provisions) Regulations 2016’. TerraCom’s subsidiary, Orion Mining Pty Ltd (Orion), acquired the Mine in 2017.[17] A number of TerraCom’s ASX Announcements refer to the recommencement of coal mining production at the Mine and the transport, by truck, of coal from the Mine to another rail load-out facility pending completion of a dedicated train load-out facility for the Mine.[18] On 1 May 2018, TerraCom announced[19] that it had ceased its trucking operations on 30 March 2018, when the Mine’s train load out facility was completed. In his tabled answer to Question on Notice No. 213,[20] the Minister for Transport and Main Roads stated as follows (Minister’s Statement): [T]he Department ... has issued the owners of Blair Athol Mine, TerraCom, with a road use direction under the Mineral and Energy Resources (Common Provisions) Regulation 2016. This road use direction was issued for the temporary haulage of coal by the road network via the Peak Downs Highway and Gregory Developmental Road. It was proposed as a temporary measure until the construction of a rail link from Blair Athol to the existing rail line is completed. The road use direction has a number of conditions including requirement to supply a road impact assessment and mitigation strategies for any impacts to the road network. The road impact assessment will identify the costs associated with any reduction in road life or accelerated maintenance requirements as a result of the haulage. There has been significant community interest in the government approval processes associated with activities undertaken at the Mine, including the haulage of coal by truck on the State’s road network.[21] Reviewable decision The decision under review is the Department’s internal review decision dated 21 November 2018. 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 in issue is the information in 15 pages which the Department decided to disclose (Information in Issue). Onus on external review The decision under review is a ‘disclosure decision’.[22] As the review participant who opposes the disclosure decision, TerraCom bears the onus in this review of establishing that a decision not to disclose the Information in Issue is justified, or that the Information Commissioner should give a decision adverse to OLO, as the party who wishes to be given access to the Information in Issue.[23] Issues for determination TerraCom contends that the Information in Issue is confidential and that certain public interest factors favouring nondisclosure arise in respect of the Information in Issue. The issues for determination are therefore whether: the Information in Issue is exempt information, specifically information, the disclosure of which would found an action for breach of confidence; and disclosure of the Information in Issue would, on balance, be contrary to the public interest. Exempt information – Breach of confidence Relevant law Under the RTI Act, a person has a right to be given access to documents of government agencies.[24] However, this right is subject to a number of exclusions and limitations, including grounds on which access may be refused. It is Parliament’s intention that these grounds are to be interpreted narrowly.[25] One such ground is where information comprises exempt information.[26] Exempt information includes information, the disclosure of which would found an action for breach of confidence[27] (Breach of Confidence Exemption). The Breach of Confidence Exemption must be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, with appropriate standing to bring an action to enforce an obligation of confidence claimed to be owed to that plaintiff by the agency, in respect of information in the possession or control of the agency.[28] For the Breach of Confidence Exemption to apply, each of the following five cumulative requirements must be established:[29] (a) information must be able to be specifically identified (b) information must have the necessary quality of confidence and will not extend to information that is generally known, useless or trivial (c) circumstances of the communication must create an equitable obligation of confidence (d) disclosure to the access applicant must constitute an unauthorised use of confidential information; and (e) disclosure would result in detriment to the party claiming confidentiality. Findings Requirement (b) – necessary quality of confidence TerraCom submitted[30] that the Information in Issue ‘includes information which was not available in the public domain (and therefore confidential on [sic] nature, especially as TerraCom is an ASX listed entity)’. Taking into consideration: the nature of the Information in Issue the publicly accessible information in TerraCom’s ASX Announcements media reporting about TerraCom’s truck haulage of coal from the Mine;[31] and the Minister’s Statement, I am satisfied that a significant portion of the Information in Issue does not have the quality of confidence necessary to satisfying requirement (b).[32] Requirement (c) – circumstances of communication Determining whether requirement (c) is met requires an assessment of all relevant circumstances surrounding communication of confidential information,[33] so as to determine whether 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.’[34] The relevant circumstances include (but are 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.[35] As the Information in Issue generally relates to TerraCom’s publicly announced road haulage of coal from the Mine,[36] it is relevant to consider the regulatory framework under which TerraCom’s announced coal haulage, and its disclosure of information to the Department about that haulage, occurred. The Common Provisions Regulation requires that certain matters be addressed in a resource authority holder’s notice of a notifiable road use,[37] such as: the public roads proposed to be used the type of vehicles proposed to be used the material proposed to be hauled the total weight of material proposed to be hauled in a year the period of proposed public road use; and the frequency of vehicle movements. Neither the Common Provisions Act nor the Common Provisions Regulation impose any obligation of confidentiality on a public road authority in relation to either a notice provided about a proposed notifiable road use, any consent that is given by the public road authority for that use, or any issued road use direction. Against this regulatory framework, I do not consider that it is reasonable, in the absence of any more compelling evidence, to find that there existed any mutual understanding of confidence between the Department and TerraCom concerning correspondence exchanged between them on the subject of TerraCom’s use of Queensland’s public roads for the haulage of coal. TerraCom submitted that: the information in issue is confidential and commercial in confidence[38] it provided confidential information ‘which was not to be distributed beyond the department’;[39] and ‘[c]orrespondence between TerraCom and relevant government agencies (or any other business we exchange information with) should be treated as Confidential and not be required to be marked to that effect’.[40] I have carefully reviewed the Information in Issue. This information does not, on its face, identify that it comprises or contains TerraCom’s confidential or commercial in confidence information, or that it was provided by TerraCom on the basis that it would not be distributed beyond the Department. I am unable to identify any information in the Information in Issue itself that could reasonably be construed as communicating TerraCom’s intention that the information be treated in confidence by the Department. I have also noted the Department’s willingness to disclose the Information in Issue. This willingness indicates that the Department was unaware of, or did not accept, TerraCom’s position that the information provided by it was not be distributed beyond the Department. Consequently, I am unable to identify any mutual understanding of confidence[41] between the Department and TerraCom in respect of communications exchanged about TerraCom’s proposed road haulage of coal. In these circumstances, I am not satisfied that any reasonable person would have thought that the Information in Issue was received, created or communicated confidentially, or that the Department is fixed with an obligation of confidence in respect of that information. While TerraCom may have hoped for, or even expected, confidentiality in its communications with the Department about road haulage of coal from the Mine, its conduct alone (where it was the confider of information) cannot unilaterally and conclusively impose an obligation of confidence upon the Department.[42] For these reasons, I consider that requirement (c) is not established. Requirement (e) - detriment to the party claiming confidentiality TerraCom submitted that disclosure of the Information in Issue could prejudice its commercial or financial affairs and impede the Department’s ability to ‘receive other confidential information in the future’.[43] However, notwithstanding its onus in this review, TerraCom has not elaborated on: the nature of the prejudice it claims could occur as a result of disclosing the Information in Issue; and how disclosure of any information it provided to the Department under a regulatory framework could be expected to cause the unspecified prejudice or impede the Department’s ability to obtain similar information in the future. In these circumstances, and taking into consideration information that is already in the public domain about TerraCom’s road haulage of coal and the road use direction, I am not satisfied that the relevant detriment for requirement (e) is established. Conclusion As set out above, I consider that requirements (c) and (e) are not established, and requirement (b) is not established with respect to most of the Information in Issue. In these circumstances, the five cumulative requirements for the Breach of Confidence Exemption cannot be satisfied. Accordingly, I find that the Information in Issue is not exempt information under the Breach of Confidence Exemption, and cannot be refused on this ground. Contrary to the public interest information Relevant law Another ground which may be relied on to refuse access to information is that its disclosure would, on balance, be contrary to the public interest.[44] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[45] and explains the steps that a decision-maker must take[46] in deciding the public interest as follows: identify any irrelevant factors and disregard them[47] 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. TerraCom’s submissions TerraCom asserts that a number of factors favouring nondisclosure of the Information in Issue are relevant to the Information in Issue, namely, where disclosure of the information could reasonably be expected to: prejudice the private, business, professional, commercial or financial affairs of entities (business prejudice factor);[48] and prejudice an agency’s ability to obtain confidential information (confidential information prejudice factor).[49] Noting that TerraCom bears the onus of establishing that that the Information in Issue should not be disclosed, OIC invited Terracom to provide details of the prejudice it contends will be caused by disclosure of the Information in Issue. While I have referenced and addressed below the information TerraCom provided in support of its assertions, I must apply the process specified in section 49(3) of the RTI Act in assessing whether disclosure of the Information in Issue would, on balance, be contrary to the public interest. That is, I must identify and attribute weight to all relevant factors favouring disclosure and nondisclosure, and then balance them against one another. The factors favouring nondisclosure which TerraCom relies upon may not necessarily be determinative of the public interest. Findings Irrelevant factors I have taken no irrelevant factors into account in making my decision. Factors favouring disclosure The RTI Act recognises that the following public interest factors favouring disclosure will arise where disclosing information could reasonably be expected to: enhance the Government’s accountability[50] contribute to positive and informed debate on important issues or matters of serious interest[51] 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;[52] and reveal the reason for a government decision and any background or contextual information that informed the decision.[53] TerraCom submitted[54] it has made announcements with respect to the hauling of coal on State-controlled roads and ‘therefore has provided the public with sufficient information to that effect (including relevant tonnes hauled in periods and conditions)’ and the additional details in the Information in Issue ‘should be withheld and not released’.[55] I have noted the ASX announcements made by TerraCom about its coal haulage on State-controlled roads.[56] I have also noted the Minister’s Statement, which confirms that the Department issued a road use direction to TerraCom for that haulage. The publication of the information TerraCom has placed into the public domain via its ASX announcements does not, as TerraCom suggests, obviate the right to access government held information under the RTI Act. However, in considering whether access to the Information in Issue may be refused under the RTI Act, I have considered whether the information in TerraCom’s ASX announcements advances the abovementioned factors favouring disclosure to such degree that disclosure of the Information in Issue would advance those same factors little, if at all, further. In such circumstances, the factors would warrant no more than low weight. As noted at paragraphs 7 to 9 above, Queensland’s roads are a public resource, and the regulatory framework in the Common Provisions Act and Common Provisions Regulation outlines the manner in which the State regulates the use of this public resource by companies undertaking mining and extractive activities. The government’s approval process for TerraCom’s road haulage of coal on State-controlled roads has, as noted in paragraph 13 above, been the subject of significant community interest. I consider that disclosure of the Information in Issue would enable public scrutiny of the Department’s regulatory approval for a private entity to use State-controlled roads for coal haulage, including the information it considered in granting the approval and the conditions that it attached to the approval. The information in TerraCom’s ASX announcements does not allow a similar degree of scrutiny. By enabling this scrutiny, disclosure of the Information in Issue would, in my opinion, advance the abovementioned factors significantly. More generally, the safety, condition and maintenance of the State’s roads are matters of significant community interest and concern. The ability to engage in informed public discussion about how the approval issued to TerraCom addressed the potential impacts of the commercial haulage of coal by a private entity on the safety, conditions and maintenance of State-controlled roads is, in my opinion, served a very small amount by the information in TerraCom’s ASX announcements. On the other hand, this ability is significantly enhanced by disclosure of the Information in Issue. Given these considerations, I consider that the factors favouring disclosure noted at paragraph 44 above apply and deserve significant weight. Factors favouring nondisclosure Business affairs As noted at paragraph 40 above, TerraCom contends that the business prejudice factor is relevant to the Information in Issue because ‘the hauling of coal on public roads could be deemed part of the Company’s business plan’ and the Information in Issue ‘outlines the means in which the company delivered its plan’.[57] The RTI Act also recognises that disclosing information concerning the business, professional, commercial or financial affairs of an agency or another person, could reasonably be expected to cause a public interest harm where it would have an adverse effect on those affairs or to prejudice the future supply of information of this type to government (business harm factor).[58] As the Information in Issue generally relates to TerraCom’s publicly announced road haulage of coal from the Mine, I acknowledge that it contains some information about TerraCom’s business and commercial affairs.[59] However, this business and commercial affairs information was provided to, or created by, the Department in compliance with a regulatory framework, namely the framework set out in the Common Provisions Act and the Common Provisions Regulation. Under this regulatory framework, the provision of certain information by resource authority holders is required for the lawful undertaking of notifiable road uses. Given this position, I am not satisfied that disclosure of the Information in Issue could reasonably be expected to prejudice the future supply of information of this type to government. Accordingly, I do not consider that this aspect of the business harm factor[60] applies. Establishing a reasonable expectation of prejudice to or adverse effect on[61] to an entity’s business, commercial or financial affairs requires more than simply asserting that disclosure will result in prejudice or adverse consequence. There must be some evidentiary basis from which it may be inferred that disclosure of relevant information could reasonably be expected to result in particular prejudice or adverse effect. TerraCom has not detailed the nature of the claimed prejudice nor how, in the circumstances of this review, such prejudice could be reasonably expected to arise from disclosing the Information in Issue, or any particular part of it. Nor is it clear to me how any prejudice to, or adverse effect on, TerraCom’s business, commercial or financial affairs would arise from disclosure of the Information in Issue, particularly in circumstances where the fact a road use direction was issued to TerraCom is already in the public domain, and TerraCom has also publicly announced that it hauled coal by truck on the State’s road network for a period of time. Based on the material before me, including the regulatory framework under which TerraCom’s haulage of coal was permitted to occur, and the abovementioned publicly available information about this haulage being permitted and occurring, I find that any prejudice to, or adverse effect on, TerraCom’s business, commercial or financial affairs that could be reasonably be expected to flow from disclosure of TerraCom’s commercial and business affairs information would be minimal. Accordingly, I afford low weight to the business prejudice factor and the adverse effect aspect of the business harm factor[62] in respect of TerraCom’s business and affairs information within the Information in Issue. Trade secrets and commercial value While not specifically raised by TerraCom, I have also considered whether disclosing the Information in Issue could reasonably be expected to: prejudice trade secrets, business affairs or research of an agency or person;[63] and cause a public interest harm because it would disclose trade secrets of an agency or another person or information that has a commercial value to an agency or another person and that disclosure could reasonably be expected to destroy or diminish the commercial value of the information.[64] In the context of this review, a trade secret refers to a method, process, knowledge or technology used by a company which it intends to keep confidential.[65] While I am unable detail the contents of the Information in Issue, I am satisfied that it does not include information which could be characterised as the trade secrets or research of TerraCom or any other entity. As noted in paragraphs 51 and 55, while the Information in Issue contains some information about TerraCom’s business and commercial affairs, I consider any prejudice to TerraCom’s business affairs that could be reasonably be expected to flow from disclosure of that information would be minimal. I also acknowledge that the Information in Issue may have some commercial value to TerraCom. However, I consider it unlikely that disclosure of the Information in Issue would diminish or destroy this commercial value in any significant way, if at all, given the information in the public domain about TerraCom’s trucking of coal and the issued road use direction. For this reason, I afford these factors favouring nondisclosure[66] low weight. Confidential information In addition to the confidential information prejudice factor noted at paragraph 40 above, the RTI Act recognises that disclosing information of a confidential nature that was communicated in confidence will cause a public interest harm where that disclosure could reasonably be expected to prejudice the future supply of information of this type (confidential information harm factor).[67] TerraCom submitted that: the Information in Issue ‘includes information which was not available in the public domain (and therefore confidential on [sic] nature, especially as TerraCom is an ASX listed entity);[68] and ‘[c]orrespondence between TerraCom and relevant government agencies (or any other business we exchange information with) should be treated as Confidential and not be required to be marked to that effect’.[69] As I have previously noted: taking into consideration information that is already in the public domain about TerraCom’s trucking of coal on public roads, not all the Information in Issue can be characterised as being of a confidential nature the Information in Issue is not, on its face, identified as confidential or commercial in confidence the Department’s willingness to disclose the Information in Issue indicates that the Department was unaware of, or did not accept, TerraCom’s understanding that the information was communicated in confidence; and neither the Common Provisions Act or the Common Provisions Regulation impose any obligation of confidentiality in respect of information provided about a proposed notifiable road use, any consent given to such use or any issued road use direction. Based on the material before me, I am not satisfied that the Information in Issue is of a confidential nature or that it was communicated in confidence. However, even if the Information in Issue, or some of it, could be characterised as confidential information, for these factors favouring nondisclosure to apply, I must also be satisfied that its disclosure could reasonably be expected to prejudice the Department’s ability to obtain confidential information or the future supply of this type of information.[70] TerraCom submitted[71] that disclosure of the Information in Issue will impede the Department’s ability to ‘receive other confidential information in the future’, however, TerraCom has not detailed how this claimed impediment could be expected, in the circumstances of this review, to arise from disclosing the Information in Issue, or any particular part of it. In this regard, I am able to confirm that the Information in Issue includes some information TerraCom provided to the Department. As mentioned at paragraph 52 above, under the regulatory framework, the provision of certain information by resource authority holders is required for the lawful undertaking of notifiable road uses. Also, in this matter, TerraCom publicly announced its temporary trucking of coal and the Minister’s Statement confirmed that a road use direction was issued to TerraCom in respect of that announced road use. Taking into consideration the requirements of the regulatory framework and the publicly accessible information about TerraCom’s trucking of coal, I am not satisfied that disclosing the Information in Issue could reasonably be expected to prejudice the future supply of information to government about notifiable road uses. For these reasons, I do not consider that these factors favouring nondisclosure[72] apply to the Information in Issue. Other factors For the sake of completeness, I confirm that, in addition to the factors favouring nondisclosure canvassed above, I have also given careful consideration to the other factors listed in schedule 4, parts 3 and 4 of the RTI Act. Having scrutinised these factors, I can identify no other factors telling in favour of nondisclosure of the Information in Issue, beyond those identified above. For example, I cannot see how disclosure of the Information in Issue is prohibited by an Act,[73] or could reasonably be expected to prejudice security, law enforcement or public safety;[74] impede the protection of the environment;[75] prejudice the flow of information to the police or another law enforcement or regulatory agency;[76] or prejudice or harm a deliberative process of government.[77] Balancing the public interest I have taken the general pro-disclosure bias of the RTI Act[78] into account. I consider that the accountability and transparency factors favouring disclosure of the Information in Issue carry significant weight. To the extent that nondisclosure factors relating to TerraCom’s business and financial affairs information and the commercial value of such information apply, I consider these factors carry only low weight. On balance, I consider that the factors favouring disclosure of the Information in Issue outweigh the factors favouring nondisclosure. Accordingly, I find that disclosure of the Information in Issue would not, on balance, be contrary to the public interest and access to it may not be refused on this ground. Conclusion For the reasons outlined above, I find that TerraCom has not discharged the onus, imposed by section 87(2) of the RTI Act, of establishing that the Information in Issue should be refused, either on the ground that it is exempt information, or on the ground that its disclosure would, on balance, be contrary to the public interest. DECISION I affirm the Department’s decision to grant access to the Information in Issue, as no grounds for refusing access under the RTI Act have been established. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.A RickardAssistant Information Commissioner Date: 9 May 2019 APPENDIX Significant procedural steps Date Event 17 December 2018 OIC received the external review application. 21 January 2019 OIC notified TerraCom and the Department that the external review had been accepted and asked the Department to provide information. 25 January 2019 OIC received the requested information from the Department. 30 January 2019 OLO confirmed it continued to seek access to the Information in Issue. 31 January 2019 OIC conveyed a preliminary view to TerraCom and invited TerraCom to provide submissions if it did not accept the preliminary view. 16 February 2019 OIC received TerraCom’s submissions. 18 February 2019 OIC spoke to the applicant, received additional submissions and provided the applicant with an update on the status of the review. 4 April 2019 OLO confirmed to OIC that it wished to participate in the external review. [1] Access application dated 19 July 2018. The date range applicable to the application was 28 April 2017 to 19 July 2018. [2] By letter dated 6 September 2018. [3] By email dated 17 September 2018 and in a telephone conversation with the Department on 24 September 2018.[4] Decision addressed to TerraCom dated 28 September 2018 and decision addressed to OLO dated 27 September 2018. [5] The Department decided to delete mobile telephone numbers appearing on page 2, on the basis they were irrelevant to application, and refuse access to signatures appearing on pages 2 and 5 and a paragraph appearing on page 1, which the Department described as comprising ‘TerraCom’s forecasted monthly tonnage of coal to be hauled’. [6] On 24 October 2018.[7] On 21 November 2018.[8] As referred to in footnote 5 above. On internal review, the Department decided to disclose the paragraph appearing on page 1 referred to in footnote 5.[9] External review application dated 17 December 2018.[10] Under section 89(3) of the RTI Act. [11] Other roads are managed by entities such as local government authorities. [12] Which includes a State-controlled road. [13] Under section 62 of the Common Provisions Act and section 26 of the Mineral and Energy Resources (Common Provisions) Regulation 2016 (Qld) (Common Provisions Regulation), a ‘notifiable road use’ is defined to include the use of a public road to haul minerals that have been mined under the Mineral Resources Act 1989 (Qld) at ‘more than a haulage threshold rate’. Section 26(3) of the Common Provision Regulation then defines the ‘haulage threshold rate’ for a State-controlled road to be 50,000 tonnes a year. [14] Under section 63(1)(a) of the Common Provisions Act. The matters which are required to be stated in the resource authority holder’s notice given about a notifiable road use are specified in section 27 of the Common Provisions Regulation. [15] Under section 64(1) of the Common Provisions Act. [16] Section 64 of the Common Provisions Act also sets out matters which may be included in a road use direction. [17] TerraCom’s ASX Announcement dated 16 May 2017 confirmed that the transfer of the mining lease for the Blair Athol Mine to Orion has been completed. TerraCom’s ASX Announcements are available on its website (<https://terracomresources.com/>). [18] For example, TerraCom’s ASX Announcements: • dated 8 August 2017 stated ‘For this interim period coal will be transported to a nearby train loading facility’ • dated 15 August 2017 stated ‘As previously announced the first 6 months of coal sales will be transported to a nearby train loading facility’; and • dated 8 March 2018 stated ‘The commissioning of the dedicated rail load-out facility will allow the trucks which are currently transporting the coal to another rail load-out facility to be taken off the road’. [19] In its March 2018 Quarterly Report, which is available on TerraCom’s website. [20] The Question on Notice was asked on 20 March 2018 and the answer was tabled on 13 June 2018. The tabled answer is accessible at <https://www.parliament.qld.gov.au/documents/TableOffice/questionsAnswers/2018/213-2018.pdf#search=(Blair %20AND%20athol)>. [21] As evidenced by media reporting, such as the articles titled ‘Mine operator wants to cart coal on Peak Downs’, Daily Mercury, 7 September 2017, accessible at <https://www.dailymercury.com.au/news/mine-operator-wants-to-cart-coal-on-peak-downs/3221406/> and ‘Four triple road trains to do coal haul along highway’, Daily Mercury, 12 September 2017, accessible at <https://www.dailymercury.com.au/news/four-triple-road-trains-to-do-coal-haul-along-high/3222572/>. [22] A ‘disclosure decision’ is defined to include a decision to disclose information contrary to the views of a relevant third party obtained under section 37 of the RTI Act—section 87(3)(a) of the RTI Act. [23] Under section 87(2) of the RTI Act. [24] Section 23 of the RTI Act. The RTI Act is required to be administered with a pro-disclosure bias—section 44(4) of the RTI Act. [25] Section 47(2)(a) of the RTI Act. [26] Section 47(3)(a) of the RTI Act. Schedule 3 of the RTI Act sets out the types of information that comprise exempt information. [27] Schedule 3, section 8(1) of the RTI Act.[28] B and Brisbane North Regional Health Authority [1994] QICmr 1; [1994] 1 QAR 279 (B and BNRHA) at [44]. This decision of the Information Commissioner analysed the equivalent exemption in the repealed Freedom of Information Act 1992 (Qld). [29] See B and BNRHA at [57] to [58]. These criteria have been consistently applied in the context of the RTI Act, see Edmistone and Blackall-Tambo Regional Council [2016] QICmr 12 (15 April 2016) at [14], Australian Workers Union and Queensland Treasury; Ardent Leisure Limited (Third Party) [2016] QICmr 27 (28 July 2016) at [16] and Glass Media Pty Ltd and Department of the Premier and Cabinet; Screen Queensland Pty Ltd (Third Party); The Walt Disney Company (Australia) Pty Ltd (Fourth Party) [2016] QICmr 30 (18 August 2016) at [38]. [30] External review application.[31] Such as the articles referenced in footnote 21. [32] Section 108(3) of the RTI Act provides that the Information Commissioner must not include information that is claimed to be exempt information or contrary to the public interest information in reasons for a decision on external review. Given TerraCom’s claims that the Information in Issue is exempt information and contrary to the public interest information, I am unable to provide any further detail about the Information in Issue in these reasons for decision. [33] B and BNRHA, at [84]. As noted at paragraph 25, I am not satisfied that all the Information in Issue is of a confidential nature. [34] B and BNRHA at [76].[35] B and BNRHA at [82] and [84], citing Smith Kline and French Laboratories (Aust) Limited and Ors v Secretary, Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291, pp.302-3.[36] As noted at footnote 32, given section 108(3) of the RTI Act, I am unable to provide any further details about the Information in Issue in these reasons. [37] Section 27 of the Common Provisions Regulation. [38] External review application. [39] External review application. [40] Submissions dated 16 February 2019. [41] Edmistone and Blackall-Tambo Regional Council [2016] QICmr 12 (15 April 2016) at [21].[42] B and BNRHA at [91].[43] External review application. [44] Sections 47(3)(b) of the RTI Act. [45] In schedule 4 of the RTI Act. However, factors listed in schedule 4 are not exhaustive. In other words, factors that are not listed may also be relevant. [46] Section 49(3) of the RTI Act.[47] I have not taken any irrelevant factors into account.[48] Schedule 4, part 3, item 2 of the RTI Act. [49] Schedule 4, part 3, item 16 of the RTI Act. [50] Schedule 4, part 2, item 1 of the RTI Act. [51] Schedule 4, part 2, item 2 of the RTI Act. [52] Schedule 4, part 2, item 3 of the RTI Act. [53] Schedule 4, part 2, item 11 of the RTI Act. [54] Submissions dated 16 February 2019. [55] Submissions dated 16 February 2019. [56] For example, TerraCom’s ASX Announcements noted at footnote 18.[57] External review application. [58] Schedule 4, part 4, item 7(1)(c) of the RTI Act.[59] As noted at footnote 32, given section 108(3) of the RTI Act, I am unable to provide any further details about the Information in Issue in these reasons. [60] Schedule 4, part 4, item 7(1)(c) of the RTI Act.[61] As required by the business prejudice factor and the business harm factor respectively.[62] Schedule 4, part 3, item 2 and schedule 4, part 4, item 7(1)(c) of the RTI Act respectively. [63] Schedule 4, part 3, item 15 of the RTI Act. [64] Schedule 4, part 4, items 7(1)(a) and (b) of the RTI Act. [65] In Cannon and Australian Quality Egg Farms Ltd (1994) QAR 491 at [43], the Information Commissioner cited a statement in the decision of Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VicRp 7; (1967) VR 37, which referred a trade secret as ‘any formula, pattern or device or compilation of information which gives an advantage over competitors who do not know or use it’.[66] Schedule 4, part 3, item 15 and schedule 4, part 4, items 7(1)(a) and (b) of the RTI Act. [67] Schedule 4, part 4, item 8(1) of the RTI Act. [68] External review application. [69] Submissions dated 16 February 2019.[70] As required by the confidential information prejudice factor and the confidential information harm factor respectively.[71] External review application. [72] Schedule 4, part 3, item 16 and schedule 4, part 4, item 8(1) of the RTI Act. [73] Schedule 4, part 3, item 22 of the RTI Act. [74] Schedule 4, part 3, item 7 of the RTI Act. [75] Schedule 4, part 3, item 11 of the RTI Act. [76] Schedule 4, part 3, item 13 of the RTI Act. [77] Schedule 4, part 3, item 20 and schedule 4, part 4, item 4 of the RTI Act. [78] Section 44 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Hearl and Mulgrave Shire Council [1994] QICmr 12; (1994) 1 QAR 557 (27 June 1994)

Hearl and Mulgrave Shire Council [1994] QICmr 12; (1994) 1 QAR 557 (27 June 1994) Last Updated: 26 February 2001 OFFICE OF THE INFORMATION ) L 6 of 1993COMMISSIONER (QLD) ) (Decision No. 94012) Participants: WENDELL RUBEN HEARL Applicant - and - MULGRAVE SHIRE COUNCIL Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - parts of FOI access request framed in terms which seek answers to questions rather than access to existing documents - whether application for review "misconceived" and "lacking in substance" within the terms of s.77(1) of the Freedom of Information Act 1992 Qld - some parts of FOI access request making unsubstantiated assertions of collusion between the respondent and unnamed "marijuana growers" - whether application for review "vexatious", "misconceived" and "lacking in substance" within the terms of s.77(1) of the Freedom of Information Act 1992 Qld - agreement to reframe FOI access request to state more precisely the class of documents to which access is sought - words and phrases: "vexatious".FREEDOM OF INFORMATION - refusal of access - documents claimed to be exempt under s.43(1) of the Freedom of Information Act 1992 Qld - common law principles pertaining to legal professional privilege - application of s.43(1) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.7, s.14, s.21, s.25(1), s.25(2), s.43(1), s.52, s.77, s.77(1), s.80, s.88(1)(b)Freedom of Information Regulation 1992 Qld s.6, s.7, s.8Harbours Act 1955 Qld s.97AAspar Autobarn Co-operatives Society v Dovala Pty Ltd (1987) 74 ALR 550Cannon and Australian Quality Egg Farms Limited, Re (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported)Dalleagles Pty Ltd v Australian Securities Commission (1991) 6 ACSR 498Grant v Downs [1976] HCA 63; (1976) 135 CLR 674Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44Packer v DCT (Qld) (1985) 55 ALR 242Smith and Administrative Services Department, Re (Information Commissioner Qld, Decision No. 93003, 30 June 1993, unreported)Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (Sup Ct of WA, Full Court, No. 1347 of 1990, 16 June 1993, unreported)Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 - i - DECISION1. In accordance with s.77 of the Freedom of Information Act 1992 Qld (the FOI Act), I decide not to review further the respondent's decisions in response to the following parts of the applicant's initial FOI access request dated 10 May 1993 (as numbered in paragraph 3 of my reasons for decision) - (a) parts 1, 2, 3, 4, 6, 7, 16, 17 and 23; and (b) parts 9, 10 and 11 insofar as those parts relate to resumption of land for beach access; on the basis that the application for review of those decisions is misconceived and lacking in substance.2. In accordance with s.77 of the FOI Act, I decide not to review further the respondent's decisions in response to the following parts of the applicant's initial FOI access request dated 10 May 1993 - (a) parts 9, 10 and 11 insofar as those parts relate to alleged resumption of land for "marijuana growing"; (b) parts 12, 13, 18, 19, 20, and 21; (c) the first part of part 14; and (d) the first question in part 22; on the basis that the application for review of those decisions is vexatious, misconceived and lacking in substance.3. In respect of part 14 of the applicant's initial FOI access request, insofar as it requests reports on the Moon River Caravan Park resumption, I set aside the respondent's decision of 20 July 1993 and in substitution for it I decide that the applicant may (subject to payment of any fees required by sections 6, 7 or 8 of the Freedom of Information Regulation 1992) be given access to the 96 pages identified by the respondent which deal with that subject (being the documents forwarded to me under cover of the respondent's letter dated 24 August 1993).4. The respondent's decisions of 20 July 1993 in response to parts 5, 8, 15 and the second question of part 22, of the applicant's initial FOI access request dated 10 May 1993, are set aside, and in substitution for them I decide that: (a) the applicant may (subject to payment of any fees required by sections 6, 7 or 8 of the Freedom of Information Regulation 1992) be given access to 238 of the 255 pages which have been identified by the Council as falling within the terms of the reframed FOI access request agreed to by the applicant (the terms of which are set out at paragraph 40 of my reasons for decision); and - ii - (b) the remaining 17 pages are exempt documents under s.43(1) of the FOI Act (being the 17 pages identified as folios 11, 12, 13, 15, 61, 63, 68, 69, 193, 195, 198, 199, 202, 205, 207, 208 and 216 in a schedule headed "Documents Subject to Exemption" which accompanied the Council's letter to me dated 1 November 1993).Date of Decision: 27 June 1994..........................................................F N ALBIETZINFORMATION COMMISSIONER - iii - TABLE OF CONTENTS PageBackground 1The Review Process 5Determination of Outstanding Issues 9 (1) The applicant's initial FOI access request 9 (2) Documents claimed to be exempt under s.43(1) of the FOI Act 12 Application of the law to the documents in issue 14Conclusion 15OFFICE OF THE INFORMATION ) L 6 of 1993COMMISSIONER (QLD) ) (Decision No. 94012) Participants: WENDELL RUBEN HEARLApplicant - and - MULGRAVE SHIRE COUNCIL Respondent REASONS FOR DECISION Background1. The applicant seeks review of the respondent's decision refusing access to requested documents on the basis that most of the requested documents do not exist, or (as to some 17 documents) that they are exempt from disclosure under s.43(1) of the Freedom of Information Act 1992 Qld (the FOI Act) (the legal professional privilege exemption).2. Mr Hearl's initial FOI access request dated 10 May 1993 exemplifies some of the problems with the framing of an FOI access request to which I referred in my reasons for decision in Re Cannon and Australian Quality Egg Farms Limited (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported) at paragraphs 8 to 16, and many other problems as well. Chief among its problems is that it is framed predominantly as a request to supply information in the form of answers to questions, rather than in the form of access to documents.3. Mr Hearl's initial FOI access request, as numbered by the FOI decision-maker of the Mulgrave Shire Council (the Council), reads as follows: Would you please supply the following information under the Freedom of Information. 1. Details of land Council claims I had changed from Fisheries Habitat Reserve to freehold? 2. The area of land changed? 3. The location of the land I had changed? 4. The date I had the land changed? 5. All correspondence the Council has on this change. 6. The details of how I sort and was given approval for this change and the name of the Government Department that made the change. 7. The details of my application for this land. 8. Copies of letters written to any Department to have the land changed to public use land. 9. The detailed procedure for council to resume land for marijuana growing and the procedure for Beach access? 10. Stage by stage of each type of resumption? 11. How the council arrives at the price paid for both beach access and marijuana growing? 12. Where did the meeting between the Councillors and the marijuana growers take place? 13. Name of all councillors who voted to give the land to the marijuana growers on every occasion a vote was taken? 14. All officers reports on the proposed acquisition and comparable reports of Moon River Caravan Park resumption. 15. Details of correspondence or communication with the Police advising them my land had been changed to public use land, and a copy of council records that support the advice given to the Police? 16. The name or names of the Police this information was given to? 17. Details of the area of land and the location of this land. 18. Details of instructions given to Drug growers to kill my family, who made the request and the number of drug growers involved? 19. Reasons given for wanting the drug growers to kill my family. 20. How the drug money was to be distributed? 21. Did any of the meetings with the drug growers take place in the (Chairman's Office) if so how many? 22. Did the council still require any of the land for the drug growers after it changed hands to Chapman or TNN Cairns? Provide all council records, officers reports and state government letters or other relevant documents from which Cr. Pyne and Cr. Marsh obtained their information for their media statements? 23. Full details of how my owing the land was just the remnants of the Joe Era (Cr. S. Marsh)?(This is a verbatim extract from Mr Hearl's letter dated 10 May 1993. I have not attempted to make any corrections to it.)4. The terms in which Mr Hearl's initial FOI access request is framed make no concession to readers who are not aware of the history of his past dealings with the Council. For instance, in respect of item 1, no particulars are given as to when, where and by whom (on behalf of the Council) claims were allegedly made that the applicant had land changed from Fisheries Habitat Reserve to freehold. It appears, however, that Council officers were well aware of the background to this part of Mr Hearl's FOI access request, which is related to various disputes dating back to the early 1970s over a particular parcel of land owned by Mr Hearl. It also appears that Mr Hearl was at one stage, but is no longer, an elected member of the Council.5. Mr Hearl's FOI access request was described in a subsequent letter to me from the Council's principal officer as "malicious, defamatory or vexatious". There is no provision of the FOI Act which entitles an agency to refuse to deal with an FOI access request on that basis. If, however, such a case reaches the stage of review under Part 5 of the FOI Act (which this case has now reached), s.77 empowers the Information Commissioner to decide not to review if satisfied that the application for review is "frivolous, vexatious, misconceived or lacking in substance".6. The Council's initial response to Mr Hearl, dated 2 July 1993, was as follows: I have been unable to locate any information requested in regards to items 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22. In relation to item 23, I have assumed you are referring to your letter dated 21st March, 1988 and attachments (which are enclosed) and particularly the attachment of a copy of a newspaper article FNQ Sunday dated 20th March, 1988. I have been unable to locate any references to this article. With regard to item 9, I have been unable to locate any reference whatsoever to the resumption of land "for marijuana growing". However, there are some records held on land acquired by Council for beach access, however, this matter falls into the category of a non-personal nature. If you are desirous of applying for access to these documents, you will need to make a non-personal application accompanied by a fee of $30.00.7. At this stage, it is pertinent to quote from the article referred to in the Council's initial response, which appeared in FNQ Sunday on 20 March 1988 under the headline "Waterway access stumps Council": The question of public or private access to a waterway at the bottom of Reed Rd, Trinity Park, has been bounced straight back into the lap of the State government. ... The question arose when developer Wendell Hearl deepened and widened a section of Moore Creek alongside Riverside Parade from Reed Rd to the ocean and prohibited local residents from launching their boats into the channel on the basis of recent amendments to State Government Acts governing inundated lands. Mr Hearl has maintained that the works he carried out formed a canal which added to the amenity of the housing estate he was developing on the surrounding land which he owned. Because the widened waterway covers land which he owns, he believes the amendments passed last year give him the right to restrict access and prevent the public from using it. The Council, on the other hand, does not accept the waterway is a canal, maintaining the development was not approved as a canal subdivision which Council officers say "would have been more involved and likely to attract additional conditions". Rather, Council believes the widening and deepening did not alter the waterway's status as a drain, therefore placing it outside the jurisdiction of the Harbours Act, which governs tidal, navigable rivers. According to a staff report to the Council, the relevant sections refer to "inundated land (which is land held in fee simple which has become inundated by water subject to tidal influence as a result of excavation) and allows the proprietor to mark the boundaries of the inundated land and the proprietor to restrict, regulate or prohibit the use or movement of vessels on, over, through or beneath the waters above that inundated land". Shire Chairman Cr Tom Pyne said the area was originally a fish habitat reserve and the developer had sought and received Government consent to put a drain through to the ocean and that the Council had been "caught in the middle" of the current controversy. Councillors requested an opinion from [Minister for Water Resources and Maritime Services] Mr Neal who suggested Council should seek an opinion from its own legal advisers. He suggested in his letter to last week's council meeting that if Mr Hearl is entitled to his claim the Council has two alternatives - it can resume the waterway or install a public boat ramp at another suitable site. Councillors agreed neither alternative was acceptable because of initial and ongoing expense and lack of any suitable site nearby. ... Cr Pyne [said] it was "a sad day when the water isn't free, when people have the right to put fences across the water and particularly when such actions are backed by State Government legislation". Cr Stan Marsh noted Mr Ahern's recent pledge to "clean up" various legislative anomalies which form part of the legacy of the Bjelke-Petersen era and suggested the Moore Ck waterway situation and the precedent it could set was one of those which deserved his attention.8. It appears from non-exempt documents which the Council has supplied to me that the relevant parcel of land (which the applicant prefers to refer to as Portion 143) includes mangrove swamp traversed by a small tidal watercourse, Moore Creek. The land was formerly subject to a special lease but its conversion in 1973 to freehold title registered to Mr Hearl was undertaken without any reservation or exclusion from the title in respect of Moore Creek. That section of Moore Creek was not at that stage navigable, but Mr Hearl subsequently undertook excavation works which resulted in a navigable channel. At various times Mr Hearl has sought to prevent members of the public from using what he asserts to be his private property. On one occasion Mr Hearl dumped rocks on a small natural ramp which members of the public had been using to launch small boats into Moore Creek. After the Council removed the rocks, Mr Hearl erected a fence across that part of Moore Creek to which he asserted his freehold title. Mr Hearl's actions had prompted many complaints and petitions to Council from concerned local residents, and the situation was apparently a local government issue of some controversy at the time of publication of the newspaper article quoted above.9. On one occasion in 1987 Mr Hearl was charged and convicted of assault on a person seeking to have access to the channel. Mr Hearl's defence appears to have been that he was entitled to restrain a trespasser on his private property. The Magistrate apparently accepted evidence that the location of the assault was not on Mr Hearl's private property but on a Fisheries Habitat Reserve. Mr Hearl's FOI request appears to be aimed, in part, at demonstrating that that finding was mistaken. 10. Many people, including government officials, have had difficulty in accepting that a waterway of this kind could be private property. Certainly, over the years, a number of different government agencies seem to have given inconsistent advice as to the extent of any rights of public use that may exist in respect of that part of Moore Creek and the land bordering it which is within the boundaries of Mr Hearl's freehold title. I note in this regard that one of the non-exempt documents which the Council has agreed to release to Mr Hearl is the letter to Council from the former Minister for Water Resources and Maritime Services, Mr Neal, which is referred to in the newspaper article quoted above. This letter makes it clear that the position of the Minister and his Department at that time was that the neighbouring Fisheries Habitat Reserve did not extend as far as Portion 143 at the time that Mr Hearl obtained freehold title to Portion 143. Whether this position changed when Mr Hearl's construction works created a tidal, navigable channel is not addressed. Mr Hearl's assertion of private property rights in that part of Moore Creek which falls within his freehold title was bolstered by the enactment in 1987 of a new s.97A of the Harbours Act 1955 Qld (the effect of which is referred to in the sixth paragraph of the newspaper article set out at paragraph 7 above). Fortunately, it is not my function to assess the correct legal position, and the material set out above is provided by way of background to assist a better understanding of the nature of the dispute under the FOI Act which it is my function to deal with.11. On the day following publication of the newspaper article, 21 March 1988, Mr Hearl had written the letter to the Shire Clerk of the Council which is also referred to in the Council's initial response to Mr Hearl's FOI access request. In that letter, Mr Hearl had enclosed a copy of the newspaper article saying: In view of the seriousness of this statement, I have enclosed a copy of my certificate of title and would the Council please clarify if the area referred to in this article covers any of my property. Please mark on the certificate of title the areas referred to in the article. My wife has had an abusive phone call from the caravan park since this article in which the caller claimed the Council is intending to have my freehold property reverted back to a fisheries habitat reserve. The situation is becoming somewhat confusing as my freehold property never was a declared habitat reserve and did not have an existing drain downstream from Reed Road.12. Mr Hearl applied for internal review of Council's decision of 2 July 1993 by a more senior officer of the Council, in accordance with s.52 of the FOI Act. In doing so, he informed the Council that he had possession of a letter from Mr Warburton, the former Minister for Police & Emergency Services stating that the Mulgrave Shire confirmed Portion 143 was Fish Habitat Reserve. (I have sighted Mr Warburton's letter to the applicant dated 17 July 1992 and it is not quite so specific that it refers to Portion 143. What it in fact says is: "... telephonic advice from the Mulgrave Shire Council and Harbours and Marine Department [to the police] confirmed the area and its waterways were, within the terms of the Fisheries Regulation, a Fish Habitat Reserve" (the underlining is mine).) 13. The internal review decision made by the Council's principal officer, Mr N Mills, on 20 July 1993 confirmed the initial decision in all respects, and in respect of the additional matter raised by Mr Hearl said: Notwithstanding an extensive search of the Council's records, no plans "showing Portion 143 as fisheries habitat reserve" can be located, nor can any other records be found that relate to other documents you apparently claim "substantiate the Council giving information to government departments advising Portion 143 is fisheries habitat reserve".The letter from Mr Warburton does not contradict the Council's position in this regard, since it refers only to telephone advice having been given by an unnamed person on behalf of the Council.The Review Process14. By letter dated 4 August 1993, Mr Hearl wrote to me, as Information Commissioner, in the following terms: Please find enclosed a list of questions I asked the Mulgrave Shire Council under the F.O.I. and their reply. As you will note the reply is not satisfactory and probably not the truth according to the report in the FNQ Sunday 20th March 1988. (enclosed) I trust you can have my Questions more accurately answered.15. I responded to Mr Hearl by letter dated 18 August 1993 stating that I was prepared to review the Council's decisions, but pointing out that: Some of the items contained in your FOI access request dated 10 May 1993 seek information rather than access to existing documents. The FOI Act cannot be used to require a government agency to create a document in order to supply information in which a requester is interested. The FOI Act can only be used to obtain access to documents already in existence.16. I also invited Mr Hearl to provide me with any objective evidence available to him which tended to show that the Council was in possession or control of documents falling within the terms of his FOI access request. Mr Hearl has not responded to that invitation.17. With the benefit of material supplied by the Council, I was alerted to the existence of the longstanding issue between Mr Hearl and the Council concerning public access to land owned by Mr Hearl at Reed Road and Moore Creek, the general nature of which is briefly sketched in paragraphs 7-11 above. Despite the patent lack of precision and particularity in the framing of Mr Hearl's FOI access request, it appeared to me that parts 1-8 inclusive, 15-17 inclusive, 23 and the second question of part 22 were directed to aspects of this dispute. On 20 September 1993, the Deputy Information Commissioner wrote to Mr Hearl in the following terms: The external review that I am conducting is made difficult by the ill-defined terms of your initial FOI access application. The initial decision-maker, Mr Barry Ottone of the Mulgrave Shire Council (the MSC) has numbered the categories of documents sought by your initial FOI access application (a copy of your application as numbered by Mr Ottone is enclosed with this letter). The terms of the categories numbered 9-22 inclusive seek documents relating to an alleged relationship between the MSC and marijuana growers. The MSC has responded that there are no documents in existence which relate to any such issues. If you have any evidence which tends to show that there are such documents in existence, then I request that you forward that evidence to me. In the absence of some indication that documents concerning these categories must be in existence, then I cannot progress my external review on those categories of documents. ... It appears to me that there has been a longstanding issue between yourself and the MSC concerning public access to land owned by you at Reed Road and Moore Creek. ... In order to progress my external review, I think it is necessary to get you to more clearly define the nature of the documents to which you are seeking access. Leaving to one side for the moment the issues concerning documents relating to the alleged relationship between marijuana growers and the MSC, it appears to me that the issue concerning your land at the intersection of Reed Road and Moore Creek could be more appropriately addressed if your request for access were reframed in the following terms: All documents held by the Mulgrave Shire Council (including correspondence between the Mulgrave Shire Council and any government department) concerning public access to the land owned by Mr Hearl located at the intersection of Reed Road and Moore Creek. Would you please write to me advising whether this appropriately captures the nature of the documents to which you are seeking access.18. In paragraphs 8-12 of my reasons for decision in Re Cannon, I explained that it is open to an agency to negotiate with an applicant to agree on more precise terms for the reframing of an FOI access request. The Information Commissioner also possesses such a power, on a review under Part 5 of the FOI Act, by virtue of s.88(1)(b) of the FOI Act.19. Mr Hearl subsequently telephoned my Office on 22 September 1993 and indicated that he would like to amend the suggested terms for a reframed access request to include a reference to the real property description of his land. In a letter dated 24 September 1993, he confirmed the terms of a reframed FOI access request as per that telephone conversation.20. On 13 October 1993, I wrote to Mr Hearl in the following terms: I refer to your letter of 24 September 1993, and a telephone call to my office on 22 September 1993. As a result of that letter and telephone call, it appears to me that you are happy to accept my reframing of your initial application for access to documents, subject to insertion of a partial property description of the land involved. I therefore propose to proceed with my external review on the basis of that reframed request, which reads as follows: "All documents held by the Mulgrave Shire Council (including correspondence between the Mulgrave Shire Council and any government department) concerning public access to land owned by Mr Hearl, namely Portion 143 located at the intersection of Reed Road and Moore Creek." I have therefore called upon the Mulgrave Shire Council (MSC) to identify any further documents which fall within the request, including a number of documents previously provided to me by the MSC. I have requested the MSC to particularise which documents it is prepared to release to you and which documents the MSC says fall within exemption provisions under the FOI Act. I have asked for a response from the MSC within 21 days. You have not provided to me any documentary evidence which demonstrates the existence of a relationship between the MSC and marijuana growers, which is alleged in categories 9-22 inclusive of your initial access request. I therefore do not propose to deal any further with those categories of request but I propose that the external review in this matter will proceed on the basis of the agreed reframed request.21. I also wrote to the Council on 13 October 1993 requesting that it identify any further documents which fall within the terms of the reframed FOI access request, and to specify which documents it was prepared to release to Mr Hearl and which documents it claimed were exempt from disclosure under the FOI Act.22. The Council advised me by letter dated 1 November 1993 that it had identified 255 pages of documents responsive to the revised FOI access request, and that it was prepared to give Mr Hearl access to all but 17 pages, which were claimed to be exempt under s.43(1) of the FOI Act. The Council stipulated that since many of the 238 pages it was prepared to release did not concern Mr Hearl's personal affairs, Mr Hearl would be required to pay a $30 application fee to obtain access by way of inspection and 50cents per page for any photocopies he requested of documents which do not concern his personal affairs. On 11 November 1993, I authorised the Council to give Mr Hearl access to the 238 pages which the Council was prepared to release. I also informed Mr Hearl and invited him to make arrangements with the Council concerning access. (As at 22 June 1994, inquiries of the Council revealed that Mr Hearl still had not made arrangements to obtain access to those 238 pages.)23. Following examination of the 17 pages claimed to be exempt, I wrote to the applicant on 13 December 1993 informing him of my preliminary view that all 17 pages would be privileged from production in a legal proceeding on the ground of legal professional privilege, in accordance with the test for legal professional privilege enunciated by the High Court of Australia in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, and hence were exempt documents under s.43(1) of the FOI Act. I also forwarded for Mr Hearl's reference a copy of my reasons for decision in Re Smith and Administrative Services Department (Information Commissioner Qld, Decision No. 93003, 30 June 1993, unreported) in which I explained the nature of the legal professional privilege exemption in s.43(1) of the FOI Act. I asked Mr Hearl to inform me by 6 January 1994 whether or not he was prepared to accept my preliminary view in respect of the 17 pages claimed to be exempt under s.43(1).24. Subsequently, Mr Hearl handed into the office of the Mulgrave Shire Council a photocopy of my letter to him dated 13 December 1993 with the following remark handwritten upon it: This is a reply I expected from a pack of corrupted mongrel bred dingos. The Council forwarded that photocopy to me, for my information.25. Mr Hearl subsequently forwarded directly to me a letter dated 29 December 1993, in which he indicated his desire to obtain the 17 pages claimed to be exempt, and sought to revive his still unsubstantiated allegations of collusion between the Council and unnamed marijuana growers. 26. A further letter was sent to Mr Hearl stating that if he wished to contest the Council's claim in respect of the 17 pages said to be exempt under s.43(1) of the Act, he was now invited to address a submission in support of his case.27. Mr Hearl's response by letter dated 20 January 1994 did not address a submission on relevant issues, but said: I do not accept the preliminary view and am not prepared to withdraw my application for external review. The main reason the FOI was brought in was to allow the Public access to information various Government Departments and Local authorities have on private citizens. Should all or part of the files not be made available it would be little use having the FOI. The Mulgrave Shire claims to be an open and honest Council, what could they possibly have to hide. ... This is the MSC not the KGB that I am asking you to get these documents from. I trust you will have a more favourable reply this time.Determination of Outstanding Issues(1) The applicant's initial FOI access request28. I am concerned that the applicant's letter to me dated 29 December 1993, in seeking to revive his unsubstantiated allegations of collaboration between the Council and unnamed "marijuana growers", seems to indicate a different understanding of the agreement which I believed had been reached involving the reframing of his FOI access request in the agreed terms set out in the letter quoted at paragraph 20 above, with the external review to proceed on the basis of that reframed request. In case the applicant does not share that understanding, I propose to deal formally with the applicant's application for review and initial FOI access request, both of which contain patent defects. 29. The most basic is that the applicant's FOI access request is predominantly framed as a series of questions seeking answers, rather than as a request for access to documents. That this was the applicant's intention is, I think, clear from examination (as a sample) of parts 1 to 8 inclusive of his FOI access request, and the terms of his application for review (which are set out at paragraph 14 above). Parts 1, 2, 3, 4, 6 and 7 seek answers to questions, while parts 5 and 8 seek documents on the very same topics. The application for review asks me to have Mr Hearl's "questions more accurately answered".30. The FOI Act is not an Act which gives persons a legally enforceable right to obtain answers to questions asked of government agencies, or even to have government agencies extract answers to questions from documents in their possession. The legally enforceable right conferred by s.21 of the FOI Act is a right to be given access under the Act, and subject to the Act, to documents of an agency and official documents of a Minister. The term "document of an agency" is defined in s.7 of the FOI Act as follows: "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 term "official document of a Minister" is also defined in s.7 as follows: "official document of a Minister" or "official document of the Minister" means a document in the possession or under the control of a Minister, or the Minister concerned, that relates to the affairs of an agency, and includes - (a) a document to which the Minister is entitled to access; and (b) a document in the possession or under the control of a member of the staff of, or a consultant to, the Minister in the person's capacity as such a member or consultant.Section 25(1) of the FOI Act makes it clear that a person applies to an agency or Minister for access to a document of the agency or an official document of the Minister. Section 25(2) makes it clear that the application for access must provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency or the Minister to identify the document.31. My remarks in the opening sentence of paragraph 30 should not be taken to suggest that it is improper for an agency to provide answers to questions asked of it, or extract answers to questions from documents in its possession, if it is prepared to do so in the interests of assisting a member of the public. Any such suggestion would be contrary to s.14 of the FOI Act. Similarly, there is no impediment in the scheme of the FOI Act to an agency negotiating with an applicant for access under the FOI Act with a view to creating a new document to provide the information which the applicant seeks, where that would be more convenient for either or both of the applicant and the agency. Circumstances can be envisaged where it would clearly further the objects of the FOI Act for an agency and an applicant to come to an arrangement about creating a new document to provide the information which the applicant seeks, for example, where information can be extracted from existing documents and reworked into a form which is able to be released without objection (and which will satisfy the applicant) whereas the information in the context in which it appears in existing documents would fall within one or more of the exemption categories in the FOI Act. I would not wish to discourage agencies from assisting applicants in that manner in an appropriate case. I have in fact been prepared to recommend arrangements of that kind when seeking to achieve a negotiated resolution of an FOI dispute under s.80 of the FOI Act. However, in the context of a formal determination under Part 5 of the FOI Act, I am obliged to strictly apply the provisions of the FOI Act, and they confer no legal right to obtain answers to questions, as opposed to obtaining access to existing documents.32. The numbered parts of Mr Hearl's initial FOI access request which, according to their terms, seek access to documents rather than answers to questions are parts 5, 8, 14, 15 and the second question of part 22. Arguably, the terms of the other parts of Mr Hearl's initial FOI access request could be, and should be, interpreted so as to give them efficacy in terms of the FOI Act, i.e. by reading them as a request for any information in documentary form which would provide the details specified in the various parts of the FOI access request. This would ordinarily, in my opinion, be the most appropriate approach to interpretation of an FOI access request framed as a series of questions; however, for the reasons given at paragraph 29 above, I do not believe that such an approach would correctly reflect Mr Hearl's intentions in the framing of his initial FOI access request. Nevertheless, considerations of that nature prompted me to seek Mr Hearl's agreement to a reframing of those parts of his FOI access request which appeared to have some substance. 33. Arguably, too, the Council should have consulted with the applicant with a view to assisting the applicant to make his FOI access request in a form which complied with s.25(2) of the FOI Act (see Re Cannon at paragraphs 8-10). I do not know whether Council sought to consult with the applicant, but if there was any failure in that regard, it has been remedied during the process of review under Part 5 of the FOI Act through the consultation which I have undertaken with the applicant, which resulted in the agreed reframing of the terms of his FOI access request to encompass all parts of the original FOI access request which had some substance. The terms of the reframed access request are wide enough to cover any information in a documentary form held by the Council which would record details sought in parts 1, 2, 3, 4, 5, 6, 7, 8, 15, 16, 17, 23 and the second question of part 22.34. The remaining parts of the initial FOI access request in effect ask the Council to answer questions in respect of unsubstantiated allegations of collaboration between the Council and "marijuana growers" to injure the plaintiff's interests and family. If those allegations cannot be substantiated by the applicant, then in my opinion they are plainly vexatious and defamatory. In letters dated 18 August 1993 and 20 September 1993, I invited the applicant to forward to me any evidence in his possession which substantiates these allegations and tends to show that the Council has possession or control of documents which are responsive to these parts of his initial FOI access request. In a letter to Mr Hearl dated 13 October 1993, I referred to the fact that he had not provided to me any evidence which demonstrates the existence of a relationship between the Council and marijuana growers. Despite those invitations and promptings, the applicant has at no stage produced any material to me which substantiates his allegations concerning collaboration between marijuana growers and the Council, or which tends to show that the Council has possession or control of documents which are responsive to those parts of his initial FOI access request. 35. In these circumstances, I consider it appropriate that I exercise the power conferred on me by s.77(1) of the FOI Act to decide not to review further the Council's decisions in response to:(a) parts 9, 10 and 11 insofar as they relate to allegations of resumption of land for marijuana growing;(b) parts 12, 13, 18, 19, 20 and 21;(c) the first part of part 14; and(d) the first question of part 22;of the applicant's initial FOI access request, on the basis that I am satisfied that Mr Hearl's application for review of those decisions is vexatious, misconceived and lacking in substance. 36. I consider that the term "vexatious" is used in the context of s.77 of the FOI Act in the sense illustrated by the Shorter Oxford Dictionary when it says "Of legal actions: instituted without sufficient grounds for the purpose of causing trouble or annoyance to the defendant" (cf. Aspar Autobarn Co-operatives Society v Dovala Pty Ltd (1987) 74 ALR 550 at p.554, where this meaning was approved by the Federal Court of Australia in a comparable statutory context).37. I have also decided under s.77 of the FOI Act not to review further the Council's decision in response to other parts of Mr Hearl's initial FOI access request which are framed so as to seek answers to questions rather than access to documents (notably parts 1, 2, 3, 4, 6, 7, 16, 17 and 23, and parts 9, 10 and 11 insofar as they relate to resumption of land for beach access) on the basis that the application for review of those decisions is misconceived, and lacking in substance, for the reasons referred to in paragraph 30 above. I also consider that the application for review of the Council's response in respect of parts 1 to 7 (inclusive) of the initial FOI access request is frivolous and vexatious. Take, for example, parts 1 and 6. I am satisfied from the documents examined during the course of this review that Mr Hearl has not (and knows that he has not) made an application to any government department for, or been given any approval to, change Fisheries Habitat Reserve to freehold. The object of his request seems to be to make a point to Council that no such documents exist (though he has not particularised when, where, and by whom any such claims were made by or on behalf of the Council).38. I note that any documents that might exist (and are in the possession of the Council) which record details of the kind sought in parts 1, 2, 3, 4, 6, 7, 16, 17 and 23 of Mr Hearl's initial FOI access request, are covered by the terms of the agreed, reframed FOI access request.39. In respect of part 9 of the initial FOI access request, insofar as it relates to resumption of land for beach access, the Council advised Mr Hearl in its initial response (see paragraph 6 above) that it held some records on land acquired by the Council for beach access, and that Mr Hearl would have to pay a $30 application fee to pursue access to them. Copies of those records have been provided to me by the Council, and examined. The documents are in fact responsive to part 14 of Mr Hearl's initial FOI access request insofar as part 14 requests reports on the Moon River Caravan Park resumption. The Council has identified 96 pages which it is prepared to release to the applicant on payment of the $30 application fee which the Council had previously advised Mr Hearl he was required to pay. Those documents will include any record (in the possession of the Council) of the details which Mr Hearl requested in parts 9, 10 and 11 of his initial FOI access request, insofar as those parts relate to resumption of land for beach access. 40. The remaining parts of the initial FOI access request which did seek access to information in documentary form have, by agreement with the applicant, been reframed into an FOI access request in the following terms: All documents held by the Mulgrave Shire Council (including correspondence between the Mulgrave Shire Council and any government department) concerning public access to the land owned by Mr Hearl, namely Portion 143 located at the intersection of Reed Road and Moore Creek.41. The Council has agreed to allow Mr Hearl access to 238 pages which fall within the terms of the reframed FOI access request, and I have previously authorised the Council to give Mr Hearl access to those 238 pages. The Council claims that a further 17 pages which fall within the terms of the reframed FOI access request are exempt from disclosure under s.43(1) of the FOI Act. (2) Documents claimed to be exempt under s.43(1) of the FOI Act42. 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.43. In my reasons for decision in Re Smith and Administrative Services Department, I made the following observations in respect of legal professional privilege (at paragraph 82): ... The nature and scope of legal professional privilege at common law has been the subject of consideration by the High Court of Australia in a number of recent cases. A concise summary of the general principles which can be extracted from those High Court judgments is contained 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: "The nature of legal professional privilege has been closely examined by the High Court in a number of decisions, in particular 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. From these decisions, the following principles emerge: (1) To determine whether a document attracts legal professional privilege consideration must be given to the circumstances of its creation. It is necessary to look at the reason why it was brought into existence. The purpose why it was brought into existence is a question of fact. (2) To attract legal professional privilege the document must be brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings. Submission to legal advisers for advice means professional legal advice. It includes the seeking or giving of advice. Use in legal proceedings includes anticipated or pending litigation. (3) The reason for legal professional privilege is that it promotes the public interest. It assists and enhances the administration of justice by facilitating the representation of clients by legal advisers. There are eloquent statements of the importance of this public interest in each of the cases referred to above. (4) 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. (5) If a document contains material that does not fulfil the required test, that does not necessarily deny the document the protection of the privilege. What matters is the purpose for which the document was brought into existence. If it was for the required purpose, it is not to the point that the document may contain advice which relates to matters of policy as well as law. However, an analysis of the document may assist in determining its moving purpose. (6) A client may waive legal professional privilege: see in particular the Maurice case. (7) Some vigilance is necessary to ensure that legal professional privilege is not successfully invoked to protect from production documents that do not properly fall within its ambit. Otherwise the important public purposes it is intended to serve will be undermined. (8) Legal professional privilege does not attach to documents brought into existence for the purpose of guiding or helping in the commission of a crime or fraud, or for the furtherance of an illegal purpose, including an abuse of statutory power, or for the purpose of frustrating the process of the law itself: see the Kearney case."44. I note that the High Court cases referred to in this passage, while being authoritative as to those aspects of legal professional privilege which were in issue on the facts of each case, did not purport to exhaustively state all aspects of legal professional privilege which have been accepted by Australian courts; see, for example, Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244, Packer v DCT (Qld) (1985) 55 ALR 242, Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44, Dalleagles Pty Ltd v Australian Securities Commission (1991) 6 ACSR 498, Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (Sup Ct of WA, Full Court (Malcolm CJ, Seaman and White JJ), No. 1347 of 1990, 16 June 1993, unreported. Note: an appeal from this decision was argued in the High Court in October 1993 and the High Court's decision is reserved).Application of the law to the documents in issue45. The 17 pages claimed by the Council to be exempt under s.43(1) have been obtained and examined. I am not at liberty to disclose the nature of the documents in issue in any way that would disclose the type of advice sought by the Council or the advice that was given. I can say, however, that each document falls into one of the following categories:(a) requests for advice by the Council to a private firm of solicitors engaged by the Council;(b) requests by the Council's solicitors for further instructions from the Council in order to facilitate the preparation of legal advice; (c) provision of additional instructions from the Council to its solicitors;(d) legal advice by the Council's solicitors to the Council.46. The documents fall squarely within the scope of the common law principles of legal professional privilege referred to above. I am satisfied that all 17 pages would be privileged from production in a legal proceeding on the ground of legal professional privilege, and hence comprise exempt matter under s.43(1) of the FOI Act.Conclusion47. In accordance with s.77 of the Freedom of Information Act 1992 Qld (the FOI Act), I decide not to review further the Council's decisions in response to the following parts of the applicant's initial FOI access request dated 10 May 1993 -(a) parts 1, 2, 3, 4, 6, 7, 16, 17 and 23; and(b) parts 9, 10 and 11 insofar as those parts relate to resumption of land for beach access; on the basis that the application for review of those decisions is misconceived and lacking in substance.48. Again, in accordance with s.77 of the FOI Act, I decide not to review further the Council's decisions in response to the following parts of the applicant's initial FOI access request dated 10 May 1993 -(a) parts 9, 10 and 11 insofar as those parts relate to alleged resumption of land for "marijuana growing";(b) parts 12, 13, 18, 19, 20, and 21;(c) the first part of part 14; and(d) the first question in part 22;on the basis that the application for review of those decisions is vexatious, misconceived and lacking in substance.49. In respect of part 14 of the applicant's initial FOI access request, insofar as it requests reports on the Moon River Caravan Park resumption, I set aside the Council's decision of 20 July 1993 and in substitution for it I decide that the applicant may (subject to payment of any fees required by sections 6, 7 or 8 of the Freedom of Information Regulation 1992) be given access to the 96 pages identified by the Council which deal with that subject (being the documents forwarded to me under cover of the Council's letter dated 24 August 1993).50. The remaining parts of the applicant's initial FOI access request have, by agreement with the applicant, been reframed in the terms set out in paragraph 40 of these reasons for decision. I have previously authorised the Council to give the applicant access to 238 of the 255 pages which fall within the terms of the reframed FOI access request. I find that the remaining 17 pages are exempt documents under s.43(1) of the FOI Act. The formal decision needed to give effect to these findings is set out in the following paragraph.51. The Council's decisions of 20 July 1993 in response to parts 5, 8, 15 and the second question of part 22, of the applicant's initial FOI access request dated 10 May 1993, are set aside, and in substitution for them I decide that -(a) the applicant may (subject to payment of any fees required by sections 6, 7 or 8 of the Freedom of Information Regulation 1992) be given access to 238 of the 255 pages which have been identified by the Council as falling within the terms of the reframed FOI access request agreed to by the applicant (the terms of which are set out at paragraph 40 of my reasons for decision); and(b) the remaining 17 pages are exempt documents under s.43(1) of the FOI Act (being the 17 pages identified as folios 11, 12, 13, 15, 61, 63, 68, 69, 193, 195, 198, 199, 202, 205, 207, 208 and 216 in a schedule headed "Documents Subject to Exemption" which accompanied the Council's letter to me dated 1 November 1993)...........................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Hardy and Department of Health [2011] QICmr 28 (27 June 2011)

Hardy and Department of Health [2011] QICmr 28 (27 June 2011) Last Updated: 8 September 2011 Decision and Reasons for Decision Application Number: 310264 Applicant: Hardy Respondent: Department of Health Decision Date: 27 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 –– individual’s right to privacy – information communicated in confidence – information which could reasonably be expected to prejudice the management function of an agency – statements taken by an investigator during a workplace investigation regarding the treatment of a patient Contents REASONS FOR DECISION Summary The applicant made a complaint to the Department of Health, also known as Queensland Health (QH), about the level of care provided to her father. QH commissioned an external party to conduct an investigation into the complaint. The applicant applied under the Information Privacy Act 2009 (Qld) (IP Act) for access to full copies of the externally appointed investigator’s: Draft Report on Townsville District’s (QH) Treatment of the applicant’s deceased father dated 6 June 2008; and Final Report on Townsville District’s (QH) Treatment of the applicant’s deceased father dated 2 March 2009. QH located 721 pages and decided to grant the applicant full access to 505 pages, partial access to 41 pages and to refuse access to 175 pages. QH refused access to this information on the basis that its disclosure would, on balance, be contrary to the public interest under section 47(3)(b) of the Right to Information Act 2009 (RTI Act). The applicant applied to the Office of the Information Commissioner (OIC) for external review of QH’s decision. After carefully considering all of the information before me, I am satisfied that access to the Information in Issue[1] can be refused under section 67 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 under section 49 of the RTI Act.[2] Background Significant procedural steps relating to the application and external review are set out in the Appendix. Reviewable decision The decision under review is QH’s considered decision dated 21 May 2010.[3] Evidence considered In making this decision, I have taken the following into account: applicant’s access application dated 25 February 2010 QH’s considered decision dated 21 May 2010 applicant’s external review application dated 16 June 2010 file notes of telephone conversations held between OIC staff members and the parties during the external review the Information in Issue[4] and the information released by QH to the applicant submissions provided by the parties to the OIC statutory declarations by the General Manager of Quality & Ethics for the investigator and the Executive Director, Mental Health Reform, Townsville Health Service District dated 24 May 2011 and 25 May 2011 respectively 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 external review comprises 175 full pages and 41 part pages to which the applicant was refused access, except for the names of those people interviewed during the investigation (as the applicant advised that she does not seek access to this information).[5] (Information in Issue) The Information in Issue consists of: statements taken by an investigator during a workplace investigation regarding the treatment of a patient; and excerpts, summaries or analyses[6] of the statements in the Draft Report and Final Report. Applicant’s submissions The applicant made a number of submissions throughout the external review, including:[7] she was concerned that she was refused access to nearly all of the interviews, as she considered that the Final Report’s findings were based on them she could not have faith that recommendations in the Final Report would be implemented, given that no staff were to undergo any disciplinary processes she did not wish to access the investigation participants’ names, but sought access to the rest of the information (including the interviews) on the basis that such information was required for the investigator to make a decision, and would enable the applicant to establish why nearly every point in the terms of reference was unsubstantiated there was a lack of transparency in the investigation where there is no transparency, there is no efficiency QH staff and the public have no confidence in QH and this is not going to change while the culture of cover-ups remains public disclosure is not only in the public interest but is entirely necessary to facilitate credibility of QH’s investigative procedures QH staff know they can say “whatever they want” as their responses are confidential the Final Report relies on “hearsay which does not have to be proven” procedural fairness requires that complainants such as the applicant get an opportunity to consider investigation participants’ responses; and there was no transparency with regard to disclosure as to who were the ‘reference group of independent aged care specialists who provided expert input into the process with the result being a second & final report’ as stated in QH’s decision. QH’s submissions QH made a number of submissions throughout the external review, including:[8] at the outset of the investigation, assurances were given to the staff involved that the process was not being undertaken to apportion blame to any individual/s, but rather that it was to ensure that the Townsville Health Service District was heading down a pathway of improvement and to do so, the issues and problems needed to be explored a ‘no blame’ framework was used as part of the terms of reference, and if at any time during the investigation process a blameworthy act was indentified, then the investigation was to be stopped and a disciplinary pathway would be initiated a Root Cause Analysis (RCA) process was used as the framework for the investigation[9] an RCA process is undertaken on a strictly confidential basis in order to ensure staff meaningfully participate in investigations of clinical incidents participation in such a process is voluntary and is intended to identify problems and take corrective action without attributing blame unless assurances of confidentiality are given to those participating in it, it is reasonable to expect that individuals will either decline to participate or will be reluctant to provide full and frank input following the interviews, a number of staff were extremely traumatised and felt harassed there were significant concerns by staff that what had been said during the interviews was not accurately transcribed and was not reflected in the written versions of the statements handed back to them for signing staff felt they had not been given the opportunity to have the statements corrected or clarified and therefore some did not sign them staff were distressed–one had sought counselling and others had been provided with information on access to confidential support as a result of this case and its investigation, some senior staff required considerable support to regain professional confidence; one left the service citing this case as a primary cause for their departure; and another had chosen not to work in the area again the Draft Report was not accepted due to a number of significant concerns and inaccuracies within it and concerns that the terms of reference had not been followed; and given the above, QH maintains that disclosure of the information would be contrary to the public interest. Scope The applicant referred to the following passage from QH’s decision in her submissions: ‘... a new investigation was undertaken in conjunction with a reference group of independent aged care specialists who provided expert input into the process with the result being a second and final report...’ To the extent that the applicant seeks access to information regarding this reference group, I note that the scope of the access application extends to information in the Draft and Final Reports only. Having had access to full copies of both of these reports, I confirm that the only reference to a reference group of independent aged care specialists is in the Terms of Reference and the Methodology (to which the applicant has already been given access) which refer to advice being obtained from independent qualified professionals practicing in Queensland in the following areas: Nursing, Physiotherapy, Neurophysiology, and General Medical Practitioner (Confidential telephone calls and face to face interview on process related questions) as material used in defining the allegations. I am satisfied that the Information in Issue does not contain further information concerning the reference group of independent aged care specialists. Relevant law Access must be given to a document unless disclosure would, on balance, be contrary to the public interest.[10] 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.[11] Findings No irrelevant factors arise in this case. Factors favouring disclosure Taking into account all of the information before me, I am satisfied that disclosure of the Information in Issue could reasonably be expected to provide further contextual information about the investigation which would promote open discussion of public health affairs and enhance QH’s accountability for the provision of public sector health services.[12] In particular, I am satisfied that factors favouring disclosure of the Information in Issue include: disclosure of the information could reasonably be expected to contribute to public confidence in the integrity of QH’s decision making processes particularly in relation to the management of staff and resolution of disputes[13] 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[14] the information is the personal information of an individual who is deceased and the applicant is an eligible family member of the deceased person[15] disclosure of the information could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability;[16] and 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.[17] As well as effectively raising these factors, the applicant’s submissions raised “procedural fairness”[18] as a factor favouring disclosure of the Information in Issue. However, the duty to act fairly, in the sense of according procedural fairness in the making of an administrative decision, relates to persons whose rights, interests and legitimate expectations could be affected by the decision.[19] While the applicant is not entitled to procedural fairness in this sense, she is—as the complainant whose complaint initiated the investigation that resulted in the Information in Issue—entitled to be provided with an adequate explanation of the outcome of the complaint and the reasons for that outcome. In this regard, I note that the applicant has already been provided with: the summary of findings the executive summary background to the investigation the terms of reference and methodology; and an overview of each allegation along with the findings and recommendations of the investigator. Factors favouring non-disclosure Taking into account all of the information before me, I am satisfied that factors favouring non-disclosure of the Information in Issue include: disclosure of the information could reasonably be expected to prejudice an individual’s right to privacy[20] disclosure of the information would disclose personal information of a person, whether living or dead[21] disclosure of the information could reasonably be expected to prejudice an agency’s ability to obtain confidential information[22] the information consists of information of a confidential nature that was communicated in confidence and disclosure of the information could reasonably be expected to prejudice the future supply of information of this type;[23] and disclosure of the information could reasonably be expected to prejudice the management function of an agency.[24] My reasoning regarding the applicability of these factors in the circumstances of this external review is set out below. Personal information and privacy The applicant agreed to the deletion of names from the Information in Issue. However, personal information is defined in 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.’[25] [emphasis added] The removal of names from the Information in Issue would not remove all personal information, especially considering the applicant’s intimate knowledge of the events giving rise to the investigation. It is on this basis that the approach taken in Courier Mail and the Department of Health[26] (where Right to Information Commissioner Smith found that QH should give access to the information in de-identified form) may be distinguished. Given the applicant’s involvement in and/or awareness of these events, it is impossible to de-identify the Information in Issue. Therefore, it is still necessary to consider the public interest in the right to privacy. 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.[27] This can be distinguished from routine work information—that is, information that is solely and wholly related to the routine day to day work duties and responsibilities of a public service officer. I consider the provision of information to QH about a person’s thoughts and opinions in relation to a workplace investigation process is not wholly related to routine day to day work duties and responsibilities, but rather, falls within an individual’s ‘personal sphere’. Therefore, on the information available to me, I am satisfied that disclosure of the Information in Issue could reasonably be expected to prejudice the right to privacy of people who provided their thoughts and opinions in the investigation. Also, under part 4 of schedule 4 of the RTI Act, it is assumed that disclosure of this personal information could reasonably be expected to cause a public interest harm. Information communicated in confidence Disclosure could reasonably be expected to cause a public interest harm if: the information consists of information of a confidential nature the information was communicated in confidence; and disclosure of the information could reasonably be expected to prejudice the future supply of information of this type.[28] Information of a confidential nature The Information Commissioner has previously stated that the following matters are relevant in determining whether information is of a confidential nature:[29] the basic requirement is inaccessibility it is not necessary to demonstrate absolute secrecy or inaccessibility secrecy may attach to a way in which publicly available information has been utilised the question of confidentiality is to be determined by assessing the substance of the information rather than by reference to any express marking of ‘confidential’ on a document confidentiality may be lost with the passage of time; and the confider’s own attitude and conduct toward preserving the secrecy of allegedly confidential information may be relevant to whether it should properly be characterised as confidential information. As the Information in Issue contains thoughts and opinions provided in the context of a workplace investigation, which have not, to my knowledge, been otherwise disclosed, I am satisfied that it is information of a confidential nature. Information communicated in confidence Whether information is communicated in confidence is a question of fact to be determined by consideration of all 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.[30] QH submitted that a strictly confidential RCA process was used as the framework for the investigation in order to ensure that staff participated meaningfully and were forthcoming with information. The confidential nature of the investigation is evidenced by the following passages in the letters provided to investigation participants and support parties respectively:[31] Employees involved in the investigation process have an obligation to make sure that the process remains confidential. This means that you should not discuss this matter with other employees in the workplace other than your support person. You must respect the confidentiality of the issues that will be discussed during the interview. The information that you will be privileged to cannot be discussed outside the interview with anyone other than the person who invited you to be his or her support person. In addition, a statutory declaration provided by the Executive Director, Mental Health Reform, Townsville Health Service District[32] confirmed that: The District Executive planned to use the “No Blame” framework... If there was at any time in the investigation “any blameworthy act” then we would stop the investigation and go down a disciplinary pathway. This process fits with any clinical investigation normally undertaken by the District, inline with Queensland Health protocols, utilising Root Cause Analysis framework for a sentinel event where information provided to the investigators is held confidentially... Taking into account the above information, I am satisfied that the investigation participants provided information in the investigation on the understanding that it was to remain confidential. Prejudice the future supply of information The phrase ‘could reasonably be expected to’ in this context requires consideration of whether the expectation that disclosure of the Information in Issue could result in prejudice to the future supply of such information is reasonably based. In her statutory declaration, the Executive Director, Mental Health Reform, Townsville Health Service District confirmed that: a number of staff felt extremely traumatised and harassed by the interviews concerns were raised by staff that what they had said during the interview was not reflected in the written statements that had been handed back to them some staff had signed their statements under what they considered was significant duress and harassment by the investigator a number of staff were in tears at the meeting she organised to discuss the investigation one experienced member of staff was seeking counselling as a result of the investigation process other staff were advised to seek confidential support staff were given assurances that their statements would not be utilised in any outcome if they were inaccurate some very senior staff required significant support to regain professional confidence one member of staff left the service citing the investigative process as a significant cause; and another member of staff chose never to work in the area again. In light of the problems caused by the investigation as outlined above and considering that participation in this type of investigation is voluntary, I am satisfied that it would be reasonable to expect that supply of information which was given on the basis of assurances of confidentiality would be prejudiced in future voluntary processes of a similar nature if the Information in Issue were disclosed. Information which could prejudice the management function of an agency In relation to this factor, the phrase ‘could reasonably be expected to’ requires that I determine whether the expectation that disclosure of the Information in Issue could result in prejudice to the management function of an agency is reasonably based. My abovementioned finding—regarding prejudice to the future supply of confidential information—is relevant in this context. On the basis of that finding, I am satisfied that it is reasonable to expect that if the Information in Issue was disclosed, QH’s ability to use the voluntary RCA process as a framework to identify and examine situations adverse to patients’ health and safety[33] and to respond with corrective action would be impeded. This outcome appears particularly likely in the circumstances of this external review, given the nature of the Information in Issue (where staff have contested the accuracy of the statements and questioned the investigative processes used to obtain them). In this manner, I am satisfied that QH’s ability to effectively manage its staff would be prejudiced.[34] Balancing relevant public interest factors Whilst release of the Information in Issue could reasonably be expected to reveal further background and contextual information in relation to the investigation and therefore promote open discussion of public affairs and enhance QH’s accountability, I am satisfied that the weight to be attributed to these pro-disclosure factors is relatively low,[35] considering that the applicant has already been provided with: the summary of findings the executive summary background to the investigation the terms of reference and methodology; and an overview of each allegation along with the findings and recommendations of the investigator. I am satisfied that prejudice to the right of privacy of the investigation participants should be afforded a moderate weight due to the nature of the Information in Issue, that is, thoughts and opinions in relation to a workplace investigation, not just routine work information. I am also satisfied that disclosure of the Information in Issue would disclose information which was obtained by QH under an understanding of confidentiality and that the disclosure of that information would prejudice the future supply of that type of information to QH. Further, given the circumstances surrounding the investigation process and the gathering of confidential information, I am satisfied that disclosure of the Information in Issue would prejudice the management function of QH. I am satisfied that these factors should be afforded a significant weight. Therefore, on balance, I am satisfied that the public interest is not in favour of the disclosure of the Information in Issue. 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: 27 June 2011 APPENDIX Significant procedural steps Date Event 25 February 2010 Date of applicant’s access application 24 March 2010 QH received access application 30 April 2010 QH sent letter to applicant advising that it would be unable to finalise application by due date and requesting an additional 15 business days 21 May 2010 QH issued considered decision 16 June 2010 Date of applicant’s external review application 22 June 2010 OIC received applicant’s external review application 8 July 2010 OIC notified parties that external review application accepted 12 October 2010 OIC provided update to applicant 14 March 2011 OIC requested further submissions from QH 29 March 2011 QH granted an extension to provide further submissions 5 April 2011 OIC received some submissions from QH and granted extension to provide further submissions 11 April 2011 OIC received submissions from QH 29 April 2011 OIC received further submissions from QH 3 May 2011 OIC requested further submissions from QH 24 May 2011 QH granted an extension to provide further submissions 25 May 2011 QH provided Statutory Declaration from General Manager of Quality & Ethics for the investigator 27 May 2011 QH provided Statutory Declaration from Executive Director, Mental Health Reform, Townsville Health Service District 1 June 2011 OIC sent preliminary view to applicant 15 June 2011 OIC received applicant’s submissions in response to the preliminary view [1] As defined in paragraph 9.[2] Section 67 of the IP Act provides that QH may refuse access to a document in the same way and to the same extent that QH 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.[3] Which is the relevant decision for the purpose of the IP Act, given section 55(4) of the IP Act.[4] As defined in paragraph 9.[5] External review application dated 16 June 2010.[6] The excerpts, summaries and analyses are inextricably interwoven with the personal information of those people who provided the statements.[7] External review application dated 16 June 2010 and correspondence dated 13 June 2011.[8] Correspondence dated 11 April 2011 and statutory declaration of the Executive Director, Mental Health Reform, Townsville Health Service District dated 25 May 2011.[9] I note that the RTI Act does not apply to a document created for a root cause analysis of a reportable event under the Health Services Act 1991 (Qld), part 4B (section 9, schedule 1). However, this did not apply in these circumstances as there was no ‘reportable event’ as defined under section 33B of the Health Services Regulation 2002 (Qld). [10] Sections 64 and 67 of the IP Act and section 47(3)(b) of the RTI Act.[11] Section 49(3) of the RTI Act.[12] Summers and Cairns District Health Service [1997] QICmr 5; (1997) 3 QAR 479 at paragraph 27. [13] Raised in QH’s decision letter dated 21 May 2010. I note that the list of factors favouring disclosure set out in schedule 4, part 2 of the RTI Act is not exclusive. [14] Schedule 4, part 2, item 3 of the RTI Act.[15] Schedule 4, part 2, item 9 of the RTI Act.[16] Schedule 4, part 2, item 1 of the RTI Act.[17] Schedule 4, part 2, item 11 of the RTI Act.[18] Schedule 4, part 2, item 16 of the RTI Act.[19] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at paragraph 31.[20] Schedule 4, part 3, item 3 of the RTI Act.[21] Schedule 4, part 4, item 6 of the RTI Act. [22] Schedule 4, part 3, item 16 of the RTI Act.[23] Schedule 4, part 4, item 8 of the RTI Act. [24] Schedule 4, part 3, item 19 of the RTI Act.[25] Section 12 of the IP Act.[26] (Unreported, Queensland Information Commissioner, 22 February 2011).[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.[28] Schedule 4, part 4, item 8 of the RTI Act.[29] B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at paragraph 71. [30] McCann and Queensland Police Service [1997] QICmr 10; (1997) 4 QAR 30 at paragraphs 33-34.[31] QH confirmed by statutory declaration provided by the General Manager of Quality & Ethics for the investigator, that these template documents would have been provided to investigation participants.[32] Dated 25 May 2011. The declarant had, in her former capacity as District Director of Nursing, provided overarching coordination regarding the investigation that led to the Final Report.[33] Excluding circumstances where a blameworthy act is identified and diversion to disciplinary processes occurs.[34] Daw and Queensland Rail (Unreported, Queensland Information Commissioner, 24 November 2010) at paragraph 17.[35] Cf. Villanueva and Queensland Nursing Council and Ors (2000) 5 QAR 363 at paragraph 137 and Jackson and Department of Health (Unreported, Queensland Information Commissioner, 10 February 2010) at paragraph 42.

queensland

court_judgement

Queensland Information Commissioner 1993-

H40 and Queensland Police Service [2023] QICmr 30 (28 June 2023)

H40 and Queensland Police Service [2023] QICmr 30 (28 June 2023) Last Updated: 21 September 2023 Decision and Reasons for Decision Citation: H40 and Queensland Police Service [2023] QICmr 30 (28 June 2023) Application Number: 316370 Applicant: H40 Respondent: Queensland Police Service Decision Date: 28 June 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - applicant contended scope of access application should be interpreted to include additional documents - construction of scope of access application made under section 24 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - 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 under sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - DISCLOSURE PROHIBITED BY AN ACT - documents about domestic violence where children are mentioned - whether disclosure prohibited by sections 186-188 of the Child Protection Act 1999 (Qld) - whether information is exempt information - whether access may be refused under sections 47(3)(a) and 48 and schedule 3, section 12(1) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST INFORMATION - personal information of other individuals - personal information and right to privacy - whether disclosure of information would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISIONSummary The applicant applied[1] under the Right to Information Act 2009 (Qld) (RTI Act) to the Queensland Police Service (QPS) for access to all records about her and a specified individual (Individual A) involving domestic violence matters between 1995 to 2021. The type of documents sought by the applicant were QPRIME records and records on historical databases that existed before QPRIME was created.[2] QPS located 120 pages and decided[3] to grant full access to 10 pages and partial access to the remaining 110 pages, subject to the removal of information that would, on balance, be contrary to the public interest to disclose.[4] QPS also decided to refuse access to statements and images of the applicant and court briefs on the basis other access was fully available through an alternative access method (whether or not the access is subject to a fee or charge).[5] Finally, in relation to a particular document,[6] being CCTV footage of an occurrence of domestic violence in November 2010 (CCTV Footage) QPS undertook searches but refused access on the grounds it was unlocatable.[7] The applicant applied[8] to the Office of the Information Commissioner (OIC) for external review of QPS’s decision.[9] For the reasons outlined below, I vary QPS’s decision.[10] I am satisfied that QPS has taken all reasonable steps to locate documents responsive to the scope of the access application, and access to further documents may be refused on the ground they are nonexistent or unlocatable.[11] With respect to the CCTV Footage I am satisfied that QPS possessed the footage in 2010, but cannot locate it despite taking all reasonable steps to do so, and therefore may refuse access to the CCTV Footage on the ground it is unlocatable.[12] I also find that QPS may refuse access to exempt information, disclosure of which is prohibited by an Act;[13] and may refuse access to information on the grounds disclosure would be, on balance, contrary to the public interest.[14]Background Significant procedural steps relating to the external review are set out in the Appendix. During the review OIC conveyed a preliminary view on several issues to each participant.[15] QPS accepted OIC’s view on disclosure of certain information and disclosed this information to the applicant including the applicant’s formal statements, forensic images, and court briefs.[16] The applicant did not accept OIC’s view that the steps taken by QPS to locate responsive documents including the missing CCTV Footage were reasonable. The applicant also did not accept OIC’s view regarding the scope of the access application that is the subject of this external review; exempt information, disclosure of which is prohibited by an Act; and information that would, on balance, be contrary to the public interest to disclose. Consequently, those issues remain to be determined in this decision. The applicant disclosed a protected attribute early in the review process and in accordance with the provisions and purposes of the Anti-Discrimination Act 1991 (Qld) (A-D Act) I took particular steps to tailor our process to the applicant’s needs as far as possible throughout the review, making adjustments during the review process. I further note that I considered the Victims of Crime Assistance Act 2009 (Qld) (VOCA Act) throughout the conduct of this review in my dealings with the applicant, ensuring that the conduct of my staff towards the applicant was consistent with her rights in the VOCA Act. Reviewable decision The reviewable decision is QPS’s decision issued on 16 September 2021.Evidence considered The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to recognition and equality before the law and 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 and the RTI Act.[18] 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:[19] ‘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.’Issues for determination The issues for determination are: whether certain categories of documents sought by the applicant respond to the scope of the access application the subject of this external review whether access to the CCTV Footage may be refused on the basis it was previously in QPS’s possession but despite all reasonable searches cannot be located[20] whether access to further documents may be refused on the ground they are nonexistent or unlocatable[21] whether certain information about children qualifies as exempt information to which access may be refused, as disclosure is prohibited by an Act;[22] and whether access may be refused to the balance of the information[23] on the ground disclosure would, on balance, be contrary to the public interest.[24] Scope of access application Relevant Law The terms of an access application set the parameters for the documents that an agency is to identify and locate when processing the access application. The general rule is that the terms of an RTI Act access application should not be interpreted narrowly or with the same degree of precision as a piece of legislation.[25] However an access application must give sufficient information concerning the requested document to enable a responsible officer of the agency to identify the document.[26] There are sound practical reasons for requiring the documents sought in an access application to be clearly and unambiguously identified, including that the terms of the access application set the parameters for an agency’s response and the direction of an agency’s search efforts.[27] The scope of an access application cannot be unilaterally broadened on external review.[28] An access application can only apply to documents in existence on the day the application is received. [29] Applicant’s Submissions The applicant made submissions regarding the scope of the access application that is the subject of this external review. The applicant submitted:[30] that she required ‘ALL EVIDENCE (ie video surveillance footage, police Southport station footage, police camera worn footages, ALL forensic photographs of my 3 car's, ALL police report's, 000 calls etc etc... in addition to any information that is in relation to [herself]’ [sic] that ‘[her] request is still yet to be fulfilled’ ‘in [her] previous email to [OIC she] forgot to add to [her] further request for evidence to the RTI to which [she] also requested and enquired to obtain’ ‘[She had] been trying to obtain [her] right to information for the past 3 years and since April last year (2021) [she] ensured that the request was paid for’; and ‘[she had] twice by the RTI been denied and refused ALL court documents, statements, affidavits, photographs, video footage, video surveillance footage, voice messages, text messages and ALL police reports to which [she sought access] and have for over 3 years now have tried to obtain as the OIC have been aware of for quite some time.’ The applicant also made submissions about missing or unlocated documents relating to an incident of alleged violence between herself and a QPS Officer at a court appearance in 2017 (Court Incident).[31] Findings The applicant’s submissions appeared to expand the terms of the access application (summarised at paragraph 1 above) by seeking ‘all police reports’ and ‘any information’ about herself. However, it is evident from the applicant’s submissions that she had lodged at least two access applications with QPS (noting her submissions at paragraph 14) and may have held a mistaken belief that this external review was a review of multiple access applications. The applicant also appeared, by her own submission, to be ‘add[ing] to [her] further request for evidence’ as the exter[32]l review progressed.32 This review deals solely with QPS’s access decision issued on 16 September 2021. Accordingly, this decision only considers documents within the scope of the access application lodged by the applicant to QPS on 26 May 2021 the subject of that decision: namely, documents about the applicant and Individual A in the context of domestic violence, and the type of documents sought by the applicant is limited to QPRIME documents and to documents on historical databases predating QPRIME. I consider that documents about the Court Incident from 2017 are out of scope of the access application by subject, as the QPS Officer allegedly involved in the 2017 incident is not Individual A as named by the applicant in her access application at paragraph 1. In respect of triple zero calls to QPS, I requested further information from QPS, who submitted the following:[33] The PCC [Police Communications Centre] Unit [have advised] they are not able to retrieve triple zero calls prior to 2012. It is as a result of historic equipment malfunctioning or no longer able to connect to networks. They would still have the tape it was recorded on but no ability to play it. The system used by PCC to store the recordings is not associated with QPrime and the recordings cannot be accessed through the QPrime database. In light of the above I am satisfied triple zero calls are out of scope of the applicant’s access application as they are neither QPRIME documents nor documents of a historical database predating QPRIME, they are from a system which sits apart from QPRIME and its predecessors. In relation to Police Body Worn Camera (BWC) footage, it is not created in, nor saved in QPRIME.[34] The QPS approved storage facility for BWC footage is evidence.com. BWC footage must be uploaded to evidence.com by the QPS officer and retained in accordance with the QPS Retention and Disposal Schedule. It therefore follows, for the purpose of this review, that BWC footage is not a QPRIME record or a document from a historical database pre-dating QPRIME and is therefore not within the scope of the applicant’s access application. I note that QPS located BWC footage in the course of this review by searching in evidence.com. While that footage was outside the scope of the applicant’s access application, QPS nonetheless agreed to grant access to that footage by way of inspection.[35] As for the submission in the final dot point of the applicant’s submissions at paragraph 14 above, I will address the applicant’s concerns in the discussion about the sufficiency of QPS’ searches below. I am mindful that a number of the documents discussed in the remainder of this decision are technically outside the scope of the access application (not being QPRIME records or records from a database preceding QPRIME). However, the documents were searched for and, where possible, disclosed to the applicant as part of a trauma informed process in the external review taking into account the applicant’s status as a victim of crime and her rights prescribed in the VOCA Act and in accordance with our obligation to promote settlement of the exter[36]l review.36Sufficiency of searchRelevant law Under the RTI Act a person has a right to be given access to documents of an agency.[37] However, this right is subject to provisions of the RTI Act including the grounds on which an agency may refuse access to documents.[38] Relevantly, access to a document may be refused if the document is nonexistent or unlocatable.[39] To be satisfied that a document does not exist, various key factors will be relevant including, but not limited to: [40] the administrative arrangements of government the agency’s structure the agency’s functions and responsibilities the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested document/s and the nature of the government activity to which the request relates. To determine whether a document exists, but is unlocatable, the RTI Act requires consideration of whether there are reasonable grounds to be satisfied that the requested document has been or should be in the agency’s possession; and, if so, whether the agency has taken all reasonable steps to find the document.[41] 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. An additional consideration when assessing whether an agency has taken reasonable steps to identify and locate documents applied for by an applicant is the terms of the access application or its scope. 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.[42] Generally, the agency that made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[43] However, where an external review involves the issue of missing documents, the applicant has a practical onus to establish reasonable grounds to be satisfied that the agency has not discharged its obligation to locate all relevant documents. Suspicion and mere assertion will not satisfy this onus.[44]Applicant’s submissions The applicant made extensive submissions throughout the review process, including those noted at paragraph 14[45] above.45 While some of the applicant’s submissions were unclear (understandably, due to the trauma suffered by the applicant), I have used my best endeavours to elucidate her meaning. I have considered the applicant’s full submissions carefully and have summarised the relevant parts of the various submissions below. The applicant was most concerned to have QPS locate the CCTV Footage submitting: she had spoken with many QPS officers over the years, including as recently as August 2021 (some of whom she identified), and all of the QPS Officers she spoke with specifically told her they could see the CCTV Footage, or had watched the CCTV Footage and described the footage and her injuries to her she was entitled to all documents about herself including the CCTV Footage and her review will not resolve until QPS located the CCTV Footage she possessed extensive email evidence to prove that QPS is lying to OIC when it states it cannot locate the CCTV Footage she required the CCTV Footage and all of the requested documents to support her victim assist application; and she found it very hard to believe and very questionable that the CCTV Footage was unable to be located. This ‘is an additional crime to be withholding and/or destroying of evidence.’ I invited the applicant to provide any evidence she believed may assist QPS locate the CCTV Footage, in particular the email evidence, and any other information. The applicant provided five emails to OIC in response to this request, with attached email threads and screenshots of emails between herself and QPS officers and employees.[46] The applicant was also generally concerned (including about the matters noted in the final dot point in paragraph 14 above) that other documents responsive to the terms of her access application had not been located by QPS, and specifically (List of Documents): DNA evidence All forensic photographs of the applicant Photographs of damage to a vehicle Voice messages; and Text messages.Findings CCTV Footage In documents located by QPS in its initial processing, 17 pages relate to a particular occurrence of reported violence on 5-6 November 2010. One page in this occurrence[47] notes the following regarding the CCTV Footage: [13/12/2010] Case Officer has viewed the CCTV Footage. ... A copy of the CCTV has been orderd [sic] to be picked up on the 14/12/2010. ... [15/12/2010] CCTV footage picked up from [address] by Constable [J.] Further to the evidence above, I also note QPS did not resile from the existence of the CCTV Footage and specifically refused access on the ground it was unlocatable in its decision notice.[48] I am satisfied that the CCTV Footage existed, and QPS was in possession of it on 15 December 2010. Therefore, the question becomes, has QPS taken all reasonable steps to locate the CCTV Footage? I am satisfied the answer to this question is yes, for the reasons that follow. When processing the access application, QPS searched for, and located, 120 pages responsive to the access application. Those searches did not locate the CCTV Footage and QPS refused access to the CCTV Footage on the ground it was unlocatable. On external review OIC required further searches by QPS, as well as direct enquiries with QPS officers and employees identified by the applicant. QPS submitted it took the following steps to locate responsive documents, including the CCTV Footage: S/CON BD of Nerang Police Station conducted searches for tapes SGT RP conducted searches in QPRIME direct enquiries were made with A/SGT CR at Beenleigh Police Station direct enquiries were made with Officer GD of Nerang Forensics the Police Information Centre conducted further searches of QPRIME and searches of 'docs web', which is a digital database of old records converted from microfilm Gold Coast District Prosecutions searched their records QPS searched its Forensic Imaging Section QPS conducted a search of evidence.com[49] (a system that stores downloaded BWC footage, introduced in 2017-2018) solely for the CCTV Footage QPS conducted searches for the court briefs (also known as QP9’s) QPS searched QPRIME again for any further statements and documents that responded to the scope of the access application; and the QPS RTI Officer searched evidence.com and QPRIME again, using each individual QP number.[50] QPS provided OIC with signed search declarations and search records from several QPS officers and stations where searches were undertaken or direct enquiries were made.[51] Despite the additional searches and enquiries noted above, the CCTV footage was not located. I queried with QPS whether it had searched its Central Tapes Facility. QPS stated that the Central Tapes Facility is largely where Electronic Records of Interview (EROI) are saved, and it links back to QPRIME so if there was a tape of any kind linked to the relevant QP number, it would show on QPRIME under the property tab. QPS submitted there was nothing showing in the QPRIME property tab of the QP number relevant to this matter.[52] In addition to requiring further searches by QPS to locate the CCTV footage, I carefully reviewed each of the email threads and screenshots the applicant provided as evidence that QPS should be able to locate the CCTV footage. In the emails provided by the applicant, two QPS officers asked the applicant to telephone them. Another QPS officer confirmed they had sent a task, and contacted a potential witness. A fourth QPS officer apologised for not responding to the applicant sooner and confirmed they had re-tasked contact with the applicant to another officer, as the first officer was no longer at the relevant station. The fourth QPS officer also sent another email asking the applicant about support services she was linked in with, offering assistance with the applicant’s exclusion from a program, and confirming they had escalated the applicant’s matter to the Officer in Charge at the station. The fourth QPS officer sent a third email seeking information from the applicant and advising they had been on leave and training. These are the extent of the QPS responses provided by the applicant as evidence for her submission that QPS should be able to locate the CCTV Footage. I find that there is no evidence within this material as to the present whereabouts of the CCTV Footage. In considering whether QPS has taken all reasonable steps to locate the CCTV Footage, I have considered QPS’s submissions about its searches and enquiries (at paragraphs 41 and 44), the signed search records provided by QPS, the documents confirming the previous existence of the CCTV Footage, the documents located, and the applicant’s submissions. I find that the searches and inquiries conducted by QPS to locate the CCTV Footage, have been reasonable in the circumstances. QPS appears to have searched the areas and databases in which it usually stores such information. I am satisfied that access to the CCTV Footage may be refused by QPS as it is unlocatable.[53] Other Documents Generally and the List of Documents As noted at paragraph 40 above, QPS were required to undertake additional searches in the course of the external review to locate documents responsive to the access application. As a result of those searches (outlined above at 41), QPS located a further 98 pages comprising the applicant’s formal statements and forensic images (Forensic Images) which it disclosed to [54]e applicant in full;54 and a further 19 pages comprising court documents (QP9) and 2 QPS Officer statements also discl[55]ed to the applicant.55 I have carefully reviewed the documents disclosed to the applicant both in the first instance by QPS and in the course of this external review. As regards DNA evidence. I have reviewed the QPRIME documents located by QPS. There is no mention of DNA evidence having been obtained in any of the QPRIME documents. Consequently, I am satisfied that no documents exist that are responsive to the applicant’s request and access to such documents may be refused pursuant to sections 47(3)(e) and 52(1)(a) of the RTI Act on the grounds they do not exist. I am satisfied on the material before me, that QPS has located and disclosed Forensic Images of the applicant and of damage to a vehicle,[56] and other photographs of the applicant.[57] In light of the searches undertaken by QPS, I consider that all reasonable steps have been taken to locate all photographs and no further documents exist and therefore access to such documents may be refused pursuant to sections 47(3)(e) and 52(1)(a) of the RTI Act. In respect of voice messages and text messages, on the material before me, it is evident that QPS officers typed out the text messages and voice messages relevant to the QPRIME occurrences into the QPRIME occurrence and/or QP9, and those documents have been disclosed to the applicant.[58] I consider that any voice message or text message not entered into QPRIME would be outside the scope of the applicant’s access application. Additionally, I am satisfied, in light of the searches undertaken by QPS, that all reasonable steps have been taken to locate voice messages and text messages in QPRIME and no further documents exist and therefore access to such documents may be refused pursuant to sections 47(3)(e) and 52(1)(a) of the RTI Act on the grounds they do not exist. In light of the above, I am satisfied that the documents identified in the List of Documents have either been located and disclosed to the applicant or do not exist. As regards the applicant’s general concerns that information has not been located that is responsive to her access application, I have considered the scope of the access application, QPS’s original searches, the searches I required QPS to undertake on external review, the documents located by QPS, and the applicant’s submissions, outlined above at paragraphs 1, 14, 17, 31, 39 and 41. I am satisfied that all reasonable steps have been taken by QPS to locate QPRIME documents responsive to the applicant’s access application and no further documents can be located. Consequently access to any further QPRIME documents may be refused under sections 47(3)(e) and 52(1)(b) of the RTI Act on the grounds that they cannot be located. In reviewing the located documents I noticed that QPS had only located records from 2009 onwards while the applicant had applied for domestic violence records between herself and Individual A from 1995. When I queried this with QPS, it submitted the system QPS used prior to QPRIME was a system called CRISP.[59] CRISP was a central data collection system in operation from approximately 1997 until its replacement by QPRIME in 2007. QPS further stated that CRISP can no longer be searched – however, all information that QPS was required to retain in accordance with its obligations under its retention and disposal schedules was migrated to QPRIME when CRISP was decommissioned. The system used prior to CRISP was handwritten or typed Crime Offence Reports (CO Report) these were hard copy reports that were filed at the relevant station. QPS stated that the CO number would be required in order to search for a CO Report and, given the age of such reports, they may now have been destroyed under the retention and disposal schedule. Based on QPS’s submission, I consider there are three possible conclusions in relation to any CRISP records; either, none of the CRISP records concerning the applicant were required to be rolled over into the QPRIME system and were therefore destroyed (because QPS has undertaken reasonable searches and none could be found); or, CRISP records should have been rolled over into the QPRIME system and were not, and now cannot be located as the CRISP database is not searchable; or, there were no CRISP records responsive to the terms of the applicant’s access application rolled over into the QPRIME system (because QPS has undertaken reasonable searches and none could be found). I consider that there is insufficient evidence before me to make a finding on this point. I also consider that even if there were clear evidence that one of the above scenarios were the case, the outcome would be the same – a finding that access to the documents can be refused on the basis that they are either nonexistent or unlocatable pursuant to sections 47(3)(e) and 52(1)(a) or (b) of the RTI Act. I have considered the information provided by QPS about CO Reports and that they are only searchable by a CO number. I reviewed the documents located by QPS, their submissions, and their signed search records, and did not locate any reference to a CO number within any of these documents. I reviewed the submissions received from the applicant, and could not find any reference to a CO number. I have also considered that if any responsive records existed in the form of a CO Report in the relevant timeframe of 1995-1997, given the passage of time, it is likely they have been disposed of and are unlocatable. In these circumstances I consider it would not be reasonable to require QPS to conduct searches of all CO Reports. Accordingly, in the particular circumstances of this matter, I conclude that access to the CO Reports may be refused on the basis that they are unlocatable pursuant to sections 47(3)(e) and 52(1)(b) of the RTI Act.Exempt Information and Contrary to Public Interest InformationInformation in Issue The information in issue for the purpose of this part of the decision is comprised of information on 131 part pages.[60] It appears in emails, notebook entries, QPRIME reports/occurrences, and QP9’s. More particularly it is: a small amount of information about children in the context of QPS’s role as a core member of the Suspected Child Abuse and Neglect (SCAN) system[61] (Child Protection Information) [62] a small amount of personal information of government employees including signatures, email addresses and mobile telephone numbers (Government Employee Information); [63] and the personal information of the applicant intertwined with the personal information of individuals other than the applicant, and the sole personal information of individuals other than the applicant (Third Party Information). [64] Child Protection Information Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[65] However, this right is subject to provisions of the RTI Act including the grounds on which an agency may refuse access to documents.[66] An agency may refuse access to information that is exempt information because disclosure is prohibited by an Act.[67] Information will be exempt information if its disclosure is prohibited by sections 186 to 188 of the Child Protection Act. Relevantly, disclosure of information is prohibited under the CP Act if the information is about ‘another person’s affairs’ and was acquired by a person performing particular functions under the CP Act.[68] The prohibition on disclosure is subject to the exceptions set out in schedule 3, section 12(2) of the RTI Act and sections 187 and 188 of the CP Act. In particular, section 187(1)(a) of the CP Act provides that access may be given to another person if the information is about that other person. In addition to the CP Act exception, the RTI Act exception to nondisclosure applies if the information is the applicant’s personal information alone.[69] The term ‘person’s affairs’ is not defined in the CP Act or the AI Act. ‘Person’ is defined in the AI Act as ‘includ[ing] an individual and a corporation.’[70] The relevant dictionary definitions for ‘affair/s’ are ‘matters of interest or concern’ and ‘a private or personal concern’.[71] Findings As noted above at paragraph 61 the Child Protection Information comprises a small amount of information about children in the context of QPS’s role as a core member of the S[72]N system.72 I have carefully examined the Child Protection Information and I am satisfied that it is about matters of personal interest or concern to other persons, including the applicant’s children and other individuals and falls within s187 of the CP Act. The Child Protection Information was acquired by a representative of a SCAN member under the CP Act, namely a police officer.[73] The CP Act lists ‘a member of the SCAN system or representative of a member performing functions in relation to chapter 5A, part 3’ as a person to whom section 187 applies.[74] I am therefore satisfied that the Child Protection Information is: about other persons’ affairs and has been given to or received by a person performing functions under or in relation to the administration of the CP Act subject to the prohibition on disclosure in section 187(2) of the CP Act; and subject to the exemption in schedule 3, section 12(1) of the RTI Act. The exemption in schedule 3, section 12(1) of the RTI Act will not apply if the relevant information comprises solely the applicant’s personal information.[75] This means that where information is simultaneously about the applicant and other individuals, or where an applicant’s personal information cannot be separated from the personal information of other individuals, the exceptions will not apply, and the information will remain exempt. I have considered the exceptions in section 187(3) and (4) and I am satisfied none apply to the Child Protection Information. The applicant did not specifically address this issue in the review. She did advise that she sought ‘all information...I do not accept this view... withholding evidence is a crime.’[76] I acknowledge the applicant’s concerns and consider her submissions to relate to public interest factors that may apply to favour disclosure. Where information falls into one of the categories of exempt information which Parliament has set out in schedule 3 of the RTI Act, public interest factors favouring disclosure cannot be taken into account. This is because Parliament has determined that the information falling into any of the categories in Schedule 3 will always be information that is exempt and cannot be disclosed. For the reasons outlined above I am satisfied that the Child Protection Information is subject to the prohibition on disclosure in section 187(2) of the CP Act and the exemption in schedule 3, section 12(1) of the RTI Act; that no exceptions apply; and that access to this information may be refused on the ground it comprises exempt information.[77] Government Employee Information and Third Party Information Relevant law As previously noted, a person’s right under the RTI Act to be given access to documents of an agency is[78] subject to provisions of the RTI Act including the grounds on which an agency may refuse access to documents.[79] An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[80] I note that an external review by the Information Commissioner is a merits review[81] and as such the Information Commissioner has power to make any decision the agency decision maker could have made under the RTI Act.[82] 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. 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. FindingsApplicant’s submissions As previously noted, the applicant made a number of submissions during the review,[84] all of which I have carefully considered. Set out below are the pertinent parts of the various submissions regarding the issue of the public interest balancing test:[85] ...my quest to obtain ALL EVIDENCE (ie video surveillance footage, police Southport station footage, police camera worn footages, ALL forensic photographs of my 3 car's, ALL police report's, 000 calls etc etc)I have requested and informed yourself, RTI and OIC to which I need and am entitled to for me to be able to obtain my restitution, victim's compensation and justice I seek and so deserve. ... All meaning: every one (of), or the complete amount or number (of), or the whole (of): Documents meaning: ALL documents, photos, video footage, CCT footage and statements. The purpose of this requested information is to seek my justice and accountability from the QLD police for no action taken on the many crimes commitment and for failure of duty of care and misconduct. I have never stated that it was ONLY to support a victims assist application. ... This a violation of my civil rights. I am in the process of submitting my letter to the human rights as this further highlight the violence in my humans rights. You have commented on the interest of the public, however I am the victim, where is my justice. ... I require this evidence in order to pursuit my justice as a victim of horrific domestic violence. .... As previously requested I am requiring and awaiting further documents such receipts, affidavits, evidence, photos and additional information required for my restitution of damages to my property (cars) that the police have previously stated I am entitled too. ... Withholding my evidence is a crime, not acting on a crime is a crime in itself. [sic] Irrelevant factors I have not identified or considered any irrelevant factors that apply to the circumstances of this matter.Factors favouring disclosure A small amount of the Third Party Information comprises the personal information[86] of the applicant. There is a substantial public interest in individuals accessing their personal information held by government and I afford correspondingly substantial weight to this public interest factor favouring disclosure.[87] However, where the applicant’s personal information appears it is intertwined with the personal information of other individuals. It cannot be carved out and disclosed without simultaneously disclosing the personal information of the other individuals. This raises two public interest factors favouring nondisclosure, discussed below. I have also considered whether disclosing the Third Party Information and Government Employee Information could reasonably be expected to contribute to the accountability and transparency of QPS, contribute to positive and informed debate on important issues, inform the community of QPS’s operations, advance the fair treatment of individuals in their dealings with agencies, and reveal reasons for decisions (all public interest factors which favour the disclosure of information).[88] Relevant to these factors, is the information that QPS disclosed to the applicant in its initial decision, and the further information it agreed to disclose to the applicant during this review, [89] taking into account the applicant’s status as a victim of crime and her rights prescribed in the VOCA Act. In particular, information regarding names of QPS officers, QPS workloads, capacity, tasks, attendance, and decision making, was disclosed. Such disclosure has already significantly advanced the public interest factors noted above. Consequently I consider that disclosure of the Third Party Information does not advance the public interests noted above in the circumstances of this matter, and I therefore consider very low weight applies to those factors. The Government Employee Information is the personal information and personal work information of QPS officers and Court employees, comprising signatures, email addresses and mobile telephone numbers. I have carefully considered the documents and am satisfied that this information is ephemeral to the substantive information disclosed to the applicant (noting that the QPS Officer names originally refused by QPS were disclosed to the applicant during the review).[90] The public interests noted above are very minimally advanced through the disclosure of this information and I am satisfied these public interest factors in favour of disclosure of the Government Employee Information carry very low weight. The applicant has made submissions throughout the review about the past and present conduct of QPS in its dealings with her when reporting incidents of violence. [91] This raises public interest factors regarding deficiencies of conduct, or misconduct, by QPS.[92] QPS has disclosed almost all of the information in the located pages regarding their attendance or involvement with the matters described, and decision making.[93] The small amounts of QPS information that have not been disclosed include email addresses of QPS officers, and small amounts of information regarding QPS interactions with individuals other than the applicant. I am satisfied that there is nothing in the Government Employee Information or Third Party Information (noting its ephemeral nature) that enlivens the misconduct or deficiencies of conduct factors. Accordingly, I find that neither of these factors apply. As noted above, the applicant has submitted that she requires the requested documents to support her application to Victim Assist Queensland (VAQ) for financial assistance.[94] Accordingly I have considered whether disclosure of the Government Employee Information or the Third Party Information would contribute to the administration of justice for a person.[95] In order for this factor to apply to disclosure of information, the applicant must be able to demonstrate that: (i) loss, damage or some kind of legal wrong has been suffered, in respect of which a legal remedy is, or may be available (ii) they have a reasonable basis for pursuing the legal remedy; and (iii) disclosure of the information would assist them pursue that remedy or evaluate whether they may pursue that legal remedy.[96] During the review, and in response to the applicant’s submissions, I obtained information from VAQ about its process for individuals applying for financial assistance.[97] VAQ advised that it has arrangements with government agencies, including QPS, to obtain the relevant information on behalf of applicants, as long as the applicant signs the authority in the application form.[98] I have carefully considered the Government Employee Information and the Third Party Information against the information provided by VAQ regarding victim’s compensation applications, and the information disclosed by QPS initially and in this review.[99] I have also considered the confirmation by the applicant’s support officer that the applicant has already lodged an application with VAQ.[100] Crucially for my decision, the applicant does not require any further information to apply for, or receive, financial assistance from VAQ. Consequently, I am satisfied that disclosure of the Government Employee Information or Third Party Information would not assist the applicant to pursue a remedy through VAQ or evaluate whether she may pursue the remedy with VAQ, and therefore the administration of justice for a person factor does not apply to favour disclosure of the Government Employee Information or Third Party Information in this case. I have carefully considered all factors listed in schedule 4, part 2 of the RTI Act, and can identify no other public interest considerations telling in favour of disclosure of the Government Employee Information or the Third Party Information, beyond that identified above.[101] Factors favouring nondisclosure As noted above, the Third Party Information comprises the personal information of individuals other than the applicant, or the shared personal information of the applicant and other individuals. This raises two factors favouring nondisclosure, as disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy, and cause a public interest harm by disclosing personal information of an individual other than the applicant.[102] The nature of the Third Party Information is extremely sensitive. I am satisfied disclosing it would be likely to result in a significant intrusion into the privacy of the other individuals and the anticipated harm resulting from disclosure of this personal information would also be significant. I consider significant weight applies to each of these nondisclosure factors. The Government Employee Information also comprises personal information of individuals other than the applicant, in the form of signatures, email addresses and mobile telephone numbers. This type of personal information also enlivens the two factors favouring nondisclosure noted above, as disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy, and cause a public interest harm by disclosing personal information of an individual other than the applicant.[103] I consider moderate weight applies to each of these nondisclosure factors for the Government Employee Information. QPS submitted that the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act) prohibits publication of information about any party in a proceeding under the DFVP Act except in limited and specific circumstances.[104] This raises a potential public interest factor favouring nondisclosure of the Government Employee Information and Third Party Information, where disclosure of the information is prohibited by an Act.[105] In considering this submission from QPS I have reviewed the relevant provision in the DFVP Act which states: Section 159 (1) A person must not publish— (a) information given in evidence in a proceeding under this Act in a court; or (b) information that identifies, or is likely to lead to the identification of, a person as— (i) a party to a proceeding under this Act; or (ii) a witness in a proceeding under this Act (other than a police officer); or (iii) a child concerned in a proceeding under this Act. ... (3) In this section— ... publish means publish to the public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication.[106] There is no information in the Government Employee Information which enlivens this section of the DFVP Act as it is not information given in evidence in a proceeding under the DFVP Act nor information which identifies a person concerned in a proceeding under the DFVP Act. The Third Party Information includes information about the parties to a proceeding under the DFVP Act, including the applicant and Individual A, and thus is captured by section 159 of the DFVP Act.[107] At first blush it would appear that the public interest factor favouring non-disclosure is enlivened, however, there is an important distinction to be drawn between the word ‘publish’ in the DFVP Act and the word ‘disclosure’ under the RTI Act. In short, disclosure in the context of an access application means giving the applicant a copy of the information, whereas publishing information to the public under the DFVP Act contemplates something much more broad or widespread. Section 159(3) of the DFVP Act defines ‘publish’, in significantly broad terms, both in terms of the methods of communication, and the audience to whom the information is published. The definition clearly envisages the broadcast of information to the wider community and it is this act which is prohibited. The word ‘disclosure’ is not defined in the RTI Act or the AI Act. Accordingly I have considered its ordinary dictionary meaning. The Macquarie Dictionary defines it as ‘the act of disclosing; exposure; revelation’. [108] Thus in the context of an RTI Act application, disclosure is revealing information to an applicant. Section 23 of the RTI Act provides a person with a right to be given access under the RTI Act to documents of a Minister or agency, subject to the RTI Act. A person may apply to a Minister or agency under the RTI Act for access to a document (section 24). A person is defined non-exhaustively in the AI Act as ‘includ[ing] an individual and a corporation’[109] and an applicant is defined in the RTI Act as ‘in relation to an application, means—(a) if the application is made for a person--the person; or (b) otherwise—the person making the application.’[110] Thus, disclosure under the RTI Act is made to the applicant, a person, and is not the same as publication to the broader community as envisaged by the prohibition under the DFVP Act. Having considered the terms outlined above, I am satisfied that disclosure of a document under the RTI Act does not satisfy the definition of ‘publish’ as defined by section 159(3) of the DFVP Act, and the provision prohibiting publication does not enliven the public interest factor favouring nondisclosure as disclosure of the information is not prohibited by the DFVP, only publication is prohibited.[111] Accordingly, the public interest factor favouring nondisclosure where disclosure is prohibited by an Act, does not apply to the Government Employee Information or the Third Party Information.[112] Balancing the factors I have considered the lists of public interest factors in schedule 4 of the RTI Act, together with all other relevant information, in reaching my conclusion with regard to the public interest balance. I have applied the RTI Act’s pro-disclosure bias[113] and Parliament’s requirement that grounds for refusing access to information be interpreted narrowly.[114] In respect of the Government Employee Information I consider the public interest factors that apply to favour disclosure carry very low weight.[115] Against this, I note the two nondisclosure factors with respect to personal information and the right to privacy, and the moderate weight applying to each.[116] On balance, I consider the nondisclosure factors are determinative. I am satisfied access may be refused to this information as disclosure would, on balance, be contrary to the public interest.[117] In respect of the Third Party Information, to the extent it comprises the applicant’s personal information, the public interest factor in favour of disclosure carries substantial weight.[118] I acknowledge the very low weights of the public interest factors favouring disclosure with respect to accountability and transparency, contributing to positive and informed debate, informing the community of QPS operations, advancing the fair treatment of individuals and revealing the reason for a decision.[119] Against this, I have considered the significant weights of the public interest factors favouring nondisclosure of the Third Party Information, regarding the public interest harm caused by disclosing the personal information of other individuals, and the prejudice to the right to privacy of other individuals.[120] On balance, the nondisclosure factors outweigh the disclosure factors and are determinative. Consequently I am satisfied QPS may refuse access to the Third Party Information as disclosure would, on balance, be contrary to the public interest.[121]DECISION For the reasons set out above I vary QPS’s decision and, pursuant to section 110 of the RTI Act, I find that: access to the CCTV Footage may be refused as unlocatable, under sections 47(3)(e) and 52(1)(b) of the RTI Act access to further documents may be refused as nonexistent or unlocatable under sections 47(3)(e) and 52(1) of the RTI Act access to the Child Protection Information may be refused as exempt information disclosure of which is prohibited by the CP Act, under sections 47(3)(a) and 48 of the RTI Act; and access to the Government Employee Information and Third Party Information may be refused as 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 145 of the RTI Act.Assistant Information Commissioner CorbyDate: 28 June 2023APPENDIXSignificant procedural steps Date Event 19 October 2021 OIC received the application for external review. 19 October 2021 OIC requested the procedural documents from QPS. 1, 9, 19 and 22 November 2021 OIC requested the overdue procedural documents from QPS. 10 and 12 November 2021 OIC received correspondence from the applicant. 19 November 2021 OIC updated the applicant. 22 November 2021 OIC received the procedural documents from QPS. 24 November 2021 OIC received correspondence from the applicant. 25 November 2021 OIC wrote to the applicant about the application being received out of time. 3 and 6 December 2021 OIC received correspondence from the applicant. OIC had a telephone call with the applicant’s support person. 7 December 2021 OIC confirmed the applicant’s submissions and explained the timeframes for review processes. 14 December 2021 OIC received correspondence from the applicant. 14 December 2021 OIC notified the applicant and QPS the application for review had been accepted. OIC requested information and documents from QPS. 24 January 2022 OIC requested overdue information and documents from QPS. 31 January 2022 OIC received a partial response from QPS. 1 February 2022 OIC updated the applicant. 3 February 2022 OIC requested the outstanding information from QPS. 7 and 8 February 2022 OIC received a partial response from QPS and granted an extension of time for the outstanding information. 2 March 2022 OIC received correspondence from the applicant. 7 March 2022 OIC updated the applicant. OIC requested the overdue information from QPS. 29 March 2022 OIC requested the overdue information from QPS. 30 March 2022 OIC received correspondence from the applicant. 11 April 2022 OIC received correspondence from the applicant. 21 April 2022 OIC provided a telephone update to the applicant’s support person. 3 and 10 May 2022 OIC received correspondence from the applicant. 11 May 2022 OIC updated the applicant. OIC received correspondence from the applicant. 26 May 2022 OIC updated the applicant. OIC requested outstanding and overdue search information from QPS, and relayed a proposal regarding disclosure of the applicant’s statements and images. 29 May 2022 OIC received correspondence from the applicant. 9 June 2022 OIC received some information and documents from QPS. 13 June 2022 OIC received correspondence from the applicant. 14 June 2022 OIC received information from QPS. 21 June 2022 OIC contacted QPS by telephone to discuss our requests and its response. 22 June 2022 OIC requested the outstanding search information and documents from QPS. 5 July 2022 OIC received search information and documents from QPS. OIC contacted QPS by telephone to clarify the information provided. 7 July 2022 OIC contacted QPS by telephone to confirm searches and propose disclosure of the applicant’s full statements in accordance with the QPS Management Support Manual. 12 July 2022 OIC received a response from QPS declining full disclosure of the applicant’s statements. 25 July 2022 OIC received correspondence from the applicant. 28 July 2022 OIC updated the applicant. 9 August 2022 OIC issued a preliminary view to QPS regarding information disclosure. 11 August 2022 QPS advised it accepted OIC’s preliminary view. 16 August 2022 OIC issued a preliminary view to the applicant. OIC asked QPS to disclose images and statements to the applicant. QPS disclosed images and statements to the applicant. 19 August 2022 OIC received submissions from the applicant contesting OIC’s preliminary view. 31 August 2022 OIC responded to the applicant’s submissions. 6, 8 and 12 September 2022 OIC received correspondence from the applicant. 13 September 2022 OIC issued a preliminary view to QPS regarding further information disclosure. OIC received a telephone call from the applicant. OIC received correspondence from QPS accepting our view. 16 September 2022 OIC issued correspondence to the applicant and QPS. QPS disclosed images to the applicant. OIC received correspondence from the applicant. 28 September 2022 OIC updated the applicant. 13 October 2022 OIC issued a preliminary view to QPS regarding further information disclosure. 17 October 2022 QPS accepted OIC’s preliminary view on further information disclosure. 25 October 2022 OIC requested a further search by QPS and further information regarding its administrative access scheme for court documents. OIC updated the applicant and provided information about VAQ. OIC received correspondence from the applicant. 1 November 2022 OIC received information and documents from QPS. 10 November 2022 OIC issued a preliminary view to QPS regarding further information disclosure. 25 November 2022 QPS advised it accepted OIC’s view on disclosure and provided further information about its searches. 6 December 2022 OIC received an email from the applicant’s support person requesting an update. 13 December 2022 OIC issued a preliminary view to the applicant. OIC asked QPS to disclose further information to the applicant as agreed. 14 December 2022 OIC received submissions from the applicant contesting the preliminary view. 22 December 2022 QPS disclosed further documents to the applicant. 6 January 2023 OIC received further submissions from the applicant. 18 January 2023 OIC updated the applicant. OIC received further submissions from the applicant. OIC requested further information from the applicant. 21 January 2023 OIC received further submissions from the applicant. 16 February 2023 OIC updated the applicant. OIC issued a further preliminary view to QPS requiring further searches for documents. 28 February 2023 QPS provided further documents and information to OIC. 3 March 2023 OIC received further submissions from the applicant and a request for an update. 9 March 2023 OIC updated the applicant. 14 March 2023 OIC received further information and submissions from QPS. 29 March 2023 OIC updated the applicant. 21 April 2023 OIC conveyed a preliminary view to QPS about the further documents. QPS confirmed its offer to disclose the further documents by email and inspection access. 10 May 2023 OIC updated the applicant and confirmed the next step was a formal decision to finalise the external review. 11 May 2023 QPS disclosed documents by email to the applicant. 16 May 2023 OIC requested written confirmation by QPS of some of its submissions regarding searches. 23 May 2023 OIC received written submissions from QPS. [1] On 26 May 2021.[2] QPRIME is the Queensland Police Records and Information Management Exchange and is QPS’s primary electronic database for recording occurrences of crime.[3] On 16 September 2021. QPS sought and received several extensions of time from the applicant.[4] Sections 47(3)(b) and 49 of the RTI Act.[5] Section 47(3)(f) and 53 of the RTI Act.[6] Schedule 1 of the Acts Interpretation Act 1954 (Qld) (AI Act) provides a non-exhaustive definition of ‘document’.[7] Section 47(3)(e) and 52(1)(b) of the RTI Act.[8] On 19 October 2021.[9] The application for external review was received 2 business days out of time, but the Information Commissioner allowed the longer period in this instance – section 88(1)(d) of the RTI Act. [10] Section 110(1)(a) of the RTI Act.[11] Sections 47(3)(e) and 52(1) of the RTI Act.[12] Sections 47(3)(e) and 52(1)(b) of the RTI Act.[13] Sections 47(3)(a), 48, and schedule 3, section 12(1) of the RTI Act.[14] Sections 47(3)(b) and 49 of the RTI Act.[15] Issued to the applicant on 16 and 31 August 2022, and 13 December 2022; and issued to QPS on 9 August 2022, 13 September 2022, 13 and 25 October 2022, 10 November 2022, 16 February 2023 and 21 April 2023.[16] QPS disclosed this information to the applicant on 16 August 2022, 16 September 2022 and 22 December 2022.[17] Sections 15 and 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]. OIC’s approach to the HR Act set out in this paragraph has been considered and endorsed by QCAT Judicial Member McGill in Lawrence v Queensland Police Service [2022] QCATA 134 (26 September 2022) at [23], noting that he saw ‘no reason to differ’ from OIC’s position.[19] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [20] Sections 47(3)(e) and 52(1)(b) of the RTI Act.[21] Sections 47(3)(e) and 52(1) of the RTI Act.[22] Sections 47(3)(a), 48, and schedule 3, section 12(1) of the RTI Act.[23] See paragraph 61 for a description of this information.[24] Sections 47(3)(b) and 49 of the RTI Act.[25] Fennelly and Redland City Council (Unreported, Queensland Information Commissioner, 21 August 2012) (Fennelly) at [21] and O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) (O80PCE).at [35]. [26] Section 24(2)(b) of the RTI Act.[27] Cannon and Australian Quality Egg Farms Ltd [1994] QICmr 9; (1994) 1 QAR 491 at [8] considering equivalent provisions in the now repealed Freedom of Information Act 1992 (Qld) (FOI Act); O80PCE at [33].[28] See Robbins and Brisbane North Regional Health Authority [1994] QICmr 19; (1994) 2 QAR 30 at [17]; Arnold and Redland City Council(Unreported, Queensland Information Commissioner, 17 October 2013) at [17] to [21]; Simpson MP and Department of Transport and Main Roads (Unreported, Queensland Information Commissioner, 29 July 2011) at [11] to [22]; and Fennelly at [15].[29] Section 27(1) of the RTI Act.[30] Applicant submissions received by email on 20 June 2022, 19 August 2022, 16 September 2022, 6 and 14 December 2022, and 6 January 2023; and by telephone on 13 September 2022. [31] The QPS Officer in this 2017 incident is not included in the scope of the access application currently the subject of this review.[32] Applicant email received on 16 September 2022 at 3:31pm in which the applicant stated ‘In my previous email to you I forgot to add to my further request for evidence to the RTI to which I have also requested and enquired to obtain’ and listed further documents to which she sought access.[33] On 23 May 2023.[34] Based on information provided to OIC by QPS in various external reviews and sections 4.3 and 4.4 of the QPS Digital Electronic Recording of Interviews and Evidence (DERIE) Manual < https://www.police.qld.gov.au/sites/default/files/2023-02/DERIE-s.4-Field-Audio-and-Video-Recordings.pdf >.[35] QPS located 3 files of BWC footage on 28 February 2023. QPS agreed to provide the applicant inspection access to the 3 BWC files on 21 April 2023, and OIC conveyed this offer and the details of the contact person to the applicant in a letter on 10 May 2023.[36] Section 90(1) of the RTI Act.[37] Section 23 of the RTI Act.[38] Including section 47(3) of the RTI Act.[39] Sections 47(3)(e) and 52(1) of the RTI Act. [40] 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). [41] Pryor at [20]-[21].[42] Section 130(2) of the RTI Act. The Information Commissioner also has power under section 102 of the RTI Act to require additional searches to be conducted during an external review. [43] Section 87(1) of the RTI Act. [44] Parnell and Queensland Police Service [2017] QICmr 8 (7 March 2017) at [23]; Dubois and Rockhampton Regional Council [2017] QICmr 49 (6 October 2017) at [36]; Y44 and T99 and Office of the Public Guardian [2019] QICmr 62 (20 December 2019) at [38].[45] Submissions from the applicant or her support person received by email on on 21 October 2021, 10 and 24 November 2021, 3, 6 and 14 December 2021, 11 April 2022, 29 May 2022, 13 and 20 June 2022, 19 August 2022, 6, 8, 12 and 16 September 2022, 25 October 2022, 14 December 2022, 6, 18 and 21 January 2023, and 3 March 2023; and by telephone on 13 September 2022.[46] On 6, 8 and 12 September 2022 (the email received on 12 September 2022 was a duplicate of an email received on 8 September 2022). In total, the applicant attached 3 emails and 30 screenshots of emails to her five emails to OIC, by way of supporting evidence.[47] Page 40 of the 120 pages QPS originally located.[48] On 16 September 2021.[49] Initially for any footage from 5-6 November 2010, and then broadened to include any BWC footage for occurrences from 2017 onwards (when BWC commenced rolling out across QPS).[50] QPS located 8 pages of notebook entries, 3 photographs of the applicant, and 3 files of BWC footage. QPS provided the signed search certificate and these further documents to OIC on 28 February 2023.[51] Search records dated and/or provided on 24 September 2021, 7 and 8 February 2022, 9 and 14 June 2022, 3, 5, and 12 July 2022, and 28 February 2023.[52] By telephone on 21 June 2022 and 5 July 2022.[53] Sections 47(3)(e) and 52(1)(b) of the RTI Act.[54] Subject to the redaction of the vehicle registration on 4 pages. QPS disclosed this information to the applicant on 16 August 2022 and 16 September 2022.[55] QPS refused access to third party personal information and intertwined personal information in the QP9’s on the basis it would, on balance, be contrary to the public interest to disclose. The QPS officer statements were disclosed in full. QPS disclosed the QP9’s and QPS officer statements to the applicant and her support person on 22 December 2022, along with further information on 26 pages identified by OIC as not contrary to the public interest to disclose.[56] Disclosed on 16 August 2022 and 16 September 2022.[57] Disclosed on 11 May 2023.[58] For example, pages 60, 67-72, 75-80, 83-84, 86-88, 90-93, 95-96, 100-101, 108, 111-112, 119-120 of the Original Documents; and pages 6, 11, 12 of the QP9’s.[59] Email received from QPS on 23 May 2023. CRISP was the Crime Reporting Information System for Police.[60] 110 part pages (Original Documents); 4 part pages of Forensic Images; 14 part pages of QP9’s; and 3 part pages of notebook entries (Notebook Entries).[61] Sections 159I to 159L of the Child Protection Act 1999 (Qld) (CP Act).[62] Pages 27, 30, 31, 35, 36, 37, 38, 39, 41, 42, 55, 57, 58, 59, 60, 62, 63, 68, 70, 75, 76, 91, 99, 101 of the Original Documents.[63] Pages 5, 6, 7, 8, 10, 11, 13, 17, 21 of the Original Documents.[64] Pages 1-3, 6-7, 9-14, 18, 21, 23, 27-31, 33-37, 39-40, 42-51, 53-55, 57-120 of the Original Documents; pages 39-41, 49 of the Forensic Images; pages 1-14 of the QP9’s; and pages 2, 6 and 8 of the Notebook Entries.[65] Section 23 of the RTI Act.[66] Section 47 of the RTI Act.[67] Section 47(3)(a), 48, and schedule 3, section 12(1) of the RTI Act.[68] Section 187 of the CP Act.[69] This exception only applies to schedule 3, section 12(1) and (1A) information, and does not negate other grounds of refusal that may apply to the information.[70] Schedule 1 of the AI Act.[71] As established in 7CLV4M and Department of Communities (Unreported, Queensland Information Commissioner, 21 December 2011) at [30].[72] A SCAN member is defined in the CP Act as a ‘core member’ comprising the chief executive, the chief executive of the department mainly responsible for public health, the chief executive mainly responsible for education, and the police commissioner; and other prescribed entities or service providers contributing to the operation of the system by invitation of the core members. See sections 159A - 159R of the CP Act which outlines the legislative framework of the SCAN system and information sharing between its members.[73] Sections 159I to 159L of the CP Act.[74] Section 187(1)(a)(ix) of the CP Act.[75] Schedule 3, section 12(2) of the RTI Act. ‘Personal information’ comprises ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’: schedule 5 of the RTI Act, and section 12 of the Information Privacy Act 2009 (Qld) (IP Act).[76] Submissions received on 14 December 2022.[77] Sections 47(3)(a) and 48 of the RTI Act.[78] Section 23 of the RTI Act.[79] Section 47 of the RTI Act.[80] 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.[81] This means that OIC stands in the shoes of the agency and can make any decision that was open to the agency to make. OIC’s role is to conduct a fresh review of the relevant facts and law and make a fresh decision. See V45 and Queensland Police Service [2021] QICmr 30 (16 June 2021) at [17].[82] Section 105 of the RTI Act particularly notes the Information Commissioner has, in addition to any other power, the power to review any decision that has been made by the agency or Minister in relation to the access application and the power to decide any matter in relation to the access application that could, under the RTI Act, have been decided by an agency or Minister.[83] Section 49(3) of the RTI Act.[84] See footnote 45.[85] On 14 December 2022 and 6 January 2023. The submissions in the 6 January email were initially sent to QPS directly, then forwarded to OIC by the applicant. While the 6 January email largely refers to matters outside the scope of this external review I have considered the applicant’s submissions in this email, and in all correspondence received from the applicant throughout the review, to the extent the submissions are relevant to the issues for determination. [86] Schedule 5 of the RTI Act and section 12 of the IP Act.[87] Schedule 4, part 2, item 7 of the RTI Act.[88] Schedule 4, part 2, items 1, 2, 3, 10 and 11 of the RTI Act.[89] Further information on 26 pages and information on 19 pages disclosed by QPS on 22 December 2022.[90] On 22 December 2022.[91] In a telephone call on 13 September 2022, and by email on 3 December 2021, the applicant submitted she required information about the QPS officers involved in the 2010 incident to which the CCTV Footage relates, as she wished to lodge a complaint about the conduct of some of the officers. [92] Schedule 4, part 2, items 5 and 6 of the RTI Act.[93] Further information on 26 pages of the Original Documents and information on 19 pages comprising QP9’s and QPS officer statements disclosed by QPS to the applicant on 22 December 2022.[94] Submissions received by email on 21 October 2021, 10 and 24 November 2021, 3, 6 and 14 December 2021, 11 April 2022, 29 May 2022, 13 and 20 June 2022, 19 August 2022, 6, 8, 12 and 16 September 2022, 25 October 2022, 14 December 2022, 6, 18 and 21 January 2023, 3 March 2023; and by telephone on 13 September 2022.[95] Schedule 4, part 2, item 17 of the RTI Act. See Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 (Willsford) at [17]. [96] Willsford at [17].[97] On 19 October 2022. See section 95(1)(c) of the RTI Act.[98] See also sections 52(c), 64, 65, 66, 67, 67A, 74 and 77 of the VOCA Act. [99] Including 120 part and full pages of QPRIME reports, emails and notebook entries, the applicant’s formal statements, Forensic Images of the applicant’s injuries and damage to a vehicle, two full QPS officer statements, and information in the QP9’s.[100] In an email to OIC on 25 October 2022.[101] I cannot see how disclosure of the Government Employee Information could, for example, reasonably be expected to contribute to the protection of the environment, or reveal environmental or health risks or measures relating to public health and safety. I cannot see how disclosure of the Third Party Information could, for example, reasonably be expected to contribute to innovation and the facilitation of research, or contribute to the maintenance of peace and order. [102] Schedule 4, part 3, item 3 and schedule 4, part 4, section 6 of the RTI Act.[103] Schedule 4, part 3, item 3 and schedule 4, part 4, section 6 of the RTI Act.[104] Section 159(1) of the DFVP Act. QPS identified this prohibition on publication in its decision letter to the applicant on 16 September 2021.[105] Schedule 4, part 3, item 22 of the RTI Act.[106] Section 159(3) of the DFVP Act.[107] Proceeding is not defined in the DFVP Act. It is defined in schedule 1 of the AI Act as ‘a legal or other action or proceeding.’[108] Macquarie Dictionary Online accessed on 20 June 2023.[109] Schedule 1 of the AI Act.[110] Schedule 5 of the RTI Act.[111] This can be distinguished from the Information Commissioner’s finding in N31ZEO and Department of Justice and Attorney-General; Queensland Newspapers Pty Ltd (Unreported, Queensland Information Commissioner, 8 November 2013); in which the public interest factor was enlivened because the provision of the Act being considered specifically prohibited disclosure of information as distinct from publication of information.[112] Schedule 4, part 3, item 22 of the RTI Act. [113] Section 44 of the RTI Act.[114] Section 47(2) of the RTI Act. [115] Schedule 4, part 2, items 1, 2, 3, 10 and 11 of the RTI Act.[116] Schedule 4, part 3, item 3 and schedule 4, part 4, section 6 of the RTI Act.[117] Sections 47(3)(b) and 49 of the RTI Act.[118] Schedule 4, part 2, item 7 of the RTI Act.[119] Schedule 4, part 2, items 1, 2, 3, 10 and 11 of the RTI Act.[120] Schedule 4, part 3, item 3 and schedule 4, part 4, section 6 of the RTI Act.[121] Sections 47(3)(b) and 49 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Queensland Police Service and Respondent [2020] QICmr 53 (21 September 2020)

Queensland Police Service and Respondent [2020] QICmr 53 (21 September 2020) Last Updated: 19 January 2021 Vexatious Applicant Declaration Applicant: Queensland Police Service Respondent: ‘Respondent’ Application No: 431005 Declaration Date: 21 September 2020 Contents DECLARATION Section 127 of the Information Privacy Act 2009 (Qld) I declare, in accordance with section 127 of the Information Privacy Act 2009 (Qld) (IP Act), that the respondent is a vexatious applicant on the basis that she has repeatedly engaged in access actions and the repeated engagement involves an abuse of process for an access action. I make the declaration in the following terms: The respondent is prohibited from making any further access applications to the applicant under the IP Act concerning any document about her that was brought into existence prior to the date of this declaration. For a period of twelve (12) months from the date of this declaration, the respondent is prohibited from making any access or amendment application to the applicant under the IP Act. For a period of twelve (12) months commencing on the date that the period referred to in clause 2 expires, the applicant is not required to consider any access or amendment application made to it by the respondent under the IP Act unless the respondent has first applied in writing to the Office of the Information Commissioner (OIC) and OIC has granted written permission for the application to be made. OIC will not consider any access request made by the respondent under clause 3 unless it complies with section 43 of the IP Act, the information to which access is sought is clearly identified, and it does not contravene clause 1. If OIC grants written permission for the application to be made under clause 3, the agreed terms of the request will be confirmed by OIC in writing to both the applicant and the respondent, and a valid application will be taken to have been made by the respondent on that date. OIC will not consider any written request made by the respondent under clause 3 that is made within ninety (90) days of the last written request made by the respondent under clause 3. The applicant is not required to further process any access application made by the respondent under the IP Act prior to the date of this declaration and that is outstanding at the date of this declaration.___________________________Rachael Rangihaeata Information Commissioner 21 September 2020 REASONS FOR DECLARATION Background The respondent has been involved in a series of long-running disputes with various neighbours. Since 2007, she has made complaints to Queensland Police Service (QPS) about her neighbours. The respondent has also made associated complaints to QPS about its actions (or alleged lack of action) in investigating or otherwise dealing with her and her complaints. In connection with her complaints, the respondent has made multiple applications to QPS since late 2016 under the Information Privacy Act 2009 (Qld) (IP Act) seeking access to information held by QPS about her, her neighbours, her complaints, actions taken by police in response to her complaints, and police officers involved in dealing with her and her complaints. QPS seeks a declaration, under section 127 of the IP Act,[1] that the respondent is a vexatious applicant and that she be prohibited from making any access or amendment application to QPS under the IP Act for a period of five years from the date of the declaration. Significant procedural steps taken in the course of deciding QPS’s application are set out in the Appendix to this Declaration. Relevant law On the application of an agency or on the Information Commissioner’s own initiative, the Information Commissioner may declare in writing that a person is a vexatious applicant under section 127 of the IP Act. Such a declaration is subject to any terms or conditions stated in the declaration. A declaration can only be made if the respondent has been given an opportunity to make written or oral submissions. The Information Commissioner can declare a person a vexatious applicant if satisfied that: (a) the person has repeatedly engaged in access or amendment actions; and (b) the repeated engagement involves an abuse of process for an access or amendment action. Section 127(8) provides that ‘access or amendment action’ means any of the following: an access application an amendment application an internal review application; and an external review application. ‘Engage’, for an access or amendment action, means to make the access or amendment action. Section 127(8) of the IP Act sets out a non-exhaustive list of circumstances which might constitute an ‘abuse of process’ and includes: harassing or intimidating an individual or an employee of an agency in relation to the access action; and unreasonably interfering with the operations of an agency in relation to the access action. Other grounds for abuse of process established at common law include: duplicate proceedings already pending or determined and therefore incapable of serving a legitimate purpose[2] the making of unsubstantiated or defamatory allegations in applications;[3] and wastage of public resources and funds.[4] Application of the Human Rights Act In making my decision in this matter, I have had regard to the Human Rights Act 2019 (Qld)[5] (HR Act), particularly the right to seek and receive information as embodied in section 21 of that Act. I acknowledge that the making of a vexatious declaration that places conditions upon, or otherwise restricts, an individual’s right to make access or amendment applications under the IP Act for a period of time, could be regarded as interfering with the right embodied in section 21 of the HR Act. However, just as is the case where a decision-maker, who observes and applies the relevant law prescribed in the IP Act when deciding access or review applications is regarded as ‘respecting and acting compatibly with’ this right and others prescribed in the HR Act,[6] so too is a decision-maker who applies the law contained in section 127 of the IP Act when deciding whether or not to make a vexatious declaration. 11. In enacting section 127 of the IP Act, Parliament recognised that, in limited and specific circumstances, the right to make an access or amendment action under the IP Act may be interfered with where such an action involves an abuse of process or would be manifestly unreasonable. As required by section 58 of the HR Act, I have considered and am satisfied that, in applying the law contained in section 127 of the IP Act, which contemplates restrictions being placed upon the right to seek and receive information, I am acting compatibly with the right prescribed in section 21 of the HR Act. I have also considered other wider rights contained in the HR Act and do not consider that I am acting incompatibly with them in making the declaration. I note Bell J’s observations on the interaction between the Victorian equivalents of Queensland’s RTI/IP 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’.[7] General considerations The requirements of section 127 of the IP Act, and of the equivalent provision in section 114 of the RTI Act, have been considered in four previous decisions issued by my Office (OIC).[8] I have had regard to these decisions in considering the present matter. In addition, section 114 of the RTI Act and section 127 of the IP Act are substantially the same as sections 89K and 89L of the Freedom of Information Act 1982 (Cth). The FOI Guidelines (Guidelines) published by the Office of the Australian Information Commissioner (OAIC)[9] provide useful guidance on the interpretation of section 127 of the IP Act, as do several declarations made by the OAIC, which I will refer to in my discussion below. As noted in the OAIC’s Guidelines: A declaration has the practical effect of preventing a person from exercising an important legal right concerned by the FOI Act. For that reason, a declaration will not be lightly made, and an agency that applies for a declaration must establish a clear and convincing need for a declaration. ... ... ... The power conferred on the Information Commissioner to make a declaration is an important element of the balance in the FOI Act between conferring a right of access to government documents while ensuring that access requests do not interfere unreasonably with agency operations. This is apparent from the terms of section 89L which expresses a principle that the legal right of access should not be abused by conduct that harasses or intimidates agency staff, unreasonably interferes with the operations of agencies, circumvents court-imposed restrictions on document access, or is manifestly unreasonable. The power to make a declaration is discretionary. In addition to considering the grounds for a declaration specified in section 127 of the IP Act, the Information Commissioner may consider other relevant features of a person’s access actions, or, for example, the way in which the agency concerned administers its obligations under the IP Act. In considering whether or not to exercise the discretion, the Information Commissioner is bound not only to consider the limb of section 127(8) that is advanced by the agency. The Commissioner can decide that a different ground has been established. Evidence considered I have considered the following evidence: QPS’s application and supporting submission;[10] and the respondent’s submissions in response.[11] It is clear that the respondent does not consider that grounds for declaring her vexatious exist. In her initial response to QPS’s application,[12] the respondent accused QPS of maliciously targeting her by making the application, and attempting to conceal information about the crimes that she has reported. She asserted that her access applications are valid and that ‘people apply for QPS information as they believe they have been violated and mistreated in some way by QPS’. The respondent contended that she has legitimately required police assistance since 2007 when new neighbours moved into the area and ‘began to intentionally target [her] and [her] address’: RTI QPS limiting my access and my rights to QPS information is a prevention of the course of justice. A cover up. ... Any attempt to block my rights is malicious and will need to be corrected for further matters involving RTI QPS and the Office of the Information Commissioner. I believe the Office of Information [sic] should be aware by now of my need for peace and my respect for honesty and my passion for justice. I will not tolerate further hate crimes, injustice or malice just because this group, their friends and visitors to their address and their workplace contacts side with this group.[13] The bulk of the respondent’s submissions do not specifically address QPS’s submission about the volume and nature of access actions made by the respondent or the terms of the declaration sought. Rather, they generally seek to repeat her various complaints and allegations against her neighbours and QPS, and to affirm the validity of her contact with QPS over the years concerning her neighbours. I have referred to the respondent’s submissions in my discussion below where they are relevant to the particular issue under consideration. After receiving notice of QPS’s vexatious declaration application, the respondent sought to make access applications to QPS seeking access to information associated with QPS’s application, including seeking information about any disciplinary action taken against the QPS officer who had compiled the application on behalf of QPS. She sought to make another application seeking access to information held by QPS that related to her use of the 000 Emergency number.[14] By letter dated 21 July 2020, I advised the respondent that it was not appropriate for her to make access applications to QPS in connection with QPS’s vexatious declaration application when the matter was before me for consideration and determination. I directed the respondent to raise with OIC any requests for additional information that she considered she required in order to respond to QPS’s application. If I determined that the information was relevant to the issues to be determined in his matter, I would raise it with QPS. The respondent made no further requests for information and provided no further submissions in support of her position. Grounds relied upon by QPS QPS contends that the respondent has repeatedly engaged in access actions, and that this repeated engagement constitutes an abuse of process on the following grounds: unreasonable interference with operations of QPS and wastage of public resources and funds; and harassment and intimidation of QPS staff and the making of unsubstantiated or defamatory allegations against QPS staff. By way of background, QPS also submits that, in addition to the IP Act access actions in which the respondent engages, she: attends at her local police station to make complaints calls the 000 Emergency number makes numerous online complaints via Policelink; and complained to the Crime and Corruption Commission (CCC) (and to its predecessor, the Crime and Misconduct Commission) alleging police inaction, victimisation and bias.[15] Has the respondent repeatedly engaged in access actions? Yes, for the reasons that follow. QPS’s submissions QPS submitted that, from December 2016 to April 2020, the respondent made 264 access actions. These were comprised of 168 access applications, 24 internal review applications, and 72 external review applications. When considered as an average, this amounted to 6.5 access actions per month since December 2016. QPS also highlighted that, at one point in 2017, the respondent made 23 access applications in 23 days. QPS relied upon the declarations granted in UQ and Respondent (100 access actions in total), CHHHS and Respondent (33 access actions made in a period of approximately 11 months); and GCHHS and Respondent (19 access actions made in a period of two years and nine months) to argue that the respondent’s engagement was clearly repeated within the meaning of section 127(2)(a) of the IP Act. It also cited the decision of the OAIC in Australian Taxation Office and Andrew Garrett[16] where 117 access actions over a period of five years was found by the OAIC to amount to a ‘repeated engagement’. The respondent’s submissions The respondent did not specifically address QPS’s contention that she had repeatedly engaged in access actions, but sought to reiterate and justify the various complaints she had made to QPS and her right to seek information about those complaints and what action was taken. Finding The term ‘repeatedly engaged’ is not defined in the IP Act and many be interpreted within the ordinary meaning of those words: ‘done, made or said again and again’.[17] I am satisfied that in making 264 access actions over a period of less than five years, the respondent has repeatedly – ‘again and again’ – engaged in access actions. The merit or otherwise of those access actions is not relevant to this issue. Does the repeated engagement involve an abuse of process for an access action? Yes, for the reasons that follow. Grounds relied upon by QPS QPS submitted that the respondent’s repeated engagement involves an abuse of process for an access action because her actions involve: unreasonable interference with the operations of QPS and associated wastage of public resources and funds; and/or harassment and intimidation of QPS employees including making unsubstantiated or defamatory allegations. For the reasons explained below, I am satisfied that the first ground is made out, but the second is not. a) Unreasonable interference with agency operations/wastage of public resources and funds I will consider whether the respondent’s repeated engagement in access actions involves an abuse of process on the basis that the repeated engagement has unreasonably interfered[18] with QPS’s operations. As part of that consideration, I will take account of QPS’s related submission that the repeated engagement also involves a wastage of public resources and funds. The OAIC Guidelines[19] list various factors relevant to assessing this issue, which I consider are relevant when considering the application of section 127(2)(b)(i) of the IP Act: the total number of a person’s access actions to the agency in a specific period, and in particular, whether a high number of access actions has led to a substantial or prolonged processing burden on the agency or a burden that is excessive and disproportionate to a reasonable exercise by an applicant of the right to engage in access actions the impact of the person’s access actions on [IP] administration in the agency, and in particular, whether a substantial workload impact has arisen from the nature of a person’s access actions, such as multiple [IP] requests that are poorly-framed or for documents that do not exist, requests for documents that have already been provided or to which access was refused, or requests that are difficult to discern and distinguish from other complaints a person has against the agency. It is nevertheless important to bear in mind that an individual, who may lack both expertise in dealing with government and a close knowledge of an agency’s records management system, may make access requests that are poorly framed, overlapping or cause inconvenience to an agency the impact of the person’s access actions on other work in the agency, and in particular, whether specialist or senior staff have to be redeployed from other tasks to deal with [IP] requests, or the requests have caused distress to staff or raised security concerns that required separate action whether the agency has used other provisions under the [IP] Act to lessen the impact of the person’s access actions on its operations ... the size of the agency and the resources that it can reasonably allocate to [IP] processing whether the person has cooperated reasonably with the agency to enable efficient [IP] processing, including whether the person’s access actions portray an immoderate prolongation of a separate grievance the person has against the agency, or the continued pursuit of a matter that has already been settled through proceedings in another dispute resolution forum... whether deficiencies in an agency’s [IP] processing or general administration have contributed to or might explain a person’s access actions.... QPS’s submissions[20] QPS submitted that the respondent’s excessive number of access actions had had a detrimental impact on QPS’s resources and that her applications showed ‘a pattern of requesting behaviour that could be considered to be manifestly unreasonable by a dispassionate person’:[21] Whilst it is acknowledged that an agency is required to show more than having to expend significant resources, this prolonged application activity has had a major impact on the operation of the QPS. This is shown by the fact the QPS Right to Information and Privacy (RTIP) Unit has spent over 616 hours processing the respondent’s applications. When broken down further, this equates to 77 complete 8-hour days, or four months spent by a staff member responding only to work generated by the respondent and working on those files non-stop for 8 hours a day. It is difficult to identify any line of reasoning where such a monopolisation of resources could not be identified as an unreasonable ‘diversion of resources or interference with normal operational functions’. In the case of UQ and R, the unreasonable interference criteria was met as the respondent had made ‘voluminous applications’, had ‘often applied for information previously sought’, and his actions had created ‘an unreasonable interference with the applicant’s operations’, which ‘amount[ed] to a waste of public resources.’ In Cairns and Hinterland Hospital and Health Service and Respondent, the Right to Information Commissioner was satisfied that this criteria had been met after having regard to the volume and terms of the applications and that many of them ‘were incapable of serving a legitimate purpose and to process them would involve a wastage of public funds.’ As previously highlighted, in the current matter the respondent has made 264 access actions in a period of forty months and has often applied for information previously sought. In addition to this being a large volume of actions, most of these applications have been for large amounts of documents. Many of these applications, and her correspondence regarding these applications, could reasonably be classified as voluminous. Examples of this voluminous nature can be seen in Appendix B. [Footnotes omitted] As an example of what it regarded as the unreasonable nature of the respondent’s actions, QPS stated that the respondent had made 20 access applications over a period of six months seeking access to documents concerning the CCC investigation of her complaints against police,[22] despite having received a decision from QPS in response to her initial application that the documents were exempt under the IP Act, and OIC confirming that decision on external review. QPS refused to deal with these 20 subsequent access applications in reliance upon section 62 of the IP Act (previous application for same documents). The respondent then sought external review by OIC of all decisions by QPS, and all reviews were resolved after the respondent accepted OIC’s preliminary view that QPS was entitled to rely upon section 62. QPS further submitted: Another noteworthy example of the applicant applying for information she has previously sought is the applicant’s continued applications for police job cards over a six year period. On 12/09/2013 the respondent made an application under the IP Act for police job cards made from and to her address since 2007. On 4/11/2013 she was provided with a decision and seventy four documents relevant to this application. Since this date, the respondent has made four further applications seeking the same job cards, including one in each of 2016 and 2018, and two in 2019. Commonwealth vexatious declaration decisions also support the use of excessive workload as a relevant factor in finding an interference with operations. In Sweeney and Australian Information Commissioner and Australian Prudential Regulation Authority (Joined Party), there had been 118 applications over a thirty three month period. The Administrative Appeals Tribunal found that an excessive workload required to respond to access applications, and seeking documents previously sought are factors which indicate an interference with the operations of an Agency. It was further considered in this case that the ‘volume, frequency and nature of the access actions’ made this conduct unreasonable and thus founded an abuse of process for an access action. A factor considered in Sweeney, was the effect of the subsequent workload on an agency as a result of access applications made. This is mirrored in the current matter, where there has been an impact on frontline officers and administration staff in the [regional] Police District, who have been diverted from the normal duties to conduct searches and compile documents. A further factor considered in Commonwealth cases when deciding upon unreasonable interference has been whether the respondent is attempting to use the access rights provided in the Act to revisit a long standing grievance that has already been thoroughly investigated. As discussed in the introduction to this report, the respondent has made an extraordinarily large amount of complaints and her interactions with her neighbours has [sic] consumed an inordinate amount of police time and resources. She has been kept informed about the progress of her complaints, both via written correspondence but also via personal contact with Officers in Charge of the [regional] Station and [regional] District Police Communications. It is clear that she is now using the RTI and IP Acts for the ‘prolongation of a personal grievance’. [Footnotes omitted] As regards the wastage of public funds and resources, QPS raised the impact that processing the access applications had on frontline officers and administration staff in the regional police station where the respondent resides, diverting them away from their normal duties in order to conduct searches for, and compile, relevant documents. QPS reiterated its submission about the number of hours that staff of QPS’s Right to Information and Privacy (RTIP) Unit had spent responding to the respondent’s requests, the repetitive nature of those requests, and their lack of merit: ... In addition to the repetitive nature of the respondent’s access applications, the respondent has monopolised an extraordinary amount of police time over the last decade. This is due to her repeated unfounded allegations against her neighbours, and also her repeated unfounded complaints about the investigations of these allegations. She has displayed an unwillingness to accept any blame for her own actions, and her repeated complaints and access applications appear to be driven by an erroneous belief that there is some type of conspiracy against her. Whilst it is acknowledged that the right to make a complaint is an important right, the respondent has consistently abused this right by refusing to accept the outcomes of investigations. Her complaints and access applications often repeat similar allegations and arguments which have continually been rejected and found to be unreasonable and without basis. This has resulted in a large amount of police time “wasted” investigating and responding to matters which have no substance, and subsequently responding to access actions regarding these matters. Repetition and lack of legitimacy were also identified as factors which indicate an abuse of process in the Cameron case.[23] Respondent’s submissions As noted, the respondent’s submissions in her various emails focused on reiterating the legitimacy of her complaints against her neighbours and against police, and her right to seek access to information from QPS regarding these matters. She provided photographic evidence to support various of her complaints, and provided copies of correspondence with QPS, the local council, and the CCC, regarding her complaints. In response to QPS’s submission that dealing with her access applications involved a wastage of public resources, the respondent argued:[24] The allegation ... is malicious and unacceptable. In 2007 it would have taken QPS half an hour to stop this intentional abuse and mistreatment. Instead the QPS allowed hidden abuse and mistreatment, with the suffering at my address including the ill and the elderly. A loved one in my care at my address has not survived this abuse. What I have had to experience over these many years for requiring the help from QPS is a disgrace. To intentionally also shift the blame onto myself so the truth, justice and the real offender can escape responsibility and accountability will not happen any further and should not have happened in the firt [sic] instance. ... QPS will hide the truth and hold me responsible for this groups behaviour. This furthered the financial abuse, hidden abuse and mistreatment and further concealed the facts. After being charged with stalking the neighbors [sic] involved since 2007 in the destructive behaviours, property damages, excessive noise, emotional and psychological torture and other crimes concealed, stolen from my address by QPS raid in late 2014. All my property and evidence returned to me 2016 March by Officer in Charge [name deleted]. No [sic] Guilty of ten criminal charges. Do not ever believe that I am the cause of public waste of resourses [sic] when the facts prove exactly the opposite to [QPS RTIP officer’s] recent allegations. It is critically important that police service is capable of doing their job for the safety and well being in the community. At this time families, children and communities are suffering violence and ignorance. The QPS is responsible for safety in our communities and the communities are suffering unsafety, unhealthy and toxic environments. Unacceptable to knowingly allow this to exist without support as a voice for people without a voice in the communities. Any person suffering is a detriment to the whole community. Empathy of others suffering is a good human quality. My neighbours and the people involved have caused suffering. No life is more important than another life. The fact that people believe they are entitled or privileged for having QPS friends and contacts to distort evidence and information is a disgrace and inhumane. To dehumanise my life is unacceptable to continue as over the last decade of hidden abuse and mistreatment. [QPS RTIP officer] is distorting the facts because he can and because his is able and because his is shifting the blame and the focus off of the real disgrace as hidden abuse and mistreatment in toxic communities. I have not been able to live as any person as a right to live since I required QPS assistance at my address in 2007 as new neighbors [sic] moved into my area. I have a right know why people are abused and mistreated by the inaction of QPS. In order to find the evidence and to stop this abuse from happening I will require QPS documents relating to the facts. To deny any QPS information is a part of the problem and allowing the QPS problem to extend and the incit [sic] of violence towards the community. Discussion As noted above, QPS submitted that, from December 2016 to April 2020, the respondent made 264 access actions (including, at one point in 2017, 23 access applications in 23 days). This equates to an average of 6.5 access actions per month, and the work involved required the equivalent of one officer of QPS’s RTIP Unit spending eight hours per day for four months exclusively attending to the respondent’s matters. QPS argued that this is an excessive number of access actions that has led to a substantial and prolonged processing burden on QPS. QPS did not state how many access actions it had received in total during the relevant period. Hence, a relative comparison of the number made by the respondent against the total during the period is not possible.[25] QPS also did not provide information about the current number of staff employed in its RTIP Unit and the relative impact on its available resources in having one staff member spend the equivalent of four months, full-time, on the respondent’s matters. While QPS is undoubtedly a large agency with a substantial workforce and budget, I am not satisfied that an agency’s size is necessarily an accurate measure of resources available to it to deal with access actions under the IP Act or RTI Act.[26] QPS performs crucial law enforcement and public safety duties on behalf of the people of Queensland. Its available resources and budget must reasonably be apportioned between those law enforcement and public safety functions, and functions it is required to perform under legislation such as the IP Act and RTI Act. QPS deals with a substantial number of IP and RTI access applications each year,[27] and it experiences a constant strain on its available resources. It is an unreasonable impost on those resources for one individual’s IP matters to consume an officer’s time for four months across a four year period. Viewed objectively, the respondent’s average of engaging in 6.5 IP Act access actions per month with a single agency is extremely high. I am satisfied that this has led to a substantial and prolonged processing burden on QPS since 2017 that is excessive and disproportionate to a reasonable exercise by the respondent of the right to engage in access actions. I am satisfied that dealing with the respondent’s access actions has had a significant impact on the workload of QPS’s RTIP Unit. I also accept that many of the respondent’s access applications are repetitive and seek access to the same information, or substantially overlap in their terms. Examples highlighted by QPS are set out at paragraphs 38 and 39 above. However, there are numerous other examples contained in Appendix A to QPS’s submission. The respondent makes persistent complaints to QPS about her neighbours (or police), and, soon after making the complaint, often makes an associated IP application seeking access to information about the complaint and QPS’s investigation of it. Some examples are as follows: My attendance at the [regional] Police Station, 04.09.2019 Approx 8am, meeting with Sergeant [deleted], body camera footage, notes, QPrime, investigations, reports, emails and all information involving myself ... as a result of neighbours videoing myself and other incidences that have occurred over these years. All police officers involved, including Officer in Charge [name deleted].[28] Approx 730am 10/09/18 – Front counter footage, body camera footage of myself attending the [regional] Police Station to compile a formal witness statement about what has been occurring in my neighbourhood since 2007. ...[29] All QPS information regarding my conversation with Sergeant [name deleted] approx. 12 noon 20180115. The recording of this conversation and QPS documents, emails, internal and external regarding all the recent investigations.[30] CCTV footage and recordings of my attendance at the front counter of the [regional] Police Station approx. 815am 20180516. I spoke to male constable, I would like the name of this constable. I spoke to female admin person.[31] The respondent has made multiple and repeated access applications for all QPRIME[32] information held about her. Some examples are as follows: Copy of all information about [the respondent] on QPrime between 1987 and 2017.[33] Copies of QPrime reports and job cards in relation to the arrest of [the respondent] that occurred between 07/15 and present.[34] Copy of QPrime entries in relation to complaints made by [the respondent] at [regional] Police Station on 7/10/15.[35] ...QPrime information regarding my address and my name ...[36] ...Documents to support Constable [name deleted]’s comments as advised to me on 20171208 Duty Sergeant at the time .. “all my evidence of crime I provided to QPS since mid 2007 to this day has all been investigated by QPS.” Summary of QPRIME to support this statement. ...[37] All QPS information, QPRIME ENTRIES, QPS evidence, QPS action, QPS advise [sic] since July 2018 of the ongoing circumstance. The whole circumstance reported to QPS at the [regional] Police Station when I attended 2007. Information supplied by myself ... since 2007 and ongoing ...[38] ALL QPRIME entries in relation to myself ... since 2015 to this day 2019. All entries including restricted INFORMATION about myself and my address. ...[39] Seeking: 2019 to an including November ALL QPrime, ALL evidence, ALL VIDEO FOOTAGE, ALL relevant information including statements QPS has of myself ... as the alleged offender. Names of ALL police involved. ... [40] I accept QPS’s submission that the respondent’s applications are often voluminous. Some examples highlighted by QPS in Appendix B to its application include: Evidence of complaints made by [the respondent] and their outcomes. Specifically: - Evidence of complaints made by [the respondent] to Senior Constable [name deleted] at the [regional] Police Station between 2009 and 2013. - Evidence and outcomes into complaints of the intentional abuse of [the respondent], her family and her address continuing since mid 2007. - The outcomes of these complaints with evidence supplied by [the respondent] to Senior Constable [name deleted] to prove facts of this intentional abuse continuing over many years. - The outcomes of the investigation into the violence with proven intention of residents of and visitors to [address deleted] during the years of concern, including a smoke alarm left beeping for three weeks. The torture of this beeping every thirty seconds continuously twenty four hour a day for three weeks. - Investigations into the comments, “we have police friends, What are you going to do about it ...” - The return of the photographs and the two usb’s supplied by [the respondent] to Senior Constable [name deleted] as evidence to prove these concerns as a fact.[41] Outcomes of the police investigations into my concerns of [name deleted] involved in the abuse of myself, my family & my address since mid 2007. Outcomes of the police investigations with evidence supplied to OIC [name deleted] 15/08/2014 with emails to OIC [name deleted] as evidence since this time. Evidence of abuse extending to the community & workplace of [name deleted]. Police outcome into the investigations of [name deleted] involvement into proven abuse, harassment, torture, property damages, abuse of the ill and the elderly, where a member of my family did not survive these crimes and these violent acts. The intentions evident to police since mid 2007, illegal drugs used and sold in my neighbourhood, illegal drugged and drunken party goers obscene language and threats to myself and property, bass systems, large stereos blasting at these three and four day miners parties held six mtrs from the bedroom areas at my address, concern of police not attending when I required assistance breakin at my address from a drugged party goer from a neighbourhood party where I was again abused and assaulted, Assaulted as I got out of my vehicle parked in the street, police harassment, inactions from police allowing this abuse to continue over ten years now support to police from ... City Council with evidence, support from the local member ... with evidence, Child endangerment, Illegal and dangerous parking, Discrimination, Deprivation of liberty, Acts of violence, misuse of weapons, animal abuse. As some proven concerns to date and since mid 2007 when a neighbouring property was sold and new neighbours moving into the neighbourhood.as a neighbourhood group involving [name deleted] proven, there was no need for police in my neighbourhood before mid 2007.notes and other degrading material left in my letterbox and on and around my vehicle. emailing of my clients making reference to this group, cyber bullying, facebook harassment ,defermation [sic] of character and other crimes known to police involved.[42] QPS also highlighted RTI/19533 in which the applicant initially requested access on 23 December 2016 to: Copy of all documents, emails, memos, all internal and external letters and emails on file regarding [the respondent] between 05.2007 - 04.01.2017. QPS advised that it attempted to consult with the respondent to narrow the terms of the application, however, the respondent sent a number of emails in response that specified a list of 22 separate items that in fact sought to expand the terms of the application: 2007 – 2017 - All police jobcards, complaints and correspondence involving my address and police jobcards made from and by address ... [contact details deleted] about complaints. Recording of all calls to police from these numbers including 000 emergency. Including all traffic police complaints and video recordings. All QP9s and all related evidence regarding myself and my arrests. All recording of meetings with and complaints made to Sergeant [name deleted] since mid 2007. All emails as correspondence to and from Sergeant [name deleted]. All recording of meetings with and complaints made to Senior Constable [name deleted] since mid approx. 2009. Copies or return three USBs and photographs provided as evidence to support concerns and complaints. All correspondence to police link and replies to complaints made. Correspondence from and to Officer in Charge [name deleted]. Video and recording of complaints made to Sergeant [name deleted] and Senior Sergeant [name deleted] 10 July, 2014. Watch house video and recordings – 12th March 2015 of Senior Constable [name deleted] and Constable [name deleted] at watch house counter and also in front of lockup. Approx 2.00pm same day, myself and Sergeant [name deleted]’s conversations. Two separate conversations. One briefly and one at watch house counter discussing charges and bail. Sergeant [named deleted]’s visits to my address... . Sergeant [name deleted] wears a recorder around his neck on all five meeting where he attend my residence. Recordings between approx. 14th July, 2015 and October, 2015. Recording of [name deleted]’s interview with Sergeant [name deleted] about my complaint to police link. Sergeant [name deleted] advised me at the time that he interviewed [name deleted] regarding myself and my complaints. Police advised, at the time, police would not be providing a written response to my complaint of [name deleted] also police will not be providing written response to my other complaints. Police advised me that a verbal response was provided by Sergeant [name deleted]. I will need this recorded verbal response in addition to other recordings of Sergeant [name deleted] during his visits to my residents over these years. A/Superintendent [name deleted] advised me that the recorded outcome and advise [sic] from Sergeant [name deleted] would only be provided as verbal recordings as Sergeant [name deleted] always wore a voice recorder around his neck while visiting my address. Recordings of myself with female constable at [regional] police station 10th July, 2015. Recording and video of conversations from police counter to the interview room, first conversations between constable and myself before police started and recorded on disk. 20th July, 2015 when I was arrested breach of bail, recordings and video of Myself and arresting officers. Video and recordings while I was incarserated [sic] for two nights and three days. All recording and evidence during court proceedings. 17-18th October, 2015 Recordings and video of police conversations in [address deleted] with regards to door knocks made by police. Recording and video with documentation regarding CIB at my address 20161204, at 300pm approx. All other information regarding myself and police would be appreciated. The sergeant/ sergeants involved in the below incident. This may be in the QP9's you provide me of these police incidents. Thanks 20150720 - approx 600pm - police collected me from my address, all QP-9 and video evidence, recordings of police with myself ..., at the counter at the watch house and conversations and communications with police on this night. All evidence and communications relating to my charge of breach of bail. I am satisfied that dealing with these types of voluminous applications has a significant impact on QPS’s resources available for IP and RTI administration. Compounding that impact is the fact that many of the respondent’s applications are densely-worded and poorly framed, such that it is often difficult to discern the information that she is seeking to access. I am cognisant of the fact that an individual, who may lack both expertise in dealing with government and a close knowledge of an agency’s records management system, may make access requests that are poorly framed, overlapping, or cause inconvenience to an agency. However, the respondent has been making access applications to QPS for over four years, and staff of both QPS’s RTIP Unit, and OIC on external review, have spent a considerable amount of time attempting to clarify with her the terms of her various applications and discussing with her the need to make requests that clearly identify the information sought. However, the respondent continues to make applications that are difficult to comprehend, and that often require clarification. A recent example is RTI/30159, received by QPS on 30 March 2020, in the following terms: Subject: Mobile phone Video footage, investigations into an incident at my address ... 23022020am into the ongoing circumstance in my community of organized stalking directed towards myself and my address known to QPS since 2007. On this day [name deleted] videoing [sic] myself as she drove past my address. Crime stalking harassment and dangerous operation of a motor vehicle. Group members known to police are [names deleted]. Many other crimes committed also in relation to the dangerous operation of motor vehicles by this group. 2007 comments from police, "sounds like a mob of dickheads have moved in", comments from this group, "we have police friends who help us ... , you have no friends ... , this will be on a current affair one day, aren't you embarrassed", my comments, "someone with a bit of common-sense needs to get involved here". Evidence to [regional] Police supporting that these people believe they are above the law and evidence to also support these people involved are a risk to the safety and wellbeing of people in my community. The people involved are obsessed to cause further chaos and trauma with their evil intentions and immoral regime in relation to a swat sticker [sic] burnt into the front lawn at my address and the associated behaviours to conspire and force ongoing detriment and persecution with their immoral intentions towards people in the community. A further example is found in RTI/30159, received by QPS on 30 March 2020: Subject: A.) All QPS action on my POLICELINK complaints B). STEPS TAKEN by QPS from myself sending information as PoliceLink email to steps others QPS members have taken all included C). POLICE Involved D). DECISIONS MADE E). ALL RELEVANT INFORMATION TOWARDS CRIME PREVENTION. F.) all Policelink recording of phone conversations, all PoliceLink emails and responses g.) Video footage of myself taken by others from January 1st 2020 to this day. 1. Complaints – QP [number deleted] 2. March 26 Reference ID: [deleted] << Reference ID: [deleted] including the Police action on my information of male walking the streets asking for money for elderly people suck [sic] on a bus, on other occasions asking for money for children stuck in a vehicle needing repairs. Having to devote additional time to attempting to identify the information requested, and to consult with the respondent in an effort to clarify the terms of the application, increases the processing burden on QPS’s RTIP Unit and unreasonably consumes its resources. I am also satisfied that the respondent uses the IP Act process to continue to agitate complaints that have already been investigated and dealt with, or that have been found to be unsubstantiated. While I have no doubt the respondent remains aggrieved by these matters, I consider that she is using the IP Act process to continue to agitate them. Her IP access applications are repetitive and mainly seek access to the same, or substantially the same, type of information about her complaints, her neighbours and actions of police. In Sweeney, the former Australian Information Commissioner stated:[43] Caution is needed in evaluating the public interest dimension of a person’s FOI requests. Even so, the inescapable impression in Mr Sweeney’s case is that many of his requests are aimed at re-agitating a grievance of long-standing that has been acknowledged and investigated by ASIC and other agencies, albeit not to his satisfaction. It is inappropriate that the FOI Act should become the platform to support the immoderate prolongation of a personal grievance. The impact and inconvenience of Mr Sweeney’s requests upon ASIC operations is disproportionate to his campaign for ‘justice’ in relation to his own affairs and more widely. I make the same finding in respect of the respondent in this case. Based on the discussion I have set out above regarding: the repetitive and often unclear nature of the respondent’s IP access applications; and her use of the IP Act process to continue to ventilate and agitate grievances and complaints that have already been examined and dealt with, I am satisfied that dealing with the respondent’s access actions involves a wastage of public resources and funds. All resources funded by public monies to assist in the delivery of government services must be used prudently and efficiently, and this is particularly true of the funding provided for law enforcement and public safety services, which represents a significant impost on taxpayers. Despite the respondent’s submissions to the contrary, I consider that the time, resources and attendant cost of dealing with her IP access actions are excessive and unjustified. Finding Based on the information before me and for the above reasons, I am satisfied that the respondent’s access actions are an abuse of process because they unreasonably interfere with QPS’s operations and involve an associated wastage of public resources and funds. b) Harassment and intimidation of QPS staff including making unsubstantiated or defamatory allegations I will consider whether the respondent’s repeated engagement in access actions involves an abuse of process on the basis that the repeated engagement involves the harassment or intimidation of QPS staff. As part of that consideration, I will take account of QPS’s related submission that the respondent has made unsubstantiated or defamatory allegations against QPS staff. The terms ‘harassing’ and ‘intimidating’ are not defined in the IP Act. The ordinary dictionary meaning of ‘harass’ is ‘to trouble by repeated attacks or to disturb persistently’ and ‘intimidate’ is to ‘to force into or deter from some action by inducing fear’.[44] In the OIC decision in Sheridan,[45] the terms were given the following meanings: acts which persistently trouble, disturb or torment a person are acts of harassment; and acts which induce fear or force a person into some action by inducing fear or apprehension are acts of intimidation.[46] The OAIC’s Guideline states: 12.23 The occurrence of harassment or intimidation must be approached objectively. The issue to be resolved is whether a person has engaged in behaviour that could reasonably be expected on at least some occasions to have the effect, for example, of tormenting, threatening or disturbing agency employees. An agency will be expected to explain or provide evidence of the impact that a person’s access actions have had on agency employees, though this evidence must be considered in context with other matters. ... 12.24 Harassment and intimidation may be established by a variety of circumstances that include: the content, tone and language of a person’s correspondence with an agency, especially if language is used that is insulting, offensive or abusive unsubstantiated, derogatory and inflammatory allegations against agency staff requests that are targeted at personal information of agency employees requests that are designed to intimidate agency staff and force them to capitulate on another issue requests of a repetitive nature that are apparently made with the intention of annoying or harassing agency staff a person’s refusal or failure to alter dubious conduct after being requested by an agency to do so. 12.25 Those circumstances, if present in an individual case, must nevertheless be assessed objectively in a broader FOI context. It is not contrary to the requirements or spirit of the FOI Act that an FOI request will contain additional commentary or complaints by the FOI applicant. These may provide context for a request, or be compatible with the stated objects of the FOI Act of facilitating scrutiny, comment and review of government activity. A number of decisions of the OAIC have found that an access applicant engaging in threatening or abusive behaviour towards agency staff may amount to harassment or intimidation, and therefore an abuse of process: DOD and ‘W’:[47] the Commissioner found that the access applicant had abused staff in a manner that was insulting, offensive, and directly impugned their personal and professional integrity, and had made demands that bordered on threats CO and ‘S’:[48] the Commissioner found that the access applicant had made repeated requests aimed at procuring the personal information of Ombudsman staff to intimidate and harass them, and that the applicant’s allegations of misconduct and threats to report the misconduct to the Australian Public Service Commission had the effect of harassing staff Comcare and Price:[49] the Commissioner found that the access applicant had made repeated requests involving offensive language that harassed, intimidated and abused staff and could understandably be distressing to them, and in this capacity had engaged in an abuse of process; and IBA and ‘QB’:[50] the Commissioner found that the access applicant had engaged in a campaign of harassment and intimidation by way of persistently and frequently contacting, threatening and intimidating staff and service providers, and in this capacity had engaged in an abuse of process. In GCHHS and Respondent, the Privacy Commissioner found that the respondent had engaged in threatening and abusive behaviour towards staff of the agency, which amounted to harassment or intimidation of the agency’s employees. A similar finding was made by the Right to Information Commissioner in CHHHS and Respondent. QPS’s submissions[51] QPS’s submissions focused on the contention that the respondent had made a number of unsubstantiated allegations about QPS officers in her access applications. Relying on OIC’s decision in Hearl and Mulgrave Shire Council,[52] where allegations are unable to be substantiated, they will be ‘plainly vexatious and defamatory’: This includes allegations of mistreatment by police ... and dereliction of duty allegations, such as failure to attend and investigate her complaints and concealing evidence. A specific example of this is illustrated when the respondent applied on 31 May 2018 for access to: All official reports, all documents, all evidence, all dates, all other information that supports the: QPS code 504 placed against my name and my address Danger intelligence messages against myself and my address Person or persons responsible for the placing of these codes and messages The years that these codes and messages were placed and removed All other significant information and references of this whole circumstance. In response to a consultation seeking further information regarding this application, the respondent made the following allegations: The continued concealing of these offences allows these offences to continue. The inaction of QPS as concealed in your refuse to deal decisions supports an ongoing abusive [sic] and mistreatment since mid 2007 as known to QPS. The respondent has also made allegations that QPS Right to Information (RTI) decision makers are making decisions to further continue this alleged mistreatment and to conceal the alleged inaction of police. A specific example of this was in response to a consultation seeking further information in relation to an access application. The respondent made the following allegation: I believe, as a police officer, Senior Sergeant [X], you are aware of where this information and where the documented communications would be located. With your previous conduct considered, I am aware that you are intentionally prolonging my right to any of my information. QPS set out, in Appendix C to its application, other examples of what it contended were unsubstantiated allegations made by the respondent in her access applications. These included allegations that one of her neighbours, who is apparently employed by QPS, is involved in what the respondent contends are acts of victimisation against her in collusion with other neighbours. As an addendum to its application, and following the publication by OIC of the declaration in GCHHS and Respondent, QPS argued that, while the respondent’s behaviour in this case may not be at the same ‘insulting or threatening level’ as that engaged in by the respondent in GCHHS and Respondent, there was nevertheless a similar pattern in that: both repeatedly make applications or engage in correspondence containing unfounded allegations against staff who have interacted with them and who do not acquiesce to their requests or demands for information both use insulting language that impugns the professional reputation and integrity of staff; and there is no evidence to support their allegations. QPS stated: It is submitted that whilst it has a somewhat different complexion to that considered in GCHHS, the interactions of the person with the QPS in this matter contain many similarities to GCHHS. This is sufficient to support a consistent finding that the person in this matter has engaged in behaviour that is an abuse of process as it is harassing or intimidating and contains unsubstantiated and unfounded accusations against staff. Respondent’s submissions The respondent did not specifically address this issue in her submissions except to reiterate her grievances with her neighbours and her dissatisfaction with the actions of QPS in responding to her complaints and in dealing with her IP access applications. It is clear that the respondent has grown increasingly frustrated with staff of QPS’s RTIP Unit, whom she considers are deliberately obstructing or delaying her applications, or concealing information from her by refusing to deal with her applications. I will discuss these allegations further below. Discussion I have considered objectively whether the respondent has engaged in behaviour that could reasonably be expected to have the effect of harassing or intimidating QPS employees. As it is the conduct which must be shown to involve an abuse of the process, it is not necessary that an intent to harass or intimidate be shown. Viewed objectively, I am not satisfied that the respondent’s conduct has reached a level sufficient to find that it amounts to an abuse of process of this nature. Having regard to the various ways in which harassment and intimation can be established (set out at paragraph 62 above), I am not satisfied that the respondent’s behaviour has the effect of harassing or intimidating QPS staff, through engaging in threatening or abusive behaviour, using insulting or offensive language, or through persistently making unsubstantiated or defamatory allegations. The respondent is dissatisfied with what she regards as police inaction about her complaints. Many of her applications are aimed at seeking information about what actions were taken by police, or about their interactions with her more generally. These applications sometimes name individual police officers who have interacted with the respondent in some way. In addition, a small number have sought information about the QPS employee who lives at a neighbouring address and whom the respondent believes is involved in acts of victimisation against her.[53] There is no evidence before me of the respondent having persistently adopted insulting, offensive or abusive language in her access applications, or more broadly. I accept that a small number of applications may contain unsubstantiated allegations against QPS staff. However, in making those ancillary allegations, the respondent appears not to be motivated by malice or retribution, but by a genuine belief in the matters complained about and a desire to obtain access to relevant information. I recognise that it is not necessary that an intent to harass or intimidate be shown and that the relevant consideration is how, objectively, a person receiving the information would reasonably react. However, having reviewed the terms of the access applications made by the respondent since 2017 that are set out Appendix A to QPS’s application, and having given consideration to their language, tone and content, I am not satisfied that relevant QPS staff could reasonably be expected to feel distressed, harassed or intimidated by the bulk of such communications. In terms of the making of unsubstantiated or defamatory allegations against QPS staff, I have given careful consideration to the terms of a number of the respondent’s access applications as they relate to the particular officer of QPS’s RTIP Unit who has been responsible for processing and deciding many of the respondent’s access applications. Upon receiving an access decision from this officer, it appears that the respondent has begun making a further access application in which she seeks access to information that supports the ‘allegations’ made against her by this officer in his decision. I have also had particular regard to the actions of the respondent in connection with this officer subsequent to her being notified of QPS’s vexatious declaration application. A person’s conduct after they are notified that a declaration is being considered may be relevant when deciding whether or not to grant the declaration.[54] As I noted at paragraph 20 above, following receiving notification of QPS’s vexatious declaration application, the respondent made an access application to QPS seeking access to information about any action taken by QPS management in response to her complaints about the officer. In addition, in the various emails that she has sent to OIC during the course of the review, the respondent accused the officer of: bias dereliction of duty dishonesty and lying maliciously targeting her and depriving her of her rights intentionally blocking her access to information; and concealing crimes. I advised the respondent that it was not correct for her to characterise QPS’s application as an attempt by an individual officer to ‘target’ her or to make malicious allegations against her, and it was neither relevant nor appropriate for her to lodge an access application with QPS seeking information of a disciplinary nature about this officer in connection with the making of such an application. I informed the applicant that her conduct in that regard may be a relevant matter for me to take into account in deciding whether or not to grant the declaration. The respondent thereafter made no further access applications of this nature, and sent OIC no further correspondence concerning this officer. I recognise that the allegations made by the respondent against the QPS officer are serious in nature and are unsubstantiated. I also accept that the QPS officer in question may reasonably find the allegations, which impugn his integrity and honesty, offensive. However, I have also taken into account the fact that the respondent immediately ceased her conduct upon being requested to do so by me, and that she has not, as far as I am aware, sought to re-engage in this type of behaviour since then. It is also relevant that she does not appear to have undertaken conduct of this nature over a sustained period of time in the past. For these reasons, while unwarranted and unfair, I am not satisfied that the respondent’s behaviour towards the QPS officer in question is sufficient to amount to an abuse of process. Finding I find that the circumstances I have discussed above do not establish that the bulk of the access actions undertaken by the respondent involved an abuse of process because they harassed or intimidated staff members of QPS. I am not satisfied that the access actions involved the use of threatening or abusive behaviour; that they persistently adopted insulting, offensive or abusive language; or that they persistently made unsubstantiated and/or defamatory allegations against QPS staff. Conclusion Based on the material before me and for the reasons given, I am satisfied that the respondent has repeatedly engaged in access actions and that the repeated engagement involves an abuse of process for an access action in that it unreasonably interferes with the operations of QPS and involves an associated wastage of public resources and funds. I am also satisfied that the respondent was advised of QPS’s application and was given an opportunity to make submissions in response. Accordingly, I make the declaration in the terms set out above. QPS had sought a declaration that prevented the respondent from making any access applications to it under the IP Act for a period of five years. However, I consider a declaration in those terms would be an unreasonably broad and lengthy restriction on the respondent’s statutory right to seek access to her personal information as held by QPS. The declaration I have made seeks to strike a balance between that right, and providing the applicant with relief from dealing with applications for past documents, as well as, for a two year period, from the burden on its resources that has resulted from dealing with the respondent’s excessive volume of access actions over the past four years. -----------------------------------------Rachael Rangihaeata Information CommissionerDate: 21 September 2020 APPENDIX Significant procedural steps Date Event 9 June 2020 Application for a Declaration received from QPS 29 June 2020 Letter to the respondent attaching a copy of the Application 6 July 2020 Email received from the respondent 18 July 2020 Email received from the respondent 20 July 2020 Email received from the respondent 21 July 2020 Email received from the respondent 21 July 2020 Letter to the respondent. [1] QPS initially sought a declaration that also covered access actions made by the respondent under the Right to Information Act 2009 (Qld) (RTI Act). However, section 114 of the RTI Act establishes a separate process for declaring a person vexatious under the RTI Act and requires that the applicant for a declaration establish that the person has repeatedly engaged in access actions under the RTI Act. As QPS was not able to establish that the respondent had repeatedly engaged in RTI Act access actions, it elected not to pursue this aspect of its application. [2] Walton v Gardiner (1993) 177 CLR 378, at [410].[3] Hearl and Mulgrave Shire Council [1994] QICmr 12; (1994) 1 QAR 557.[4] Re Cameron [1996] QCA 37; [1996] 2 Qd R 218, at [220] (Re Cameron).[5] Which came into force on 1 January 2020.[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] XYZ at [573].[8] The University of Queensland and Respondent (Queensland Information Commissioner, declaration made 27 February 2012) (UQ and Respondent); Cairns and Hinterland Hospital and Health Service and Respondent (Queensland Information Commissioner, declaration made 26 October 2017) (CHHHS and Respondent); Moreton Bay Regional Council and Respondent [2020] QICmr 21 (8 April 2020) (declaration refused) (MBRC and Respondent); and Gold Coast Hospital and Health Service and Respondent, [2020] QICmr 25 (6 May 2020) (declaration made - presently on appeal to QCAT) (GCHHS and Respondent). [9] Part 12 – Vexatious applicant declarations. [10] Dated 9 June 2020. [11] Emails dated 6 July 2020; 18 July 2020; 20 July 2020; and 21 July 2020.[12] Email dated 6 July 2020. [13] Email dated 6 July 2020. [14] Email dated 6 July 2020. [15] Complaints which were found to be unsubstantiated. [16] (Freedom of Information) [2017] AICmr 50.[17] Sweeney and Australian Information Commissioner & Ors [2014] AATA 531 (4 August 2014) at [53] (Sweeney), quoting the Macquarie Dictionary. [18] ‘Unreasonable’ is relevantly defined as meaning ‘exceeding the bounds of reason; immoderate; exorbitant’. ‘Interfere’ is defined as ‘to interpose or intervene for a particular purpose’ (Macquarie Dictionary, 7th edition). I note that the use of the phrase ‘unreasonably interfering’ indicates a degree of interference with agency operations is permissible, before it will be regarded as unreasonable.[19] At paragraph [12.27].[20] Paragraphs 21-33 and 46-47 of QPS’s submission. [21] Transport for London (UK Information Commissioner), FS50090632, 10 April 2007. [22] The investigation was referred by the CCC to QPS’s Ethical Standards Unit (ESU) for investigation, with CCC retaining oversight powers. [23] Re Cameron, at [2].[24] Email dated 20 July 2020. [25] I note that a relative comparison of the number of access actions made by an applicant during a period versus the total received by an agency for that same period is not always helpful in establishing that an individual’s repeated engagement amounts to an abuse of process. If, for example, an agency receives only four access actions in a year, but three of them are made by the same individual, then relatively, that individual is a high user of the agency’s resources. However, this small number of applications in total would not represent an excessive processing burden on the agency. [26] See the discussion at paragraphs 87-90 in Services Australia and ‘RS’ (Freedom of Information) [2020] AICmr 6. [27] The 2018-2019 Annual Report on the RTI Act and IP Act that is published each year by the Department of Justice and Attorney-General (which is the agency responsible for the administration of both Acts) indicates that QPS received 2,410 access applications during that financial year, and finalised 2,848. [28] RTI/28008 received on 5 September 2019.[29] RTI/24701 received on 10 September 2018. [30] RTI/22761 received on 25 January 2018. [31] RTI/23692 received on 17 May 2018.[32] Queensland Police Records and Information Management Exchange (QPS’s electronic database). [33] RTI/22094 received on 1 November 2017. [34] RTI/22107 received on 1 November 2017.[35] RTI/22132 received on 6 November 2017. [36] RTI/22405 received on 8 December 2017. [37] RTI/22433 received on 13 December 2017. [38] RTI/24766 received on 17 September 2018.[39] RTI/25780 received on 11 January 2019. [40] RTI/28631 received on 9 December 2019. [41] RTI/20426 received on 18 April 2017.[42] RTI/20796 received on 22 May 2017.[43] Australian Securities and Investments Commission and Sweeney [2013] AICmr 62, at [44].[44] Macquarie Online Dictionary. [45] Sheridan and South Burnett Regional Council (Unreported, Queensland Information Commissioner, 9 April 2009) (Sheridan). [46] Note that the issue in Sheridan was whether the act in question amounted to a serious act of harassment or intimidation. Section 127(8) of the IP Act does not require the act of harassment or intimidation to be serious in nature. [47] Department of Defence and ‘W’ [2013] AICmr 2.[48] Commonwealth Ombudsman and ‘S’ [2013] AICmr 31.[49] [2014] AICmr 24. [50] Indigenous Business Australia and ‘QB’ (Freedom of Information) [2019] AICmr 14. [51] Paragraphs 15-20 and 43-45 of QPS’s submission. [52] [1994] QICmr 12; (1994) 1 QAR 557, at [34].[53] See, for example, RTI/30203 dated 2 April 2020 (page 108 of QPS’s application). [54] See Official Trustee in Bankruptcy v Gargan (No.2) [2009] FCA 398, at [12] and Attorney-General v Tarq Altaranesi [2013] NSWSC 63, at [16].

queensland

court_judgement

Queensland Information Commissioner 1993-

Price and Crime and Misconduct Commission [2002] QICmr 11 (28 March 2002)

Price and Crime and Misconduct Commission [2002] QICmr 11 (28 March 2002) Price and Department of Justice & Attorney-General (S 132/99, 28 March 2002, Deputy Information Commissioner) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.-3. These paragraphs deleted. REASONS FOR DECISION Background The applicant, Mr Ron Price, seeks review of the Department's decision to refuse him access to certain documents identified by the Department as falling within the terms of the applicant's FOI access application dated 12 December 1998. The Department claims that those documents are exempt from disclosure under s.43(1) of the FOI Act (the legal professional privilege exemption). The applicant also seeks review of the Department's decision to require payment of photocopying charges for the provision of access to copies of certain other documents. The applicant contends that those documents concern his personal affairs, and therefore that no photocopying charge is payable under s.7 of the FOI Regulation. In his FOI access application dated 12 December 1998, the applicant sought access to a copy of a certificate of dismissal dated 4 July 1997 relating to the matter of Brennan v Price, heard in the Gatton Magistrates Court by Magistrate Hall on 26 May 1997, and to any documents related to the creation of that certificate. Following discussions and correspondence between the applicant and the Department, it was agreed to include within the terms of the applicant's FOI access application, documents created after 30 November 1997 concerning the matter of Price v Brennan and Yorkston. By letter dated 19 April 1999, Ms Lynn Barratt of the Department provided the applicant with a schedule of the documents she had identified as falling within the terms of his FOI access application. Ms Barratt advised the applicant that she had decided to give him access to some documents, but to refuse access to others on the grounds that they were subject to legal professional privilege and therefore exempt from disclosure under s.43(1) of the FOI Act. In respect of those documents to which access was to be granted, Ms Barratt advised the applicant that, if he wished to obtain copies, a photocopying charge of 50c per page was payable. By letter dated 24 April 1999, the applicant wrote to the Information Commissioner, seeking review of Ms Barratt's decision. By letter dated 13 May 1999, Assistant Information Commissioner Shoyer informed the applicant that the Information Commissioner did not have jurisdiction to deal with his application for review as he had not applied to the Department for internal review of Ms Barratt's decision, which he was required to do under s.73(3) of the FOI Act. On 13 May 1999, the applicant faxed a copy of Assistant Information Commissioner Shoyer's letter to the Department with the following handwritten annotation appearing on the front page - "... If necessary, this is my application for internal review ...". The Department did not respond to the applicant's facsimile. By letter dated 23 June 1999, the applicant again applied to the Information Commissioner for review of the Department's decision. By letter dated 8 July 1999, Assistant Information Commissioner Shoyer wrote to the Department to advise it that, the time limit for internal review specified by s.52(6) of the FOI Act having expired, the Department was deemed to have made a decision affirming Ms Barratt's decision. Assistant Information Commissioner Shoyer further advised that the Information Commissioner would review that deemed decision. External review process Copies of the documents to which the applicant had been refused access by the Department were obtained and examined, as were copies of those documents in respect of which the Department contended that a photocopying charge was payable by the applicant. As the result of negotiations between the Department and this office, the applicant was given access to some further documents, and those documents are no longer in issue in this review. By letter dated 12 October 2001, Assistant Information Commissioner Moss informed the applicant of her preliminary view that some documents claimed by the Department to be exempt from disclosure under s.43(1) of the FOI Act, did not qualify for exemption under s.43(1). That preliminary view was also conveyed to the Department. In relation to the photocopying charge issue, Assistant Information Commissioner Moss informed the applicant of her preliminary view that, with the exception of five documents, which she considered could properly be characterised as documents concerning his personal affairs, the remainder of the documents in issue contained no information which could properly be characterised as information concerning the applicant's personal affairs, and that the Department was therefore entitled to require a charge for the provision of photocopies of those documents. (The Department accepted the preliminary view regarding the five documents mentioned above, and provided the applicant with copies of those documents at no charge.) By letter dated 1 March 2002, Assistant Information Commissioner Moss advised the applicant that the Department had accepted her preliminary view that certain documents did not qualify for exemption under s.43(1) of the FOI Act, and had withdrawn its claim for exemption in respect of those documents. She also informed the applicant of her preliminary view that the remaining documents in issue qualified for exemption under s.43(1). In the event that he did not accept that preliminary view, the applicant was invited to provide written submissions and/or evidence in support of his case for disclosure. The applicant did not respond to that letter. Hence, it is necessary for me to finalise this matter by way of a written decision. In making my decision in this matter, I have taken into account the following material: the contents of the documents in issue; the applicant's FOI access application dated 12 December 1998; facsimile message to the Department dated 13 May 1999; and application for external review dated 23 June 1999; and the decision of Ms Barratt of the Department dated 19 April 1999. Application of s.43(1) of the FOI Act The documents which the Department claims are exempt from disclosure under s.43(1) of the FOI Act are listed in the First Schedule which is attached to, and forms part of, these reasons for decision*. Those documents relate to litigation between the applicant and the Queensland Police Service (QPS) in which Crown Law acted on behalf of the QPS. 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. 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. I have reviewed the contents of the documents listed in the attached First Schedule*. Based upon my examination of those documents, I am satisfied that each comprises a confidential communication between the QPS and Crown Law (and/or Counsel retained by Crown Law to represent the QPS), that was made either for the dominant purpose of seeking or giving legal advice or professional legal assistance, or for the dominant purpose of use, or obtaining material for use, in litigation that had commenced, or was reasonably anticipated, at the relevant time. Accordingly, I find that the documents listed in the attached First Schedule* are subject to legal professional privilege, and comprise exempt matter under s.43(1) of the FOI Act. Payment of photocopying charge The documents in respect of which the Department contends that a photocopying charge is payable for the provision of copies, are listed in the Second Schedule which is attached to, and forms part of, these reasons for decision*. Prior to amendments which came into force on 23 November 2001, sections 7 and 8 of the FOI Regulation provided: 7.(1) An applicant must pay a charge for access to a document that does not concern the applicant's personal affairs. (2) A charge is not payable for access to a document that concerns the applicant's personal affairs. 8. The charge for giving access to a document by providing a photocopy of the document in A4 size is the amount calculated at the rate of 50c for each page of the copy. The amended sections 7 and 8 of the FOI Regulation still impose a charge for the provision of access by way of a photocopy of a document, if the document does not concern the applicant's personal affairs, although the copying charge has been reduced from 50c per A4 page to 20c per A4 page. 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. In Re Rees and Queensland Generation Corporation trading as AUSTRA ELECTRIC (1996) 3 QAR 388, the Information Commissioner explained the factors that may be relevant in deciding, in each case, whether or not information can properly be characterised as information concerning the personal affairs of a person involved in litigation. At paragraphs 19-20, the Information Commissioner stated: I do not mean to convey that any involvement by an individual in litigation, or the pursuit of a legal remedy, is necessarily a personal affair of the individual. I consider, for example, that the commencement and conduct of legal action, by an individual who carries on a trade, business or profession, to recover money owed in respect of goods or services provided, should properly be characterised as the individual's business or professional affairs. On the other hand, I would regard the commencement and conduct of an action for damages for personal injuries, by an employee injured at work, as a personal affair of the injured employee, notwithstanding that it occurred in the course of the performance of the employee's duties of employment. 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? I have examined the documents listed in the attached Second Schedule*. While I acknowledge that most of them contain a reference to the applicant's name as a party to the relevant litigation (and that the nature of the litigation and the applicant's involvement in it is an aspect of his personal affairs), I do not consider that those mere references in the documents are sufficient to characterise them as documents concerning the applicant's personal affairs. Otherwise, the documents contain no information about the applicant's personal affairs. I consider that those documents are properly to be characterised as documents concerning the conduct and administration of the relevant litigation by Crown Law (and by Counsel appointed by Crown Law), on behalf of Crown Law's client, the QPS. Accordingly, I find that the documents listed in the attached Schedule 2* cannot properly be characterised as documents concerning the applicant's personal affairs, and that the applicant must therefore pay the photocopying charge required under the FOI Regulation if he wishes to obtain access by way of the provision of photocopies of those documents. DECISION I affirm those parts of the decision under review (which is identified in paragraph 8 above), by which it was decided that: the documents listed in the First Schedule attached to these reasons for decision* comprise exempt matter under s.43(1) of the FOI Act; and (b) the documents listed in the Second Schedule attached to these reasons for decision* cannot properly be characterised as documents concerning the applicant's personal affairs, and that the applicant must therefore pay the photocopying charges required under the FOI Regulation if he wishes to obtain access by the provision of photocopies of those documents. * Schedules not included

queensland

court_judgement

Queensland Information Commissioner 1993-

Qualtime Association Inc and Department of Communities [2011] QICmr 26 (29 June 2011)

Qualtime Association Inc and Department of Communities [2011] QICmr 26 (29 June 2011) Last Updated: 8 September 2011 Decision and Reasons for Decision Application Number: 310219 Applicant: Qualtime Association Inc Respondent: Department of Communities Decision Date: 29 June 2011 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION ACT – application for access to information about the investigation of a complaint made about a disability service provider and its accreditation and compliance with certification conditions – section 47(3)(a), section 48 and schedule 3, section 7 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 ADMINISTRATIVE LAW – RIGHT TO INFORMATION ACT – application for access to information about the investigation of a complaint made about a disability service provider and its accreditation and compliance with certification conditions – section 47(3)(a), section 48 and schedule 3, section 10(1)(c) of the Right to Information Act 2009 (Qld) – whether disclosure of information could reasonably be expected to endanger a person’s life or physical safety ADMINISTRATIVE LAW – RIGHT TO INFORMATION ACT – application for access to information about the investigation of a complaint made about a disability service provider and its accreditation and compliance with certification conditions – section 47(3)(a), section 48 and schedule 3, section 10(1)(d) of the Right to Information Act 2009 (Qld) – whether disclosure of information could reasonably be expected to result in a person being subjected to a serious act of harassment of intimidation ADMINISTRATIVE LAW – RIGHT TO INFORMATION ACT – application for access to information about the investigation of a complaint made about a disability service provider and its accreditation and compliance with certification conditions – section 47(3)(b) and section 49 of the Right to Information Act 2009 (Qld) – whether disclosure of information would, on balance, be contrary to the public interest Contents REASONS FOR DECISION Summary The access applicant made an application to the Department of Communities (Department) under the Right to Information Act 2009 (RTI Act) for access to information held by Disability Services Queensland (DSQ)[1] about: the accreditation of Qualtime Association Inc (Qualtime) Qualtime’s compliance with any special conditions of certification; and the investigation of a complaint made to DSQ about Qualtime’s management. Qualtime is a non-government disability and respite service provider that receives funding from the Department, through DSQ. The Department notified Qualtime about the possible release of information relevant to the access application and invited Qualtime to provide its view about whether the information should be disclosed. Qualtime objected to disclosure of all of the information and provided reasons in support of its case. The Department decided to disclose the information to the access applicant contrary to Qualtime’s view and Qualtime applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision. On external review, Qualtime strongly objected to disclosure of all of the information and raised a number of procedural issues about the conduct of the review. For the reasons set out below, I vary the Department’s decision and find that the relevant information can be disclosed to the access applicant. 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 28 April 2010. Information in Issue The information in issue in this review (Information in Issue) is the information the Department decided to disclose to the access applicant which is contrary to Qualtime’s view together with a letter identified as file 4 folios 290 – 313.[2] The Information in Issue comprises 135 pages[3] and can be characterised in the following general terms: correspondence from Qualtime to DSQ and another individual correspondence from Hall Payne Lawyers to Qualtime and another government agency Register of Qualtime Policies Qualtime meeting minutes, agendas and notice of the appointment of a proxy Qualtime’s Constitution; and miscellaneous internal Qualtime documents including correspondence between Qualtime staff, a draft report, a job description, a staff training schedule and training discussion questions. The Information in Issue does not include information which can be characterised as personal information such as the names and signatures of Qualtime employees and other non government employees, information about individuals receiving Qualtime’s services and information about family members and health. Information of this nature is not in issue on external review. Evidence considered In making this decision, I have considered the following: the access application to the Department and subsequent correspondence relating to the scope of the access application the Department’s letter to Qualtime dated 10 December 2009, initial decision and internal review decision Qualtime’s letter to the Department dated 15 February 2010, internal review application and external review application Qualtime’s correspondence to OIC file notes of telephone conversations between staff of the Department and OIC during the external review the Information in Issue relevant sections of the RTI Act previous decisions of the Information Commissioner as set out below; and other relevant cases as set out below. Procedural issues raised by Qualtime Qualtime raised a number of procedural issues during the course of this external review in addition to claiming that the Information in Issue should not be disclosed under the RTI Act. These issues are addressed below. Timeframe for Qualtime to provide submissions in response to the preliminary view Qualtime submits that OIC has not allowed it sufficient time to respond to the preliminary view and that, as a result, Qualtime has not been afforded natural justice. The background to this issue is as follows: By letter dated 12 April 2011, OIC conveyed to Qualtime the preliminary view that the Information in Issue did not comprise exempt information or information the disclosure of which would, on balance, be contrary to the public interest. OIC provided Qualtime with a copy of the Information in Issue and invited Qualtime to provide submissions in support of its case by 3 May 2011 if it did not accept the preliminary view. By fax on 21 April 2011, Qualtime requested an extension for making submissions “until at least 2nd June 2011”. By letter dated 27 April 2011, OIC extended the time for Qualtime to respond to the preliminary view until 11 May 2011. By fax on 28 April 2011, Qualtime requested a second extension of time until “far past 11 May 2011”. By letter dated 3 May 2011, OIC extended the time for Qualtime to respond to the preliminary view until 17 May 2011. By fax on 4 May 2011, Qualtime requested a further extension “beyond 17 May 2011”. By letter dated 6 May 2011, OIC extended the time for Qualtime to respond to the preliminary view until 14 June 2011. In its submissions dated 14 June 2011, Qualtime stated that “[u]nfortunately you have not permitted Qualtime sufficient time to prepare a proper response ...”. Relevant parts of Qualtime’s facsimiles requesting extensions and submissions dated 14 June 2011 are set out in Appendix B to this decision. External review participants are ordinarily given two weeks to respond to a preliminary view unless there are exceptional circumstances or the issues are complex. Qualtime originally requested an extension of time until “at least 2 June 2011” to provide submissions in support of its case. OIC allowed Qualtime until 14 June 2011 to provide the requested submissions, a period of nine weeks. In these circumstances, and after careful consideration of Qualtime’s position as a non-government disability and respite service provider and nature of the issues addressed in the preliminary view, I am satisfied that Qualtime has been afforded the opportunity to respond to the preliminary view within a reasonable timeframe. Accurate assessment of the Information in Issue Qualtime submits that a number of errors have been made by the various parties who have assessed the documents and specifically that: It does concern Qualtime that a number of errors have been made by the various parties outside of Qualtime who have assessed the documents for the RTI release. At each stage of this RTI including when the matter was handed to your office there have been documents withdrawn which otherwise would have been released had the process not been challenged by Qualtime. Even as late as 24 May 2011 a further error has been corrected even though the papers have been with your office for over twelve months and even after your preliminary view had been issued to Qualtime. Certainly Qualtime is concerned that other errors may be in existence and not yet discovered by your office. By letter dated 24 May 2011, OIC wrote to Qualtime to clarify the preliminary view in relation to one document of the Information in Issue and specifically confirm that OIC did not propose that this document be disclosed. I am unaware of any other errors that have been made in assessing the Information in Issue as Qualtime suggests. Investigation into a person Qualtime believes is the access applicant and declaration that the person is vexatious Qualtime submits that OIC should investigate the activities of a person who it believes is the access applicant and declare the person vexatious. Specifically, Qualtime submits that: Qualtime demands that your office take all necessary action to thoroughly investigate the vexatious activity undertaken by the applicant ... against Qualtime and some of its Management Committee members and others so that the Commissioner can be satisfied. To this end Qualtime therefore makes formal application for the applicant to be investigated and declared accordingly. Certainly [the person] and the party whom he works in tandem with has tied up a disproportionate amount of Qualtime’s resources which otherwise would have been devoted to people living with a disability. This in itself is not in the public interest. Qualtime is of the view that it knows who the access applicant is. Nothing in this decision should be taken to either confirm or deny Qualtime’s suspicions on this issue. Section 114 of the RTI Act allows the Information Commissioner, on his/her own initiative or on the application of one or more agencies, to declare in writing that a person is a vexatious applicant if he/she is satisfied that: the person has repeatedly engaged in access actions;[4] and one of the following applies: the repeated engagement involves an abuse of process[5] for an access action a particular access action in which the person engages involves, or would involve, an abuse of process for that access action; or a particular access action in which the person engages would be manifestly unreasonable. There is no evidence available to me, other than Qualtime’s general allegations of “vexatious activity undertaken by the applicant... against Qualtime and some of its Management Committee members and others”,[6] that the person who Qualtime believes is the access applicant has repeatedly engaged in access actions or that one of the three relevant criteria applies. On this basis, if it was the case that the access applicant is that person, the requirements for declaring that a person is a vexatious applicant under section 114 of the RTI Act are not satisfied. Similarly, on the information before me, there is insufficient evidence to support refusing to deal with the access application on the ground that it is vexatious under section 94(1)(a) of the RTI Act. OIC does not have jurisdiction to investigate Qualtime’s general allegations about the motivations or conduct of the person who Qualtime believes made the access application under the RTI Act. OIC’s jurisdiction in this review is limited to a review of the Department’s decision to disclose information under the RTI Act contrary to Qualtime’s view. To the extent Qualtime’s submissions give rise to potential grounds for refusing access to the Information in Issue under section 47(3) of the RTI Act, I will consider them below. Whether access to the Information in Issue should be refused Onus on external review Section 87(2) of the RTI Act provides that if the decision under external review is a disclosure decision,[7] the participant in the external review application who opposes it 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. As the Department decided to disclose the Information in Issue to the access applicant contrary to Qualtime’s view, Qualtime has the onus in this external review of establishing that the Information in Issue should not be disclosed under the RTI Act. Qualtime’s submissions I have carefully reviewed Qualtime’s submissions to identify the grounds for refusal of the Information in Issue that Qualtime submits are applicable. Relevant parts of Qualtime’s submissions are set out in Appendix C to this decision. Based on my review, Qualtime’s objection to disclosure appears to be that: the Information in Issue comprises exempt information[8] as: it would be privileged from production in a legal proceeding on the ground of legal professional privilege[9] disclosure could reasonably be expected to endanger a person’s life or physical safety;[10] and/or disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation[11] the Information in Issue comprises information the disclosure of which would, on balance, be contrary to the public interest.[12] Does the Information in Issue comprise exempt information on the ground of legal professional privilege? The answer to this question is no for the following reasons. Relevant law Schedule 3, section 7 of 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. Legal professional privilege protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or in the provision of legal services, such as representation in legal proceedings. The exemption in schedule 3, section 7 of the RTI Act turns on the application of common law principles relating to legal professional privilege. 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). Advice privilege protects confidential communications between a lawyer and client made for the dominant purpose of giving or seeking legal advice. Litigation privilege protects confidential communications between a lawyer and client, made for the dominant purpose of preparing for or use in existing or reasonably anticipated proceedings. However, even where the elements of advice privilege or litigation privilege are established, communications may not be subject to legal professional privilege because privilege has been waived, either expressly or impliedly. It is relevant to consider whether any legal professional privilege has been waived when applying schedule 3, section 7 of the RTI Act. At common law, legal professional privilege can be waived by a client either: intentionally disclosing a privileged communication (express waiver); or engaging in conduct that is inconsistent with the maintenance of confidentiality that privilege is intended to protect (implied waiver). The level of inconsistency required to constitute implied waiver will depend upon the circumstances of the case and the conduct of the privilege holder, viewed objectively. In Mann v Carnell,[13] the majority judges set out the following statement with respect to implied waiver: 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”. ... 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. In Osland v Secretary to the Department of Justice,[14] the majority judges recognised that a limited disclosure of the existence and effect of legal advice could be consistent with maintaining confidentiality in the actual terms of the advice. It has also been recognised that disclosure of a privileged communication for a limited purpose in a specific context, may not amount to waiver of legal professional privilege.[15] To ensure that only a limited and specific purpose waiver occurs, it is critical that the privilege holder retains full control of the further dissemination of the relevant communication.[16] Findings Qualtime has not identified the Information in Issue it claims is subject to legal professional privilege or addressed the relevant requirements of schedule 3, section 7 of the RTI Act and, as a result, has not discharged the onus under section 87(2) of the RTI Act. However I have identified that Qualtime’s general submissions on this issue may be relevant to the following information as it appears to contain or refer to legal advice: letter from Hall Payne Lawyers to Qualtime dated 22 December 2006[17] letter from Qualtime to DSQ dated 16 February 2007;[18] and letter from Hall Payne Lawyers to another government agency dated 6 February 2007.[19] Letter from Hall Payne Lawyers to Qualtime I am satisfied that this letter was a confidential communication for the dominant purpose of providing Qualtime with legal advice and that the elements of legal professional privilege have been established. While the material before me does not indicate how the legal advice was previously provided to DSQ, there is nothing in this letter which would indicate that the legal advice was being provided to DSQ on a confidential basis or that control over further dissemination of the legal advice would be retained by Qualtime. I am satisfied that Qualtime has waived legal professional privilege and the letter does not comprise exempt information under schedule 3, section 7 of the RTI Act.[20] Letter from Qualtime to DSQ Legal professional privilege can extend to any document which directly reveals, or which allows a reader to infer, the content or substance of a privileged communication.[21] I am satisfied that parts of this letter directly reveal legal advice which has been provided to Qualtime by its lawyers and disclosure of those parts would reveal the content of a privileged communication. There is nothing in this letter which would indicate that the legal advice was being provided to DSQ on a confidential basis or that control over further dissemination of the legal advice would be retained by Qualtime. I am satisfied that Qualtime has waived legal professional privilege and the letter does not comprise exempt information under schedule 3, section 7 of the RTI Act. Letter from Hall Payne Lawyers to another government agency I am not satisfied that this letter is a confidential communication for the dominant purpose of seeking or providing legal advice or for use in existing or anticipated legal proceedings. In my view, the dominant purpose of the communication is to provide another government agency with information to assist an investigation. To the extent this document directly reveals legal advice which may have been provided to Qualtime, I am satisfied that Qualtime has waived legal professional privilege in disclosing the advice to DSQ and another government agency. While the material before me does not indicate how the legal advice was previously provided to DSQ, there is nothing in this letter which would indicate that the legal advice was being provided on a confidential basis or that control over further dissemination of the legal advice would be retained by Qualtime. Remaining Information in Issue As noted above, Qualtime has not identified the Information in Issue it claims is subject to legal professional privilege. In any event, I am satisfied that the remaining Information in Issue does not comprise exempt information under schedule 3, section 7 of the RTI Act. Could disclosure of the Information in Issue reasonably be expected to endanger a person’s life or physical safety? The answer to this question is no for the following reasons. Relevant law Schedule 3, section 10(1)(c) of the RTI Act provides that information is exempt information if its disclosure could reasonably be expected to endanger a person’s life or physical safety. The Information Commissioner has previously explained that:[22] ... The question of whether disclosure of certain matter could reasonably be expected to endanger a person's life or physical safety is to be objectively judged by the authorised decision-maker under the FOI Act, in the light of all relevant evidence, including any evidence obtained from or about the claimed source of danger, and not simply on the basis of what evidence is known to persons claiming to be at risk of endangerment. The phrase ‘could reasonably be expected to’ in this context requires a consideration of whether the expectation that disclosure of the Information in Issue could endanger a person’s life or physical safety is reasonably based.[23] Findings As noted above, Qualtime bears the onus of establishing on external review that a decision to refuse access to the Information in Issue under schedule 3, section 10(1)(c) of the RTI Act is justified. Qualtime’s submissions are set out in Appendix C. Qualtime makes general assertions about the effect it anticipates disclosure of the Information in Issue will have but these submissions do not provide sufficient evidence for me to form a reasonably based view that disclosure of the Information in Issue could reasonably be expected to endanger a person’s life or physical safety. Accordingly, I am not satisfied that the Information in Issue comprises exempt information in accordance with schedule 3, section 10(1)(c) of the RTI Act. Could disclosure of the Information in Issue reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation? The answer to this question is no for the following reasons. Relevant law Schedule 3, section 10(1)(d) of 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. The Information Commissioner has previously explained that the question of whether disclosing certain information could reasonably be expected to[24] 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.[25] Depending on the circumstances of the particular review, a range of factors may be relevant in determining whether a serious act of harassment or intimidation could reasonably be expected to occur. These factors may include, but are not limited to:[26] past conduct or a pattern of previous conduct the nature of the relevant information in issue the nature of the relationship between the parties and/or third parties; and relevant contextual and/or cultural factors. Findings As noted above, Qualtime bears the onus of establishing on external review that a decision to refuse access to the Information in Issue under schedule 3, section 10(1)(d) of the RTI Act is justified. Qualtime’s submissions are set out in Appendix C. Qualtime makes general assertions about the effect it anticipates disclosure of the Information in Issue will have but these submissions do not provide sufficient evidence for me to form a reasonably based view 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. On this basis, I am not satisfied that the Information in Issue comprises exempt information in accordance with schedule 3, section 10(1)(d) of the RTI Act. Would disclosure of the Information in Issue, on balance, be contrary to the public interest? The answer to this question is no for the following reasons. Relevant law Section 49(1) of the RTI Act provides that if an access application is made to an agency for a document, the agency must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest. To decide whether disclosure of the Information in Issue would be contrary to the public interest, I must:[27] identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information, on balance, would be contrary to the public interest. Findings Irrelevant factors Qualtime submits that “[t]hose who are vexatious and mischievous seek to obtain as many documents as possible, troll though them and launch bogus attacks designed to cause harm, and to frustrate”. I have addressed at paragraphs 19 to 23 above Qualtime’s request for OIC to declare vexatious the person it believes is the access applicant. The suggestion that disclosure of the Information in Issue could reasonably be expected to result in mischievous conduct by the access applicant is an irrelevant factor[28] and I have not taken it into account in my application of the public interest test. It is a basic principle of the FOI Act and RTI Act that an access applicant’s motivations for seeking access to information are irrelevant. In State of Queensland v Albietz,[29] Justice De Jersey of the Supreme Court[30] explained: ... 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. Even were I satisfied that [the applicant] intended to do nothing more constructive than cause mischief and trouble for departmental officers, and that he was maliciously motivated, l would have no discretion under this supposedly beneficial legislation to remove his right to the disclosure. There has certainly been some attempt, through s. 42 for example, to impose a limitation on disclosure by reference to undesirable possible consequences. But there is no expressed general discretion, and none can be implied. Obviously the legislative intent is to free-up, rather than restrict, the availability of information ... [emphasis added] Relevant factors favouring disclosure The Department, through DSQ, provides funding to non-government disability service providers under certain conditions and in accordance with the Disability Services Act 2006 (Qld) (DS Act). One of the objects of the DS Act is to ensure that disability services funded by DSQ are safe, accountable and respond to the needs of people with a disability.[31] This is achieved by DSQ regulating the services it funds.[32] The DS Act confers broad powers on DSQ to monitor and investigate the compliance of service providers with the legislative requirements and funding agreements. There is a strong public interest in promoting DSQ’s accountability for the effective oversight, monitoring and investigation of service providers which it funds. Qualtime is a non-government disability service provider which receives significant funding from DSQ and another government agency. It is subject to the requirements of the DS Act and its compliance with the legislation is therefore regulated and monitored by DSQ. By virtue of its relationship with DSQ and its reliance on funding from public monies, Qualtime’s operations will inevitably be subject to a certain degree of scrutiny. The Information in Issue relates to Qualtime’s accreditation, compliance with its conditions of certification and an investigation into a complaint made to DSQ about its management. Having carefully considered the Information in Issue, I am satisfied that its disclosure could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability[33] 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;[34] and ensure effective oversight of expenditure of public funds.[35] The access applicant also seeks access to information about the investigation of a complaint made about Qualtime’s management. To the extent the Information in Issue is relevant to the issues surrounding the investigation, I consider its disclosure could reasonably be expected to reveal the reasons for a government decision and any background or contextual information that informed the decision.[36] I am satisfied that some of the Information in Issue can be characterised as the access applicant’s personal information. ‘Personal information’ is information, 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] This gives rise to a public interest factor[38] in relation to the relevant Information in Issue. Relevant factors favouring nondisclosure In its submissions, Qualtime makes reference to a number of public interest factors favouring nondisclosure which I will now consider. Prejudice regarding personal information and privacy Qualtime submits that “[a] number of documents specifically refer to an individual service recipient and it would be considered a breach of Federal and State privacy legislation to release this information to any third party without the express consent of said service recipient”. If disclosure of information could reasonably be expected to prejudice the protection of an individual’s right to privacy, this will give rise to a public interest factor favouring nondisclosure.[39] The RTI Act also recognises that disclosure of information could reasonably be expected to cause a public interest harm if disclosure would disclose personal information of a person other than the access applicant.[40] As noted above at paragraph 10, the Department decided to refuse access to certain information on the basis that it comprises personal information, the disclosure of which would, on balance, be contrary to the public interest. This information does not form part of the Information in Issue considered in this decision. Having carefully considered the Information in Issue, I am not satisfied that these factors are relevant. Prejudice to the future supply of confidential information Qualtime submits that the Information in Issue is “of a highly confidential and private nature”. If disclosure of information could reasonably be expected to prejudice an agency’s ability to obtain confidential information, this will give rise to a public interest factor favouring nondisclosure.[41] The RTI Act also recognises that disclosure of information could reasonably be expected to cause a public interest harm if: [42] the information consists of information of a confidential nature that was communicated in confidence; and disclosure of the information could reasonably be expected to prejudice the future supply of information of this type. In its internal review decision, the Department notes that Qualtime did not claim confidentiality at the time it provided the Information in Issue to DSQ and DSQ does not appear to have received the Information in Issue on that basis. Qualtime has not addressed how the Information in Issue consists of information of a confidential nature and was communicated to DSQ in confidence. In the absence of any submissions from Qualtime on this issue, I am not satisfied that the Information in Issue meets these requirements. I am not satisfied that disclosure of the Information in Issue could reasonably be expected to prejudice the future supply of such information from a substantial number of non-government disability service providers.[43] I am satisfied that Qualtime is under an obligation to continue to supply such information to DSQ if it wishes to continue to receive funding and would be disadvantaged by withholding such information. On this basis, I do not accept that disclosure of the Information in Issue could reasonably be expected to prejudice DSQ’s ability to obtain confidential information or prejudice the future supply of information of this type. For these reasons, I do not consider these factors are relevant. Prejudice to the financial affairs of entities Qualtime submits that it has been under “a sustained attack of a vexatious and mischievous nature” and that disclosure of the Information in Issue will result in “a waste of public monies and divert valuable resources away from people living with a disability and their carers” and “already thousands of dollars have been wasted”. This submission appears to be based on Qualtime’s belief that disclosure of the Information in Issue will lead to further complaints and/or court actions which in turn would divert funds away from Qualtime’s primary activity – that is, the provision of disability services. The RTI Act gives rise to a public interest factor favouring nondisclosure where disclosure could reasonably be expected to prejudice the private, business, professional, commercial or financial affairs of entities.[44] The RTI Act also recognises that disclosure of information could reasonably be expected to cause a public interest harm if:[45] it concerns the business, professional, commercial or financial affairs of an agency or another person; and disclosure could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of information of this type to government. On the information before me, I am satisfied that the Information in Issue relates to the business or financial affairs of Qualtime. In relation to the question of whether disclosure could reasonably be expected to have an adverse effect on such affairs, the Information Commissioner has previously made the following observations in relation to the meaning of “adverse effect”:[46] an adverse effect will almost invariably be financial in nature, whether directly or indirectly (for example, 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’); and in most instances the question of whether disclosure of information could reasonably be expected to have an adverse effect will turn on whether the information is capable of causing competitive harm to the relevant entity – a relevant factor in this is whether the entity enjoys a monopoly position or whether it operates in a commercially competitive environment. I have carefully considered whether disclosure of the Information in Issue is capable of causing competitive harm to Qualtime. In my view, it is relevant that Qualtime is a not for profit organisation and does not operate in a commercially competitive environment. The Information Commissioner had previously accepted that risk of litigation could be an adverse effect, albeit one where countervailing considerations favouring disclosure are also likely to apply.[47] While I accept that litigation could reasonably be expected to prejudice Qualtime’s financial affairs by diverting resources away from its primary functions, on the information before me I am not satisfied that disclosure of the Information in Issue could reasonably be expected to lead to litigation. In my view, the Information in Issue largely relates to Qualtime’s compliance with the requirements of the DS Act and conditions of funding. In relation to the letter of advice from Hall Payne Lawyers to Qualtime in particular, I note that this letter contains legal advice. As noted above at paragraph 37, I am satisfied that this letter may have been subject to a valid claim of legal professional privilege if Qualtime had not waived privilege over the communication by providing the letter to DSQ. Given the significant passage of time since the advice was communicated to Qualtime and the fact that Qualtime has waived privilege, I do not consider that disclosure of this letter could reasonably be expected to result in litigation against Qualtime or otherwise prejudice Qualtime’s business or financial affairs. In conclusion, I am not satisfied that disclosure of the Information in Issue could reasonably be expected to prejudice or have an adverse effect on Qualtime’s private, business, professional, commercial or financial affairs. In relation to the alternative question of whether disclosure could prejudice the future supply of information regarding business, professional, commercial or financial affairs, I have addressed this question at paragraphs 72 to 76. As noted in that context, I am not satisfied that disclosure of the Information in Issue could reasonably be expected to prejudice the future supply of such information to government. Balancing the relevant public interest factors In summary, I am satisfied that the following are public interest factors favouring disclosure of: all of the Information in Issue: ○ disclosure could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability ○ disclosure 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; and ○ disclosure could reasonably be expected to ensure effective oversight of expenditure of public funds parts of the Information in Issue: ○ disclosure could reasonably be expected to reveal the reason for a government decision and any background or contextual information that informed the decision; and ○ which is the access applicant’s personal information. I am satisfied each of these public interest factors favouring disclosure should be afforded some weight in the circumstances of this review. In contrast, I am satisfied that there are no relevant public interest factors favouring nondisclosure of the Information in Issue and accordingly, no weight can be afforded to such factors. On this basis, I find that disclosure of the Information in Issue would not, on balance, be contrary to the public interest. DECISION For the reasons set out above, I vary the Department’s internal review decision and find that the Information in Issue does not comprise: exempt information under section 48 of the RTI Act; or information the disclosure of which would, on balance, be contrary to the public interest under section 49 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: 29 June 2011 APPENDIX A Significant procedural steps Date Event 3 July 2009 The access applicant applies to the Department under the RTI Act for access to information held by DSQ about the accreditation of Qualtime, compliance with its conditions of certification and an investigation into a complaint made to DSQ about Qualtime’s management. 10 December 2009 The Department notifies Qualtime that it has received an access application under the RTI Act and consults Qualtime about the possible disclosure of the requested information. 16 December 2009 Qualtime requests an extension of time to 23 February 2010 to respond to the Department’s letter. 18 December 2009 The Department grants Qualtime the requested extension of time. 22 December 2009 The Department notifies the access applicant of its decision. 15 February 2010 Qualtime notifies the Department that it objects to the disclosure of all of the information on which it was consulted. 10 March 2010 The Department notifies Qualtime of its decision in relation to the information on which it was consulted. 29 March 2010 Qualtime applies for internal review of the Department’s decision. 28 April 2010 The Department notifies Qualtime of its internal review decision in relation to the information on which it was consulted. 11 May 2010 Qualtime applies to OIC for external review of the Department’s decision. 20 May 2010 OIC informs the Department and Qualtime that the external review application has been accepted for review. 22 June 2010 and 31 January 2011 The Department provides OIC with a copy of the Information in Issue. 12 April 2011 OIC conveys a written preliminary view to Qualtime and asks Qualtime to provide submissions in support of its case by 3 May 2011 if it does not accept the preliminary view. 21 April 2011 Qualtime advises OIC that it does not accept the preliminary view and requests an extension of time to “at least 2nd June 2011” to provide submissions in response to the preliminary view. 27 April 2011 OIC extends the time for Qualtime to respond to the preliminary view until 11 May 2011. 28 April 2011 Qualtime requests an extension of time “far past 11 May 2011” to provide submissions in response to the preliminary view. 3 May 2011 OIC extends the time for Qualtime to respond to the preliminary view until 17 May 2011. 4 May 2011 Qualtime notifies OIC that it requires a timeframe “beyond 17 May 2011” to provide submissions in response to the preliminary view. 6 May 2011 OIC extends the time for Qualtime to respond to the preliminary view until 14 June 2011. 24 May 2011 OIC clarifies with Qualtime the preliminary view in relation to one document. 27 May 2011 A staff member of OIC conveys a preliminary view to a staff member of the Department by telephone. 31 May 2011 OIC confirms the preliminary view in writing to the Department and asks the Department to provide submissions in support of its case by 10 June 2011 if it does not accept the preliminary view. 14 June 2011 Qualtime provides brief submissions in response to the preliminary view and states that OIC has “not permitted Qualtime sufficient time to prepare a proper response”. 16 June 2011 The Department notifies OIC that it accepts the preliminary view. APPENDIX B Qualtime’s submissions on extensions of time In relation to the initial due date for submissions of 3 May 2011, Qualtime advised OIC as follows by fax on 21 April 2011: Qualtime does not accept the preliminary view and requires sufficient time beyond 3 May 2011 to provide its final submission. I request that Qualtime be given at least until 2nd June 2011 to provide this whereby the matter will [be] directed to our solicitors who are currently dealing with a related issue in the courts. ... It is possible that a vexatious litigation action may ensue with considerable compensation claimed by Qualtime. In relation to the first extended due date for submissions of 11 May 2011, Qualtime made the following request for a second extension of time by fax on 28 April 2011: Qualtime is a Public Benevolent Institution and a Not for Profit solely engaged in the support of people living with a disability and providing respite to carers. Unlike your office it does not have the budget for or expertise in legal matters and RTI submissions. It therefore requires a fair and equitable period of time to seek appropriate expert advice, consult with Management Committee members and to prepare an appropriate response. Being permitted an appropriate time frame to prepare its submission is particularly important otherwise Qualtime and its clients will be put at considerable disadvantage. This is surely not in the public interest and would discriminate against those living with a disability. ... The matters and circumstances involved with this RTI are certainly complex and there are exceptional circumstances such that Qualtime’s solicitors need to be given adequate time to assess each document within the context of the complex and exceptional circumstances and to advise Qualtime as to its submission to your office. There are many documents to be considered. The number of documents, the exceptional circumstances and the complexity of the issues seem to have impacted on your office also. I note the external review was granted on 20 May 2010 and even though I phoned your office late last year to be updated with progress, your “preliminary view” was only written on 21 April 2011. It seems to me that to provide Qualtime with only a few weeks to make a submission is certainly not fair and equitable, nor is it in the public interest. ... In the best interest of fairness, equity, natural justice and the public interest I request that Qualtime be given adequate time to prepare is submission. In relation to the second extended due date for submissions of 17 May 2011, Qualtime made the following request for a third extension of time by fax on 4 May 2011: [it] will not be bound by a time frame which is unfair, unjust and which totally disregards natural justice, due process and the impact of discrimination upon its clients. Late last Friday Qualtime was advised that the solicitor representing Qualtime in two related legal matters has taken up a new position and I am yet to speak with his replacement. This replacement needs to be briefed by his legal firm and then briefed by Qualtime in regard to this RTI. This will surely require a timeframe beyond 17 May 2011, and added to that there will be the time necessary to draft the response and for the Qualtime Management Committee to meet and formalise its communication with your office. In response to the third extended due date for submissions of 14 June 2011, Qualtime raised the following concern in its submissions dated 14 June 2011: Unfortunately you have not permitted Qualtime sufficient time to prepare a proper response especially considering Qualtime neither has the expertise nor the funding to appropriately and properly deal with such matters. After much pleading for more time by Qualtime you have, in stages, increased the limit bit by bit until Qualtime has less than 17% of the time your office has had to respond to Qualtime. Your office has taken approximately one year to prepare its reply. Initially you only allowed Qualtime about 4% of the time your office took. Is any of this natural justice, is this fair and equitable? Certainly we do not believe so! APPENDIX C Qualtime’s submissions on grounds of refusal Qualtime provided submissions in support of its case to the Department as follows: Our Management Committee ... has determined that these documents are of a highly confidential and private nature. A number of documents specifically refer to an individual service recipient and it would be considered a breach of Federal and State privacy legislation to release this information to any third party without the express consent of said service recipient. Further, a number of the documents we would consider as legal-in-confidence in matters before the Federal Magistrates Court and, as such, any release of these documents to any third parties other than the Courts of law enforcement agencies may constitute a breach of legal privilege. The Qualtime Association objects most strenuously to the RTI release of this private and confidential, and legal-in-confidence documentation. In its internal review application, Qualtime confirmed its view that the “documents are of a highly confidential and private nature” and are “legal-in-confidence”. In its external review application, Qualtime submitted: For approximately four years now Qualtime has been under sustained attack of a vexatious and mischievous nature. Personal safety and health have become an issue for members of the Management Committee and others. At times it has been necessary to post security guards, install security cameras and call police to the Qualtime Centre. There have been assaults, injuries, substantial WorkCover claims and payouts. There have been complaints against Qualtime submitted to several government agencies responsible for upholding legislation and laws. Court actions have also been commenced; one is current, the previous one was successfully defended by Qualtime. It is on record that this action was undertaken due to the litigant declaring “I just want to stick it up them”. Qualtime has emerged from all accusations without tarnish and in fact currently holds the highest Home and Community Care (Department of Communities) performance rating possible. Qualtime has been subjected to several investigations, a forensic audit and many other audits. Our performance rating and Accreditation remain unaffected but the financial, emotional, safety, health and stress implications have been considerable. The consequences of releasing any part of the documents are dire and will have considerable negative impacts for many people living with a disability. It will result in a waste of public monies and divert valuable resources away from people living with a disability and their carers. Already thousands of dollars have been wasted. It will put the personal safety and health of individuals at risk. Those who are vexatious and mischievous seek to obtain as many documents as possible, troll though them and launch bogus attacks designed to cause harm, and to frustrate. By fax to OIC on 28 April 2011, Qualtime submitted: It is obvious that the RTI documents are being requested by one or more of the vexatious parties who have plagued and harassed Qualtime over several years regardless of the outcomes of previous Federal Magistrates Court, Industrial Relations Court, tribunal and mediation, actions, and a deed of release. One of these persons is recorded, and discovered under DSQ FOI/00535, to have said that she pursues actions against Qualtime as expressed in her statement “I just want to stick it up them’. A person by the name of ... who works in tandem with this person has no doubt made the RTI application that Qualtime contests. The vexatious activity diverts extensive and valuable resources away from being applied to those living with a disability. This is certainly not in the public interest. By fax to OIC on 14 June 2011, Qualtime submitted: Most certainly Qualtime vehemently maintains that the release of any of the documents would be a grave error and most certainly contrary to the public interest for several reasons not the least of which is the safety and security of certain Qualtime members who have reason to be fearful of vexatious and vindictive acts including harassment and intimidation by parties to the RTI application. ... ... release of any of these documents would most certainly be contrary to the public interest and would continue to disproportionately tie up Qualtime’s resources and would exacerbate the ongoing vexatious harassment and intimidation of Qualtime’s management Committee and certain other individuals within Qualtime. This vexatious harassment and intimidation has been ongoing for well over 4 years. [1] Disability Services Queensland is now known as Disability and Community Care Services. It is a service delivery area of the Department of Communities. [2] OIC has provided the Department with a copy of the Information in Issue marked up in accordance with this decision. [3] The reviewable decision refers to 102 pages. However, after examining the redacted Information in Issue provided to OIC by the Department and requesting clarification from the Department, I am satisfied that the Information in Issue comprises 135 pages.[4] An access action is defined as an access application, an internal review application or an external review application—see section 114(6) of the RTI Act.[5] An abuse of process is defined to include ‘harassing or intimidating an individual or an employee of an agency in relation to the access application’—see section 114(6) of the RTI Act.[6] As set out in paragraph 19 and in Appendix C.[7] Disclosure decision is defined in section 87(3)(a) 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. [8] Section 47(3)(a) and section 48 of the RTI Act. [9] Schedule 3, section 7 of the RTI Act. [10] Schedule 3, section 10(1)(c) of the RTI Act. [11] Schedule 3, section 10(1)(d) of the RTI Act. [12] Section 47(3)(b) and section 49 of the RTI Act. [13] [1999] HCA 66; (1999) 201 CLR 1 at 13.[14] (2008) 234 CLR 275 at paragraphs 48-50.[15] Goldberg v Ng (1994) 33 NSWLR 639; Australian Rugby Union Ltd v Hospitality Group Pty Ltd [1999] FCA 1061 (4 August 1999).[16] Australian Competition and Consumer Commission v Cadbury Schweppes [2009] FCAFC 32.[17] File 4 folios 290 – 313. [18] File 4 folios 82, 84 – 95.[19] File 4 folios 133 – 134.[20] The Department decided to refuse access to this document under schedule 3, section 7 of the RTI Act. On external review however, the Department withdrew its claim that the document comprises exempt information and agreed to its release subject only to the deletion of the names of certain individuals on the basis that the names comprise personal information, the disclosure of which would, on balance, be contrary to the public interest. [21] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 9 and GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2000] FCA 593 at [8] per Justice Lehane. [22] Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744 at paragraph 47. These comments were made in the context of section 42(1)(c) of the now repealed Freedom of Information Act 1992 (Qld) (FOI Act) but provide useful guidance on the interpretation of schedule 3, section 10(1)(c) of the RTI Act. [23] Applying the observations of Bowen CJ and Beaumont J in Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97, in interpreting section 43(1)(c)(ii) (business affairs exemption) contained in the Commonwealth Freedom of Information Act 1982 (at 106). [24] I have discussed at paragraph 46 above, the meaning of the phrase ‘could reasonably be expected to’ which is also relevant to the interpretation of schedule 3, section 10(1)(d) of the RTI Act. [25] Sheridan and South Burnett Regional Council and Others (Unreported, Queensland Information Commissioner, 9 April 2009) (Sheridan) at paragraph 201. These comments were made in the context of section 42(1)(ca) of the FOI Act but provide useful guidance on the interpretation of schedule 3, section 10(1)(d) of the RTI Act.[26] Sheridan at paragraph 193. [27] Section 49(3) of the RTI Act. [28] Schedule 4, part 1, item 3 of the RTI Act.[29] [1996] 1 Qd R 215 at 222. [30] As His Honour was then. [31] Section 6(b) of the DS Act. [32] Section 7(c) of the DS Act. [33] Schedule 4, part 2, item 1 of the RTI Act.[34] Schedule 4, part 2, item 3 of the RTI Act. [35] Schedule 4, part 2, item 4 of the RTI Act.[36] Schedule 4, part 2, item 11 of the RTI Act.[37] Section 12 of the Information Privacy Act 2009 (Qld). [38] Schedule 4, part 2, item 7 of the RTI Act. [39] Schedule 4, part 3, item 3 of the RTI Act. [40] Schedule 4, part 4, item 6 of the RTI Act. [41] Schedule 4, part 3, item 16 of the RTI Act. [42] Schedule 4, part 4, item 8 of the RTI Act. [43] See B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at paragraph 161. These comments were made in the context of section 45(1)(c) of the FOI Act but provide useful guidance on the interpretation of these factors. [44] Schedule 4, part 3, item 2 of the RTI Act.[45] Schedule 4, part 4, item 7(1)(c) of the RTI Act. [46] Cannon and Australian Quality Egg Farms Ltd [1994] QICmr 9; (1994) 1 QAR 491 at paragraphs 82 - 84. These comments were made in the context of section 45(1)(c) of the FOI Act but provide useful guidance on the interpretation of schedule 4, part 4, item 7(1)(c) of the RTI Act. [47] Cairns Port Authority and Department of Lands; Cairns Shelf Co No.16 Pty Ltd (Third Party) [1994] QICmr 17; (1994) 1 QAR 663 at paragraphs 103 – 104. These comments were made in the context of section 45(1)(c) of the FOI Act but provide useful guidance on the interpretation of this factor.

queensland

court_judgement

Queensland Information Commissioner 1993-

Gold Coast Bulletin and Department of Police [2010] QICmr 38 (23 December 2010)

Gold Coast Bulletin and Department of Police [2010] QICmr 38 (23 December 2010) Last Updated: 7 June 2011 The Gold Coast Bulletin and Department of Police Decision and Reasons for Decision Application Number: 310012 Applicant: The Gold Coast Bulletin Respondent: Department of Police Decision Date: 23 December 2010 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – APPLICATION FOR ACCESS TO INFORMATION – EXEMPT INFORMATION – Grounds on which access may be refused – section 47(3)(a) of the Right to Information Act 2009 (Qld) – to the extent the document comprises exempt information under section 48 of the Right to Information Act 2009 (Qld) – Schedule 3 section 10(1)(f) – whether rostering comprises an identifiable method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law – whether there is a reasonable expectation that disclosure of rosters could prejudice the effectiveness of the method or procedure Contents REASONS FOR DECISION Summary The applicant sought access to copies of police staffing rosters for a specified period and the current police staffing model for Surfers Paradise Police Station. QPS released the relevant police staffing model. The applicant seeks review of QPS’s decision refusing access to the rosters. Having considered the submissions and evidence before me, I am satisfied that access to the rosters can be refused under sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) (RTI Act) on the basis that the rosters comprise exempt information under schedule 3, section 10(1)(f) of the RTI Act. Reviewable decision The decision under review is QPS’s decision refusing access to the rosters under sections 47(3)(a) and 48 of the RTI Act on the basis that they comprise exempt information under schedule 3, section 10(1)(c), (f), (g), (h), (l) and (j) of the RTI Act. Issue in this review In the course of this review, consideration was given to the exemptions raised by QPS and whether disclosure of the information would, on balance, be contrary to public interest under sections 47(3)(b) and 49 of the RTI Act.[1] However, in this decision it is only necessary to address whether access to the rosters may be refused under section 47(3)(a) of the RTI Act on the basis that they comprise exempt information under section 48 and schedule 3 of the RTI Act. Evidence relied upon In making this decision, I have taken the following into account: the access application[2] and application for external review[3] QPS’s decision[4] submissions provided by QPS and the applicant file notes of telephone conversations between OIC staff and the parties the information contained in the rosters the information contained in the staffing model relevant provisions of the RTI Act previous decisions of the Information Commissioner and relevant case law 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. Sections 47(3)(a) and 48 of the RTI Act provide that access may be refused to a document to the extent that it comprises ‘exempt information’. Schedule 3 sets out the types of information which the Parliament has considered is ‘exempt information’ as its disclosure would, on balance, be contrary to public interest. Schedule 3, section 10(1)(f) of the RTI Act provides that information is exempt if 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. To determine whether information is exempt under schedule 3, section 10(1)(f) of the RTI Act, I must consider whether: there is an identifiable method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law there is a reasonable expectation of prejudice to that method or procedure, that arises as a consequence of disclosure of the information. Applicant’s submissions The applicant submits that the rosters sought are not indicative of present or future rosters at Surfers Paradise Police Station (or any other police stations) and therefore cannot reasonably be expected to have any prejudicial affect on rostering. More specifically, the applicant’s submissions include that: the information in the rosters is innocuous and out of date rostering is dynamic and the requested rosters are historical documents which only reflect the number of staff available at a particular time and place the rosters would not be relevant to any other police station at any other time, nor are they reflective of rostering in Surfers Paradise at any other time because of changing circumstances in the area (including fluctuations in tourism and special events in the area) the rosters would not include details of any backup arrangements with other stations or on-call staff, so it would not be possible to construe the full availability of police resources at a particular time or place on the face of the document the public interest favours disclosure of the rosters.[5] QPS’s Submissions QPS submits that disclosure of the rosters would disclose information which could reasonably be expected to be used to further current or future criminal activity, thereby undermining the effectiveness of rostering. More specifically, QPS’s submissions include that: the rosters take into account “specific crime, social and traffic enforcement challenges which apply to the particular policing division... the roster reflects the operational requirements of the station and methodologies employed to meet those requirements...”. while the requested rosters are historical, they may be indicative of future rostering or the rostering methodology as they reveal typical staffing arrangements including type of deployment and shift changes the rosters provide specific and detailed knowledge of policing resources and tactical and operational activities, not readily available through other means seemingly innocuous information may be used by criminals in furtherance of unlawful purposes the information contained in the rosters may allow potential offenders to “risk manage” any planned unlawful activity rosters contain information concerning the strategic deployment of police officers in various capacities and at particular times which is a method or procedure intended to prevent, detect or deal with offences if the rosters were released, QPS would need to either ignore the substantial risk that the information will be used to facilitate criminal activity or change the method of rostering, which would result in a less than optimal system if the information is not exempt under section 47(3)(a) and schedule 3 of the RTI Act, then disclosure of the information would be contrary to public interest under section 47(3)(b) of the RTI Act.[6] Findings Is there an identifiable method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law? The first issue for determination is whether the rosters comprise an identifiable method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law. In Chapman v Commissioner of Police[7] the Administrative Decisions Tribunal of New South Wales considered an exemption in the New South Wales freedom of information legislation similar to that contained in schedule 3, section 10(1)(f) of the RTI Act. In considering whether police rostering could be considered a ‘lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law’, Acting President Hennessy found that:[8]... rostering is a method for allocating staff to particular duties but... the ultimate aim of rostering police to perform particular duties at particular times is the prevention, detection and investigation of contraventions of the law... I note QPS’s submissions including that: rostering is undertaken by senior staff and takes into account “specific crime, social and traffic enforcement challenges which apply to the particular policing division... the roster reflects the operational requirements of the station and methodologies employed to meet those requirements”; and the rosters provide specific and detailed knowledge of policing resources and tactical and operational activities, not readily available through other means. On the basis of these submissions and applying the reasoning in Chapman, I am satisfied in the circumstances of this review that the rosters comprise a method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law. The next issue for determination is whether the effectiveness of rosters and rostering could reasonably be expected to be prejudiced by their disclosure. Is there a reasonable expectation that disclosure of the information could prejudice the effectiveness of the method or procedure? In Sheridan,[9] the Information Commissioner considered the phrase ‘could reasonably be expected to’ in the context of section 42(1)(ca) of the Freedom of Information Act 1992 (Qld) (repealed) and quoted the following interpretation of the phrase in Attorney-General v Cockcroft,[10] which I consider is also relevant here: In our opinion, in the present context, the words ‘could reasonably be expected to prejudice the future supply of information’ were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous ... It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s43(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. Also in Sheridan, the Information Commissioner found that depending on the circumstances of the particular review, a range of factors may be relevant in determining whether an expectation is reasonable. These factors may include, but are not limited to:[11] 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 relevant contextual and/or cultural factors. The information contained in the rosters reflects police staff numbers, locations and duties and includes tactical and operational activities, not readily available through other means. On the information available to me, I accept QPS’s submissions that: the rosters in this review are indicative of its rostering methodology and may be reflective of current or future rosters if the rosters are released, QPS would need to either ignore the substantial risk that the information will be used to facilitate criminal activity or change the method of rostering, which would result in its use of a less than optimal rostering system. I am also satisfied on the evidence before me that the information contained in the rosters could be used by third parties to further criminal activity and subvert police attention, thereby prejudicing the effectiveness of the method or procedure of rostering. As to whether the expectation of that prejudice is reasonable, QPS has provided examples of ways in which criminals have used seemingly innocuous information to avoid detection and thereby further criminal activity.[12] On the basis of QPS’s submissions and applying the reasoning in Sheridan, I am satisfied in the circumstances of this review that disclosure of the rosters could reasonably be expected to prejudice the effectiveness of that method or procedure. DECISION I vary the decision under review and find that access to the rosters can be refused under sections 47(3)(a) and 48 of the RTI Act on the basis that the rosters comprise exempt information under schedule 3, section 10(1)(f) 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: 23 December 2010 [1] Detailed submissions were received from both parties regarding whether disclosure of the information would, on balance, be contrary to public interest. Those submissions were also relevant to my assessment of whether access may be refused to the rosters under section 47(3)(a) of the RTI Act on the basis that they comprise exempt information. [2] Dated 27 October 2009.[3] Received by OIC on 10 December 2009.[4] Dated 4 December 2009.[5] I have not set out the applicant’s public interest submissions in any detail given that this decision concerns whether the rosters comprise exempt information in respect of which the Parliament has determined that disclosure would, on balance, be contrary to the public interest.[6] As noted above, because this decision concerns whether the rosters comprise exempt information, it is not relevant to consider the public interest factors raised by either party.[7] [2004] NSWADT 35 (20 February 2004) (Chapman).[8] at paragraph 79.[9] Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009).[10] [1986] FCA 35; (1986) 64 ALR 97 (Cockroft) at 189, Bowen CJ and Beaumont J which interpreted ‘could reasonably be expected to’ in the context of the section 43(1)(c)(ii) business affairs exemption of the Commonwealth FOI Act.[11] At paragraph 193.[12] I note that details of this information (set out in QPS’s submissions) have been provided to the applicant during the course of this external review.

queensland

court_judgement

Queensland Information Commissioner 1993-

Pearce and Qld Rural Adjustment Authority; Various Landholders (third parties) [1999] QICmr 8; (1999) (4 November 1999)

Pearce and Qld Rural Adjustment Authority; Various Landholders (third parties) [1999] QICmr 8; (1999) (4 November 1999) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 99008Application S 186/98 Participants: KEN PEARCE Applicant QUEENSLAND RURAL ADJUSTMENT AUTHORITY Respondent VARIOUS LANDHOLDERS Third Parties DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - access application framed as a request for items of information, rather than as a request for access to documents - discussion of limited circumstances in which this is permissible under the terms of the Freedom of Information Act 1992 Qld - consideration of s.30(1)(e) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - refusal of access - matter in issue comprising trading names and addresses of landholders who successfully applied for financial assistance under a government scheme, together with the dollar amount of funding each received - whether matter in issue can properly be characterised as information concerning the personal affairs of a person other than the applicant - 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 matter in issue comprises information concerning the business, commercial or financial affairs of the landholders - whether disclosure could reasonably be expected to prejudice the future supply of like information to government - whether disclosure could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of the landholders - application of s.45(1)(c) of the Freedom of Information Act 1992 Qld. ii FREEDOM OF INFORMATION - refusal of access - existence and scope of any obligation or understanding of confidence binding the respondent not to disclose the matter in issue - whether the matter in issue comprises exempt matter under s.46(1)(a) or s.46(1)(b) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.14, s.21, s.25, s.25(2), s.25(4), s.30(1)(e), s.44(1), s.45(1)(c), s.46(1)(a), s.46(1)(b), s.78Freedom of Information Act 1982 Cth "B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279Cannon and Australian Quality Egg Farms Limited, Re [1994] QICmr 9; (1994) 1 QAR 491Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111Commissioner of Police v the District Court of New South Wales and Perrin (1993) 31 NSWLR 606The Director-General, Department of Families, Youth and Community Care and Department of Education and Ors, Re [1997] QICmr 2; (1997) 3 QAR 459Hearl and Mulgrave Shire Council, Re [1994] QICmr 12; (1994) 1 QAR 557State of Queensland v Albietz [1996] 1 Qd R 215Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227Smith Kline and French Laboratories (Aust) Limited and Ors v Secretary, Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291 DECISION I set aside the decision under review (being the decision made on behalf of the respondent by Mr A N J Ford on 9 November 1998). In substitution for it, I decide that the matter in issue (described in paragraph 11 of my accompanying reasons for decision) does not qualify for exemption 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-- the addresses of the homesteads/properties (but not the postcodes which form part of those addresses) appearing adjacent to the following file reference numbers recorded in the document in issue: 20131; 22256; 34626; 36406; 36631; 38285; 39059; 39321; 39703; and 50251.Date of decision: 4 November 1999.........................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS Page Background 1Nature of matter in issue 2External review process 4Application of s.44(1) of the FOI Act 5 Names of the third parties 6 Addresses of the third parties 9 Public interest balancing test 11 Dollar amount of financial assistance received 13Application of s.45(1)(c) of the FOI Act 13 Adverse effect 14 Prejudice to the future supply of information 17 Public interest balancing test 18Application of s.46(1) of the FOI Act 22 Application of s.46(1)(a) to the matter in issue 22 Application of s.46(1)(b) to the matter in issue 25Conclusion 25 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 99008Application S 186/98 Participants: KEN PEARCE Applicant QUEENSLAND RURAL ADJUSTMENT AUTHORITY Respondent VARIOUS LANDHOLDERS Third Parties REASONS FOR DECISION Background1. The applicant seeks review of a decision by the Queensland Rural Adjustment Authority (the Authority) to refuse him access under the Freedom of Information Act 1992 Qld (the FOI Act) to the names and addresses of recipients of financial assistance under the Water Infrastructure Development Incentive Scheme (the Scheme) administered by the Authority, and the dollar amount of financial assistance each one received. The purpose of the Scheme is to provide landholders with financial assistance "to encourage investment in new surface water storages by landholders or occupiers of land for irrigation in relation to agricultural purposes that are both commercially and ecologically sustainable". The Scheme (which was announced in October 1997 as a pilot scheme to operate for two years) provides for a subsidy equivalent to 22.5% (up to a ceiling of $150,000) of the cost of an approved water storage, with the subsidy payable in 3 equal annual instalments.2. The applicant lodged with the Authority an FOI access application dated 20 September 1998, in the following terms:I am seeking:1. the names and addresses of applicants for: a) financial assistance for water infrastructure development under the Development Incentive Scheme; and b) concessional loans for Qld rural industry under the Primary Industry Productivity Enhancement Scheme (PIPES); and 2. the names of applicants who were successful and details of the assistance provided.I am seeking details on all applicants since the schemes commenced.Please separate information provided under the two schemes.3. By letter dated 30 October 1998, the Authority's General Manager, Mr Colin Holden, informed the applicant of his decision that the information sought was exempt from disclosure to the applicant under s.44(1), s.45(1)(c) and/or s.46(1) of the FOI Act. By letter dated 3 November 1998, the applicant sought internal review of Mr Holden's decision. The internal review was conducted by the Authority's Chief Executive Officer, Mr A N J Ford.By letter to the applicant dated 9 November 1998, Mr Ford advised that he had decided to affirm Mr Holden's decision. By letter dated 18 November 1998, the applicant applied to me for review, under Part 5 of the FOI Act, of Mr Ford's decision.Nature of the matter in issue4. The applicant's FOI access application (see paragraph 2 above) is framed as a request for items of information, rather than as a request for access to documents. In Re Hearl and Mulgrave Shire Council [1994] QICmr 12; (1994) 1 QAR 557 (at pp.567, paragraph 30), I said:30. The FOI Act is not an Act which gives persons a legally enforceable right to obtain answers to questions asked of government agencies, or even to have government agencies extract answers to questions from documents in their possession. The legally enforceable right conferred by s.21 of the FOI Act is a right to be given access under the Act, and subject to the Act, to documents of an agency and official documents of a Minister. ...Section 25(1) of the FOI Act makes it clear that a person applies to an agency or Minister for access to a document of the agency or an official document of the Minister. Section 25(2) makes it clear that the application for access must provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency or the Minister to identify the document.5. In paragraph 31 of Re Hearl, I indicated that I did not wish to discourage agencies from providing answers to questions asked of them, or extracting answers to questions from documents in their possession, if they were prepared to do so outside of the framework of the FOI Act (as contemplated by the terms of s.14 of the FOI Act). I also suggested (in paragraph 32 of Re Hearl) that an appropriate approach to the interpretation of an FOI access application framed as a series of questions, or requests for items of information, would be to read it as a request for access to documents containing the information requested. (I note, however, that in the present case, a solicitor acting for the Authority suggested that there may be as many as 50,000 folios on which items of information covered by the terms of the applicant's FOI access application would appear - presumably most of them containing the names and/or addresses of applicants for financial assistance under the two schemes specified in the applicant's FOI access application.) However, pursuant to s.25(2) of the FOI Act (and assuming that s.25(4) of the FOI Act had first been complied with), an agency would be entitled to refuse to deal with an FOI access application that did not provide such information concerning requested documents as was reasonably necessary to enable a responsible officer of the agency to identify the documents. 6. 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).7. 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.8. 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.9. 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. 10. In the present case, after negotiation with the applicant and the Authority, the applicant decided to withdraw paragraph (b) of his FOI access application (i.e., he no longer sought information in respect of the Primary Industry Productivity Enhancement Scheme), and agreed to confine his application to the names and addresses of successful applicants for financial assistance under the Scheme, and the dollar amount of financial assistance each received. The Authority agreed to prepare a computer-generated document containing (on one page) the items of information sought by the applicant. There was no single document already in existence, at the time of lodgment of the applicant's FOI access application, which contained all of the information sought by the applicant, and the agreement reached with the participants was a sensible alternative to the prospect of dealing with a great many documents containing (in multiple places) particular items of information sought by the applicant. 11. The computer-generated document contains the Authority's file reference number for each of the successful applicants under the Scheme, together with the trading name and address of each successful applicant, and the amount of financial assistance each received. During the course of my review, the Authority withdrew its claim for exemption in respect of the file reference numbers, and the applicant was given access to that information (which is no longer in issue in this review). It should also be noted that the matter in issue as prepared by the Authority contains the trading name and address of one entity which withdrew its application for assistance under the Scheme. That information does not fall within the refined terms of the applicant's FOI access application, and therefore is not in issue in this review. The review has proceeded on the basis of considering exemption claims made in respect of the remaining items of information contained in the computer-generated document (hereinafter referred to as "the matter in issue").External review process12. In accordance with s.78 of the FOI Act, I consulted the various third parties referred to in the matter in issue, in order to advise those parties of my review, and to ascertain whether or not they objected to disclosure of the items of information in issue which concerned them. If they objected to disclosure, the third parties were invited to apply to become participants in my review. Of the 14 third parties with whom I consulted, 12 advised that they objected to disclosure to the applicant of the items of information in issue which concerned them. Of those 12 parties, four applied for, and were granted, status as participants in this review.One third party advised that, while it objected to the disclosure of the amount of financial assistance it received, it did not object to disclosure to the applicant of its trading name and address. Consequently, the Authority withdrew its claim for exemption in relation to that trading name and address, and the applicant was given access to it. The remaining third party did not respond to my consultation letter.13. On 31 March 1999, I wrote to the Authority to communicate my preliminary view that, with the exception of the residential addresses of some of the third parties (i.e., those addresses which disclosed the name and location of a third party's homestead/property, rather than simply a post office box address), the matter in issue did not qualify for exemption under s.44(1), s.45(1)(c) or s.46(1) of the FOI Act. In the event that it did not accept mypreliminary view, the Authority was invited to lodge written submissions and/or evidence in support of its case for exemption. I provided each of the third party participants with a copy of my letter to the Authority dated 31 March 1999, and I also invited them, in the event that they did not accept my preliminary view, to lodge written submissions and/or evidence in support of their respective cases for exemption.14. By letter dated 16 April 1999, the Authority's solicitors, Hunt & Hunt, advised that the Authority did not accept my preliminary view and, on 23 April 1999, lodged written submissions in support of the Authority's case for exemption of the matter in issue. Two of the third party participants also lodged written submissions in support of their claims for exemption. 15. The applicant was invited to respond to the submissions lodged by the Authority and the two third party participants. He did so, and his submissions were in turn provided to the Authority and the third party participants for response. The Authority lodged brief submissions in reply (a copy of which was provided to the applicant). No further submissions in reply were received from any of the participants. 16. Accordingly, in addition to the matter in issue itself, I have taken into account the following material in making my decision: the Authority's initial decision dated 30 October 1998, and internal review decision dated 9 November 1998; the applicant's application for external review dated 18 November 1998; written submissions on behalf of the Authority dated 23 April 1999 and 9 June 1999; written submissions on behalf of the applicant dated 20 May 1999; and written submissions on behalf of two of the third party participants dated, respectively, 29 April 1999 and 11 May 1999.Application of s.44(1) of the FOI Act17. Section 44(1) of the FOI Act provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest.18. In applying s.44(1) of the FOI Act, it is necessary to 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.19. In my reasons for decision in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, I identified the various provisions of the FOI Act which employ the term "personal affairs" and discussed in detail the meaning of the phrase "personal affairs of a person", and relevant variations thereof, in the FOI Act (see pp.256-267, paragraphs 79-114, of Re Stewart). In particular, I said that information concerns the "personal affairs of a person" if it 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: affairs relating to family and marital relationships; health or ill-health; relationships with and emotional ties with other people; and domestic responsibilities or financial obligations.Whether or not matter contained in a document comprises information concerning an individual's personal affairs is essentially a question of fact, to be determined according to the proper characterisation of the information in question.20. The Authority and the third parties claim that all of the matter in issue qualifies for exemption under s.44(1) of the FOI Act, on the basis that all of the matter in issue is properly to be characterised as information concerning the personal affairs of the third parties. The matter in issue consists of the trading name and address of, and the dollar amount of financial assistance under the Scheme granted to, each third party. As regards the trading names, four of the third parties are corporations (and, in two cases, the names of the directors of the corporation are also given); one of the third parties is identified by reference to the name of a trust (with the names of individuals associated with the trust also given); and the remaining eight third parties are identified by reference to their individual names.As regards the addresses which are in issue, nine addresses consist of the name of a property/homestead, the relevant town and its postcode; two addresses consist of the name of a property/homestead, a mail service number, the relevant town and its postcode; and there are two post office box addresses. The approved amount of government funding received by each of the third parties (or more precisely, the amount of the first of the three equal annual instalments by which the total grant is paid) appears as a dollar amount beside each name.Names of the third parties21. A person's name, in isolation, does not ordinarily constitute information concerning that person's personal affairs. In Commissioner of Police v the District Court of New South Wales and Perrin (1993) 31 NSWLR 606, Mahoney JA said (as p.638):A person's name would not, I think, ordinarily be, as such, part of his personal affairs. It is that by which, not merely privately but generally, he is known.Likewise, in State of Queensland v Albietz [1996] 1 Qd R 215, de Jersey J said (at p.221):I do not think that the name by which a person is known ordinarily forms part of that person's "personal affairs".22. However, a person's name almost invariably appears in a document in the context of surrounding information. It is the characterisation of a person's name, in the context of the information which surrounds it, which may give rise to difficulties. Thus, Lockhart J, sitting as a member of a Full Court of the Federal Court of Australia, in Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111, said (at page 119):There is a real question as to whether the name and telephone number can answer the description of 'information relating to the personal affairs' of that person under s.41(1). Viewed as an abstract conception I would be inclined to the view that it could not, but such questions are not considered by Courts in the abstract.23. Thus, while disclosure of a person's name, in the abstract, would not ordinarily be a disclosure of information concerning that person's personal affairs, disclosure of that name in the context in which it appears may disclose information concerning the person's personal affairs (or it may not - there is always a question of the proper characterisation of the matter in issue, in its context, which must be addressed in each particular case). 24. For the reasons explained in Re Stewart at pp.237-239 (paragraphs 20-27), and in the Federal Court judgments there cited, I am satisfied that -(a) the phrase "personal affairs of a person" (and its relevant variations in the FOI Act) does not include the business or professional affairs of a person; and(b) the word "person" appearing in conjunction with the phrase "personal affairs" refers only to natural persons, not to corporations, and that corporations are not capable of having personal affairs for the purposes of the FOI Act.25. It follows from (b) above that, in relation to those third parties which are corporations, I am satisfied (for the reasons set out in paragraph 21 of Re Stewart) that the matter in issue which comprises the names of corporations cannot properly be characterised as information concerning the "personal affairs of a person". Accordingly, I find that that matter does not qualify for exemption under s.44(1) of the FOI Act. 26. In relation to those third parties who are identified by reference to their individual names, the Authority made the following arguments (in its submission dated 23 April 1999):The preliminary view that those applicants who applied in their own names did not receive assistance "in their private and personal capacities" is wrong. It is, moreover, based upon a falsely made distinction between the capacities in which assistance may have been received. There was no other legal capacity other than a personal capacity in which assistance was received by those applicants.Once matter is categorised as matter concerning personal affairs (which can include matter relating to "family relationships'' and "financial obligations"), there is no proper basis for further distinguishing between the "personal" and "business" capacities in which it is provided or received. To do so is to confuse the legislative distinction between matter concerning personal affairs and matter concerning business affairs and to ignore the distinction referred to in paragraph 26 of Re Stewart....The information sought as to name and address is clearly matter properly characterised as "personal" matter and properly to be exempted under section 44(1).27. In written submissions dated 29 April 1999, one of the third party participants stated:Arguing over whether names or addresses should be released is simply "splitting hairs", the issue is fundamental....The Freedom of Information Act was instigated to safeguard the rights of the individual, in this case it is being used to interfere with the right to privacy of the very individuals it [purports] to protect. Should this information finally be released, there will be a call from both sides of politics to legislate against such infringements of [an] individual's privacy.28. In written submissions dated 11 May 1999, one of the third party participants stated:From a personal perspective I would find the disclosure of this information embarrassing and unfair and believe that it would constitute an invasion of my privacy.29. Applying the principles referred to in paragraphs 21-24 above, it is clear from the context in which the names of the individual third parties appear that the only information about them that would be revealed by disclosure of their names is the fact that they were recipients of financial assistance under a government grants scheme administered by the Authority. In my opinion, that information cannot be properly characterised as information concerning a private aspect of the lives of those individuals. Rather, it is information concerning their business or commercial affairs. The grant of money was provided to each of the third parties for the purpose of assisting and supporting their farming or rural businesses, i.e., for business rather than personal purposes. Support for this view is afforded by the terms of the Scheme itself; for example, the final paragraph on page 1 of the Scheme's application form (which the Authority provided for my assistance) states:Under all Schemes of assistance, QRAA is required to ascertain [the] viability of an applicant's enterprise. Our viability test has an obligation to ensure that long term profitable farming enterprises are supported. ... The past performance of your Rural Business will also be taken into account.30. On pages 1 and 2 of the Scheme's Terms and Conditions, I note that the following is stated:The purpose of the Scheme is to act as a catalyst to encourage investment in new surface water storages by landholders or occupiers of land for irrigation in relation to agricultural purposes that are both commercially and ecologically sustainable. ...[The Scheme] is designed to assist landholders or occupiers of land enhance the long-term commercial and ecological sustainability of their farm business enterprise. ......Projects will also be assessed on the basis of their economic merits to ensure funds are targeted at the best use of Government funds.31. In support of their applications for assistance under the Scheme, applicants were asked to provide detailed statements relating to the performance of their rural businesses, as well as details of the partnership/company name/trading name and individual financial statements of each director/shareholder. It is clear that the Scheme was established to provide financial assistance to rural businesses, and that the receipt of a grant of financial assistance under the Scheme concerns the business affairs of the third parties. Accordingly, I find that the matter in issue which consists of the names of individual third parties is not information which can be properly characterised as matter which, if disclosed, would disclose information concerning the personal affairs of those third parties, and that it therefore does not qualify for exemption under s.44(1) of the FOI Act.32. In relation to the third party who is identified by reference to the name of a family trust, together with the names of individuals associated with the trust, the Authority made the following arguments (in its submissions dated 23 April 1999):The preliminary view that the affairs of a trust, as distinct from a company cannot be characterised as "personal affairs of a person" is a wrong extension of the statement in Re Stewart, that "personal affairs" clearly excludes a corporation. This is because a trust, unlike a company, does not have a distinct persona. Affairs of the trust are affairs of the persons acting as trustee, and concern also the beneficiaries. Moreover, the trust referred to in the matter in issue is described as a "Family Trust", thereby further highlighting the "personal" nature of the affairs thereof. There is therefore no proper basis upon which to distinguish the applicants under file reference 34626 from those applicants who applied in their own names.33. In my view, a trust (including a discretionary family trust) established for business and/or taxation purposes (commonly for distributing income from a business or commercial enterprise) will not ordinarily be capable of having "personal affairs" within the meaning of s.44(1) of the FOI Act. It may, in some instances, be possible to characterise certain information relating to the affairs of a trust as information concerning the personal affairs of an individual (e.g., information as to the distribution of funds to an infant beneficiary).However, there is nothing in the material before me to suggest other than that the family trust in question was brought into existence for the purpose of structuring the relevant family's financial affairs arising from its business of primary production. Disclosure of the name in its surrounding context will disclose information concerning an aspect of the business affairs of the trust. It will not disclose information concerning the personal affairs of any individual. Accordingly, I find that the name of the trust cannot be properly characterised as information concerning the "personal affairs of a person", and that it does not qualify for exemption under s.44(1) of the FOI Act. Addresses of the third parties 34. In response to the preliminary view which I had conveyed to him, to the effect that the matter in issue which comprised the name of a homestead/property and its address (as opposed to a post office box) qualified for exemption under s.44(1) of the FOI Act, the applicant submitted as follows: I contend however that:a) the inclusion of a property or homestead name is insufficient, in itself, to establish that the address is also the residential address of the applicant; consequently, it cannot be established that the release of an address "would" disclose a residential address;b) residential addresses concern the public and not the private aspects of a person's life;c) public interest considerations favour disclosure of addresses; and d) any one of the above considerations is sufficient to stop s.44(1) applying. The naming of a rural property cannot be interpreted to mean that the property owner resides on the property. It is quite common, in this generation, to find that the owner lives elsewhere and that a manager or workman resides in the homestead. In some cases the homestead is even rented out. I therefore maintain that while it is not clear that addresses are the residential addresses of the applicants, they cannot be excluded under this section; even if residential addresses are deemed to concern the private aspects of the applicants' lives.A residential address however concerns the public and not the private aspects of a person's life. It is the link that allows a name to be identified as the name of a particular person. It also establishes the location where an individual resides. These are however public aspects of a person's life; they say nothing about the private life of an individual. Consequently, addresses are included in telephone books, on electoral rolls and on property titles; all of which are readily available to the public. If such information is deemed to be private and confidential then it would hardly appear in such places.Towns and postcodes do not however relate to a person's life; consequently, they are not able to be exempted by s.44(1) even if property names are captured by the provision. I therefore maintain that the Authority must at least provide this data.35. In its submissions in response dated 9 June 1999, the Authority said:The submission that "a residential address concerns the public and not private aspects of a persons life" is wrong. It is not consistent with the principles laid down in Re Stewart.The argument by analogy to the listing of addresses in telephone books is misleading. An individual may choose to list or not list in a telephone book. Moreover the individual may choose the address to be listed and the extent of disclosure of that address.Addresses set out in electoral rolls are a different category. In those circumstances residency needs to be established in order to establish the entitlement to vote in a particular electorate.The submission that addresses are set out in property titles is wrong.Towns and postcodes do form part of a person's address and are as much a personal affair as any other aspect of a person's address.36. In Re Stewart at p.261 (paragraph 88), I said:The address at which a person chooses to reside and make their home seems to me to fall within that zone of domestic affairs which is clearly central to the concept of "personal affairs". A business address would be materially different.37. I am satisfied that each of the addresses in issue is an address used for business purposes by the successful applicants for financial assistance. This is self-evident from the fact that they were the addresses given for contact in respect of dealings relating to an aspect of the conduct of their business affairs, namely, their respective applications for government financial assistance to subsidise the construction of an asset for use in their respective businesses of primary production. Moreover, the addresses listed in respect of applicants for financial assistance which are corporations do not comprise information concerning the personal affairs of a person.38. However, while I am satisfied that each address in issue comprises information concerning the business affairs of the respective applicants for access, there are several instances where I consider that disclosure of an address, in conjunction with its adjoining name, would incidentally disclose information which concerns the personal affairs of an identifiable individual. I am satisfied that several of the addresses in issue constitute both the business address, and the address of the residential homestead/property, of the individuals whose names adjoin the address. Despite the arguments to the contrary put by the applicant (see paragraph 34 above), I am satisfied, on the balance of probabilities, that disclosure of those addresses which include the name of a homestead/property, and which appear adjacent to the name of an individual or individuals (remembering that I have already found that the names do not qualify for exemption under s.44(1) of the FOI Act), would disclose information concerning the personal affairs of identifiable individuals, i.e., the address at which they choose to reside and make their home. Information concerning an individual's residential address is information the dissemination of which (whether by publication in a telephone directory or otherwise) that individual should be entitled to control. I consider that the addresses in issue which I have described in the third sentence of this paragraph (and which are specifically identified in paragraph 45(b) below) are 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). I find that the remainder of the addresses in issue do not qualify for exemption under s.44(1) of the FOI Act.Public interest balancing test39. Because of the way in which 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 exist public interest considerations favouring disclosure, which outweigh all identifiable public interest considerations favouring non-disclosure, such as to warrant a finding that disclosure of the matter in issue would, on balance, be in the public interest.40. In his submissions dated 20 May 1999, the applicant said:Additionally, as residential addresses appear in telephone books etc there are no public interest considerations favouring non-disclosure of addresses.On the other hand, if addresses are not provided it may not be possible to absolutely identify the recipients of the assistance; an essential component of public accountability. Consequently, public interest considerations of accountability will warrant a finding that disclosure of addresses is in the public interest. After all, the recipients of other Government grants are identified, why should these recipients be treated any differently. 41. The applicant appears to be the principal of, or acting on behalf of, an organisation styled as the Queensland Water Industry Advisory Service. He has expressed concern about whether assistance under the Scheme has been provided to large-scale commercial operations, contrary to comments made on behalf of the Queensland government upon the introduction of the Scheme, to the effect that the Scheme was to be aimed at "run-of-the-mill" farmers who want to develop their land. The applicant therefore seeks access to identifying information about the successful applicants to enable him to ascertain who received assistance, and whether they met the criteria for funding.42. In my view, there is a strong public interest in enhancing the accountability of the Authority in respect of its administration of the Scheme, which weighs in favour of disclosure of the matter in issue. I consider that the public has an interest in scrutinising the way in which public funds are distributed by way of financial assistance for business enterprises, so as to ensure that they are distributed in such a manner as to serve the public policy purposes that were adjudged as warranting the allocation of public funds for the subsidy of private sector business activity. The applicant has expressed concerns that those public policy purposes may not have been served in the case of the Scheme. I consider that there is a public interest in permitting any interested member of the community to have access to information which will allow scrutiny of the payments made under the Scheme, and whether the announced public policy purposes of the Scheme are being met in practice.43. Weighing against disclosure is the public interest (inherent in the satisfaction of the test for prima facie exemption under s.44(1) of the FOI Act) which tells against disclosure of information concerning the personal affairs of identifiable individuals other than the applicant for access. 44. I accept the applicant's contention that the assessment of whether the administration of the Scheme has been consistent with its stated public policy purposes would be assisted by disclosure of information concerning the geographical distribution of funding made available under the Scheme. That would enable scrutiny of any patterns in the distribution of funds by the Authority to particular rural areas, and could (for instance) be matched against publicly available information concerning areas of the State that have (over previous years) qualified for financial assistance for drought relief, or for major publicly-subsidised irrigation projects. In my view, however, the public interest in disclosure of information which will permit scrutiny of the geographical distribution of the funding available under the Scheme would be adequately served by disclosure of the postcodes only, in those addresses which I have found to be prima facie exempt under s.44(1) of the FOI Act. The public interest in accountability and public scrutiny of the administration of the Scheme does not warrant any further disclosure of details of the residential addresses of identifiableindividuals. I do not consider that disclosure of the postcodes alone, without the remainder of the relevant third party addresses, would interfere significantly or unreasonably with the privacy interests of the relevant third parties.45. In summary, my findings on the application of s.44(1) of the FOI Act to the addresses in issue are:(a) the addresses which appear adjacent to the following file reference numbers on the document in issue comprise information concerning the business affairs of the relevant applicants for financial assistance, and their disclosure would not disclose information concerning the personal affairs of an identifiable individual, so they do not qualify for exemption under s.44(1) of the FOI Act: file reference nos. 21022, 24776, 26324;(b) the addresses which appear adjacent to the following file reference numbers on the document in issue would, if disclosed, incidentally disclose information concerning the personal affairs of identifiable individuals, and I find that those addresses are exempt matter under s.44(1) of the FOI Act, except for the postcode in each address, disclosure of which, I find, would, on balance, be in the public interest: file reference nos. 20131, 22256, 34626, 36406, 36631, 38285, 39059, 39321, 39703 and 50251.Dollar amount of financial assistance received46. The reasoning set out in paragraphs 29-31 above is also relevant to these items of information. The funding received from the Scheme was for the purposes of assisting the rural businesses operated by the respective third parties, and therefore is properly to be characterised as information concerning their business affairs, and not their personal affairs.I find that the matter in issue which records the amount of financial assistance each third party received under the Scheme cannot properly be characterised as information concerning the personal affairs of the respective third parties, and therefore does not qualify for exemption under s.44(1) of the FOI Act.Application of s.45(1)(c) of the FOI Act47. 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.48. I explained the correct approach to the interpretation and application of s.45(1)(c) of the FOI Act in my decision in Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 at pp.516-523 (paragraphs 66-88). In summary, matter will be exempt under s.45(1)(c) of the FOI Act if:(a) it is properly to be characterised as information concerning the business, professional, commercial or financial affairs of an agency or another person (s.45(1)(c)(i)); and(b) its disclosure could reasonably be expected to have either of the prejudicial effects contemplated by s.45(1)(c)(ii), namely: (i) an adverse effect on the business, professional, commercial or financial affairs of the agency or other person, which the information in issue concerns; or (ii) prejudice to the future supply of such information to government;unless disclosure of the matter in issue would, on balance, be in the public interest.49. In respect of s.45(1)(c)(i), I am satisfied that the matter in issue is information concerning the business affairs of the respective third parties. Each limb of the test for exemption under s.45(1)(c)(ii) involves consideration of the test imposed by the phrase "could reasonably be expected to". At pp.339-341 (paragraphs 154-160) of Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279, I analysed the meaning of the phrase "could reasonably be expected to" by reference to relevant Federal Court decisions interpreting the identical phrase as used in exemption provisions of the Freedom of Information Act 1982 Cth. In particular, I said in Re "B" (at pp.340-341, paragraph 160):The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist.The ordinary meaning of the word "expect" which is appropriate to its context in the phrase "could reasonably be expected to" accords with these dictionary meanings: "to regard as probable or likely" (Collins English Dictionary, Third Aust. ed); "regard as likely to happen; anticipate the occurrence ... of" (Macquarie Concise Dictionary, 3rd ed); "Regard as ... likely to happen; ... Believe that it will prove to be the case that ..." (The New Shorter Oxford English Dictionary, 1993).Adverse effect50. The common link between the words "business, professional, commercial or financial" in s.45(1)(c) is to activities carried on for the purpose of generating income or profits. Thus, an adverse effect under s.45(1)(c) will almost invariably be pecuniary in nature, whether directly or indirectly (see p.520, paragraphs 81-82, of Re Cannon). At p.521, paragraph 84, of Re Cannon, I said:In most instances, the question of whether disclosure of information could reasonably be expected to have an adverse effect will turn on whether the information is capable of causing competitive harm to the relevant agency, corporation or person. Since the effects of disclosure of information under the FOI Act are, with few exceptions, to be evaluated as if disclosure were being made to any person, it is convenient to adopt the yardstick of evaluating the effects of disclosure to a competitor of the agency which, or person whom, the information in issue concerns. (This yardstick is also appropriate when considering the application of s.45(1)(b).) A relevant factor in this regard would be whether the agency or other person enjoys a monopoly position for the supply of particular goods or services in the relevant market (in which case it may be difficult to show that an adverse effect on the relevant business, commercial or financial affairs could reasonably be expected), or whether it operates in a commercially competitive environment in the relevant market.51. I had expressed to the Authority a preliminary view that I was unable to identify any specific adverse effect that disclosure of the matter in issue could reasonably be expected to have on the business, commercial or financial affairs of the third parties, because the matter in issue did not contain anything of a sensitive commercial nature about any of the third parties. In its written submission dated 23 April 1999, the Authority submitted:The preliminary view of the [Information Commissioner] draws a distinction between disclosure of name, address and amount of assistance, on the one hand, and disclosure of "sensitive financial information relating to the third parties or their businesses" on the other (page 7). The distinction is superficial. It fails to recognise that disclosure of the name, address and amount of assistance reveals information from which sensitive financial information relating to the third persons and their businesses may be inferred when considered in conjunction with the relevant Scheme guidelines. Such is the case presently before the [Information Commissioner]. In such cases the [Information Commissioner] ought find that disclosure could reasonably be expected to have an adverse effect on those affairs.52. In a written submission dated 11 May 1999, one of the third party participants said:I submit that the release of this information in a business context may damage my business and/or reputation or may otherwise have an adverse impact on my business. This comment is made, as there are no controls on the use to which the information can be put by the applicant.53. In his submissions dated 20 May 1999, the applicant stated:The only information which is able to be inferred from scheme guidelines about successful applicants is that they meet the eligibility criteria for the scheme. It is therefore inferred that applicants possess: ... [the applicant then reproduced the nine eligibility criteria which are set out in the Scheme's Terms and Conditions]. Such information however is hardly "sensitive financial information".54. In its submissions dated 9 June 1999, the Authority argued:The applicant sets out the information which he proposes to infer. The sixth, seventh and eighth bullet points clearly indicate that the applicant proposes to infer financial information relating to such matters as:the availability of funding to complete projects;commercial lending approvals where borrowing [is] required;availability of sufficient funding to commercially utilise water;the presence of a cash flow analysis indicating a particular degree of financial viability;asset ownership;guaranteed working occupation.The information is clearly sensitive financial information. The disclosure of material permitting such an inference to be made in respect of identified persons results in the disclosure of financial obligations and information "concerning the business, professional, commercial or financial affairs of those persons".55. I accept that disclosure of the matter in issue will enable an inference to be drawn that the successful applicants for financial assistance met the eligibility criteria under the Scheme.However, none of the detailed financial information relating to matters such as those listed in the Authority's submission set out at paragraph 54 above, is to be disclosed. I do not accept the Authority's submission that disclosure of the matter in issue would enable sensitive financial information about the third parties to be inferred when considered in conjunction with the relevant Scheme guidelines. The Scheme guidelines set out, in general terms, nine eligibility criteria which applicants for assistance must satisfy in order to qualify for assistance. For example, applicants must possess a detailed plan of the proposed development and evidence that they have sufficient funding to complete the development.Accordingly, the fact that the third parties have been granted assistance would suggest that they satisfied that criterion. However, disclosure of the matter in issue would tell the access applicant nothing about a third party's proposed development, or its financial position.Similarly, another criterion for funding is evidence that the applicants for assistance have sufficient funding to utilise the stored water commercially, including a cash flow analysis demonstrating the financial viability of the project. Again, the fact that the third parties have been granted assistance would suggest that they satisfied that criterion. However, disclosure of the matter in issue would tell the access applicant nothing about a third party's actual funding arrangements or the contents of its cash flow analysis. As I have said, the applicant is not seeking access to the specific documents or evidentiary information which would have been submitted by applicants in order to satisfy the eligibility criteria. In those circumstances, I do not accept that disclosure of the matter in issue, when considered in conjunction with the Scheme guidelines, would enable sensitive financial information about the third parties to be inferred by the access applicant.56. Neither the Authority, nor any of the third party participants, has been able to formulate a specific adverse effect on the business, commercial or financial affairs of the third parties that could reasonably be expected to follow as a consequence of disclosure of the matter in issue. Based on the material before me, I am unable to identify any specific adverse effect which disclosure of the matter in issue could reasonably be expected to have on the business, commercial or financial affairs of the third parties. The matter in issue discloses only the approved amount of government funding that was received by the third parties.From that (in conjunction with the Scheme guidelines), it is possible to infer the total cost of the water storage asset that each third party has constructed, and that each third party has satisfied the Authority in respect of funding available to complete the project, and to commercially utilise the stored water. The applicant does not seek access to any of the detailed financial information provided by the third parties to the Authority in support of their applications for financial assistance, nor does he seek access to any of the Authority'sfiles in relation to the processing or approval of the applications. I am not satisfied that disclosure of the matter in issue could reasonably be expected to enable the applicant (or any other person, e.g., a competitor) to take steps which would result in competitive or other harm to the business, commercial or financial affairs of the third parties. 57. Accordingly, I am not satisfied from my examination of the matter in issue, nor from the submissions/evidence before me, that disclosure of the matter in issue could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of the third parties.Prejudice to the future supply of information58. In his internal review decision dated 9 November 1998, Mr Ford, on behalf of the Authority, stated:I am satisfied that, if the Authority were to disclose this particular information to you [the applicant], it could reasonably be expected to prejudice the future supply of information to the Authority. This in turn would seriously affect the Authority's ability to administer government programs.59. In its written submissions dated 23 April 1999, the Authority, while not specifically discussing this requirement for exemption under s.45(1)(c), submitted (in the context of its discussion of the public interest balancing test which is incorporated in s.45(1)(c), and which I will discuss below) that disclosure of "commercial information" relating to applications for assistance under the Scheme could seriously impact on the Scheme's attractiveness to the rural sector and thereby limit its effectiveness. 60. In its submissions dated 11 May 1999, one of the third party participants submitted that:The disclosure of this information would seriously compromise the integrity of dealings with quasi government organisations like QRAA and reduce public confidence in their day to day dealings if personal information were released.61. I discussed the requirements of s.45(1)(c)(ii) at p.521, paragraph 85, of Re Cannon, where I said:The second kind of prejudice contemplated by s.45(1)(c)(ii) focuses not on the protection of the legitimate commercial interests of agencies and private sector business undertakings, but on protecting the continued supply to government of information (of the kind referred to in s.45(1)(c)(i)) which it is necessary for the government to have to undertake the functions expected and required of it in the public interest ... . The words "prejudice the future supply of such information" also appear in s.46(1)(b) of the FOI Act, and what I said about those words in Re "B" and Brisbane North Regional Health Authority (at paragraph 161) is also apposite in the context of s.45(1)(c)(ii):Where persons are under an obligation to continue to supply such confidential information (e.g. for government employees, as an incident of their employment; or where there is a statutory power to compel the disclosure of the information) or 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.[my underlining]62. Since the purpose of the third parties applying to the Authority was to satisfy the Authority that they met the criteria necessary to receive financial assistance from the government under the Scheme, i.e., in order to obtain some benefit from government, I do not consider that disclosure of the matter in issue could reasonably be expected to prejudice the future supply to the Authority of information from a substantial number of other applicants seeking financial assistance from the government. I have difficulty accepting the contention that persons would cease applying to government agencies for financial assistance simply because information of the type which is in issue in this review, was liable to be disclosed.That submission appears to be purely speculative and not based on the actual experience of the Authority or any of the third parties. In addition, I note that the matter in issue comprises only the names and addresses of the successful applicants for financial assistance under the Scheme, and the dollar amount of financial assistance each obtained (as the first of three equal annual instalments). The dollar amount of financial assistance granted under the Scheme was not information supplied to the government. That leaves only the names and addresses, and I find an inherent lack of credibility in the proposition that their disclosure could reasonably be expected to prejudice the future supply of like information to government by inhibiting a substantial number of rural businesses from applying for government financial assistance.63. Accordingly, on the basis of the material before me, I am not satisfied that disclosure of the matter in issue could reasonably be expected to prejudice the future supply to government of such information.Public interest balancing test64. Given that I am not satisfied that the matter in issue satisfies the requirements for exemption under s.45(1)(c)(i) or (ii) of the FOI Act, it is not strictly necessary for me to consider the public interest balancing test which is incorporated in s.45(1)(c) of the FOI Act. I have, in any event, discussed some of the competing public interest considerations above, in the context of the public interest balancing test incorporated in s.44(1). However, as both the Authority and two of the third party participants have lodged submissions which deal with public interest considerations in the context of a claim for exemption under s.45(1)(c), I will make some observations on the public interest balancing test. 65. In its written submission dated 23 April 1999, the Authority referred to the fact that it had sought a view from the Honourable David Hamill MLA, the Treasurer of Queensland, regarding the effects which disclosure of the matter in issue could reasonably be expected to have. It submitted as follows regarding the public interest balancing test:The Authority administers the Scheme as a representative of Government; it is subject to Financial Administration and Audit Legislation as well as to Ministerial direction. It is accountable through the normal parliamentary processes.The accountability of the Authority is not enhanced in any quantifiable way through the disclosure to "any interested member of the public" of what is otherwise exempt matter.There can be no public interest in "enhancing the accountability of the authority in respect of its administration of the Scheme" in the absence of any finding by the [Information Commissioner] that the normal processes of accountability are insufficient. The preliminary finding of the [Information Commissioner] is arbitrary and is not based upon any finding of fact. ...The Authority, by letter to the Honourable David Hamill, MLA, Treasurer of Queensland and Member for Ipswich, dated 26 February 1999 sought a view from the Honourable Treasurer as to the public interest issues that arise in order that the Authority might suitably assess the correctness of its decision and make such informed submissions to the [Information Commissioner] on the issue of public interest as the circumstances may require.The Honourable Treasurer replied by letter of 12 April 1999 noting the Authority's concerns that divulgence of commercial information relating to applications for assistance under the Scheme could seriously impact on its attractiveness to the rural sector and, hence, could significantly limit its effectiveness. ... The Honourable Treasurer stated, and the Authority accepts and submits, that -Given that the key objective of the Scheme is to enhance the long-term commercial and ecological sustainability of farm business enterprises, this outcome would clearly not be in the long-term interests of rural communities or the Queensland economy as a whole.The Honourable Treasurer further stated, and the authority accepts and submits, that -In these circumstances ... any actions which are likely to compromise the integrity of the Scheme could not reasonably be considered to be in the public interest.66. In written submissions dated 11 May 1999, one of the third party participants stated:I would submit that it is not in the public interest for this information to be disclosed. The FOI legislation was introduced principally to ensure accountability of governments, to ensure fairness in the decision making process and to ensure privacy and accuracy of government records were maintained. It is argued that these are the public interest considerations that need to be reviewed and weighed against my right to confidentiality with respect to the conduct of my private and business affairs.The disclosure of this personal information will not assist in determining whether the government has been properly accountable in this matter. This can be determined by an applicant assessing information of a more general nature in relation to the scheme under consideration and details of the assessment criteria - as opposed to personal information that relates to me.As mentioned above it is in the public interest to ensure that there is fairness in the decision making process. This public interest consideration must be weighed against my right to have my personal and/or business affairs withheld from disclosure. The justification for disclosure is directed to ensuring that people can determine [the] basis on which such decisions have been made - so that they can ensure they have been treated fairly. Firstly, I am unaware whether the applicant was an applicant under the scheme.Secondly, the information under consideration does not advance the prospects of determining whether the basis for the decision was fair or not.It simply shows the result. The applicant may be entitled to attempt to access documents that show the basis on which decisions were reached - but in my submission this does not entitle a person to information on specific individuals (including their names and amount paid) and certainly is not justification for simply releasing information about a result of an application to QRAA - such as the one made in this instance.In view of the foregoing I submit that the applicant cannot show that it is in the public interest for the information to be made available.67. In his submissions in reply dated 20 May 1999, the applicant stated as follows regarding the public interest balancing test:It is contended that:a) the Authority is accountable through normal parliamentary processes; and thatb) the accountability of the Authority is not enhanced in any quantifiable way through such disclosure.This is not however the view of the legislators, as the Authority is bound by the Freedom of Information Act, which is about public accountability.68. In respect of the Authority's submissions regarding the views of the Treasurer, the Honourable David Hamill MLA, the applicant submitted as follows: ...Mr Hamill was however responding to a letter from the Authority [which referred] to the disclosure of "private and confidential business affairs".Mr Hamill was clearly referring to commercial information in this context.It is however quite clear that the information sought is neither "private and confidential business affairs" nor "commercial information".69. While I have given due consideration to the views expressed by the Treasurer, it is clear that his remarks were predicated on the assumption (gained from the information communicated to him by the Authority) that sensitive commercial information relating to applications for assistance under the Scheme (such as the detailed financial information that an applicant must submit to satisfy the Authority that it meets the eligibility criteria) might be disclosed under the FOI Act. I have already made clear my view that disclosure of the matter in issue will not disclose sensitive commercial information regarding the business or financial affairs of the third parties (see paragraph 55 above), nor impact on the attractiveness of the Scheme to the rural sector and hence limit the Scheme's effectiveness (see paragraph 62 above).Moreover, I consider that the third parties ought to have appreciated that they were accepting public funds under the Scheme, and that the Authority is properly accountable to the community for the distribution of those public funds, at least to the extent of the public having a right to know who received the funds and the amount of funding received.70. I acknowledge that there are other processes of accountability in place in relation to the Authority's administration of the Scheme. However, I do not consider that that lessens, to any significant extent, the public interest in enhancing the accountability of the Authority for its administration of the Scheme, by way of providing the public with information which enables interested members of the community to scrutinise the payments made under the Scheme, and to assess whether the public policy purposes that were adjudged as warranting the allocation of public funds to the Scheme are being met in practice. I consider that disclosure of the matter in issue would enhance those public interest considerations. It is apposite in that regard to restate the view I expressed in Re The Director-General, Department of Families, Youth and Community Care and Department of Education and Ors [1997] QICmr 2; (1997) 3 QAR 459 at p. 464 (paragraph 19(a)):I do not accept that the existence of other accountability mechanisms can be used as a basis for any significant diminution of the public interest in disclosure of information under the FOI Act in order to promote the accountability of government agencies. The FOI Act was intended to enhance the accountability of government (among other key objects) by allowing any interested member of the community to obtain access to information held by government (subject to the exceptions and exemptions provided for in the FOI Act itself). The FOI Act was not introduced to act as an accountability measure of last resort, when other avenues of accountability are inadequate. The FOI Act gives a right to members of the community which is in addition to, and not an alternative for, other existing rights. Indeed, applications are frequently made under the FOI Act to enable members of the community to arm themselves with the information necessary to afford a meaningful opportunity to pursue some of the other accountability mechanisms referred to by the applicant.71. Accordingly, even if I had been satisfied that the matter in issue met the requirements for exemption under s.45(1)(c)(i) and (ii) of the FOI Act, I consider that there would have been substantial public interest considerations favouring disclosure which would have warranted a finding that disclosure of the particular matter in issue would, on balance, be in the public interest. Application of s.46(1) of the FOI Act72. Section 46(1) of the FOI Act provides: 46.(1) Matter is exempt if-- (a) its disclosure would found an action for breach of confidence; or (b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest.Application of s.46(1)(a) to the matter in issue73. I 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, 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. In this case, the putative plaintiffs would be the third parties.74. There is no material before me which suggests that the third parties might be entitled to rely on a contractual obligation of confidence. 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 identify specifically 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).75. If I find that any one of the above criteria is not established in respect of the matter in issue, the matter in issue will not qualify for exemption under s.46(1)(a) of the FOI Act. 76. With respect to the first criterion for exemption under s.46(1)(a), I am satisfied that the information claimed to be confidential can be identified with specificity, i.e., the name and address of the third parties, and the amount of financial assistance each received under the Scheme.77. With respect to the second criterion for exemption under s.46(1)(a), I am satisfied that the matter in issue is confidential information, i.e., it possesses the "necessary quality of confidence". It is neither trivial nor useless information, and it is not generally known.78. With respect to the third criterion for exemption, however, I am not satisfied that the matter in issue was communicated in such circumstances as to bind the recipient (the Authority) with an equitable obligation of conscience not to use that information in a manner not authorised by the third parties. 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 pp.314-316. 79. I note that most of the third parties, when consulted regarding disclosure of the matter in issue, objected on the basis that they contended that any information they supplied to the Authority was supplied in confidence. In a submission dated 29 April 1999, one of the third party participants said:It is a fundamental fact of life that the majority of rural business people consider that any dealings they have with the Queensland Rural Adjustment Authority will remain confidential, and any break down in this confidentiality, will have a devastating effect on the ability of the authority to carry out its prescribed task. This is clearly not in the public interest.80. I have reviewed the Scheme's "Terms and Conditions". I note that they provide, in part, that:Successful applicants will be required to provide annual financial statements to QRAA for three years from the date of the first payment. Subsequent payments will be contingent on receipt of this information which is required to allow monitoring for the 1999 review of the Scheme. Information collected for this purpose will be classified as "commercial-in-confidence".81. I accept, therefore, that the third parties received an express assurance that any financial statements which they provided to the Authority in support of their applications would be treated in confidence by the Authority. However, as I have pointed out above, none of the matter in issue consists of financial information supplied to the Authority by the third parties. Rather, the only matter in issue which was communicated by the third parties to the Authority consists of their names and addresses. There is no material before me to suggest that any express assurance was sought or given to the effect that the names and addresses of applicants under the Scheme would be treated in confidence by the Authority, either as against the applicant, or the world at large. 82. As there is nothing before me to suggest that the third parties received an express assurance that the matter in issue would be kept confidential by the Authority, it is necessary for me to consider whether, having regard to all the relevant circumstances attending the communication of the names and addresses of the third parties, that information was received by the Authority in such circumstances as to fix it with a binding equitable obligation of confidence. In that regard, I refer to my comments in Re "B" at p.319 (paragraph 93).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. 83. In its submissions dated 23 April 1999, the Authority submitted that:The preliminary view suggested by the [Information Commissioner], that parties who apply to the government for financial assistance for their businesses, cannot reasonably expect that their identities will be kept confidential, fails to recognise that disclosure of the name, address and amount of assistance discloses information from which sensitive financial information relating to the third persons and their businesses may be inferred when considered in conjunction with relevant scheme guidelines and so compromises the confidentiality according to which such sensitive information is held.84. I refer to my finding in paragraph 55 above regarding the Authority's submission that disclosure of the matter in issue discloses information from which sensitive financial information about the third parties and their businesses may be inferred (when considered in conjunction with the Scheme's guidelines). Moreover, I have difficulty accepting that parties who apply to the government for financial assistance for the conduct of a business, can reasonably expect that their identities, as successful applicants, will be kept confidential.As I have explained above with respect to s.45(1)(c) of the FOI Act, the Authority must be properly accountable to the public for its distribution of public funds. I consider that such accountability should reasonably be expected to include disclosure of the identities of parties who are successful in obtaining financial assistance from public funds to assist their conduct of private sector business operations, the amount of financial assistance each obtains, and the relevant funding criteria which the Authority applied in deciding that those parties qualified for financial assistance from public funds. The touchstone in assessing whether criterion (c) to found an action in equity for breach of confidence (see paragraph 74 above) 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. Having regard to the obligations of the Authority with respect to appropriate levels of accountability to the public for its administration of the Scheme, I am not satisfied that equity would bind the Authority with an enforceable obligation of confidence, restraining it from disclosure of the particular matter in issue.85. I find that the third criterion to found an action in equity for breach of confidence is not satisfied with respect to the matter in issue, and that the matter in issue therefore does not qualify for exemption from disclosure under s.46(1)(a) of the FOI Act.Application of s.46(1)(b) to the matter in issue86. The elements of the test for exemption under s.46(1)(b) of the FOI Act were explained in Re "B" at pp.337-341; paragraphs 144-161. In order to satisfy the test for prima facie exemption under s.46(1)(b), three cumulative requirements must be established:(i) the matter in issue must consist of information of a confidential nature;(ii) that was communicated in confidence; and(iii) 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.87. In relation to the second requirement of s.46(1)(b), I discussed the meaning of the phrase "communicated in confidence" at pp.338-339 (paragraph 152) of Re "B" as follows:I consider that the phrase "communicated in confidence" is used in this context to convey a requirement that there be mutual expectations that the information is to be treated in confidence. One is looking then for evidence of any express consensus between the confider and confidant as to preserving the confidentiality of the information imparted; or alternatively for evidence to be found in an analysis of all the relevant circumstances that would justify a finding that there was a common implicit understanding as to preserving the confidentiality of the information imparted.88. For the reasons given above in my discussion of the requirements to establish criterion (c) for exemption under s.46(1)(a) of the FOI Act, I am not satisfied that any of the matter in issue was communicated in confidence so as to satisfy the second requirement for exemption under s.46(1)(b) (and I note that the information as to the dollar amount of financial assistance received by each third party was not information communicated by the third parties to the Authority). In respect of the third requirement for exemption under s.46(1)(b), I am not satisfied, for the same reasons given at paragraphs 61-62 above, that disclosure of the matter in issue could reasonably be expected to prejudice the future supply of such information. Further, in respect of the public interest balancing test which is incorporated in s.46(1)(b), I refer to my discussion at paragraphs 69-71 above. 89. I therefore find that the matter in issue does not qualify for exemption under s.46(1)(b) of the FOI Act. Conclusion90. I set aside the decision under review (being the decision made on behalf of the respondent by Mr A N J Ford on 9 November 1998). In substitution for it, I decide that the matter in issue does not qualify for exemption under the FOI Act, except for the following information which I find is exempt matter under s.44(1) of the FOI Act-- the addresses of the homesteads/properties (but not the postcodes which form part of those addresses) appearing adjacent to the following file reference numbers recorded in the document in issue 20131; 22256; 34626; 36406; 36631; 38285; 39059; 39321; 39703; and 50251.F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

T30 and Department of Children, Youth Justice and Multicultural Affairs [2023] QICmr 14 (16 March 2023)

T30 and Department of Children, Youth Justice and Multicultural Affairs [2023] QICmr 14 (16 March 2023) Last Updated: 14 April 2023 Decision and Reasons for Decision Citation: T30 and Department of Children, Youth Justice and Multicultural Affairs [2023] QICmr 14 (16 March 2023) Application Number: 316824 Applicant: T30 Respondent: Department of Children, Youth Justice and Multicultural Affairs Decision Date: 16 March 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - DISCLOSURE PROHIBITED BY ACT - document about the affairs of a person other than the applicant and was acquired by a person carrying out functions under the Child Protection Act 1999 (Qld) - whether disclosure prohibited by sections 186 - 188 of the Child Protection Act 1999 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Department of Children, Youth Justice and Multicultural Affairs (Department) under the Information Privacy Act 2009 (Qld) (IP Act) for access to documents relating to the applicant as a foster carer.[2] The Department located 118 pages in response to the application and decided to refuse access to parts of 61 pages and 15 full pages on the ground that this information comprised exempt information as its disclosure was prohibited by sections 186 – 188 of the Child Protection Act 1999 (Qld) (Child Protection Act). The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision.[3] In his external review application, the applicant also raised concerns about the sufficiency of the Department’s searches to locate documents responsive to his access application and in particular a note from a meeting held by a Departmental Practice Panel on a specific date in 2021 (Panel Note). On external review, OIC required the Department to conduct further searches. As a result of those searches, the Department located a four-page document, being the Panel Note. As a result of a preliminary view provided to the applicant by OIC on 3 January 2023, the scope of the applicant’s external review was subsequently limited to the Panel Note.[4] For the reasons set out below, I affirm the Department’s decision and find that access may be refused to the Panel Note. Reviewable decision The decision under review is the Department’s decision dated 27 July 2022. Evidence considered Significant procedural steps taken during the external review are set out in the Appendix. Evidence, submissions, legislation, and other material I have considered in reaching thisdecision 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 Right to Information Act 2009 (Qld) (RTI Act) and IP 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] Information in issue The information in issue is comprised within the four-page Panel Note.[8] Issue for determination The issue for determination is whether access to the Panel Note can be refused on the ground that it comprises exempt information the disclosure of which is prohibited by sections 186-188 of the Child Protection Act. Relevant law The IP Act provides an individual with a general right of access to documents[9] subject to certain limitations, including that an agency may refuse access to exempt information.[10] Relevantly, information is exempt where disclosure is prohibited by sections 186-188 of the Child Protection Act.[11] That is if it is about the affairs of another person[12] and was acquired by a person performing particular functions under the Child Protection Act.[13] The prohibition on disclosure is subject to exceptions set out in schedule 3, section 12(2) of the RTI Act. In particular, that information is not exempt information under schedule 3, section 12(1) if the information is only personal information of the applicant. Sections 187 and 188 of the Child Protection Act also contain a number of exceptions to the prohibition on the disclosure of information given or received under the Child Protection Act. Of relevance to this review and in view of the applicant’s submissions: section 187(3)(c)(iii) provides that access may be given to another person if the Act requires or permits disclosure, for example under chapter 5A, part 4 of the Child Protection Act; and section 187(4)(a) provides that access may be given to another person to the extent that the information is about the other person. Findings As noted at paragraph 4, during the external review the Department located the Panel Note. In relation to the disclosure of the Panel Note, the Department submitted its contention that the Panel Note:[14] ...be exempt in [its] entirety in accordance with Schedule 3 (12) of the RTI Act as [it is] not solely about the applicant. In context the Practice Panel meetings are an internal, facilitated case discussion forum, that provides an authorising environment for making critical decisions or recommendations about a child’s care. Consequently, minutes of the meeting are about the subject child and necessarily, all elements of the document are at a minimum about the subject child but can also be about other people and therefore cannot be characterised as solely about this applicant. Please refer to section 187 of the Child Protection Act 1999 and the Hughes decision for context.[15] In response to OIC’s preliminary view, the applicant provided submissions regarding access to the Panel Note, as follows:[16] he had previously ‘obtained redacted practice panel notes from other RTI applications...’ and that he was ‘...surprised at [OIC’s] refusal to provide those documents pertaining to [him], given that there are provisions to redact exempt information and that carers are active members of the care team which are told of outcomes of practice panels at the time of occurrence’. he had ‘received practice panel notes after the [specific date in 2021] practice panel’ in the process of a court proceeding he was involved in, in September 2022. he and his wife are the ‘legislative recognised parents of the child’ and ‘therefore, as the best interest of the child now sits with [his] wife, and [him], [they] request access to that document. And any past public interest is in the best interest of the child’. as he and his wife have a permanent care order for the child, the applicant considers that Chapter 5A, part 4 of the Child Protection Act applies and that section 187 of the Child Protection Act ‘now does not apply in this matter as if there were confidential matters pertaining to [him] they should be made available to [him].’ he was content for information ‘pertaining to others in [the practice panel] notes’ to be redacted under the RTI Act. In regard to a. above, the applicant may have received similar documents in this past, however this does not impact on my consideration of whether the Panel Notes under consideration here can be considered exempt information. I have also turned my mind to whether redaction of information is reasonable in this case. I do not consider that any information can be disclosed to the applicant that can be considered as solely relating to the applicant. In regard to b. above, I acknowledge that the applicant may have received documents through the court process, however disclosure under the IP Act involves different considerations to disclosure via court processes. In regard to c. above, the exemptions set out in schedule 3 of the RTI Act, do not require or allow consideration of public interest issues. This is because Parliament has determined that disclosure of these categories of information would be contrary to the public interest.[17] Accordingly, if the information falls within one of the categories of exempt information prescribed in schedule 3, a conclusive presumption exists that its disclosure would be contrary to public interest, and no further consideration is permitted.[18] I have therefore not taken account of the applicant’s submissions about the public interest. The Practice Panel met in 2021 to discuss the care of a child. Having reviewed the Panel Note and also considering the circumstances in which it was created, I am satisfied that the Panel Note is about individuals other than the applicant and the information comprised in the Panel Note was received or obtained by Departmental Officers[19] under the Child Protection Act.[20] Accordingly, I am satisfied that the Panel Note is: subject to the prohibition on disclosure in section 187(2) of the Child Protection Act; and qualifies as exempt information under schedule 3, section 12(1) of the RTI Act – unless any exceptions to the exemption apply (as discussed below). As noted at d. of the applicant’s submission above, the applicant does not consider that section 187 of the Child Protection Act applies to disclosure of the Panel Note. The applicant refers to chapter 5A, part 4 of the Child Protection Act to support his view. Section 187(3)(c)(iii) provides an exception to the prohibition on disclosure in section 187 of the Child Protection Act, if giving access to the Panel Note is permitted under the Child Protection Act, for example chapter 5A, part 4 of the Child Protection Act provides that prescribed entities and certain service providers[21] can share confidential information about a child, where it is in accordance with the Child Protection Act, for the specific purpose of meeting the protection and care needs of the child to promote their wellbeing.[22] It is unclear to me whether the applicant as the permanent guardian of the child would qualify as a prescribed entity or service provider as defined in the Child Protection Act.[23] Even if I were to accept that, I do not consider that disclosure of the Panel Note to the applicant would be for any of the prescribed purposes referred to in chapter 5A, part 4, sections 159A to 159ME of the Child Protection Act. On this basis, I am satisfied that the exception in section 187(3)(c)(iii) of the Child Protection Act does not apply to the Panel Note. In relation to the exceptions to the exemption, referred to at section 187(4)(a) of the Child Protection Act and schedule 3, section 12(2) of the RTI Act, where information is not about the applicant, or where the information is about the applicant, but is not solely about the applicant,[24] or where an applicant’s personal information[25] cannot be separated from the personal information of other individuals, the exceptions will not apply, and the information will remain exempt. The Panel Note comprises information about individuals other than the applicant and while it does contain references to the applicant, the applicant’s information is intertwined with the information of other individuals. I am therefore not satisfied that the exceptions in section 187(4)(a) of the Child Protection Act and schedule 3, section 12(2) of the RTI Act apply to the Panel Note, on the basis that it is not solely about the applicant. As I consider the requirements of sections 186 and 187 of the Child Protection Act are met, and no exceptions in the Child Protection Act or schedule 3, section 12(2) of the RTI Act apply, I find that the Panel Note is exempt information under schedule 3, section 12(1) of the RTI Act and access may be refused under section 47(3)(a) of the RTI Act.DECISION For the reasons set out above, I affirm the decision of the Department that access to the Panel Note may be refused on the basis that it comprises exempt information,[26] prohibited from disclosure by the Child Protection Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.S MartinAssistant Information Commissioner Date: 16 March 2023 APPENDIX Significant procedural steps Date Event 28 July 2022 OIC received the applicant’s external review application. OIC requested initial documents from the Department. OIC notified the applicant that it had received the application. 1 & 3 August 2022 OIC received the initial documents from the Department. 31 August 2022 OIC notified the parties it had accepted the application for external review and requested information from the Department. 9 September 2022 OIC received the requested information from the Department. 30 September 2022 OIC requested further information from the Department in relation to the searches conducted by the Department. 7 October 2022 OIC received the Panel Note from the Department in response to further searches. 13 October 2022 OIC corresponded with the Department in relation to the Panel Note. 3 January 2023 OIC conveyed a preliminary view to the applicant. 4 January 2023 OIC received submissions from the applicant contesting the preliminary view in relation to the Panel Note. 18 January 2023 OIC provided an update to the applicant and notified that applicant that the next step would be a formal decision. [1] On 30 March 2022. [2] Including case notes and emails regarding the care provided by him between 30 March 2020 to 30 March 2022, practice panel notes between late 2021 to 30 March 2022, and handwritten notes from his foster carer files for the period 30 March 2020 to 30 March 2022. [3] On 28 July 2022.[4] On 18 January 2023. [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 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).[8] OIC conveyed a preliminary view to the access applicant in relation to the information that was refused by the Department in its decision and the Panel Note located by the Department during the external review. In response the applicant submitted that he did not accept OIC’s preliminary view regarding access to the Panel Note. The applicant did not raise any objections to OIC’s preliminary view in relation to the information initially refused by the Department. On this basis, OIC wrote to the applicant advising that we would proceed to a formal decision in relation to the Panel Note only. [9] Section 40 of the IP Act.[10] Section 67(1) of the IP Act and section 47(3)(a) and section 48 of the RTI Act.[11] Schedule 3, section 12 of the RTI Act.[12] That is, not the person seeking to access the information.[13] Section 187 of the Child Protection Act.[14] Email to OIC dated 7 October 2022.[15] The decision referred to by the Department is Hughes and Department of Communities, Child Safety and Disability Services (Unreported, Queensland Information Commissioner, 17 July 2012) (Hughes).[16] Email from the applicant dated 4 January 2023. [17] Section 48(2) of the RTI Act.[18] Dawson-Wells v Office of the Information Commissioner & Anor [2020] QCATA 60 at [17].[19] The Child Protection Act lists a public service employee as a person to whom section 187 applies – see section 187(1)(a) of the Child Protection Act.[20] Section 187 of the Child Protection Act. [21] As defined in chapter 5A, part 4, section 159M of the Child Protection Act.[22] See in particular chapter 5A, part 4, sections 159MA to section 159ME of the Child Protection Act.[23] At chapter 5A, part 4, section 159M of the Child Protection Act.[24] In Hughes, Assistant Information Commissioner Corby considered whether the exception in section 187(4)(a) of the Child Protection Act applies to shared information about the applicant and other persons. She observed at [26]: ‘The [Child Protection Act] exception only applies where the information is solely about the applicant. Thus where information is simultaneously about the applicant and others, the [Child Protection Act] exception will not apply’.[25] As set out in schedule 5 of the RTI Act and section 12 of the IP Act, ‘Personal information’ comprises ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.[26] Under section 67(1) of the IP Act and sections 47(3)(a) and 48 and schedule 3, section 12 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Pemberton and The University of Queensland [1994] QICmr 32 (5 December 1994)

Pemberton and The University of Queensland [1994] QICmr 32 (5 December 1994) Last Updated: 28 February 2001 OFFICE OF THE INFORMATION ) S 17 of 1993COMMISSIONER (QLD) ) (Decision No. 94032) Participants: DR J M PEMBERTON Applicant - and - THE UNIVERSITY OF QUEENSLAND Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access - matter in issue comprising (a) referee reports obtained by the respondent in connection with applications for promotion made by the applicant and (b) parts of referee reports which would disclose the identities of their respective authors in circumstances where the referees have consented to disclosure to the applicant of the contents of their reports, but have refused to consent to disclosure of their respective identities as authors of the reports - whether matter in issue is exempt matter under s.46(1)(a) of the Freedom of Information Act 1992 Qld - whether disclosure of the matter in issue would found an action in equity for breach of confidence - whether referee reports written by officers of the respondent are excluded from consideration under s.46(1)(a) by the terms of s.46(2) - words and phrases: "a person in the capacity of ... an officer of an agency".FREEDOM OF INFORMATION - whether matter in issue is exempt under s.40(c) of the Freedom of Information Act 1992 Qld - whether disclosure of reports on a candidate for promotion written by Heads of Department, Deans of Faculty and Pro-Vice-Chancellors in their capacity as officers of the respondent could reasonably be expected to have a substantial adverse effect on the management or assessment of the University's personnel - whether disclosure would, on balance, be in the public interest - consideration of circumstances in which there is a public interest in a particular applicant having access to matter in issue.FREEDOM OF INFORMATION - whether matter in issue is matter of a kind mentioned in s.41(1)(a) of the Freedom of Information Act 1992 Qld - whether disclosure to the applicant would, on balance, be contrary to the public interest.Freedom of Information Act 1992 Qld s.6, s.8, s.21, s.25, s.40(c), s.41, s.42(1)(b), s.44(1), s.44(2), s.45(1), s.45(2), s.45(4), s.46(1)(a), s.46(2), s.47(1)(a), s.49, s.52,Criminal Code 1899 Qld s.377, s.378Freedom of Information Act 1982 Cth s.11, s.38, s.40, s.41, s.43(1)(b), s.45(1)Freedom of Information Act 1982 Vic s.30, s.35Motor Car Act 1958 Vic s.50(3) - ii -Ansell v Wells [1982] FCA 186; (1982) 63 FLR 127Attorney-General (NSW) v Quin (1989-90) 170 CLR 1; 64 ALJR 327; 93 ALR 1Attorney-General's Department and Australian Iron and Steel Pty Ltd v Cockcroft (1986) 10 FCR 180"B" and Brisbane North Regional Health Authority, Re (Information Commissioner Qld, Decision No. 94001, 31 January 1994, unreported)B and Medical Board of the ACT, Re (1993) 33 ALD 295Barkhordar and Australian Capital Territory Schools Authority, Re (1987) 12 ALD 332Burns and Australian National University (No. 1), Re (1984) 6 ALD 193Burns and Australian National University (No. 2), Re (1985) 7 ALD 425Cairns Port Authority and Department of Lands, Re (Information Commissioner Qld, Decision No. 94017, 11 August 1994, unreported)Cannon and Australian Quality Egg Farms Limited, Re (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported)Cleary and Department of Treasury, Re [1993] AATA 248; (1993) 31 ALD 214Conway v Rimmer [1968] UKHL 2; [1968] AC 910Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) & Anor [1987] FCA 266; (1987) 74 ALR 428; [1987] FCA 266; 13 ALD 254; 7 AAR 187Department of Social Security v Dyrenfurth [1988] FCA 148; (1988) 80 ALR 533; 15 ALD 232; 8 AAR 544De Souza-Daw and Gippsland Institute of Technology, Re (1987) 2 VAR 6Dyki and Federal Commissioner of Taxation, Re (1990) 22 ALD 124; 12 AAR 544Dyrenfurth and Department of Social Security, Re (1987) 12 ALD 577Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Re (Information Commissioner Qld, Decision No. 93002, 30 June 1993, now reported at [1993] QICmr 2; (1993) 1 QAR 60)G v Day [1982] 1 NSWLR 24Healy and the Australian National University, Re (Commonwealth AAT, No. N84/445, 23 May 1985, unreported)James and Ors and Australian National University, Re (1984) 6 ALD 687 ; 2 AAR 327Kamminga and Australian National University, Re [1992] AATA 84; (1992) 15 AAR 297; 26 ALD 585Kioa v West [1985] HCA 81; (1985) 60 ALJR 113; 159 CLR 550; 62 ALR 321Lander and Australian Taxation Office, Re (1985) 85 ATC 4674; 17 ATR 173Lawless and Secretary to Law Department, Re (1985) 1 VAR 42McEniery and the Medical Board of Queensland, Re (Information Commissioner Qld, Decision No. 94002, 28 February 1994, unreported)Mann and Australian Tax Office, Re (1985) 7 ALD 698; 3 AAR 261News Corporation Limited & Ors v National Companies and Securities Commission [1983] AATA 311; (1983) 5 ALD 334; 76 FLR 184News Corporation Limited & Ors v National Companies and Securities Commission [1984] FCA 36; (1984) 52 ALR 277; 1 FCR 64Norman and Mulgrave Shire Council, Re (Information Commissioner Qld, Decision No. 94013, 28 June 1994, unreported)O'Connor v State Superannuation Board of Victoria (County Court, Dixon J, 27 August 1984, unreported)Peters and Department of Prime Minister and Cabinet, Re (1983) 5 ALN N306Pope and Queensland Health, Re (Information Commissioner Qld, Decision No. 94016, 18 July 1994, unreported)Public Service Board v Scrivanich (1985) 8 ALD 44Ratepayers and Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746Ryder & Anor v Booth; State Superannuation Board v O'Connor [1985] VicRp 86; [1985] VR 869 - iii -Sankey v Whitlam (1978) 142 CLR 1; 53 ALJR 11; 21 ALR 505Saunders and Commissioner of Taxation, Re (1988) 15 ALD 761; 19 ATR 3715Science Research Council v Nassé [1979] UKHL 9; [1980] AC 1028; [1979] 3 WLR 762Scrivanich and Public Service Board, Re (1984) 6 ALD 98Searle Australia Pty Ltd v Public Interest Advocacy Centre & Anor (1992) 108 ALR 163; [1992] FCA 241; 36 FCR 111; 16 AAR 28Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473; 49 ALJR 166; 5 ALR 513Smith Kline and French Laboratories (Aust) Ltd & Ors v Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291Spring v Guardian Assurance Plc & Ors [1994] 3 WLR 354Stewart and Department of Transport, Re (Information Commissioner Qld, Decision No. 93006, 9 December 1993, unreported)Witheford and Department of Foreign Affairs, Re (1983) 5 ALD 534Young and State Insurance Office, Re (1986) 1 VAR 267 - iv - DECISION 1. I affirm that part of the decision under review by which it was determined that the matter withheld from the applicant, as contained in documents 2, 3, 5, 6, 7, 8, 10, 11, 12, 13, 14, 16(a), 16(b), 21, 22 and 24 (which are identified in paragraphs 11 to 28 of my reasons for decision) is exempt matter under s.46(1)(a) of the Freedom of Information Act 1992 Qld2. I affirm that part of the decision under review by which it was determined that document 1 (as identified in paragraphs 11 and 13 of my reasons for decision) is exempt matter under s.40(c) and s.41(1) of the Freedom of Information Act 1992 Qld.3. I vary the decision under review to the extent that I find that documents 18, 19 and 20 (as identified in paragraphs 11 and 28 of my reasons for decision) - (a) are not exempt documents under s.46(1)(a) of the Freedom of Information Act 1992 Qld; and (b) are not exempt from disclosure to Dr Pemberton under s.40(c), s.41(1) or s.44(1) of the Freedom of Information Act 1992 Qld (except for the last three sentences in the final paragraph of documents 18 and 19, which are exempt matter under s.40(c) and s.41(1)).Date of Decision: 5 December 1994...........................................................F N ALBIETZINFORMATION COMMISSIONER - v - TABLE OF CONTENTS PageBackground 1 The Review Process 3 Documents in Issue 3 Applicant's Promotion Applications 1979-1986 3 Applicant's 1992 Application for Promotion from Reader to Professor 5 Evidence Filed by the Respondent 5 Evidence which relates specifically to the particular documents in issue 5 Evidence which goes to the general issue as to whether referee reports should remain confidential 12Application of s.46 of the FOI Act 34 Application of s.46(2) 35 Application of s.46(1)(a) 41Application of s.40(c) and s.41(1) 47 Respondent's submissions with respect to s.40(c) and s.41 48 Applicant's submissions in respect of s.40(c) and s.41 52 Issues in the application of s.40(c) 55 The test for establishing prima facie exemption under s.40(c) 55 The "loss of candour" argument 56 The "retaliation/disruption" argument 66 Additional public interest considerations relevant to the public interest balancing test which qualifies s.40(c) 67 Recognition of a public interest in a particular applicant having access to particular documents 68 Consideration of s.41(1) 80Conclusion 81OFFICE OF THE INFORMATION ) S 17 of 1993COMMISSIONER (QLD) ) (Decision No. 94032) Participants: DR J M PEMBERTON Applicant - and - THE UNIVERSITY OF QUEENSLAND Respondent REASONS FOR DECISIONBackground1. The applicant is an Associate Professor in the Department of Microbiology at the University of Queensland (the University). He seeks review of the respondent's decision under the Freedom of Information Act 1992 Qld (hereinafter referred to as the FOI Act or the Queensland FOI Act) to:(a) refuse access in full to a number of referee reports obtained by the respondent in connection with applications for promotion made by the applicant; and(b) refuse access to parts of other referee reports which would disclose the identities of their respective authors in circumstances where the referees have consented to disclosure to the applicant of the contents of their reports, but have refused to consent to disclosure of their respective identities as authors of the reports.2. By letter dated 20 November 1992, the applicant lodged with the respondent an FOI access application seeking "copies of all the files pertaining directly or indirectly to me and in the possession or control of the University". The University's response, given on 4 January 1993, identified some ten files containing more than 700 folios, to the vast majority of which the applicant was allowed access. With one or two minor exceptions (which the applicant is not concerned to pursue in these proceedings in any event) the folios which the University determined to withhold from access comprised referee reports given in respect of various applications for promotion within the University that had been made by the applicant since 1979. 3. On 20 January 1993, the applicant lodged five separate requests for internal review (in accordance with s.52 of the FOI Act) of various aspects of the University's decision of 4 January 1993. While the grounds of some of those internal review applications varied slightly, the grounds of objection were generally consistent. I will not reproduce them here, since they are repeated and enlarged upon in the applicant's written submission to me for the purposes of this review, the relevant extract from which appears at paragraph 119 below.4. The requested internal reviews were undertaken by the University's Secretary and Registrar, Mr D Porter. Mr Porter's internal review decision was given in two stages. Mr Porter first wrote to the applicant on 4 February 1993 dividing the documents then in issue into three categories. The two folios in the third category have since been released to the applicant following concessions made during the course of the review process and need not be dealt with further. 5. The second category of documents was described as "minutes of meetings of the promotion sub-committees which considered your [i.e. the applicant's] applications for promotions". Mr Porter's decision in respect of this category of documents was as follows: These committees make recommendations to the University's central Promotions and Re-appointments Committee and should be in a position to make objective assessment as part of the deliberative processes of the University. It is not necessarily in the public interest that such advice, which may or may not be acted upon, should be disclosed. However, it is in the public interest that all applicants for promotion have confidence in the University procedures and are in a position to address and answer any adverse comments. I am also mindful that the procedures to which these minutes refer took place some time ago and that you would have had an opportunity for feedback from the President of the Academic Board where the decision was not to grant a promotion. On balance I can see little point in refusing you access to these documents. I am, therefore, releasing folio 6 to you in full. Folios 43-44 and folio 120, however, contain direct reference to information which was provided to the University in confidence. I am, therefore, releasing these documents to you with some sections deleted. I propose deferring a final decision on whether to give full access to these documents until after the process of consultation above is completed.Only one deletion from folio 44 (which is document 6 described in paragraphs 14 and 17 below), being the name of a referee, still remains in issue at this stage, the applicant having had access to complete versions of folios 43 and 120. 6. The documents in the first category comprised "references obtained either from external assessors or internally from University staff in the course of assessing [the applicant's] applications for promotion". Mr Porter sought time to consult with the author of each report in order to establish whether the author:(a) wished to maintain confidentiality in respect of both the contents of the referee report and the identity of the author; or(b) was prepared to release the contents of the referee report, but wished to preserve anonymity of authorship; or(c) was prepared to have both the contents of the report and the identity of its author disclosed to the applicant.7. The respondent has supplied me with copies of the correspondence to and from each of the authors in question. Some referees consented to options (b) or (c), as a result of which further material was able to be released to the applicant. A number of referees insisted on strict confidentiality. Mr Porter's internal review decision in respect of the third category, given by letter dated 18 February 1993, basically reflects the choices made by the referees who responded to his consultation letters. Where a response could not be obtained from particular referees, however, Mr Porter determined that reports provided by those referees were exempt in their entirety. I do not propose to set out Mr Porter's reasons for decision since they are repeated and refined in the respondent's written submissions made during the course of this review, which are set out at length below. The grounds of exemption relied upon by Mr Porter for withholding access to referee reports, or to matter which would identify the author of a referee report (in circumstances where the balance of the referee report had been released to the applicant), included s.40(c), s.41(1), s.44(1) and s.46(1) of the FOI Act.8. By letter dated 24 February 1993, the applicant applied for review of Mr Porter's decision under Part 5 of the FOI Act. The Review Process9. A preliminary conference was held with the applicant on 10 March 1993 to clarify certain matters relating to the documents, and the nature of the issues, still in dispute. The documents in issue were then obtained and examined. A further conference was held on 21 April 1993, attended by the applicant and two representatives of the respondent, including Mr Porter. Although attempts were made to mediate the dispute, it quickly became clear that the University regards the confidentiality of referee reports in the freedom of information era as a major issue of principle which it wishes to test. During the course of the review process, further concessions have been made resulting in further material being released to the applicant, but this has invariably been on the basis that the author of the referee report in question consented to its release. 10. Agreement was reached with the participants on a timetable for filing any evidence or written submission in support of their respective cases. The evidence ultimately filed on behalf of the University ran to many hundreds of pages. It is described in greater detail below. The University also filed a written submission of some 34 pages which covered relevant case law and dealt with relevant public interest considerations. Dr Pemberton did not file any formal evidence, but supported his case with a written submission of some 15 pages which addressed the evidence filed by the University.Documents in Issue11. For the purposes of the conference with participants on 21 April 1993, a schedule of the documents then remaining in issue was drawn up and the documents were numbered from 1-24. That numbering scheme has been adopted by the participants for the purposes of the written submissions which each participant has lodged, and it will also be adopted in these reasons for decision to refer to the documents remaining in issue. Documents 4, 9, 15, 17 and 23 from that schedule no longer remain in issue, the applicant having been given access to them with the consent of the respective referees who authored them.Applicant's Promotion Applications 1979-198612. The relevant promotion procedures for academic staff followed within the University during this period are described in Mr Porter's evidence which is set out at paragraph 30 below.13. Document 1 was prepared in connection with the applicant's 1979 application for promotion from Lecturer to Senior Lecturer. The document is titled "Recommendation and Comments of Head of Department", it having been the standard practice to obtain an assessment by the Head of Department on the suitability of a candidate for promotion. Mr Porter has given evidence (at paragraph 31 of his statutory declaration) that he did not authorise contact with the referee who produced document 1 because "[the referee] is in a poor state of health and I am concerned that any contact with him will deleteriously affect his health". Document 1 has been withheld from the applicant in its entirety. The document is a pro forma requiring certain boxes to be ticked, but also leaving space for comments. The document is headed "Confidential".14. Documents 2, 3, 5 and 6 were prepared in connection with the applicant's 1982 application for promotion from Senior Lecturer to Reader. The applicant has been refused access to document 2 in its entirety. Document 2 is again a pro forma having the title "Assessment of Teaching Ability - Guide to Assessment Form". The applicant would have been aware of the standard practice of having this pro forma completed by another academic able to make an assessment of the teaching ability of a candidate for promotion, but would not ordinarily have been aware of the identity of the person, or persons, who undertook that task in the applicant's case. The pro forma describes seven categories in which the referee is asked to rate the performance of the candidate for promotion on a scale from 1-6. It also leaves abundant space for comments. Again, the pro forma is headed "Confidential". 15. Document 3 is a referee report, the contents of which have been released to the applicant, except for the author's name, signature and work address, these being details which would identify the author, who has communicated to the University a wish to preserve anonymity.16. Document 5 is the pro forma "Recommendation and Comments of Head of Department" prepared in connection with the applicant's 1982 application for promotion from Senior Lecturer to Reader. That document has been released to the applicant subject only to the deletion of the name of the author of document 2.17. Document 6 is the report of the Committee which assessed the applicant's 1982 promotion application. Document 6 has been released to the applicant subject only to the deletion of the name of the author of document 3.18. Having been unsuccessful in his 1982 application for promotion from Senior Lecturer to Reader, the applicant made a further application for promotion in 1985. Documents 7, 8, 10, 11, 12, 13 and 24 were prepared in connection with the applicant's 1985 application for promotion.19. Document 7 is the final page of the pro forma "Recommendation and Comments of Head of Department" for the applicant's 1985 promotion application. The applicant has been given full access to the other pages of that completed pro forma. The only matter which has been deleted from the final page comprises the names and addresses of three referees who have communicated their desire to preserve their anonymity.20. Document 8 is the final page of the pro forma "Assessment of Teaching Ability" prepared in respect of the applicant's 1985 promotion application. The applicant has been given access to the other pages of that completed pro forma. The matter which has been deleted from the final page is matter which would identify the referee who provided that assessment, and who has expressed a desire to preserve anonymity.21. Document 10 has been withheld from the applicant in its entirety. It is a referee report assessing the applicant's reputation for scholarship and research, and it bears the marking "In Confidence".22. Document 11 is another referee report on the applicant's reputation for scholarship and research. The applicant has been given access to the contents of that referee report except for the author's name, signature and work address, the author having expressed a desire to preserve anonymity.23. Document 12 comprises two pro forma letters addressed respectively to the authors of documents 10 and 11 informing them of the outcome of the applicant's promotion application and thanking them for their willingness to provide a referee report. The applicant has been given access to copies of those letters from which the name and address of each referee have been deleted.24. Document 13 is a memorandum from the President of the Academic Board of the University to the Vice-Chancellor which reports on an interview which the applicant sought following his unsuccessful 1985 promotion application. The applicant has been given access to the contents of this memorandum subject to the deletion of the names of the authors of documents 10 and 11, and the identity of the Universities at which they were then employed.25. Document 24 is a list of possible referees as to the applicant's scholarship and original achievement. The list was submitted by the applicant himself in connection with his 1985 application for promotion. The only material which has been deleted from document 24 are two annotations made by the applicant's then Head of Department, the disclosure of which would have the effect of disclosing the author of document 11, who as noted above, has expressed a desire to preserve anonymity. 26. Documents 14, 16(a) and 16(b) were prepared in connection with the applicant's 1986 application for promotion from Senior Lecturer to Reader. Document 14 is the pro forma "Assessment of Teaching Ability". Document 14 has been withheld from the applicant in its entirety, its author having insisted that it was given in confidence and that its confidentiality should be preserved. 27. Documents 16(a) and 16(b) are respectively the final page and the first page of the pro forma "Recommendation and Comments of Head of Department" prepared in connection with the applicant's 1986 application for promotion. The only matter deleted from document 16(a) comprises the names and addresses of two of the persons nominated by the Head of Department as assessors of scholarship and original achievement. The only matter deleted from document 16(b) is the identity of the author of document 14.Applicant's 1992 Application for Promotion from Reader to Professor28. The relevant promotion procedures in this regard are described in Mr Porter's evidence which is set out at paragraphs 31-32 below. Documents 18, 19, 20, 21 and 22 were all prepared in connection with the applicant's 1992 application for promotion from Reader to Professor. Documents 18, 19, 20 and 22 have been withheld from the applicant in their entirety. Each of them comprises a report or assessment of the applicant's suitability for promotion to Professor. Document 21 is a letter from the Vice-Chancellor to one of the referees involved. The applicant has been given access to the contents of the letter subject to the deletion of the name and work address of the addressee. The applicant will be aware from the guidelines issued by the University in relation to this promotion process that three of the reports withheld from him must have been provided by the relevant Head of Department, Dean of Faculty and Pro-Vice-Chancellor, whose identities would be known to him. Evidence Filed by the Respondent29. The evidence filed by the respondent dealt comparatively briefly with the actual documents remaining in issue, and rather more expansively with the general question of the claimed prejudicial effects of disclosure of confidential referee reports. The general question is, of course, relevant to the specific question of whether the particular documents and parts of documents in issue in this case comprise exempt matter under the FOI Act, but ultimately it is the specific question which it is my task to determine (see Department of Social Security v Dyrenfurth [1988] FCA 148; (1988) 80 ALR 533 at pp.541-2). I will set out first the evidence which relates to the particular documents in issue, followed by the evidence which pertains to the general issue. The evidence filed on the general issue runs to hundreds of pages, and while I have examined it all carefully, considerations of space require that I set out in these reasons for decision only samples of the evidence filed which highlight some representative views from both sides of this difficult issue.Evidence which relates specifically to the particular documents in issue30. Mr Porter's statutory declaration executed on 18 May 1993 described the promotion procedures relevant to the documents in issue discussed at paragraphs 11 to 27 above as follows: 13. With respect to applications for promotion from Lecturer to Senior Lecturer and from Senior Lecturer to Reader in the years between 1979 and 1986 I have no personal knowledge of the procedures adopted but I am informed by staff of the University and verily believe that the procedures were as follows: (a) Application was open to any staff member. (b) Applications were in the first instance dealt with by one of a number of area sub-committees, depending upon the applicant's Department. (c) The area sub-committee obtained reports from the Head of Department, teaching referees and academic assessors for all applicants. The teaching referees were nominated by the applicant and the Head of Department. The academic assessors were nominated by the Head of Department. (d) The area sub-committee then interviewed all applicants and on the basis of the interview and the materials before it made a report to the central committee which contained comments on individual applicants and a ranking of all applicants. (e) The central committee then considered all applications in the context of the area sub-committee reports. (f) The Vice-Chancellor then approved applications on the recommendation of the Academic Board after consideration of the central committee report.31. In paragraphs 18 and 19 of his statutory declaration, Mr Porter stated: 18. Promotion to Professor (as distinct from application for an advertised Chair vacancy or nomination for a personal Chair) was introduced in the University in 1992. 19. The procedure adopted for consideration of applications for promotion to Professor in 1992 are set out in a letter from the Vice-Chancellor dated 30 March 1992. A copy of that letter is attached and marked as Exhibit 9.32. Exhibit 9 to Mr Porter's statutory declaration sets out in detail the procedures to be followed in this new system, and the following parts of exhibit 9 are worth recording: Senate has approved a system of promotion to the rank of Professor. Promotion to Professor will be considered by the Senate Professorial Promotions Committee. The rank of Professor is reserved for individuals with outstanding performance records. Quality is a key criterion and, although no quotas are prescribed, promotion to this rank is expected to be limited in number, annually. Successful candidates are expected to meet the standards for Chair level appointments in major universities. ... Candidates should submit their application and all supplementary material to their Heads of Department no later than 24 April so that the Head may consult with other senior Department members before the closing date. ... There is no specific application form for promotion to Professor. Candidates should ensure, however, that their application includes at least the following information: a. Employment history. b. Educational history and qualifications. c. Teaching activities (including objective teaching evaluations). d. A list of higher degree candidates successfully supervised. e. A complete list of the outcomes or products of research and professional activity, including publications, prizes and awards, in relation to scholarship and original achievement. f. A list of references from the literature in the candidate's field providing external evidence of merit (e.g. citations, published reviews of performances or books and exhibitions). g. A copy of the 3 works considered by the applicant most important. (These may relate to teaching, research or both). h. A description of administrative accomplishments of a substantial nature which have produced demonstrable benefit to the University. The Committee may obtain such additional information as it deems appropriate in each case, including reports obtained in confidence from referees selected by the Committee. 4. Report and Recommendation by Head of Department A detailed report will be sought in confidence from the Head of Department. These reports will be submitted to the Committee with the application and will address each of the criteria, provide an overall recommendation with respect to the application, and nominate referees who may be approached by the Committee. Heads of Department will receive, under separate cover, guidelines for the preparation of these reports. 5. Dean and Pro-Vice-Chancellors Copies of the application, together with the Head of Department's recommendation, should be sent by the Head both to the Pro-Vice-Chancellor and to the Dean considered by the Head to be the most appropriate in respect of the particular applicant. Pro-Vice-Chancellors and Deans will provide reports in confidence to the Committee. ... 8. Feedback Unsuccessful candidates will receive feedback on their application. Interviews will be given on request. 9. Limit on Re-application Unsuccessful candidates may not reapply until three years have elapsed, although exceptions can be made by the Vice-Chancellor in rare circumstances. CRITERIA The criteria for promotion to Professor are as follows: (a) academic leadership as demonstrated by: ? an international reputation for outstanding research and scholarship as exemplified by scholarly publications, performances, creative works, citations, invitations to give keynote addresses, success in obtaining research grants, election to learned academies, honorary degrees, awards and prizes; ? outstanding teaching achievements and student assessments; ? research team leadership; ? guiding the development of colleagues and postgraduate students through supervision and collaboration; ? administrative accomplishments of a substantial nature which have produced demonstrable benefit to the University; (simply holding an administrative post would not fulfil this criterion; candidates must be able to demonstrate significant achievements in office); ? professional peer recognition of significant achievements at a state, national or international level, exemplified by leadership of learned societies and outstanding contributions to continuing education; (b) extraordinary achievements equivalent to those that could have previously resulted in the award of a personal chair may be sufficient for promotion to Professor. It is recognised that few individuals will be outstanding on all the criteria listed under (a) above and that extraordinary achievements in one category may compensate for lesser achievement in another.33. At paragraph 6 above, I referred to the fact that, prior to making his internal review decision, Mr Porter wrote to each referee whose report had been withheld seeking their views on disclosure. I have been provided with a copy of each response obtained, both those consenting to disclosure or part disclosure, and those insisting upon the maintenance of confidentiality. After Dr Pemberton lodged his application for external review, Mr Porter arranged for the University Freedom of Information Officer to seek further comments from the referees whose reports or whose identities remain undisclosed. The approach to each referee stated that "the purpose of this letter is to ask whether you wish to provide any information to assist the University to argue and to justify its position of non-disclosure". Extracts from the responses received are set out in exhibit 15 to Mr Porter's statutory declaration, in a form which does not identify their respective authors. Considerations of space prevent me from setting out the views expressed by all of the referees whose documents remain in issue, but I think it is important to include a sample in explaining the nature of the concerns that have prompted those referees to insist on the maintenance of strict confidentiality, or alternatively upon strict maintenance of anonymity of authorship. The following extracts are from exhibit 15 to Mr Porter's statutory declaration: REFEREES RESPONSES EXTERNAL REFEREES - UNITED STATES A. Initial responses A.1 'I certainly have no problem in Dr Pemberton seeing the content of the letter in question, but as a matter of principle I do believe that the correspondent should remain anonymous. Like you, I feel that such anonymity leads to the most candid and objective evaluation. Additionally, I might add that were some of the correspondents to become known while others remained anonymous one might be tempted to "play games" in assessing who the other might have been. This could prove to be an embarrassment.' A.2 'It was my understanding that the information I provided to the University was confidential and provided in the strictest confidence, and that it would not be released to anyone except members of the committee evaluating the qualifications of Dr Pemberton for promotion. While it continues to be my understanding that it is University policy to treat my report in the strictest confidence, I am willing for the contents of my report to be released to Dr Pemberton, subject to strict maintenance of my anonymity. While I understand the intent of the Freedom of Information Act that is now in effect in Australia, I point out that my letter of 1985 antedated the FOI Act and that my letter, like many others written in response to a request for a candid assessment of a candidate's qualifications, was communicated to the University in confidence.' B. Responses to further letter B.1 '1) If we lived in a perfect world involving nothing but perfect people (scientists included), the question you posed would be moot. Unfortunately, scientists are reflective of the populace at large, they can harbour ill feelings, possess prejudices and emanate suspicion of and to their peers. Because the community is small, we are continuously being asked to evaluate one another, whether for promotion, research grants, manuscripts, etc. Thus, given the frailties of us humans, would we always resist the opportunity to be less objective and more subjective regarding someone whom we think might have or did impinge upon us in someway? Clearly, the reverse argument that knowing the identity of a respondent could protect the individual against similar treatment. However, this argument is shallow because by having a number of respondents involved in the evaluation process protects against the outrageous activities of any one. 2) Additionally, I know individuals who will not write a letter of evaluation if they thought for a moment that the letter, as well as the identity of the respondent, would become available to the individual involved. I don't think we wish to exclude such respondents, since their reasons for feeling the way they do may be well justified. 3) I raise the question as to why it is important to the person being evaluated to know the contents and identity of such letters? Certainly, a travesty could be committed but that would have to involve a rather grand conspiracy and one that is easily detectable by a third party serving as ombudsman. 4) Finally, I say this with some trepidation, but the individual being evaluated may need protection from him-or-herself, i.e. not knowing is probably the best elixir for the mental health of the individual'. EXTERNAL REFEREES - AUSTRALIA A. Initial responses A.3 'I have come to the conclusion that any documents that I wrote in previous years were provided in the belief that they would remain confidential, and that at least in 1986, my agreement to act as a referee for Dr Pemberton was under the conventions of the day, namely that anything I wrote remained confidential ...' B. Responses to further letter B.2 '... it should be made clear that if his name and report were released, he would not write another referee report. He had no doubt that when the case was written up other academics would adopt a similar attitude: referee reports would merely consist of motherhood statements - the quality of reviews of candidates would decline markedly; or academics would resort to giving reports over the telephone.' [Record of telephone conversation] ... B.6 'The first point I would make is that this is indeed a matter of general principle, and has nothing to do with the detail of my recommendations concerning Assoc Prof Pemberton or any other person. My earlier advice to you still stands, namely that all reports requested in confidence from Deans, Heads and referees should remain confidential, and that those who give such reports should resist the temptation to release selectively those reports which are benign or flattering to the staff involved, for that would serve to identify those reports which are critical or negative. Confidentiality of reports must be uniform if they are to serve their purpose, which is to ensure that the fullest information about an applicant is available, in writing, to a selection or promotions committee, which can then balance that total information and, if necessary, seek further clarification of particular items. It is in the public interest that this University should appoint the best possible academic staff and promote those whose performance helps the University achieve its goals. The selection and promotion committees which must make these difficult decisions usually have two sources of information. The first is the candidate's curriculum vitae, which is supplied by, therefore controlled by, the candidate. It contains information which the candidate wishes to be known and, which, for the most part, can be easily documented or measured, such as research publications, research grants, subjects taught, postgraduate students supervised, professional committee or society membership, and so on. Candidates frequently include in the curriculum vitae the reports or comments of others on their activities, when these are favourable. The second source of information which a selection or promotions committee needs is referees' reports, which assess the quality or impact of a candidate's activity. For example, the quality of a candidate's research is not measured simply by the number of publications, for one needs additional information on whether the research is significant or trivial, and it is difficult to see how this can be gained except through the reports of other researchers in the same area. A selection or promotions committee would have neither the time nor the expertise to read all of every candidate's publications and make the judgement that way. Another matter on which referees' reports are essential concerns the interaction between a candidate and other staff and students. One needs to know whether the candidate is a source or a sink of inspiration to students, and whether the candidate interacts constructively with other staff in a Department or with the outside community. Heads of Department, Deans and Pro-Vice-Chancellors are well placed to report on these aspects of a candidate's performance by virtue of their frequent interaction with other staff and students. Lack of confidentiality seriously compromises the honesty of referees' reports and I can give examples of this from my own experience. I recall one case of an application for promotion where the Head's report was supportive, but in private conversation the Head admitted that the applicant was a disruptive influence within the Department and a poor teacher who could not be trusted with any of the Department's major subjects. The reason this Head offered for not reporting honestly was that the report was prepared in collaboration with other senior members of the Department (as is the practice), and he had reason to believe that the content of the report would find its way back to the candidate. Much as one may deplore the flaw in human nature which produced this situation, it does illustrate the point that even the prospect, of breach of confidentiality, inhibits honesty. My other example is referees' reports originating in the USA. Because the general expectation there is that the report will not remain confidential, they rarely say anything negative. Our selection committees, in assessing such reports, have learned to re-normalise the English language. A candidate who is described merely as 'competent' or 'diligent' is probably neither, while someone described as an 'outstanding genius' is probably worth considering further. We have also learned to look for what is not said, e.g. if no comment is made about a candidate's teaching, we suspect that he/she is a poor teacher. At best, referees' reports from the USA are treated with caution, if not suspicion. At worst, they can act to the detriment of a candidate because we try to read between the lines, messages which the authors did not intend. All this uncertainty originates from an environment in which the reports are assumed to lack confidentiality. Of course, the way this situation is managed in the USA is by means of the telephone, and we are quite capable of using the same technique ourselves. Personally, I would rather not see referees' reports so reduced in credibility that the only valuable information they contain is the telephone number of the author. The result would be that information currently available in writing for scrutiny by all members of a selection or promotion committee, would be reported second-hand and verbally by individual members of the committee. Such a situation would be detrimental both to candidates and to the University.Evidence which goes to the general issue as to whether referee reports should remain confidential34. The general issue is considered so significant for the administration of the University that a policy was formulated for ratification by the Senate of the University, as explained at paragraphs 6-10 of Mr Porter's statutory declaration: 6. One of the issues which has recurred in discussion of freedom of information within the University is the confidentiality of referees' reports. The Academic Board of the University considered this matter on 9 November 1992. 7. The Academic Board of the University is a representative body of almost 150 members comprised in the main of Pro-Vice-Chancellors, Deans, Heads of Departments, and elected representatives of academic staff of the University. It is an advisory body which gives the academic community an avenue through which issues they believe are important can be brought to the attention of the Senate. 8. At its meeting on 9 November 1992 the Academic Board resolved to recommend to Senate that it put in place a policy requiring that confidentiality of referees' reports for academics be maintained. An extract from the minutes of that meeting is attached and marked as Exhibit 2. 9. On 26 November 1992 the Senate considered the resolution of the Academic Board and approved a confidentiality policy, a copy of which is attached and marked as Exhibit 3. 10. The policy of 26 November does not represent a significant change in the University policy on these issues. The University has for many years maintained a policy of confidentiality of referees' reports for academics. The policy of 26 November represents a reassessment of University policies in light of the move to freedom of access and a reaffirmation in this particular instance that the University and the bulk of its academic staff see the maintenance of confidentiality of referees' reports as necessary for the proper running of the University.35. Exhibit 3 to Mr Porter's statutory declaration discloses that on 26 November 1992, the Senate of the University resolved to approve a policy in the following terms: Senate resolved - 1. that referees' reports and comments from University officers sought on staff in the following categories as part of the promotions, tenure or selection process be regarded as having been sought in confidence: * all academic staff in Levels B to E * full-time tenureable staff in Level A * all research only academic staff at levels equivalent to academic staff in Levels B to E; 2. that any request letters sent to referees seeking reports on promotion, tenure and appointment candidates be amended to include a request that the referee indicate the terms on which the report was provided; 3. that subject to approval of 2. above, the following paragraphs be included in the request letters: 'Your appraisal of the candidate's suitability for [promotion] [tenure] [appointment to the position] will be treated in the strictest confidence by the University, unless you indicate in your report your willingness to release the report to the candidate on request. The University would appreciate an indication of the terms on which your report was provided through the inclusion of one of the following paragraphs in your report:' 'This report contains confidential information and was provided in the strictest confidence. It was my understanding that the University will not release the report to the candidate.' or 'This report contains confidential information and was provided in the strictest confidence. It was my understanding that the University will not release the report to the candidate without first seeking and obtaining my permission to do so.' or 'I understand that it was University policy to treat this report in the strictest confidence; however, I am willing for this report to be released to the candidate on request.' or 'I understand that it was University policy to treat this report in the strictest confidence; however, I am willing for the contents of this report to be released to the candidate on request, subject to maintenance of the author's anonymity.' 4. that all references to Freedom of Information be deleted from referees' request letters, information leaflets, instruction sheets and the like that are sent or distributed as part of the promotions, tenure and selection processes.36. In paragraphs 11 and 12 of his statutory declaration, Mr Porter stated: 11. On 29 April 1993 I caused to be distributed to Heads of Departments, Deans and some other officers of the University a document asking for comment on issues raised by this application [i.e. Dr Pemberton's application for review]. A copy of the document is attached and marked as Exhibit 4. 12. To date I have received 49 responses to my request. Copies of all responses are attached and marked as Exhibit 5.37. The survey questions which are Exhibit 4 to Mr Porter's statutory declaration are divided into 5 segments, each containing several questions (though I note that the document itself states in bold type that "The University is seeking not only answers to questions, but your reasoning behind those answers. It also seeks examples or evidence which support your views.") The first segment is aimed at establishing that there is a well-understood convention that referee reports in respect of University appointments and promotions are given in confidence (see paragraphs 97-102 below). The second segment asks whether, when giving references for academic colleagues, the respondents to the survey regard themselves as acting in their official capacity as an officer of the University. This issue is dealt with at paragraphs 71-87 below. The third segment asks for details of adverse effects on personnel management and assessment through disclosure of referee reports, and the fourth segment asks whether the balance of competing public interest considerations favours disclosure or non-disclosure of referee reports. These issues are relevant to the application of s.40(c) and s.41 of the FOI Act which are considered below at paragraph 120 and following. The fifth segment relates to whether it is practicable for referee reports to be disclosed with all identifying material removed. 38. I think that survey evidence of this nature has to be treated with some caution. Survey questions can be worded so as to indicate or prompt the desired response. Segments 3 and 4 of the survey form illustrate this: 3. Another exemption [s.40(c) of the FOI Act] operates if disclosure could reasonably be expected to have a substantial adverse effect on management or assessment of the University's staff. One possible effect is that disclosure of past internal documents of the kind being considered may lead to disruption within a Department, if they contain opinions that are adverse to the applicant. Management of personnel will be made more difficult if staff within the Department are at odds over a report. In addition, if it is decided that a report must be released, a possible future effect is that reports will be less frank due to authors trying to avoid anticipated disruptions of the type referred to above. Assessment of staff for promotion may therefore be less effective. 3.1 In what ways would disclosure of your name and comments made by you adversely affect the management or assessment of staff? 3.2 In what ways would disclosure of your comments as a referee, without giving your name, adversely affect the management or assessment of staff? 3.3 With regard to the above, would the adverse effect, if any, be substantial? 4. This exemption applies, unless disclosure would, on balance, be in the public interest. In determining what is in the public interest, the Commissioner will have to consider the balance between two competing interests. ? The public interest in an applicant's right to know what has been said about him or her in a reference and the right to correct inaccurate or misleading information. ? The public interest in avoiding any adverse effect which disclosure might have on the University in its efforts to ensure the quality of promoted candidates. In the past it has been suggested that there is little evidence of adverse effect in disclosure of reports of a supervisor on a subordinate. In the event of a subordinate being advised of a bad report, it is said there is little that the subordinate can do in retaliation against the supervisor. 4.1 Would there be adverse effects, other than those referred to in 3, on the University, you or anyone else if there was disclosure of referees' reports? 4.2 Would you be less inclined to give full and frank reports if there was disclosure of referees' reports? 4.3 Do you think academics generally would be less inclined to give full and frank reports if there was no confidentiality? 4.4 Does the collegial system operating in universities distinguish the academic staff position from that of an ordinary supervisor/subordinate position? If so, in what ways and how does this affect your answers to the above questions? 4.5 Are there any other public interest factors which you think are relevant to this case? 4.6 Do you consider the balance of the public interest lies with disclosure of reports? 4.7 Would the answers to any of the above questions be different if reports were to be released with material identifying the author deleted? If so, how?"39. In Part 3, for example, the respondents to the survey are asked only to identify adverse effects that would follow from disclosure of referee reports. The general tenor of the survey form is to invite the respondent to support the suggestions contained therein that disclosure of referee reports is a bad thing. I think it is unwise, in the particular circumstances of this case, to make too much of this. On the one hand it can reasonably be expected that persons in the group surveyed have the intellectual capacity not to be manipulated by the phrasing of the survey, if they held contrary views. That is borne out to some extent by the fact that some 20% of the respondents to the survey, by my rough calculations, responded in favour of disclosure of referee reports. On the other hand, the group surveyed (Heads of Department and Deans of Faculty) for the most part is comprised of members of the Academic Board of the University, which recommended the University's current policy on confidentiality of referee reports. In other words, the survey was, for the most part, preaching to the converted, and soliciting evidence in support of the University's system from persons who had already progressed through the system to senior levels of University administration. I have no evidence of whether a similar survey of more junior academic staff would have produced a quantitatively different result in terms of the measure of support for the maintenance of the status quo. The assistance to be derived from the responses to the survey is, in my opinion, primarily qualitative rather than quantitative. Unfortunately, it is clear that many respondents (having been allowed only limited time to respond) gave only cursory consideration to their responses. While I have considered all of the material in exhibit 5 carefully, I have gained most assistance from the responses of persons who have clearly taken some time to formulate a careful and considered response. Again, considerations of space mean it is only possible to set out a sample of the views disclosed in the responses to the survey.40. I have selected extracts which best represent and illustrate the different strands of thought, on the consequences of disclosure of referee reports, which are evident in the survey responses. (The University selected three of the respondents to the survey to give more detailed evidence in statutory declarations filed in support of the University's case, and that evidence is set out in more detail below at paragraphs 59-62.)41. The response of the Head of the Department of Civil Engineering set out a number of concerns which were fairly widely held amongst those who did not favour disclosure of referee reports. His responses to the questions in Parts 3 and 4 of the survey (as set out above at paragraph 38) were as follows: 3.1 Disclosure of my name and comments made by me about staff within the Department has potential for very serious adverse effects. While some individuals are able to accept objective assessment which is not wholly complimentary, some others appear to be unable to deal with any comments which are adverse. I have had experience of situations where confidentiality has been breached and the animosity which has resulted has created on-going problems of a serious nature which have prevented effective collaboration between staff in the Department. 3.2 Disclosure of my comments as a referee without giving my name would be effectively the same as complete disclosure. I do not believe it is possible to disclose comments by the Head of Department in a way that prevents the association of the comments with the Head of Department. The adverse effects of such disclosure are of the type referred to in 3.1. 3.3 Yes. See 3.1. 4. I dispute very strongly the assertion 'There is little that the subordinate can do against the supervisor'. In some cases it could be that the subordinate can do little to harm the supervisor directly but in the University environment there is almost unlimited scope for a subordinate to undermine the authority of a supervisor and subvert the processes the supervisor is setting in place. I do not believe that our system has within it the mechanisms to deal effectively with this kind of 'guerilla warfare'. 4.1 I believe that disclosure of referees' reports would result in provision of advice which is less than frank in dealing with aspects of individuals which are unsatisfactory. My experience of open reports is that the information provided is virtually useless when the situation requires accurate assessment of the potential and appropriateness of individuals for positions. 4.2 Yes. I would be very reluctant to give full and frank reports about some individuals if the report is to be disclosed to them. I have had experience of academics threatening to sue for defamation when they have not liked the comments made about them by colleagues. I would not be willing to be subjected myself to this kind of harassment if the University is not willing to safeguard confidentiality. 4.3 I have no doubt that academics generally would be less inclined to give full and frank reports if there were no confidentiality. I have been in discussions on several occasions with people who have had to work within a situation of this kind and in each case their approach has been to say only those things which are good or neutral. They have described techniques for trying to signal that there is more about this person than they are prepared to write but this is clearly an unsatisfactory situation. 4.4 The collegial system in universities does distinguish the academic staff position very clearly from that of an ordinary supervisor/subordinate situation. In my experience academics need to work closely together particularly in teaching but also in developing research programs. Any dissension or grudge holding between academics makes such co-operation almost impossible. 4.6 I am strongly of the view that the balance of public interest lies with preservation of confidentiality in these matters. 4.7 My answers above apply without change, whether the author's name and identifying material are included in the material released or deleted from it. I consider that in most cases it is impossible to achieve total anonymity by partial deletion of material.42. I note that the response given above in respect of point 4.2 was indicative of what appears to be a fairly widespread, but in my view, unfounded fear amongst the group surveyed, in that many claimed that adverse effects could be expected from the threat of defamation proceedings brought by staff members in response to comments in a referee report. The law of defamation, however, recognises the need for honest opinions to be expressed in referee reports and provides a defence of qualified privilege, which means in effect that a statement is protected even if untrue and prima facie defamatory, unless the plaintiff can prove absence of good faith on the part of the maker of the statement: see s.377 and s.378 of the Criminal Code 1899 Qld. Authors of referee reports have little to fear in terms of an action for defamation unless they have acted in bad faith (e.g. out of malice towards the subject of the report), in which case it is difficult to justify protecting them with the cloak of confidentiality.43. The Head of the Department of Computer Science responded to Parts 3 and 4 of the survey as follows: 3.1 Management would be affected in all the ways mentioned. Additionally, non-confidentiality would result in inequity, as some referees would moderate what they write and others (more courageous) wouldn't. It would therefore be very difficult to compare people on the basis of referees' reports. 3.2 In most cases my name would be easily deducible from the nature of the comments or the status of the document. 3.3 Yes, I believe the adverse effects on Departmental management would be very substantial. I believe the appointment and promotion procedures would be almost impossible to operate. 4.2 There would be a constant temptation to pull punches, or to phrase things in a cryptic or ambiguous way. 4.3 Yes -- many academics would not want the hassle of possible challenges and disputes. The refereeing system would fall into uselessness and disrepute.44. The Dean of the Faculty of Law responded to Parts 3 and 4 of the survey as follows: 3.1 In the University environment, academic staff are working together for long periods, perhaps up to 20 years. Disclosure of comments could create animosity and, through the formation of alliances, could create divisions within the Department that might prove enduring and highly detrimental. 3.2 Disclosure without the name of the referee would be almost as detrimental, because it would give rise to unfortunate speculation and conjecture. 3.3 The effect could be substantial, depending on the nature of the comments and their consequences in terms of career prospects. 4.1 Obviously, it may be difficult to find evidence of adverse effects of the disclosure of reports, because the main consequence of disclosure or possible disclosure is a radical shift into behaviour patterns of which it is difficult to find useable evidence at all. In essence, academics resort to what the economists call a 'corrective transaction'. If written assessments are likely to provoke division and disruption, there will be increased reliance on oral reports and other forms of non-documentable evidence. The unfortunate aspect of this behaviour change is that much of this evidence is less reliable than a written report. There will be increased reliance on gossip, sub rosa asides or plain prejudice. For this reason it is not in the interests of applicants and potential applicants that the system of written referees' reports be undermined. 4.2 I would certainly be more circumspect. 4.3 Yes. In fact, this tendency already became quite noticeable well before the Freedom of Information Act came into force. The reason for this, I suspect, is that the advent of FOI legislation in other jurisdictions, and its advocacy here, tended to undermine the whole moral basis for maintaining institutional confidentiality. Any attempt to preserve confidentiality is now treated in the political-media culture as a 'coverup' and as evidence that the institution has something unsavoury to hide. Consequently, very few academics now feel under any moral obligation to preserve the privacy of communications discussed in university committee meetings. 4.4 One difference is that under the collegial system staff may be judged, and their career prospects affected, by people who are their competitors in the race for promotion and for other academic benefits or honours. ...45. A number of other respondents to the survey made the same points as the Dean of the Faculty of Law made in his responses to 3.2 and 4.3 as set out above. For instance, the Head of the Department of Commerce said: Because of the fear of freedom of information a number of referees have indicated to me that they are already being very careful in their wording of referee reports in the nature of them being less frank.46. The Acting Head of Romance Languages said in response to questions 3.2-3 of the survey: It is perfectly clear that an anonymous adverse report creates more paranoia than a named report because it is capable of generating unfocussed distrust. A named report, however adverse, focuses the difficulty and leaves it open to the affected staff member to take account of the opinions of her/his adversary in further dealings with the University.47. The final sample of views supportive of the University position is taken from the response of the Dean of the Faculty of Science, who responded to Parts 3 and 4 of the survey as follows: 3.1 Disclosure of confidential reports would seriously compromise the process of formative staff review. I had considerable experience of formative reviews under the previous system where staff were reviewed on a 10 year cycle by a committee consisting of Dean, Head of Department and one other staff member nominated by the staff member being reviewed. The purpose of these reviews, and of the more recent ones by a Head of Department or section, was/is to improve staff behaviour or performance. One goes about this in a non-confrontational manner, and it may be necessary to resist bringing into the open all of the reviewed staff member's inadequacies in order to gain his/her co-operation in finding a remedy to some of them. I submit that if the confidential reports of Heads and Deans, made for assessment purposes, were released to staff, then when these are not supportive, the subsequent formative review process would become a confrontation. The staff member would try to alter the Head or Dean's opinion, or take steps to have that opinion discredited for the purpose of future applications for promotion. 3.2 I do not see how it is possible to disclose the whole of a report from a Head, Dean or PVC without it being obvious which of the three wrote the report. It should be pointed out that there is already a mechanism by which the general thrust of selected portions of these reports can become known to an unsuccessful applicant for promotion. Such an applicant may seek an interview with the chairperson of the promotions committee, to discuss the areas in which the application was not considered sufficient. In most cases, the inadequacies are apparent in the curriculum vitae itself, without reference to referees reports, and targets for remedy easily set. It would be possible, however, for a chairperson to discuss problems of interaction with other staff or students, such as might be flagged in referees reports, without actually quoting from them. 3.3 Yes. 4.1 The major effect would be that referees reports would become less honest and informative, at least in those cases where the referee has a negative assessment to make. The American experience is sufficient proof of this. ... 4.4 The major difference is that academic supervisors (Heads in particular) do not have power commensurate with their responsibilities. It is possible for a very hostile staff member to make life very difficult for a Head. Heads try to establish consensus about most matters, and this is difficult if one particular staff member is always working to destroy consensus. 4.5 I do not understand why it is in the public interest for an applicant to know in all cases what has been said about him/her. ...48. The Dean of Science was one of a few who expressed the view that he or she personally would not be less inclined to give full and frank reports if there was disclosure of referee reports, but who also took the view that academics generally would be less inclined to give full and frank reports if there was no confidentiality. Approximately 80% of respondents stated broadly that they would personally be less inclined to give full and frank reports if there was disclosure of referee reports.49. Despite the obvious slant in the phrasing of the survey towards seeking responses that support the University's current policy on disclosure of referee reports, approximately 20% of those who responded supported disclosure. For example, the Head of the Department of Chemical Engineering responded to Part 3 of the survey as follows: If criticism is not genuine you could argue that it should be brought to the open and debunked. Impossible to generalise - some people welcome genuine criticism some don't - academics by definition of their profession should welcome it.50. His response to question 4.2 in the survey ("Would you be less inclined to give full and frank reports if there was disclosure of referees' reports?") was: No! If I agree to give a report it is only ethical to give a full and frank report.In response to question 4.3 in the survey ("Do you think academics generally would be less inclined to give full and frank reports if there was no confidentiality?"), his response was: Maybe. If they were shirking their duties.51. The Acting Head of the Department of Romance Languages responded to question 3.1 in the survey as follows: My own feeling is that the rhetorical difficulties alluded to in the final sentences of the preamble to this question are not serious: anyone with some experience in these matters, and some mastery over the use of language for these purposes, knows what rhetorical tactics can be employed to overcome them. Experienced members of assessment committees are also at home with the interpretation of references and other reports. However, dissension amongst the members of staff of a Department or section is a serious problem.52. The Acting Head of the Department of Romance Languages responded to Part 4 of the survey as follows: ... in general, I am inclined to agree with the thrust of FOI legislation, that the public interest is served better by disclosure than by non-disclosure. In some conceivable instances, it is manifestly clear that the University's attempts to protect its credentials by not disclosing documents is against its own long term interests, and particularly, against the public interest insofar as it is involved with guaranteeing the quality of an institution that affects a majority of the population and that is paid for with the public purse ... Those general points being made, my answer to 4.6 is certainly yes. I am inclined to think that the introduction of FOI conditions will change our practices, and not necessarily for the worse as is suggested by 4.2 and 4.3. It should become normal practice for us to refuse to give references to colleagues, and to do so for explicit reasons, if we feel unable to support them. However, this is very hard to do and may require some training ...53. The response of the Head of the Department of Parasitology opened with the following statements: I believe that there is a convention in universities that reports from referees will be kept confidential. I have never believed, however, that this is a good convention and I have, therefore, attempted to disclose my opinions and assessments unless disclosure either could bring personal harm or I was directed specifically not to do so. In general I think that the subject of a report, reference or assessment has a right to know what has been written but I respect the judgment of those seeking the information to maintain confidentiality. The reasons for my position relate to the enhancement of personal dignity on the one hand and maintenance of good management on the other: confidentiality kept merely to maintain secrecy is a form of paranoia in power. In general I do not expect that the reports I write will be kept confidential except where the request makes explicit reference to the form and extent of the confidentiality. I do expect, however, that disclosure will be made only to the subject of the report; after all only the subject has a pressing need to know. ... My opinions here relate to my experience that most reports are not controversial, damaging or vicious and that any criticism often moves to help rather than harm even if it has the immediate effect to prick some sensibilities.54. In response to Parts 3 and 4 of the survey form, the Head of the Department of Parasitology continued as follows: 3. There is truth in the introductory statement, but management of personnel is difficult anyway and there are techniques in counselling that have been developed to reduce such conflict. I would want to know what evidence there is that conflict arises from the disclosure of information and what evidence there is that the quality is reduced in reports that are to be released before prescribing any definite effect to disclosure. Experience with the International Journal for Parasitology shows that signed reports are received more favourably than unsigned reports, particularly when the comments are adverse. The signature gives the ring of truth to the critique. I do not think that the assessment of staff for promotion will be affected adversely; in any case verbal assurances which would be totally confidential can be obtained easily. 3.1 There are too many idiosyncrasies involved to give a meaningful opinion. The business of management and assessment is about reducing conflict and promoting harmony. Full disclosure together with appropriate counselling goes a long way to eliminating recrimination and acrimony. 3.2 Cutting the name of the author from reports makes the tasks in 3.1 easier but it disqualifies the report. Disclosure for me does not have a lasting ill effect on management, although I am privileged to lead a very harmonious group of people. 3.3 Adversity, like pain, is soon forgotten! Most people look on the bright side of life. 4. I agree, from experience, that there is little adverse effect from disclosure of even bad reports. The blow that sometimes results can be softened however by the adoption of appropriate procedures in personnel management. Retaliation by the subject will be rare, although there are vindictive people around! 4.1 Adverse effects range from Temporary to None. 4.2 I like to think that I give full and frank reports irrespective of whether or not the document is covered by confidentiality. I strive for this goal but may not succeed fully. 4.3 No, but my judgment relates to the small number of colleagues across the University I know well enough to make an assessment. 4.4 Not so, for me, but I have heard that there are others among us who have a very elevated opinion about life in the University. 4.5 People have a right to know where they stand relative to their colleagues. There are numerous proverbs which relate to disclosure and adverse reports - one such aphorism deals with hot fires and staying put. 4.6 Yes; good communication encourages harmony, eases the tasks of management and improves productivity. There is little that the public should not know. It is courageous to live in an open society. 4.7 Little real effect, but it smacks of the insult that discretion is the better part of valour. I said earlier that deletion of the author disqualifies the content of the report.55. The Head of the Department of Physiology and Pharmacology responded to Parts 3 and 4 of the survey as follows: Personnel Management and Assessment While it is true that an adverse report might create a "disruption", it is my experience that a hidden agenda would be worse. When people are aware of the facts or opinions of others, there may be an initial disruption based on emotion or the like. Despite this, when staff know that they will always receive an honest appraisal from the Head of Department or supervisor, they are less likely to conjure up things that are far worse. In fact, when there is no perceived 'hidden agenda', staff are better equipped to make decisions than if they are told only the 'good side' of the story. Those people who are apt to be less frank if their name is disclosed may be the same people who are ruthless when their name is not on the report. It is basically a 'no win' situation with those who alter their opinion to fit the circumstances. It is also far easier to write an adverse report when it is known that one's name will not be disclosed and this could allow a personality conflict to affect a decision. It is clearly best (to use a cliche) that 'honesty is the best policy'. The public interest Everyone has a right to know what is being said about them in the same way that a person is entitled to know his/her own credit rating. One must be given the opportunity to discuss or amend a misleading or false report and the only way to do so is to disclose these reports. As stated above, those who are honest and forthright will give the same report whether it is confidential or not. ... Conclusion The intention of the FOI legislation is to make a person's private affairs known to him/her so that the accuracy and completeness can be verified. The University must not be seen to be 'protecting its sources' at the expense of supporting its employees. A referee should not receive privileged treatment based on his/her 'expertise' or position of authority. It is important that the rights of the referee are not jeopardised at the expense of the individual. There is always the possibility that the referee is wrong or biased and the individual must have the right to challenge an adverse report. The University must remain unbiased until both sides are known. It is only then that a proper decision can be made.56. A number of respondents who considered that the balance of public interest favoured the non-disclosure of referee reports, expressed qualifications to the effect that there needed to be a system to ensure fairness to the individual whose candidature could be adversely affected by confidential referee reports. For instance, the response to question 4.6 of the survey given by the Dean of the Faculty of Agricultural Science was: No - provided there are independent arbiter(s) present to deal with matters of administrative fairness and academic objectivity and factuality.57. The Dean of the Faculty of Agricultural Science made some general comments in opening which are worth recording: In this battle the criteria under consideration are: a). The unconstrained ability of a referee, internal or external, to make objective statements to and for the University about a subject, without fear of reprisal. b). The ability of the subject of the report to ensure the report contains no errors of fact and is fair. Referee reports are either from referees recommended by the subject or those selected by some other mechanism, including Dean's and Head's of Department reports. The pervasive effect on reports from countries that have the equivalent of an FOI Act is that they are less objective. There is considerable stress on what is good about the subject and a muted or no comment on his/her bad features, even when information is requested. This greatly increases the workload of the University and its staff in determining the true worth of the subject, to the point where such reports can border on the useless. Undoubtedly, these countries do live with an FOI Act and I believe this is associated with the provision of additional oral information which can be just as if not more damaging to the subject. The subject of a report does have a right to know why his/her submission has been unsuccessful. In the case of selection there was a 'better' candidate whilst in the case of tenure and promotion the important criteria are to encourage more meritorious teaching, research and administrative performance for a subsequent submission. The matter of internal reports from Deans and Heads of Departments should be much less of a problem provided the peer review system works adequately. For tenure and promotion the chairman of committee should provide a substantial report to the subject. This largely obviates problems and disruptions associated with the subject correctly or incorrectly assigning blame to unnamed referees.58. To similar effect are the comments of the Head of the Department of History, Professor G C Bolton, who responded to Parts 3 and 4 of the survey as follows: Section 3: Experience suggests that few of us are able to endure the candid comments of our colleagues without imputing bias or hostility if those comments are unfavourable. If it is necessary to tender an adverse report on a member of staff, it is preferable to let that person know; but it is often necessary to communicate criticism in a manner which the hearer will absorb and act upon, and this does not always call for the same language as a confidential report requires. The adverse effect of open disclosure would be significant, but perhaps not substantial. However it would lead to a great increase in the expression of opinions in conversation or by telephone. A confidential written report is safer than gossip in protecting academics' careers. Section 4: As above. If confidentiality of written reports disappears, it will be replaced by nods, winks, and informal conversations. It is important, however, that adequate mechanisms are in place to provide feedback to applicants whose careers are likely to be affected by adverse or indifferent reports about their performance.59. Professor Bolton also provided a statutory declaration executed on 18 May 1993 in which he stated: 3. There is a strong convention in the Universities of Australia, the United Kingdom and most of the countries that once formed the British Commonwealth to the effect that referees' reports will be kept confidential. I am convinced that, if it became widely known that the University of Queensland were unable to continue that convention because of being required to allow access to such confidential referees' reports, a significant proportion of senior academics in other universities where the convention applies will either refrain from giving the University of Queensland any reports or will modify their content. I believe that such a situation would significantly disadvantage the University. 4. I base the views I expressed in the preceding paragraph in part on an incident that occurred at Murdoch University. A referee who was a professor in the United Kingdom had been critical of a Murdoch applicant also from the United Kingdom. A professor at Murdoch who hailed from the United States of America and who was unsympathetic to the convention of confidentiality, took it upon himself to make the Murdoch applicant aware of the unsatisfactory reference he had been given. The Murdoch applicant, acting on the information provided by the American professor, challenged the referee publicly and intemperately to his considerable discomfort. As a result, the referee complained strongly to Murdoch University and to the Australian Vice-Chancellor's Committee that Murdoch had breached the convention. The reputation of Murdoch University suffered significantly as a result. 5. I do not suggest that the University of Queensland would be open to the same criticism as Murdoch University was in the circumstances described in the preceding paragraph if the University did no more than abide by the law of the State of Queensland. Nevertheless, it is my firm belief that the University would be cut off from international sources of important information. ... 8. My experience of references written in the United States leads me to believe that providing access to references would result either in the total absence of critical comment or in the exploitation of ambiguity such as was seen when a referee told a prospective employer that, 'You would be fortunate indeed if you could persuade Dr Blank to work for you'.60. The University has also filed a statutory declaration executed on 18 May 1993 by Professor Bruce Rigsby, Professor of Anthropology and Head of the Department of Anthropology and Sociology. Professor Rigsby stated that he immigrated to Australia in 1975 after teaching anthropology for nine years at the University of New Mexico in the United States of America, and continues: 3. After shifting to Australia, I became aware of the considerable differences in interpersonal and written style between the system of making appointments in Australian universities and other countries derived from the United Kingdom, on the one hand, and those in the USA, on the other. I believe that references in the USA are not as candid as those that are customarily written in the Anglo-Australian system, and this so is because of the different attitudes to the obligations of confidentiality in the two systems.61. Paragraphs 8-12 inclusive of Professor Rigsby's statutory declaration repeat the views which he initially expressed in his response to the survey, as follows: 8. Promotion is a sensitive matter to our academic staff, to the point that many do not wish their colleagues to know even that they have applied for promotion, because they would be severely embarrassed by public knowledge of an unsuccessful application. Some unsuccessful applicants are simply unable to accept a less than fulsome acceptance of their claim to merit promotion, and their reactions range from hurt withdrawal to aggressive rejection of the Board President's and Committee Chair's attempts to advise them how to strengthen a future application, not to mention the Head's attempts to counsel them and to get them back on track to improve or increase their work and have another go. I am certain that disclosure of my comments as Head and of my identity would adversely affect my management of staff where I have written negatively about those staff, say, to assess their research and publications as average or weak or to note that I have reprimanded them for engaging in consensual sexual relationships with students they are teaching or supervising. In my own and other Departments I have seen unsuccessful promotion applicants go off the rails, withdraw and do minimal academic work, as well as attack their colleagues and otherwise act the rogue. 9. Disclosure of my name and Head's comments (which are often made in consultation with other senior staff) where negative or less than fully positive would surely exacerbate a touchy situation and make the management of staff more difficult. I can easily imagine some of my staff verbally and even physically assaulting me or others, not to mention talking about the matter to other staff and students publicly and privately. Even more likely would be increased angry confrontations and arguments in staff meetings and elsewhere. Such events increase tensions within Departments and divert attention away from our teaching and research. I know what it is like to have an outraged staff member spreading their anger and fury through the corridors, offices and classrooms. Disclosure of confidential reports must increase the incidence of such anger and consequent tensions. 10. The knowledge that, on each occasion I have been Head of Department, I would return to the Departmental staff to work under the Headship of my successor has also been a factor in forming my views about the effect knowledge of disclosure would have on what I would write in references and reports. 11. I would be less inclined to give full and frank reports if they are to be disclosed, say, due to an FOI request. I'm not a fool and there are many situations where the easiest course of action is to remain silent or to mute one's opinion or assessment. In fact, academics generally will be less inclined to give full and candid reports if confidentiality is removed from our reports. Our collegiality is contingent and fragile such that our ability to work together in teaching and research would be diminished significantly if we come to know every less than positive thing that our colleagues think and say about us in reports. By and large, we're a lot who find criticism hard to take. 12. It will no doubt work a sea change in conventional practices of openness and directness in writing referees' reports for appointments, promotions, etc. in Australian universities. That change does not bode well for maintaining high standards of forthrightness in writing reports. A completely open system of disclosing written reports will lead people to circumvent it by using the telephone even more than they do now to seek and give fuller information and frank opinions. Many American reports read as though their authors were looking over their shoulders and monitoring what they say in anticipation of an FOI request.62. The University has also filed a statutory declaration executed on 18 May 1993 by Professor A B Abernethy, Head of the Department of Human Movement Studies. Professor Abernethy states: 2. I have had experience both at this University and elsewhere of being asked to write referees' reports about applicants for positions on university staff and for promotion. My experience has been largely in Australia and New Zealand and, save for two exceptions that are the subject of subsequent paragraphs, I have always been under the belief that universities treat such reports as confidential as a matter of convention. 3. On one occasion, I agreed to provide a reference for a person who was applying for an academic position at the University of Canberra. I marked the report 'confidential' but the University responded that it would be unable to use a reference that was confidential because it was the policy of that University to make references available to applicants. The University asked me if I was prepared to remove the requirement of confidentiality. I was loathe to do this because of my view that the convention I have referred to is highly beneficial to the operation of Universities in Australia, but in the end I did so. I did this only because I wanted to help the individual making the application and I knew that, not only was there nothing adverse in the report I was making, but it was, in fact, strongly supportive. Had it not been the case, I would have refused to provide the reference unless the University agreed to keep it confidential. 4. The second exception occurred when I was asked to be an external person involved in a promotion process at the University of New England (Northern Rivers). There the reports by Heads of Centres and Deans can be seen by the applicants about whom the reports are made. I was interested, but not altogether surprised, to find that there was no relation between what individual Deans and Heads said about an applicant in their written reports on the one hand, and what the same Head or Dean said about the same applicant in the oral contributions made during the promotion process. I believe the process at the University of New England was adversely affected to a significant extent by the disparity I observed between the written reports and the oral contributions. ... 10. I am convinced that assessments of academic staff will be different in content and style than they presently are if the convention of confidentiality is abandoned ... 12. I believe that people writing referees' reports or reviewing journal articles will write in blander terms if the reviews are not confidential and their identities are revealed for a number of reasons that include a desire: (a) to avoid undermining collegiality within a Department or an area of academic specialisation; (b) to avoid undermining individual personal relationships between the writer and the subject; (c) to avoid unnecessarily creating tensions and hostility by revealing alleged shortfalls in staff performance, in an unnecessarily hurtful and brusque form. 63. Finally, the University has filed a statutory declaration executed on 14 May 1993 by Professor Brian Wilson, the Vice-Chancellor of the University of Queensland. Professor Wilson's statutory declaration draws together all the strands of the University's case for exemption in a balanced exposition, and I think it deserves to be set out in full. Professor Wilson stated: 2. I have had extensive experience in academic and research institutions, as a student, staff member and administrator for a period of over forty years. My experience has been obtained in Ireland, Canada, and since 1979, Australia. 3. I am the Chief Administrative Officer of the University. In the performance of my duties I am guided by the Mission and Goals of the University, a copy of which is attached and marked as Exhibit 1. 4. In seeking the 'promotion of intellectual rigour', 'the achievement of excellence' and the 'maintenance of the highest intellectual and ethical standards', the University must adopt personnel assessment practices which ensure that those academic staff who are contributing most to fulfilment of the Mission are promoted. If the staff who are best fulfilling the Mission are promoted, they will be encouraged to remain at the University and others will be encouraged to emulate their achievements. The best personnel assessment decisions can only be made if as much accurate information as possible is placed before the determining authority. 5. The University must, in formulating these practices, also strive to maintain a workplace environment which is conducive to its academic staff's efforts to achieve. 6. In my experience of human nature, it is almost universally true that praise is more welcome than adverse comment. Two points flow from this. One is that adverse comment will frequently, but not always, cause upset and resentment to the person about whom it is made. The other is that people wishing to maintain a relationship with the subject of their adverse comment, who know the subject will learn of it, will often refrain from making the comment at all or temper its content accordingly. 7. The second point is true to some extent in all relationships whether they be personal or in the workplace. It may arise out of a natural tendency towards tact or a desire not to strain the relationship. It may arise because of fear of retaliation if the comment is resented. 8. The amount of tact seen as necessary will depend on the nature of the relationship and the need to continue it, the level of concern for the other party and the adverse consequences that may flow from resentment of the comment. 9. From my experience as a supervisor of general staff, I have seen that normal superior/subordinate relationships in employment involve both working relationships and relationships at a personal level. In deciding whether, and if so how, to convey an adverse comment to a staff member, a supervisor will be influenced by all the considerations referred to above. Adverse consequences in this situation might include loss of personal rapport with a subordinate, disruption of the office by the subordinate or a retaliatory personal attack by the subordinate. 10. In a supervisor/subordinate relationship the scope for retaliation may be seen as limited because the subordinate can do little to affect the supervisor's standing in the organisation. It is, however, possible by means of rumours or allegations of harassment, discrimination, other impropriety, or mismanagement for a subordinate to strike back in resentment. 11. It may be argued by some that it is wrong for public servants to react to concerns for personal relationships, worry at disruption of an office or fear of reprisals. Whether that be the case or not, public servants are human beings and in my experience, possible consequences will be taken into account in the preparation of adverse comments. 12. A consideration of public interest factors should involve what is in fact likely to happen if referees reports are disclosed, not what might or might not happen in an artificial model where everyone was forthright, had no tact and had no fear of the consequences of their statements. 13. The relationship between an academic referee and a staff member of a University is significantly different from a normal supervisor/subordinate relationship. 14. Within this University the basic structure of academic staff administration is the Department. For administrative purposes a Department is under the control of a Head of Department. Within a Department staff members are appointed as Professor, Reader, Senior Lecturer or Lecturer. 15. A Professor has no general power of supervision over a less senior staff member unless he or she is also Head of Department. A Head of Department need not be drawn from the ranks of Professors and in some cases, Heads have had administrative control over staff with superior academic rank. 16. A Department works on a collegial system whereby all staff, regardless of rank are a part of a team. Even on reaching the rank of Professor a staff member is expected to work on an equal footing with other staff members in preparing and presenting courses, marking examinations, conducting joint research and publishing joint papers. 17. In addition to the need for co-operation in carrying out their duties staff rely on other staff of the Department to comment on their applications for research funds, special studies programs, promotion and tenure. These comments come from various sources within a Department. They are not given by one person. In these cases the subject of a reference one day may be the referee for another matter the next. 18. Even the role of the Head of Department cannot be seen as solely supervisory. Heads must also be part of the team so far as many of their activities are concerned. This is particularly the case when one considers that the Head of Department position is not seen as a permanent appointment. Heads of Department are appointed for a fixed term. A person who has made an adverse comment in one year as a Head of Department may find the subject has become the Head of Department the next year. 19. The relationships within a Department should therefore be seen as largely the interaction of academic equals rather than the normal supervisor/ subordinate structure. All staff must co-operate to further the purposes of the University. 20. The collegial system extends beyond the confines of any one university. There are many specialist fields where the number of academics is limited. In Australia a few specialists may be called upon to co-operate in the formation of plans for joint research projects, publication of joint works and organisation of national and international conferences. 21. In addition academics in the same field of study rely on one another for objective comments on publications in refereed journals, research applications, job applications and applications for promotion and tenure. 22. This community of scholars extends around the world. 23. In light of my knowledge of the operation of the collegial system, I consider that although some referees would continue to provide frank reports if it was known that reports would be disclosed to their subject, by far the majority would not. This would have a substantial adverse effect on assessment of academic staff. The combination of factors referred to above would lead most academics to refrain from completely open comment. 24. I have had previous experience in Canada in the evaluation of candidacies for appointment and promotion based, in part, on input from individuals living in the United States. At least when I was there 15 years ago, the freedom of information legislation had, to a large extent, eliminated written evaluations other than platitudinous statements. In my experience, considerable follow-up of opinions was carried out by telephone with the results transmitted orally to selection committees. This process not only provides incomplete, and off-the-cuff information but arrives at the Committee moderated through the interpretation of the person who has communicated by telephone. Clearly this is less than an optimum approach to providing accurate information for the assessment of individuals for promotion. 25. If a system of bland reports followed by oral statements prevails the University runs the risk of either not possessing all the relevant information on which to make an assessment or, in some cases, having individual decision-makers relying on irrelevant material; in the latter case leaving the applicant with little or no chance to respond. 26. If disclosure was made compulsory, certain referees would no doubt continue to provide frank reports. In those cases, where a subject is made aware of adverse comments, there is likely to be a substantial adverse effect on the management of academic staff. 27. Within a Department disclosure is likely to disrupt personal relations between staff and lessen the level of co-operation between staff, reducing the chance of the University achieving its Mission. Outside the University it is likely to lead to a reduction in co-operation between staff in different institutions and the lessening of the standard of overall academic achievement. 28. It is further likely to lead in some cases to acts of retaliation by means of biased reports from the subjects of adverse comment on an application of one form or another by the referee. False or imperfect information supplied in these circumstances will make it more difficult for the University to make correct decisions in the assessment and management of its personnel and other resources. Biased reports will also affect the ability of funding organisations to assess applications and refereed journals to select the best articles for publication lessening the benefit of research to society. 29. I consider that there is a benefit to the University and its staff members in ensuring the provision of the substance of adverse comments to the staff members concerned. It allows them to defend themselves in the course of their application and to work to improve any perceived weaknesses in the future. 30. Release of referees' reports, however, with the associated problems discussed above, is not the best way to achieve this. The current policy for all tenure and promotions committees within the University is that the committee discuss any relevant adverse comment with the applicant. This serves both the purposes referred to in paragraph 29. 31. In order to strengthen this provision I have instructed staff that a policy be prepared for consideration by the University Senate that a written statement of adverse comments be provided to each applicant. This procedure will provide the applicant with the substance of adverse comments without the need to identify referees. 32. In addition to these measures the University has introduced a system of regular staff appraisals where members of a Department meet with their Head of Department to discuss their performance and goals for the future. A copy of a booklet distributed to all members of academic staff in relation to staff appraisal, is attached and marked Exhibit 2. 33. I do not believe the anonymity of referees could always be protected simply by removing their name or signature from references. Statements often appear in references which could make the identity of the referee clear to the applicant. Handwriting and even typeface may disclose identity if the choice of suitable referees is narrow. An extract of the subject of comments will protect the identity of the referee. A copy of the document with names removed will not always do so. 34. In my experience in Australia, there is a well founded convention that referees' reports and the circumstances surrounding them will be kept confidential. 35. If this confidentiality is to be ensured it extends to withholding the fact that a person has been suggested as a referee, has been requested to provide a report, and/or has in fact provided a report.64. Exhibit 2 to Professor Wilson's statutory declaration is a copy of a document entitled "Staff Appraisal Booklet for Academic Staff". Exhibit 2 explains that following the 1991 award restructuring agreements for academic staff, the University of Queensland has introduced a staff appraisal system for staff development purposes. The system extends to all staff of the University. A staff appraisal is described as "a confidential exchange between a staff member and a Departmental colleague. It constitutes an agreement about the quantity and quality of future work, based on a mutual appreciation of past performance." Exhibit 2 explains the reasons for introducing the staff appraisal system, one of which is Departmental planning: Although many academics work independently, much of the work of the University, such as its teaching programs, is the corporate responsibility of the Departments. More and more, Departments are becoming management units, responsible for planning, resource allocation, financial management and various kinds of quality assurance. In these matters of corporate responsibility, Departmental staff work as a team. Planning the allocation of work and monitoring its progress become inescapable Departmental responsibilities. This system of staff appraisal helps the Department manage itself while maintaining the principle of collegial responsibility. It can be a positive tool for realising Departmental plans and for improving Departmental performance.65. The booklet states that one of the objectives of the staff appraisal policy is "the provision of constructive feedback about performance". The following aspects of the scheme as set out in the booklet should be noted: ? the key element of staff appraisal is a meeting between the staff member and a Departmental colleague - usually, but not always, the Head of Department - to discuss what the staff member has done in the last twelve months, and to plan the next year's work. (page 8) ? in any particular instance, staff appraisal should incorporate: ? discussion of the work undertaken by the staff member during the past 12 months; ? an assessment of performance against previously agreed standards or goals; ? regular information and guidance about performance; ? joint setting of goals for the following year; ? clearly defined plans for actions which will help the individual and the Department to work jointly to further the staff member's effectiveness and academic development as well as the Department's goals; ? a written record of the review discussion and the agreements reached during it. ... (page 9-10) ? The aims of the staff appraisal meeting reflect those of the staff appraisal process as a whole: ? to acknowledge the staff member's achievement and strengths; ? to identify needs for development; ? to help the Department and individuals to make plans that will assist the staff member's career; and ? to further the academic discipline pursued in the Department and promote any other aims of the Department. The staff member's self-review will provide a means for both the supervisor and the reviewee to identify current and potential strengths as well as any problems, and to plan for the future. (page 16) ? documentation arising from this scheme will remain confidential to the reviewer, the reviewee and the Head of Department, and will not be used as part of any other process ... There is no direct link between staff appraisal for development purposes and other evaluative processes such as probation review, promotion or tenure review and SSP/PEP consideration. The documentation may not be used in any of those processes. (page 12-13) ? the staff appraisal scheme described in this booklet has been developed to conform with the ruling of the Australian Industrial Relations Commission in 1991 that the scheme shall be for developmental purposes only, and that it shall be introduced on a trial basis during its first year. Revisions to the scheme may be required in the light of later rulings of the Commission. (Note to the booklet)66. The applicant, Dr Pemberton, did not file formal evidence in support of his case, though his written submission highlighted those parts of the University's evidence (specifically those responses to the survey contained in exhibit 5 to Mr Porter's statutory declaration which favoured disclosure of referee reports) which support the applicant's case for disclosure.67. I turn now to deal with the University's claims for exemption. The logical starting point in a dispute over access to confidential referee reports is s.46 of the FOI Act, which deals with matter communicated in confidence.Application of s.46 of the FOI Act68. Section 46 of the FOI Act provides as follows: 46.(1) Matter is exempt if - (a) its disclosure would found an action for breach of confidence; or (b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest. (2) Subsection (1) does not apply to matter of a kind mentioned in section 41(1)(a) unless its disclosure would found an action for breach of confidence owed to a person or body other than - (a) a person in the capacity of - (i) a Minister; or (ii) a member of the staff of, or a consultant to, a Minister; or (iii) an officer of an agency; or (b) the State or an agency.Application of s.46(2)69. I undertook a detailed analysis of s.46 in my reasons for decision in Re "B" and Brisbane North Regional Health Authority (Information Commissioner Qld, Decision No. 94001, 31 January 1994, unreported). At paragraph 35 of my reasons for decision in Re "B", I explained that s.46(2) is generally the logical starting point for the application of s.46 of the FOI Act: 35. FOI administrators who approach the application of s.46 should direct their attention at the outset to s.46(2) which has the effect of excluding a substantial amount of information generated within government from the potential sphere of operation of the s.46(1)(a) and s.46(1)(b) exemptions. Subsection 46(2) provides in effect that the grounds of exemption in s.46(1)(a) and s.46(1)(b) are not available in respect of matter of a kind mentioned in s.41(1)(a) (which deals with matter relating to the deliberative processes of government) unless the disclosure of matter of a kind mentioned in s.41(1)(a) would found an action for breach of confidence owed to a person or body outside of the State of Queensland, an agency (as defined for the purposes of the FOI Act), or any official thereof, in his or her capacity as such an official. Section 46(2) refers not to matter of a kind that would be exempt under s.41(1), but to matter of a kind mentioned in s.41(1)(a). The material that could fall within the terms of s.41(1)(a) is quite extensive (see Re Eccleston at paragraphs 27-31) and can include for instance, material of a kind that is mentioned in s.41(2) (a provision which prescribes that certain kinds of matter likely to fall within s.41(1)(a) are not eligible for exemption under s.41(1) itself).70. The breadth of what may be encompassed within the phrase "deliberative processes involved in the functions of government" in s.41(1)(a) of the FOI Act was examined in my reasons for decision in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (Information Commissioner Qld, Decision No. 93002, 30 June 1993), now reported at [1993] QICmr 2; (1993) 1 QAR 60, and for present purposes I draw attention to what I said at paragraphs 27-29 of Re Eccleston. It is unnecessary to refer in detail to that passage since the respondent, in its written submission, accepted what I consider to be clear beyond doubt, namely, that the contents of referee reports, submitted for the purpose of use in selection processes for appointment or promotion of University staff, comprise matter of a kind mentioned in s.41(1)(a) of the FOI Act; i.e. opinion, advice or recommendation that has been obtained, prepared or recorded, or a consultation or deliberation that has taken place in the course of, or for the purposes of, deliberative processes involved in the functions of the University.71. The words of s.46(2)(a)(iii) raise an issue of some importance in this case. The phrase "a person in the capacity of ... an officer of an agency" was clearly, in my opinion, intended to distinguish acts done by a person who is an officer of an agency (as that word is defined in s.8 of the FOI Act), in his or her capacity as such an officer (i.e. acts done for and on behalf of the person's employing agency, in the course of performing his or her duties of office) from acts done by the person in other capacities, e.g. in a purely private or personal capacity.72. Segment 2 of the University's survey questionnaire (see paragraph 37 above) contained questions relating to this issue. The vast majority of senior academics who responded answered affirmatively to question 2.2: "If you are a Pro-Vice-Chancellor, Dean or Head of Department, when you provide a reference for, or comments on, a member of staff of this University, do you regard yourself as doing so as an officer of this University." The majority perception, in this instance, accords with the correct legal position. It is the duty of Heads of Department, Deans and Pro-Vice-Chancellors to accept primary managerial responsibility for the effective functioning of their respective organisational units, in furtherance of the mission and goals of the University. It is clear from the evidence before me that for certain kinds of promotional procedures in place at the University, Heads of Department, Deans and Pro-Vice-Chancellors are required, as part of their duties of office, to provide reports or comments on the suitability for promotion of aspiring members of academic staff of the organisational units for which they have responsibility. Quite apart from specific duties imposed in accordance with the University's internal promotional procedures, I note that it has been held by the Victorian Administrative Appeals Tribunal (the Victorian AAT) that a Head of School, who voluntarily supplied a written reference for a staff member (who was applying for a position at another tertiary institution) did so as part of his duties and in his capacity as Head of School: see Re De Souza-Daw and Gippsland Institute of Technology (1987) 2 VAR 6 at p.8.73. It was conceded in the University's written submission (and the concession is, in my opinion, clearly correct) that documents 1, 18, 19 and 20 are reports on Dr Pemberton written by academics acting in their official capacity as Head of Department, Dean or Pro-Vice-Chancellor, within the University. The University's submission accepts that documents 1, 18, 19 and 20 are not eligible for consideration for exemption under s.46(1) of the FOI Act, but argues that they are exempt under s.40(c) or s.41(1) of the FOI Act. I find that documents 1, 18, 19 and 20 are not exempt matter under s.46(1) of the FOI Act, by virtue of s.46(2) of the FOI Act.74. Of the other documents in issue, documents 2, 14 and 22 were written by persons who were officers of the University at the time they prepared the documents, but the University argues that the documents were not written by the authors in their capacities as officers of the University. That raises a significant issue which I will consider first. The rest of the documents in issue (documents 3, 5, 6, 7, 8, 10, 11, 12, 13, 16(a), 16(b), 21 and 24) were either written by, or contained identifying details of, persons who clearly were not officers of an agency (as that term is defined for the purposes of the FOI Act) within the meaning of s.46(2) of the FOI Act, all of those authors having been academics at interstate or overseas universities. The referee reports, or identifying details, of academics at interstate or overseas universities are eligible for consideration under s.46(1) of the FOI Act, and their status under that provision is considered at paragraphs 88-110 below.75. As noted at paragraphs 14 and 26 above documents 2 and 14 are completed pro forma "Assessment of Teaching Ability" referee reports from Dr Pemberton's 1982 and 1986 applications for promotion, respectively. Document 22 is a referee report obtained in connection with Dr Pemberton's 1992 application for promotion from Reader to Professor. The University's written submission made the following arguments in respect of documents 2, 14 and 22: Each is written by an employee of this University but the author in each case was selected not in that capacity but because of his detailed personal knowledge of the relevant facet of Dr Pemberton's activities. It is not part of the duties and responsibilities of staff of the University to provide such teaching reports and referees' reports. They are provided voluntarily. The views expressed are those of the individuals in question and are not provided for and on behalf of the University. The writers of these documents are covered by the findings in [Re Healy and the Australian National University (Commonwealth AAT, No. N84/445, 23 May 1985, unreported)], paras 17 and 62. The University adopts the view in relation to referees' reports generally that it is the writer's "personal standing in the community of scholars which gives value to his assessment of the candidate ..., not the appointment which he holds". The view taken in [Re De Souza-Daw] at 8 of the reference letter in that case turns on the special relationship that a Head of Department holds in relation to the members of staff of that Department and does not weaken the application of the finding in Healy to the general case. Therefore, any action for breach of confidence would not be brought by the writers "in the capacity of ... an officer of an agency".76. The University places reliance on paragraphs 17 and 62 of the Commonwealth AAT's decision in Re Healy and the Australian National University. The documents under consideration in those segments of the Healy decision were referee reports prepared by a Professor in public history at the Australian National University in respect of a Research Fellow at that University, in connection with the Research Fellow's applications for appointment at other tertiary institutions. The Tribunal said, at paragraph 17, that for reasons given subsequently in the decision, it had come to the conclusion that: "The reports are essentially supplied by the academics on their own personal behalf and not by or on behalf of their employing universities.". The reasoning in support of that conclusion appears at paragraphs 60-62 of the Tribunal's decision: 60. ... Each document relates to the applicant's suitability for a particular appointment, both in terms of his academic calibre and in terms of his general suitability to be a member of the staff of the university or institution. 61. Professor Mackie said that such reports by referees are relied on by universities throughout the world as a means of assessing candidates for appointment as members of their academic staff. He pointed out that it is now common for applications for such appointments to be made by persons from all over the world. The body of scholars in the world in any field of study is now so large that it is impossible for universities to have a knowledge of all the academics in that field; nor is it practical for them to bring all candidates for interview. It is necessary that they should be able to rely on assessments by academics of standing in the relevant fields. For that reason a system of obtaining such reports by referees has become established. Professor Mackie said that it was fundamental to the maintenance of standards of scholarship by universities throughout the world that they should be able to rely on the accuracy and completeness of such reports. Most academics of standing within their respective fields regarded themselves as having an obligation to the international community of scholars to provide such reports when requested to do so. They were always sought and usually given in confidence. 62. Mr Plowman [the Registrar of the Australian National University] suggested that the confidentiality which attached to such reports belonged not only to the academics who supplied them but also to their universities. He said that frequently the reason why references were sought from them was that they held a particular post in a university. Professor Mackie did not agree with that view. He considered that the reports were essentially supplied by the academic personally. We are inclined to accept that this is so. It is the academic standing of the referee which is of importance. That will often be exemplified by the academic appointment which he holds within a particular university for the time being but it is his personal standing in the community of scholars which gives value to his assessment of the candidate for appointment, not the appointment which he holds.77. In respect of Dr Pemberton's most recent application for promotion from Reader to Professor, the criteria for promotion are those set out in the document quoted at paragraph 32 above under the heading "CRITERIA". They are, briefly, an international reputation for outstanding research and scholarship, outstanding teaching achievements, research team leadership, guiding the development of colleagues and post graduate students, administrative accomplishments of demonstrable benefit to the University and professional peer recognition/professional leadership. In respect of Dr Pemberton's previous promotion applications during the 1980s, the main criteria for promotion appear to have been teaching experience, ability and performance; scholarship and original achievement (as evidenced by research and publications); and service to the University (e.g. efficient performance of administrative tasks and committee work).78. When the opinions of referees, expert in a particular field of scholarship and/or research, are sought as to the reputation of a candidate for promotion in respect of the candidate's scholarship, research and original achievement (which I understand is to be primarily assessed by reference to the candidate's publications, participation in scholarly seminars, success in obtaining research grants, election to learned academies, honorary degrees, awards and prizes) I think it is correct to say, as was found by the Commonwealth AAT in Re Healy, that a referee is approached to provide his or her opinion as an individual who has acquired a personal reputation for excellence in the international community of scholars, rather than in his or her capacity as an officer of a particular tertiary institution. It may not be necessary for such a referee to have personal knowledge of the candidate, provided the referee is in a position to evaluate the candidate's scholarship and research (e.g. as evidenced in the candidate's publications). 79. I think the position is less clear, however, when a referee is approached to obtain an opinion on the performance of a candidate for promotion in respect of his or her teaching experience, ability and performance, and the position is different again when a referee is approached to evaluate a candidate's contribution to the administration of the University. Referees in respect of those criteria will be approached precisely because they are in a position to have personal knowledge of the performance of the candidate for promotion in respect of those criteria. The capacity to comment in respect of the contribution of a candidate for promotion to the administration of the University could ordinarily only have been acquired in the referee's capacity as an officer of the University.80. In respect of the criterion of teaching experience, ability and performance, the University's instructions for the completion of "Assessment of Teaching Ability" reports state that "referees should have first-hand knowledge of the candidate's teaching and should cover as many aspects of the candidate's teaching as possible." The relevant guidelines for the University's internal promotion processes (from lecturer to senior lecturer, and from senior lecturer to reader) during 1982 and 1986 (i.e. the years to which documents 2 and 14 relate) both state as follows: Teaching shall be evaluated with the aid of reports from - (i) staff members who have had the opportunity to observe the candidate's work; (ii) past students; and exceptionally, (iii) present students. The importance of the objective evaluation of teaching is stressed. ... A candidate for promotion provides the names of not more than two referees who can be contacted with regard to teaching ability. The candidate's Head of Department is also asked to nominate two additional persons to be consulted. Those nominated by the candidate and the Head are requested to provide a confidential assessment on a special form. Candidates are encouraged also to provide their own evidence of teaching ability.81. In the present case, the persons who were approached to act as referees in respect of Dr Pemberton's teaching experience, ability and performance were in fact officers of the University who had acquired their first-hand knowledge of Dr Pemberton's teaching by virtue of the fact that they were officers of the University. However, it does not necessarily follow that referees of a candidate's teaching ability act in the capacity of officers of the University.82. While the guidelines refer to teaching being evaluated with the aid of reports from staff members (i.e. officers of the University), these were guidelines only and no doubt a degree of flexibility was available. For instance, if the candidate for promotion had recently taught at another tertiary institution, or if a potential referee with first-hand knowledge of the candidate's teaching had transferred to work at another tertiary institution, it would be open to the University to approach academics at other tertiary institutions (who have the requisite first-hand knowledge of the teaching experience, ability and performance of a candidate for promotion) to act as referees. This suggests that the essential qualities which make a person an acceptable referee of a candidate's teaching ability are that the referee is acknowledged as personally having sufficient experience and expertise to make informed judgment, and that the referee has sufficient personal knowledge of the candidate's teaching, wherever or however that knowledge was acquired.83. Moreover, the evidence makes it clear that an officer of the University approached to act as referee in respect of the teaching experience, ability and performance of a candidate for promotion is not obliged to so act. The relevant guidelines state that the willingness of the nominated person to act as referee must be ascertained in advance. Certainly it does not appear to have been part of the duties of office of staff of the University (other than Heads of Department), to provide referee reports of this nature. While the issue is not free from doubt, I think the better view is that documents 2 and 14 were provided on a voluntary basis by individuals considered to be of sufficient eminence in the academic community to act as referee of the teaching experience, ability and performance of a colleague, rather than in their capacity as officers of the University.84. Dr Pemberton, in his written submission, took specific objection to the argument in the first paragraph of the University's submission, set out at paragraph 75 above, to the effect that the author of document 22 was not selected as a referee in his capacity as an officer of the University but because of his detailed knowledge of the relevant facet of Dr Pemberton's activities. Dr Pemberton argued that: ... if [document 22] purports to provide a "detailed knowledge" of my research then the contents of the report are fraudulent. The reason I say this is that: 1. the referee was an employee of the University, ... 2. There is no past or present employee who has detailed knowledge of my research work in the Molecular Biology of Prokaryotic Tetrapyrrole and Tetraterpenoid Biosynthesis and the Molecular Biology of the Bacterial Degradation of Xenobiotics; not one but a number of international referees would be required. Extraordinarily, given that one of the conditions for promotion was that the applicant be of international standing, I have no idea whether or not international referees were chosen and I was not given any opportunity to nominate such persons. For the University to claim that this document was not written for and on behalf of the University is simply a nonsense; clearly the document was produced as part of the process which examined my application for promotion, and it was produced by a University employee ...85. In fairness to the author of document 22, I should say that neither that author, nor document 22 itself, purports to provide a detailed knowledge of Dr Pemberton's research. (The words to which Dr Pemberton objects are the words of the authors of the University's submission.) There is no basis for suggesting that the contents of document 22 are fraudulent on that account. Dr Pemberton's remarks about the failure of the University to seek out international referees in Dr Pemberton's specialised field may well be fair comment on the adequacy of the University's selection process. However, I do not think it is improper for a scientist of Professorial calibre within the University, who works in the same general field as Dr Pemberton, to comment on the quality of Dr Pemberton's published work in his specialised field. Whether those comments are deserving of much weight compared to the comments of referees of international standing in Dr Pemberton's specialised field is a matter for the judgment of the selection committee. The real issue for present purposes, however, is the capacity in which the author of document 22 provided that report. In that regard, I think Dr Pemberton's submission is mistaken.86. The author of document 22 was, at the time of creating document 22, an officer of the University, and was requested by the Vice-Chancellor to provide a reference addressing the selection criteria applicable to Dr Pemberton's 1992 application for promotion from Reader to Professor. The relevant guidelines (reproduced at paragraph 32 above) make it clear that the Head of Department, Dean and Pro-Vice-Chancellor with responsibility for the organisational unit in which the candidate for promotion is employed, are obliged to provide reports on the candidate's claims for promotion. In addition, other referees may be nominated by the Head of Department and approached by the relevant Promotions Committee. That is what occurred with respect to the author of document 22. It is clear that the referee was approached because the referee was in a position to have knowledge of Dr Pemberton's work, but it is also clear from the terms of the approach that the author was under no obligation to provide a referee report. I think the better view is that the author of document 22 was acting in a personal capacity as an eminent scholar and researcher able to comment on Dr Pemberton's work, and that document 22 was provided by the author in a personal capacity and not as an officer of the University.87. I am satisfied, therefore, that documents 2, 14 and 22 are not excluded from consideration for exemption under s.46(1) of the FOI Act, by virtue of s.46(2).Application of s.46(1)(a) of the FOI Act88. In Re "B" and Brisbane North Regional Health Authority (Information Commissioner Qld, Decision No. 94001, 31 January 1994, unreported), I considered in detail the elements which must be established in order for matter to qualify for exemption under s.46(1)(a) of the FOI Act. The test of exemption is to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, possessed of appropriate standing to bring a suit to enforce an obligation of confidence said to be owed to that plaintiff, in respect of information in the possession or control of the agency or Minister faced with an application, under s.25 of the FOI Act, for access to the information in issue (see paragraph 44 in Re "B"). I am satisfied that, in the circumstances of this application, there are identifiable plaintiffs (the authors of relevant referee reports) who would have standing to bring actions for breach of confidence.89. There is no suggestion in the present case of a contractual obligation of confidence arising in the circumstances of the communication of the information in issue from the authors of relevant referee reports to the University. Therefore, the test for exemption under s.46(1)(a) must be evaluated in terms of the requirements for an action in equity for breach of confidence, there being five criteria which must be established:(a) it must be possible to specifically identify the information in issue, in order to establish that it is secret, rather than generally available information (see paragraphs 60-63 in Re "B");(b) the information in issue must possess "the necessary quality of confidence"; i.e. the information must not be trivial or useless information, and it must possess a degree of secrecy sufficient for it to be the subject of an obligation of conscience, arising from the circumstances in or through which the information was communicated or obtained (see paragraphs 64-75 in Re "B");(c) the information in issue must have been communicated in such circumstances as to fix the recipient with an equitable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it (see paragraphs 76-102 in Re "B");(d) it must be established that disclosure to the applicant for access under the FOI Act would constitute a misuse, or unauthorised use, of the confidential information in issue (see paragraphs 103-106 in Re "B"); and(e) it must be established that detriment is likely to be occasioned to the original confider of the confidential information in issue if that information were to be disclosed (see paragraphs 107-118 in Re "B").90. With respect to the first criterion set out in the preceding paragraph, I am satisfied that the information in issue which is claimed to be confidential information can be identified with specificity in each of documents 2, 3, 5, 6, 7, 8, 10, 11, 12, 13, 14, 16(a), 16(b), 21, 22 and 24.91. With regard to the second criterion, the number of potential referees in respect of Dr Pemberton's rather specialised field of expertise, even internationally, is comparatively small. So, too, is the number of colleagues with personal knowledge of Dr Pemberton's work performance who would be able to provide meaningful referee reports on other promotion criteria. Dr Pemberton has therefore been able to make a series of educated guesses as to the identities of the authors of referee reports which have been withheld from him in full (he has been assisted in that regard by a process of elimination, having received a number of referee reports with the consent of the authors), and as to the identities of the authors of those referee reports which have been disclosed to him with only identifying details of the authors deleted. Dr Pemberton has received no confirmation as to whether his educated guesses are correct, and I think that the identities of the authors of referee reports are properly to be regarded as having the necessary quality of confidence. Dr Pemberton certainly has no knowledge of the contents of the referee reports which have been withheld from him in full. 92. In his written submission to me, Dr Pemberton made the following comments: Many experienced academics will agree with the observation that most if not all committees "leak" information. ... I agree in part with the comment by Professor Walker [Dean of the Faculty of Law, in his response to the survey questionnaire] that "very few academics now feel any inner moral obligation to preserve the privacy of communications discussed in University committee meetings". What I disagree with is that this is a recent phenomenon brought on by the enactment of FOI legislation. What past and present applicants for promotion, referees and committee members must assume is that there is a high probability that the confidential comments or submissions have been "leaked", and used in ways other than those intended. An additional complicating factor is the sheer numbers of people who sight the promotion documents. This includes the Promotions Committee (the Professorial Promotion Committee has 12 members), then there are anything up to four referees, the Head of the Department and Senior Academic staff are consulted (up to 6-8 people). Up to 25 or more persons may see the documents. Referees both nominated by the applicant and the University are sent confidential appointments and promotions documents. Since the FOI requirements differ from country to country, what safeguards are there on the redistribution of this material by international referees? ... The applicant has his or her application leaked, but what is worse, other information, such as the contents of referees' reports, the comments of the selection committee and other materials are released in part or whole. In the end the applicant is probably the only person who doesn't know what went on in the appointments or promotions committee. If the material is damaging then the applicant in most cases is quite oblivious to the damage; if the material is defamatory then the applicant is blissfully unaware that defamation has occurred.93. At paragraph 71(b) of Re "B", I quoted the following passage: It is not necessary to demonstrate absolute secrecy or inaccessibility(b) "The law does not require information to be absolutely inaccessible before it can be characterised as confidential. This is obvious from the nature of the breach of confidence action itself, which arises out of a limited disclosure by the confider to a confidant. ... It is clear that the publication of information to a limited number of persons will not of itself destroy the confidential nature of information ... On the other hand, it is equally clear that the disclosure of information to the public at large will destroy the confidentiality of the information. ... Whether the publication which information has received is sufficient to destroy confidentiality is 'a question of degree depending on the particular case' (citing Franchi v Franchi [1967] RPC 149, at 153 per Cross J)". (Gurry, pages 73-4) This principle was also explained and applied by the Full Court of the Federal Court of Australia in Attorney-General's Department and Australian Iron and Steel Pty Ltd v Cockcroft (1986) 10 FCR 180.94. It is a serious allegation that confidential referee reports are routinely leaked by academics involved in the selection process. If true, it would make a mockery of the University's policy which aims to attract, to the process of obtaining confidential referee reports, the protection of the law relating to breach of confidence. It would, for example, be reprehensible for a member of a selection committee who had access to a referee report obtained in confidence, to subsequently relay to persons not involved in the selection process details of comments provided in confidence by the referee. There is, however, no evidence before me which suggests that unauthorised disclosure, widespread or otherwise, has occurred in respect of the particular documents in issue in this case. Dr Pemberton refers to the large number of persons who see confidential referee reports, but this is inherent in the nature of the particular promotion processes established in the University. The extent of the disclosure of confidential referee reports to persons for the limited purpose of their participation in the selection process does not seem to me, having regard to the principles noted in paragraph 93 above, to be sufficient to destroy the confidential nature of the referee reports. 95. Documents 2, 10, 14 and 22 have been withheld from the applicant in their entirety. In respect of documents 3, 5, 6, 7, 8, 11, 12, 13, 16(a), 16(b), 21 and 24, the only matter withheld from the applicant comprises identifying details of the authors of referee reports, the contents of which have otherwise been disclosed to the applicant. I am satisfied that the information in issue in the documents referred to in this paragraph is not trivial and has the requisite degree of secrecy to invest it with the "necessary quality of confidence" so as to satisfy the second criterion.96. I now turn to the third criterion referred to in paragraph 89 above, i.e. the determination of whether the matter in issue was communicated in circumstances importing an obligation of confidence on the recipient. Considerations relevant to the determination of this question are examined at length at paragraphs 76-96 of my decision in Re "B". 97. In Re Kamminga and Australian National University [1992] AATA 84; (1992) 15 AAR 297, at p.306, the Commonwealth AAT, chaired by O'Connor J (President), accepted evidence from the Assistant Vice-Chancellor of the Australian National University, and the Director of the Institute of Advanced Studies of the Australian National University, to the effect that there is a convention, extremely well known to academics, that referee reports are given and received in confidence. The Tribunal found that such a convention exists and extends at least to Universities in the United Kingdom, Australia and New Zealand. Similar findings were made by the differently constituted Tribunal in Re Healy at paragraph 61 and following. In Re Kamminga, the Tribunal was dealing with s.45(1) of the Freedom of Information Act 1982 Cth (the Commonwealth FOI Act) which is, for practical purposes, identical to s.46(1)(a) of the Queensland FOI Act. On the basis of its finding of the existence of the convention, the Tribunal in Re Kamminga found that referee reports provided in connection Dr Kamminga's applications for positions as a Research Fellow at the Australian National University comprised information received by the University in such circumstances as to import an obligation of confidence. The Tribunal in Re Kamminga also appears to have been influenced by some remarks of the Full Court of the Federal Court in Smith Kline and French Laboratories (Aust) Ltd & Ors v Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291 at pp.302-303, to the effect that where a referee supplies confidential information "the understanding ordinarily would be that the prospective employer would not disclose the information to any third party".98. The University was aware of the above cases and included at segment 1 of the survey questionnaire referred to in paragraph 37 above, a series of questions as follows: Apart from specific requests for confidentiality the University wishes to establish that there is a general convention of confidentiality for referees' reports. ... 1.1 Do you believe there is a convention in Universities that referees' reports will be kept confidential? 1.2 Would you expect any reports you provide to be kept confidential, without specific reference to you? 1.3 In your experience does the convention (if any) extend to Australia, the UK and New Zealand? 1.4 Does the convention (if any) extend to the US and other countries? Please specify any other countries you have reason to believe which share the convention.99. The responses from 49 Heads of Department or Deans of Faculty at the University produced an almost 100% "yes" response to questions 1.1, 1.2 and 1.3 above (see also Professor Wilson's evidence at paragraph 34 of his statutory declaration, which I accept). I note that in his written submission Dr Pemberton did not seek to dispute the existence of the convention. The University's submission in respect of the third criterion identified at paragraph 89 above was as follows: The reports were tendered in confidence. Some were expressly sought in confidence. Some were expressly tendered in confidence. All are documents of the kind to which the convention of confidentiality applies. The convention of confidentiality referred to above is the convention referred to in Kamminga, para 29. The University asserts that the convention applies throughout the Universities of Australia; the United Kingdom; New Zealand; countries previously part of the British Commonwealth, and the countries of Western Europe, including Germany, Switzerland, France. In the case of each country the convention may be displaced by the practices of a particular University. The convention is also well understood in the United States of America, although not so widely applicable there. As a consequence, a reference to a report being sought in confidence by this University would render the report writer aware of the convention's existence and content. The writer would anticipate this University would restrict access to the report to those involved in the process for which it was sought and would not expect it to be disclosed to the subject of the report. The evidence contained in the declarations and exhibits supports this submission.100. I accept the existence of the convention referred to in the University's submission. I also accept that the convention may be displaced by the practices of a particular University. I note that the policies adopted by the University as to disclosure of the substance of some referee comments (see paragraphs 143-144 below) involve a variation from the usual understanding of the convention. I am satisfied that -(a) documents 2, 10, 14 and 22; and (b) the referee reports provided by those referees, identifying details of whom have been deleted from documents 3, 5, 6, 7, 8, 11, 12, 13, 16(a), 16(b), 21 and 24;were communicated in circumstances which enlivened the convention. 101. In each case, either there were published University guidelines known to the referee which clearly stated that referee reports would be sought in confidence, or the University made it clear when seeking the report (either by the terms of the letter requesting the report, or the use of pro formas clearly marked with the word "CONFIDENTIAL") that the referee report would be received in confidence in accordance with the usual convention. All of the providers of those referee reports were senior academics of considerable standing within their discipline, and considerable experience of the provision of referee reports on candidates for promotion in universities. I am satisfied that they would have been well aware of, and understood the implications (in terms of the convention) of the request for a report being put in such terms. In respect of particular referees from the United States of America (where the evidence suggests that the existence of the convention is well understood, although not so widely applied), I am satisfied that the individual referees understood that their reports would be received by the University in confidence, except to the extent that the requirement of confidentiality was waived by the author. In most instances, the providers of the referee reports themselves indicated their intention that the reports were provided in confidence, by marking them with the word "Confidential", or including some other stipulation to like effect.102. I accept that the referee reports mentioned in the preceding paragraph were provided on the basis of a clear understanding on the part of the author of the report, and on the part of the University, that the University would restrict access to the report to those involved in the promotion process for which it was sought, for the limited purpose of being used to evaluate the claims of the candidate for promotion against relevant selection criteria. I consider that the third criterion set out in paragraph 89 above is satisfied in these circumstances.103. Dealing with the fourth criterion set out at paragraph 89 above, I find that disclosure under the FOI Act of the matter remaining in issue would in each instance constitute unauthorised use of the relevant information. It is clear that each of the relevant referees has been contacted to ascertain his or her attitude to the disclosure to Dr Pemberton of either their report or the details which would identify them, and each has quite clearly conveyed to the University an objection to disclosure to Dr Pemberton. I am also satisfied that the relevant understanding of the scope of the convention of confidentiality ordinarily applying to these reports, was that a report would not be disclosed to the subject of the report without the consent of the author of the report.104. It is of course the privilege of the supplier of confidential information (i.e. in the circumstances of this case, the authors of the relevant referee reports) to waive confidentiality and authorise release of the reports to the subject of the report. The University could not as a matter of law require the author of a confidential referee report to maintain confidentiality in respect of the report, in the absence of a contractual obligation binding on the author, or perhaps some legislative provision binding on the author (for example if a University statute was binding on University employees who provided referee reports). To that extent the University's new policy in respect of disclosure of referee reports (see paragraph 35 above) really does no more than recognise the realities of the relevant legal rights and obligations of the University and the authors of referee reports, in regard to controlling dissemination of those reports. 105. I am also satisfied that disclosure to Dr Pemberton of the information in issue contained in the documents mentioned in paragraph 100 above, would cause detriment to the authors of those reports (see the fifth criterion set out at paragraph 89 above). In paragraph 111 of my decision in Re "B", I stated that it was not necessary to establish that a threatened disclosure of confidential information would cause detriment in a financial sense, but that detriment could also include embarrassment, a loss of privacy, fear or an indirect detriment, for example, that disclosure of the information may injure some relation or friend. In Re Kamminga, at page 307, the Commonwealth AAT was satisfied that there would be sufficient detriment to the author of a referee report if disclosure might occasion a loss of personal rapport with the subject of the referee report. I am satisfied that disclosure to the applicant of the information in issue contained in the documents mentioned in paragraph 100 above would cause detriment to the authors of those reports of one or more of the kinds mentioned above.106. I am satisfied that disclosure of the matter remaining in issue which is contained in documents 2, 3, 5, 6, 7, 8, 10, 11, 12, 13, 14, 16(a), 16(b), 21, 22 and 24 would found an action for breach of confidence, and that it is therefore exempt matter under s.46(1)(a) of the FOI Act.107. In the circumstances of the present case, no occasion arises to consider the application of any of the defences to an equitable action for breach of confidence discussed in my decision in Re "B" at paragraphs 119-134.108. The documents in issue from which the only matter withheld from the applicant comprises the identifying details of the authors of referee reports (the contents of which have otherwise been disclosed to Dr Pemberton) perhaps require some further explanatory comments. In each instance, the relevant referee report was originally supplied in confidence, but the author has consented to disclosure of an anonymised version of the referee report, after being contacted following Dr Pemberton's FOI access application. In my opinion, this represents an acceptable exercise of the privilege, possessed by a supplier of confidential information which is subject to an obligation of confidence in the hands of a recipient, to selectively authorise disclosure of information which is subject to an obligation of confidence (see paragraphs 103 to 105 of Re "B"). I am satisfied that the small amount of information still withheld from Dr Pemberton in these circumstances is capable of satisfying all the requirements necessary for exemption under s.46(1)(a) of the FOI Act. 109. The decision of Yeldham J of the Supreme Court of New South Wales in G v Day [1982] 1 NSWLR 24, is authority for the proposition that although a person's identity is ordinarily not information which is confidential in quality, the connection of a person's identity with the imparting of confidential information can itself be secret information capable of protection in equity (see para 137 of my decision in Re "B"). Yeldham J said (at pp.35-6): ... passages in the speeches of their Lordships [in D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171] support the view that the principles of equity which protect confidentiality should extend not only to the information imparted but also, where appropriate, to the identity of the person imparting it where the disclosure of that identity (as in the present case) would be a matter of substantial concern to the informant - see especially pp.218, per Lord Diplock; 228, 229, per Lord Hailsham of St Marylebone and 232, per Lord Simon of Glaisdale. ... if a person is likely to suffer prejudice from the disclosure of his name, if no sound reasons of public interest or public policy exist why such disclosure should take place, and if he has obtained assurances of confidence in relation to his identity before imparting his information, I find no reason in principle why his identity should not be treated as confidential information in the same way as the material which he provides to the authorities.110. In G v Day, the identity of a person who initially supplied confidential information to a proper authority was held to be entitled to protection in equity even though it must have been contemplated that the information originally supplied would at some subsequent stage enter the public domain in the course of formal proceedings. I am satisfied that the circumstances under consideration are appropriate to attract the principles of equity which extend to protect the identity of persons imparting confidential information, even though most of the information initially supplied in confidence is subsequently disclosed. Disclosure of identity would still be to the detriment of the authors in a not insubstantial way.Application of s.40(c) and s.41(1)111. Section 40(c) of the FOI Act provides as follows: 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.112. Section 41 of the FOI Act provides as follows: 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. (3) Matter is not exempt under subsection (1) if it consists of - (a) a report of a prescribed body or organisation established within an agency; or (b) the record of, as a formal statement of the reasons for, a final decision, order or ruling given in the exercise of - (i) a power; or (ii) an adjudicative function; or (iii) a statutory function; or (iv) the administration of a publicly funded scheme.113. The University's written submission treats its case in respect of the application of s.40(c) and s.41(1) of the FOI Act as being essentially interchangeable, which I accept that it is possible to do in the particular circumstances of this case. The University has identified a number of adverse effects on the management or assessment of the University's personnel which it claims could reasonably be expected to follow from disclosure of confidential referee reports. Some additional public interest considerations said to favour non-disclosure are referred to in the context of the public interest balancing test which qualifies s.40(c). All of the adverse effects, and additional public interest considerations favouring non-disclosure, are then relied upon in the context of s.41(1) to argue that disclosure of confidential referee reports would, on balance, be contrary to the public interest.114. The following extracts from the submissions of both participants can therefore be regarded as referable to the application of both s.40(c) and s.41. It should be borne in mind that the University's submission was framed so as to cover all of the documents in issue, rather than just the four documents which it conceded (and I have found) were not eligible for consideration for exemption under s.46(1) of the FOI Act. Because of my findings at paragraph 106 above, I have to consider the application of s.40(c) and s.41 only to documents 1, 18, 19 and 20. Respondent's submissions with respect to s.40(c) and s.41115. The first major point made in the University's submission is as follows: The system of referees' reports plays a key role in the assessment of the University's personnel. Selection for promotion is carried out first by area and then by central committees, the majority of whose members will not have an intimate knowledge of the performance of candidates within the University. In the case of the central committee, a candidate may not be known personally by any member. Those committees must rely on reports from Heads of Department, Deans and Pro-Vice-Chancellors on the performance of the candidate in carrying out teaching and administrative duties. They must rely on reports from internal and external scholars in the candidate's specialist field on the candidate's performance as a scholar and researcher.116. The University's case in respect of the adverse effects on the management or assessment of University personnel through disclosure of confidential referee reports is conveyed in the following extract from the University's written submission: The views of over 50 academics as to the adverse effects of release of referees' reports have been put forward. The great majority of them (all but one) have indicated that they believe disclosure of reports will cause a reduction in the candour displayed in reports by academics generally. At most, 10 have indicated that they personally would continue to provide full and frank reports but the clear majority have stated that they are likely to temper their comments if they know the reference will be available to its subject. One has gone so far as to say that a reference would not be provided if it was known the reference would be disclosed. The reasons for this attitude are set out in the declaration of Brian Graham Wilson and other responses from academics. The natural tendency towards tempering open references is accentuated by the collegial, rather than hierarchical, nature of the University's academic community. ... The evidence shows a number of likely effects of disclosure of referees' reports on personnel assessment: (a) Many academics will temper their reports, giving bland statements which are vaguely supportive of the candidate. (b) Some academics will refuse to give references in the future. (c) There will be an increased reliance on oral advice and comments. The first effect will reduce the effectiveness of the promotion process because valid criticism will not always be put forward. Committees will have less accurate information on which to assess the worth of the candidate. The second will mean that the people in the best position to make judgements on a candidate's academic worth will not always give references. Many academics work in specialist fields where there are only a few colleagues who are well placed to comment on their work. Disclosing referees' reports would reduce the field of ideally suited referees whom the committees could consult. The third will mean that selection committees will have less reliable or even inaccurate information before them on which to make an assessment. Comments will be communicated through an intermediary who may not clearly transmit the referee's views. Allowing disclosure of referees' reports would also have an adverse effect on the management of personnel. As indicated in the evidence, some staff members will continue to produce full and frank reports even if they know those reports will be disclosed. This will lead in some cases to resentment on the part of candidates because of the comments, which will evidence itself in a lack of co-operation between the staff members concerned. Even more serious will be deliberate disruption of the referee's or the Department's teaching, administrative and research activities. The scope for serious effects caused by such disruptive behaviour is significantly extended by the collegial rather than hierarchical nature of the University's academic community. A system which emphasises co-operation rather than direction provides much more opportunity for interference with the proper functioning of the University. The above submissions are not based on a view that all academics have a fundamentally flawed personality. Nor do they suggest that every disclosed report will have each of the effects contended for. It is rather a claim that academics are human. They do consider what effect their actions will have on their personal and professional relationships. After considering this, some would continue to provide full and frank reports, many would hesitate to make negative comments; and a few would refuse to give reports. Academics are also human in that, when faced with criticism, some will resent it. Some will take retaliatory action. It is submitted that it is the role of the Commissioner to consider the likely effect of disclosure on the academic community as it actually exists, not on an artificial or idealised model.117. The University's submission recognises that even if a reasonable expectation of a substantial adverse effect in terms of s.40(c) can be established, the public interest balancing test incorporated in s.40 requires that regard must be had to other public interest considerations weighing for or against disclosure. The University has identified seven public interest considerations weighing against disclosure of confidential referee reports. The first four of these, however, are identical to the claimed adverse effects on management or assessment of University personnel which it has earlier relied upon. I do not think it is permissible to in effect seek to have those factors counted twice. Satisfaction of the first element of s.40(c) (i.e. 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 the agency's personnel) itself tilts the balance of public interest against disclosure of the matter in issue. One then looks to identify whether there are any other separate public interest considerations weighing in favour of (or against) disclosure, and if so, accords them appropriate weight in the further balancing process imported by the closing words of s.40. The three separate and additional public interest factors weighing against disclosure (which cannot properly be characterised as adverse effects on the management or assessment of agency personnel) identified by the University are as follows: (5) Disruption to University resource management In a similar manner to personnel management, resource management decisions within a Department are often made or at least influenced by a number of members of staff. Resentment borne against one member or against the Head of Department as a representative of the administration may lead to poor decisions on allocation of funds for research or teaching. Resentment may, of course, arise for a number of reasons. People may simply not like one another. However, a challenge to someone's academic ability in a reference is, as indicated earlier, a sure way of raising the ire of the candidate. It is also one that can be avoided by retaining the confidentiality of reports. (6) Refereed journals and research projects Many journals require assessment of articles by an independent academic before publication. Likewise, private, state, Commonwealth and overseas funding bodies may require confirmation from an independent academic before funding is committed. Because of the collegial nature of the academic community within Australia and internationally, release of referees' reports is likely to affect the quality and availability of such references. All the arguments put forward above can be adapted to this situation. For example, a referee from a university in New South Wales is less likely to give a frank report on a University of Queensland promotion application if the referee knows the candidate may be examining an application by the referee for funding from a research body. Some referees will simply refuse to give a reference at all. Increases in oral references will also follow. Optimum output from the academic community in Australia will not be achieved if reduction in co-operation between staff of different institutions caused by release of reports leads to a reduction in the number and quality of journals produced, national and international conferences held, and joint research projects undertaken. The effect of release of referees' reports will extend, not only to this University, but to other universities in Australia and to private and public funding bodies. (7) Reciprocity The University is part of an international academic community. A radical departure from accepted practice within Commonwealth countries would affect its status within that community. A decision to allow disclosure would tend to isolate this University from others in that international community.118. The University also took the opportunity to state its case against the public interest considerations which it perceives as weighing in favour of disclosure of confidential referee reports: (1) Personnel assessment It has been suggested that it is important for candidates for promotion to be given an opportunity to respond to adverse comments during the promotion process. Overstated or unfounded comments can then be challenged. The evidence shows that selection committees already give the candidate this opportunity in relation to promotion to Senior Lecturer or Reader. Candidates who make the interview stage in the newly introduced Professorial promotion procedure will also be given this opportunity. The Vice-Chancellor has declared that he has issued instructions to strengthen this process further by the provision of a written statement of any adverse comments. The public interest can best be served by adopting this oral or written procedure rather than compelling release of referees' reports. The candidate is made aware of adverse comments and can respond to them before the committee, without the negative public interest effects referred to above. Even if this is not accepted it is submitted that there is little in the public interest on the side of disclosure of pre-1992 reports. They deal with promotion to Senior Lecturer and Reader. Dr Pemberton has already achieved those goals. (2) Self improvement It has also been suggested that access to adverse comments will allow candidates to pick up on points raised and to improve their performance in areas where weaknesses are identified. Here again, other procedures are in place which will bring adverse comments to the notice of candidates. The procedure in respect of promotion to Senior Lecturer or Reader has already been mentioned. In the case of promotion to Professor, all unsuccessful candidates have an opportunity to meet with the Vice-Chancellor to discuss the reason for their lack of success in the current round of promotions. In addition, regular reviews of staff performance have recently been implemented in which the Head of Department meets with the staff member to discuss future work performance. The procedure involved is set out in Exhibit 2 to the Declaration of Brian Graham Wilson. These procedures adequately cater for notification of adverse comments to staff. It is not in the public interest that the University and the community be exposed to the negative factors [raised earlier in the submission] in order to give a candidate access to documents the substance of which he has already been made aware. Furthermore, in giving effect to the procedures referred to in the preceding paragraph, care is taken to present adverse comments in a form and in a context judged likely to maximise the level of self-improvement that will result. It will be actively counter-productive if the same information is anticipated or repeated in a more brusque form, as will frequently be the case if referees' reports are disclosed. (3) General public interest Cases such as Healy (para 41) have referred to a public interest that procedures of public institutions should be open to scrutiny to ensure that they are appropriate to achieve their purpose and that they are being properly followed and not abused. Like Healy, this case involves an application by the subject of the report, not a member of the general public. If this factor were found to be relevant, and were to be given effect, the Commissioner would need to find further that any members of the public could have access to the reports. It is almost certain, however, that these reports would be exempt from access by anyone other than their subject because of s44. It is therefore submitted that this factor should be given little weight in the balancing process in this case.Applicant's submissions in respect of s.40(c) and s.41119. The following extract from Dr Pemberton's written submission (the individual points in the first paragraph have been alphabetised by me for ease of subsequent reference- see paragraphs 159 to 163 below) captures most of the significant points made by him in response to the University's submission: It is my contention that the failure of the University to provide access to confidential referees' reports and other documents associated with the appointments and promotions process is against the public interest and does not fulfil the requirement for greater accountability and objectivity in the decision making process under the FOI Act, nor can it be seen that - (a) the advice given by referees is soundly based (b) promotion judgements are substantiated (c) the decisions have been reached in an appropriate manner, properly documented and true and proper minutes kept of the proceedings of committee meetings (d) the committee has rejected unlawful material which is of a kind to found an action for defamation (e) a university officer did not exceed his/her statutory authority (f) there is a mechanism for correcting false or misleading statements (g) the facts have been checked and arguments supporting a decision are relevant (h) no ill-informed, frivolous or malicious comments have been included in their determinations (i) cases of nepotism can be detected and remedial action taken (j) comments are as objective as possible (k) international referees of high academic repute are chosen (l) applicants are able to see verbatim transcripts of any adverse comments and have proper opportunity to provide a rebuttal (m) applicants who share common backgrounds, cultures, politics, ethnic origins, educational training, physical characteristics, marital status, gender, religion and lifestyles with those involved in the selection processes are not given favoured treatment in appointment and promotion (n) no fraudulent material or illegal behaviour has been introduced into the appointments and promotions process (o) documents provided for the appointment and promotions process by applicants, referees, committee members and others are bona fide e.g. are true transcripts of qualifications or referees reports. That none of the documents are used for purposes other than those laid down in clearly defined and publicly available appointments and promotions procedures (p) should an applicant have reasonable grounds to believe that part or all of the contents of appointments and promotions documents have been disclosed to a third party, for purposes other than those stated in the appointments and promotions policy document, he or she is not hindered or prevented from taking appropriate remedial action. (q) the appointments or promotion process has not been suborned to favour one candidate over another (r) should an applicant fail to be appointed or promoted they are given specific and detailed reasons for this failure. ... IS THERE LACK OF FRANKNESS AND CANDOUR IN NON-CONFIDENTIAL REPORTS? I reject the view that there will be an overall loss of candour in referees' comments. I believe that a candidate for promotion should be able to see verbatim transcripts of referees' comments so that they may be able to rebut any criticisms and correct any false or misleading information. I see it as a failure of communication on the part of a small minority of referees that they are unable to couch their criticisms in direct and constructive terms. Clearly it is impossible to defend oneself against criticism which one does not see but which one may experience indirectly, particularly when being interviewed by an appointments or promotions committee. The use of confidentiality over the years has denied applicants the basic right to answer any criticism made, by a referee, a member of the promotions committee or any other person who might have input into this process, of his/her application for appointment or promotion. Lack of direct access to such comments in the past has unfairly discriminated against many applicants, who with access to such information would have the opportunity to provide countervailing arguments in current or future applications. It is central to academic life that each member of the academic community should have the unfettered right to defend himself or herself against what they might consider unfair criticism. There is a great deal of emphasis on confidential reports being frank, they might be better if they were factual and constructive in any criticisms they may have; these are certainly the directions given to referees of ARC and NH&MRC grant applications where applicants are given access to verbatim accounts of referees' comments. It is my long experience with ARC referees reports that there is a small minority of referees whose comments are deliberately destructive and who hide behind confidentiality; for ARC and NH&MRC this type of referee is readily identifiable. Professor M. McManus, Head, Department of Pharmacology, University of Queensland (Exhibit 5 page 129) is also well aware of such persons "Those who are apt to be less frank if their name is disclosed may be the same people who are ruthless when their name is not on the report. It is basically a "no win" situation with those who alter their opinion to fit the circumstances. It is also far easier to write an adverse report when it is known that one's name will not be disclosed and this could allow a personality conflict to affect a decision. It is clearly best (to use a cliche) that "honesty is the best policy." ....... There is always the possibility that the referee is wrong or biased and the individual must have the right to challenge an adverse report. The University must remain unbiased until both sides are known. It is only then that a proper decision can be made" THE CONSEQUENCES OF DISCLOSURE ... In some University Departments there is a strong nexus between success in appointment and applicants who share common backgrounds, ages, cultures, politics, ethnic origins, educational training, physical characteristics, marital status, gender, religion and lifestyles with members of the senior academic staff; in some Departments in this and other universities nepotism is common, with staff members actively engaging in the appointment of their former graduate students to positions in their own Department. I am confident that an examination of the constitution of past and present appointment and promotion committees will reveal that they have been and are narrowly based with regard to gender, age, marital status, culture and ethnic origin and incestuous in their appointments of former students. One argument that has been put forward for not releasing confidential referees' reports is that their "frank and candid" comments may in fact found an action for defamation. Defamation is unlawful. I suspect that any University rules, regulations or directives which attempt to hide defamatory materials are themselves unlawful. In most cases University academics rely on their professional reputations to gain and retain employment, to gain and retain research grants and to gain and retain promotion, prominence and progression in their chosen profession. It is not so surprising then, considering what is at stake, that academics will stoutly defend their reputations. It would seem grossly unreasonable for the University to use confidentiality provisions to prevent a member of its staff from defending his/her reputation against ill-informed, frivolous or malicious comments; even to the point of taking an action for defamation. Another adverse effect of release of confidential material which the University has flagged, is the effect it would have on staff management and the collegial system. I feel that the negative effects have been overstated, as in the submission by Professor Rigsby, Department of Anthropology and Sociology (Exhibit 5, page 3) [reference is made here to the passage set out at paragraph 61 above]. A more positive and constructive response is one which was given by Professor Dobson, Head of the Parasitology Department (Exhibit 5, p.84-85)[Dr Pemberton here quotes the passage set out at paragraph 54 above]. ...Issues in the application of s.40(c)The test for establishing prima facie exemption under s.40(c)120. The phrase "could reasonably be expected to" in s.40(c) of the FOI Act bears the same meaning as it does in s.46(1)(b) of the FOI Act, which meaning was explained in Re "B" at paragraphs 154 to 161. In particular, I stated at paragraph 160: 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.121. It is appropriate to record what was said by the Full Court of the Federal Court in Searle Australia Pty Ltd v Public Interest Advocacy Centre & Anor (1992) 108 ALR 163 at p.176, about the meaning of the identical words in s.43(1)(b) of the Freedom of Information Act 1982 Cth (the Commonwealth FOI Act): In the application of section 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 [my underlining].The University has stated the expected adverse effects which it asserts will follow from the disclosure of confidential referee reports, including the four documents which I am presently considering. It is for me to determine whether those expectations are reasonable, in respect of the four documents which I am presently considering.122. If I am satisfied that any of the claimed adverse effects could reasonably be expected to follow from disclosure of documents 1, 18, 19 and 20, it is also for me to determine whether any of the claimed adverse effects, either individually or in aggregate, constitute a substantial adverse effect on the management or assessment by the University of the University's personnel. I have previously considered the meaning of the adjective "substantial" in the phrase "substantial adverse effect", where it appears in s.49 of the FOI Act. I adhere to the view which I expressed at paragraphs 147 to 150 of my reasons for decision in Re Cairns Port Authority and Department of Lands (Information Commissioner Qld, Decision No. 94017, 11 August 1994, unreported), that where the Queensland Parliament has employed the phrase "substantial adverse effect" in s.49, s.40(c), s.40(d) and s.47(1)(a) of the FOI Act, it must have intended the adjective "substantial" to be used in the sense of grave, weighty, significant or serious. In Re Dyki and Federal Commissioner of Taxation (1990) 22 ALD 124, Deputy President Gerber of the Commonwealth AAT remarked (at p.129, paragraph 21) that: "The onus of establishing a 'substantial adverse effect' is a heavy one ...".The "loss of candour" argument123. The first adverse effect claimed by the University (and I apprehend the most significant from its point of view) is that disclosure of confidential referee reports under the FOI Act will inevitably lead to a loss of candour in future referee reports with consequent prejudicial effects (to the assessment of university staff for promotion) of the kind referred to in its submission (see paragraph 116 above). The second and third adverse effects claimed by the University (see paragraph 116 above) are closely related to the first, in that they are alternative responses to the same alleged widespread basic reluctance of senior academics to have their honest assessments of the work of candidates for promotion disclosed under the FOI Act. 124. The second adverse effect claimed by the University was that some academics will refuse to give references in the future, if they are liable to be disclosed. I presume that this point was raised in respect of academics who are not obliged, as part of their duties, to supply reports on candidates for promotion. I consider that the second claimed adverse effect can be discounted for the purpose of considering the effects of disclosure (under s.40(c) and s.41(1) of the FOI Act) of the four documents which remain in issue, being reports which Heads of Department, Deans of Faculty and Pro-Vice-Chancellors are obliged to supply as part of their duties of office, under the University's relevant promotion arrangements. I am not prepared to find that disclosure of documents 1, 18, 19 and 20 could reasonably be expected to have the effect that Heads of Department, Deans of Faculty and Pro-Vice-Chancellors would refuse in future to supply reports on candidates for promotion.125. The third adverse effect claimed by the University (increased reliance on oral reports) is closely related to the first (loss of candour leading to bland written reports), and the two will be considered together.126. At paragraphs 124 to 135 of my reasons for decision in Re Eccleston, I reviewed previous cases where the "loss of candour" argument had been raised as a public interest consideration favouring non-disclosure of documents. At paragraphs 132 to 135 I stated my views as follows: 132. I consider that the approach which should be adopted in Queensland to claims ... 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. 135. I leave open the possibility that circumstances could occur in which it could be demonstrated by evidence that the public interest is likely to be injured by a disclosure of deliberative process advice that would inhibit the candour and frankness of future communications of a like kind. An example of such a possibility is given at p.216 of the "Report on the Freedom of Information Bill 1978" by the Senate Standing Committee on Constitutional and Legal Affairs (1979). The example relates to a public servant who is responsible for advising the Minister in a particular area, and who needs to be acceptable to a number of parties who have competing interests - preservation of confidentiality of the official's views may be the only way of preserving the relationship of frankness between the official and all parties. The remark is made that this consideration is particularly important in areas where Government exercises a regulatory function.127. In this case, the University has attempted to lay the "very particular factual basis" referred to in the above extract, with its extensive evidence of the personal attitudes of senior academics to the writing of referee reports if they are liable to be disclosed to the subject of the report. Moreover, I should note that the documents in issue in Re Eccleston were policy documents rather than referee reports on the suitability of an individual for promotion. Some judges and tribunal members, who have expressed strong views to the effect that they would not accept that public servants are likely to temper the candour and frankness of policy advice for fear of its disclosure, have nevertheless recognised that referee reports may fall into a special or exceptional category. For instance, in Sankey v Whitlam (1978) 142 CLR 1, Gibbs ACJ said (at p.40): One reason that is traditionally given for the protection of documents of this class is that proper decisions can be made at high levels of government only if there is complete freedom and candour in stating facts, tendering advice and exchanging views and opinions and the possibility that documents might ultimately be published might affect the frankness and candour of those preparing them. Some judges now regard this reason as unconvincing, but I do not think it altogether unreal to suppose that in some matters at least, communications between Ministers and servants of the Crown may be more frank and candid if those concerned believe that they are protected from disclosure. For instance, not all Crown servants can be expected to be made of such stern stuff that they would not be to some extent inhibited in furnishing a report on the suitability of one of their fellows for appointment to high office, if the report was likely to be read by the officer concerned. However, this consideration does not justify the grant of a complete immunity from disclosure to documents of this kind.128. In Re Dyrenfurth and Department of Social Security (1987) 12 ALD 577, the Commonwealth AAT, chaired by Deputy President Todd, had to consider whether individual and comparative assessments of job applicants were exempt under the provision of the Commonwealth FOI Act which corresponds to s.40(c) of the Queensland FOI Act. The Tribunal said (at p.584) that while it - has again and again declined to be persuaded by the so-called "candour and frankness" argument in relation to the giving of advice on matters of policy, we are nevertheless satisfied that in the sensitive area of assessment of personnel ... there is ground for considering that there would be substantially less candour and frankness in written reports, assessments and references if it were known that there was a real likelihood that such reports etc were not confidential and may have to be disclosed. It is, we think, notorious that open references are given with a reduced frankness, and at a level of generality, that are inimical to the placing of much reliance upon them. The result could be either that the relevant documentation would be of reduced reliability and value or that greater stress would have to be placed on oral reports or both. In any event, the consequences for good administration in the area of management and/or assessment of personnel would be serious indeed. At any level of appointments, assessment of candidates for appointment must be as honest and forthright as possible if the right decisions are to be made, and it may be correct to say that the higher the level of the office the truer this will be.129. In Re Healy (at paragraph 64) the Commonwealth AAT said in respect of university referee reports: ... We consider that it is not in accordance with human experience generally that open reports are as frank and as explicit as confidential reports. We consider it likely that, if referees knew their reports supplied under the reference system which has become established by universities internationally were to be available to the candidates, many of the reports would lack the frankness and explicit detail which they have at present and their value to the universities in assessing the suitability of the candidates for academic appointments would be considerably diminished.130. To like effect were the comments of the Victorian AAT in Re De Souza-Daw (at p.10): I accept that if the writer of a reference were to know that a copy of it were to find its way into the hands of the individual, then there is a great likelihood that the reference would, as Mr Thorne says, be in bland form and would tend to highlight the positive aspects of the applicant, and to make minimal reference to or no reference at all to the negative qualities.131. Contrary views are also to be found. For example, in Conway v Rimmer [1968] UKHL 2; [1968] AC 910, Lord Upjohn said at (p.994): ... I cannot believe that any Minister or any high level military or civil servant would feel in the least degree inhibited in expressing his honest view in the course of his duty on some subject, such as even the personal qualifications and delinquencies of some colleague, if he thought that his observations might one day see the light of day. His worst fear might be libel and there he has the defence of qualified privilege like anyone else in every walk of professional, industrial and commercial life who every day has to express views on topics indistinguishable in substance from those of the servants of the Crown.132. In Science Research Council v Nassé [1979] UKHL 9; [1980] AC 1028, Lord Salmon said (at p.1070): I cannot accept the proposition that those whose duty it was to write reports about a candidate and his record, suitability for promotion, etc., would lack in candour because the reports, or some of them, might possibly sometimes see the light of day. (my underlining)133. Also, in Re Kamminga, the Commonwealth AAT, chaired by O'Connor J (President) did not accept (at pp.320-3) the submission on behalf of the Australian National University that if referees could not be assured of the confidentiality of their reports, their reports would lack candour and therefore be of little value.134. I believe that the issues at stake in this case are of some importance to the broader public interest. Universities occupy an important position in our society, and receive large amounts of public funding to pursue functions intended to benefit the wider public interest. For present purposes, these are conveniently encapsulated in the following extract from the "Mission and Goals" of the University of Queensland (Ex. 1 to Professor Wilson's statutory declaration): The mission of the University of Queensland is to extend, evaluate, preserve and transmit ideas and knowledge through teaching and research of the highest international standards for the particular benefit of Queensland and the good of the wider national and international community. ... The broad goals of the University in pursuing its mission are: ... 3. To pursue excellence in all respects of teaching and learning. 4. To achieve high international standards in research, scholarship postgraduate education and training in all its disciplines, and facilitate the communication, application and transfer of university research and scholarship for the benefit of the national and international community. 5. To manage effectively and efficiently all its human, financial and physical resources.135. I accept that the task of achieving its Mission and Goals will be furthered by the University adopting (to use the words of paragraph 4 of Professor Wilson's statutory declaration) "personnel assessment practices which ensure that those academic staff who are contributing most to fulfilment of the Mission are promoted', or in other words, by ensuring promotion on merit.136. The tenor of the University's written submission suggests that it has a longstanding system for assessing the merit of candidates for promotion that is as good as it can practicably be, that with guarantees of confidentiality referees routinely write honest and accurate assessments of candidates for promotion, but the prospect of disclosure under the FOI Act poses a threat to the efficacy of the system. In the interests of a balanced perspective on the imperfections necessarily inherent in any system of merit selection/promotion (at least any which is not based solely on a small number of objectively measurable criteria that apply equally to all candidates, e.g., the amount of revenue generated for the employer by candidates performing like duties), I offer the following observations: ? The University's case would be more convincing if all referee reports were guaranteed secrecy, but for the reasons explained at paragraph 104 above, the University is not in a position to enforce such a policy - it is the privilege of the referee to control dissemination of the report which the referee prepared, and it is clear from the evidence that different academics adopt different practices in this regard. This point is of significance since some of the senior academics whose views have been put into evidence have stressed the need for referee reports to be uniformly treated as confidential (from the subject of the report) for the system to be effective: see in particular the comments of the author of one of the documents in issue, who is identified at paragraph 33 above as B6. The Head of the Department of Computer Science (see paragraph 43 above) believes that non-confidentiality would result in inequity, as some referees would moderate what they write while those more courageous would not, making it difficult to compare people on the basis of referee reports. Yet non-confidentiality has always been an option for the author of a referee report. There is nothing to prevent an academic who is minded to write a favourable report on a candidate for promotion discussing the terms of the report beforehand with the candidate.? Referee reports are just one of several sources of relevant information to be evaluated, though I accept that they may assume more than usual importance in the rather complex arrangements for evaluating candidates for promotion that are described in the University's evidence.? In all workplaces which offer the prospect of career advancement, promotion through the stages in the organisational hierarchy ordinarily depends on the candidate for promotion securing the endorsement and support of a sufficient number of those who have already advanced through the system. The elements of subjective judgment, by those who are already at or near the peak of the hierarchy, cannot be realistically eliminated from any system of assessment of staff for promotion. Those who participate in making the judgments (be they members of selection panels or referees) are inevitably influenced by their personal values, prejudices and predilections. The evaluation of candidates for promotion is an art rather than a science. Anyone with experience in participating in the work of selection and promotion committees will have experienced the difficulty of reconciling the differing value frameworks of different referees: the perennial problem of coping with "hard" raters and "easy" raters. The use of referee reports has always been attended by difficulties of this nature, even in systems in which referee reports are routinely provided in confidence. ? One of the problems with confidentiality is that it is capable of being a double-edged sword. The cloak of confidentiality may permit some people to feel confident enough to express criticisms which they might otherwise refrain from making. The cloak of confidentiality can also permit a person to indulge a dislike of, or prejudice against, an applicant for promotion, without the fear of being exposed. I note that in Re Kamminga one of the considerations which persuaded the Commonwealth AAT that disclosure of referee reports would not be contrary to the public interest was the following (at p.302): The Tribunal considers that there may be cases where adverse comment is made on an applicant which is unfounded or out of context. The goal of selecting the best staff in such cases would be facilitated by allowing applicants access to the reports.? If there is substance in the University's central proposition that senior academics are prepared to be less than fully honest in writing a referee report on a colleague who might see the report, in the interests of preserving harmonious working relationships or friendships, it logically seems to be no less likely that senior academics may be inclined to promote the claims for promotion of a friend, protege or supporter over better qualified candidates for promotion. Under the cloak of confidentiality, it may well be easier to escape careful scrutiny (by a selection committee) of a glowingly favourable opinion on a candidate for promotion, that is not substantiated, than it is of adverse comment that is not substantiated.137. I think one method of testing the University's central premise is to pose the question of whether a selection committee, under the present system, should logically be entitled to afford greater weight to a referee report which the author makes clear is intended to be impressed with an obligation of confidence, than to a referee report which the author is prepared to disclose to the subject of the report. Does the author's choice as to confidentiality really represent a rational basis for determining the weight which should properly be accorded to a referee report in a selection process? Leaving to one side the subjective element of the reputation or standing which a particular referee may have in the minds of members of the selection committee, I should have thought that the most reasonable guide to the worth of a referee report, whether or not confidential, is the extent to which the opinions and conclusions expressed in it appear to be balanced, well-reasoned and supported by particulars of the evidence which substantiates the opinions and conclusions reached, whether favourable or adverse.138. Weighing the competing advantages and disadvantages, it is certainly arguable that the best and fairest system would be one in which referee reports were available to the subject of the report, and the guidelines to referees stressed the importance of providing fair and considered reports of the kind I have described in the preceding sentence. Were it not for the evidence filed on behalf of the University, I should have thought that, as a class, the community's leading academics would be likely to have the skills and the intellectual integrity to make such a system work effectively. The University's evidence, however, paints a somewhat unflattering picture of (at least a segment of) its academic staff: of persons liable to respond to adverse comment on their performance by disrupting a Department's teaching, administrative and research activities or making retaliatory personal attacks. The University's submission asks that I take account of the academic community as it actually exists, not an artificial or idealised model. Based on their experience of the academic community as it actually exists, the senior academics who comprise the Academic Board of the University recommended the policy favouring confidentiality of referee reports which is stated at paragraph 35 above. My findings at paragraph 106 above mean that, for the most part, their recommended policy will survive the application of the FOI Act.139. However, I am now dealing with reports written by Heads of Department, Deans and Pro-Vice-Chancellors as part of their duties of office. Their position is distinct from that of other referees for at least two reasons. The first is that whereas the precise identity of other referees who contribute reports to the selection process will ordinarily not be made known to a candidate for promotion without the referee's consent, the guidelines relating to a promotion process ordinarily stipulate that a Head of Department (or a Dean or Pro-Vice-Chancellor in the case of more senior positions) is required to provide a report, and the candidate for promotion will know that person's identity. Secondly, Heads of Department, Deans and Pro-Vice-Chancellors carry primary management responsibility, in respect of the particular organisational units which they head, for achieving the University's Mission and Goals. Heads of Department, and also Pro-Vice-Chancellors, have particular responsibility for the fifth goal set out in paragraph 134 above, i.e. managing effectively and efficiently the resources in their organisational units, in particular (for present purposes) the human resources. They are responsible for trying to ensure that all staff are efficiently and effectively performing the employment duties (e.g. teaching, research) which are intended to benefit the wider public interest, and for which they are largely paid from public funds. Part of their responsibilities must include attempting to address unsatisfactory performance and areas for improvement in the performance of individual members of staff. To refrain from doing so in the interests of preserving collegiality and harmonious relationships among academic staff, to my mind, represents a partial abdication of management responsibility. Universities are not intended to operate primarily for the benefit of their staff, but for the benefit of their students and the wider community. I have more to say on this issue, in the context of performance appraisal schemes, at paragraphs 145-147 below.140. While any person who is prepared to undertake the task of providing a referee report should do so honestly, whether or not the report is liable to be disclosed to the subject of the report, I am prepared to accept that human nature being what it is, there will be many academics, perhaps even a majority, who would wish to temper the language in which "open" referee reports are written. That in itself may be no bad thing. In respect of some of the referee reports which I have seen during the course of this review, a diminution in candour and frankness may merely mean that unnecessarily brusque and summarily dismissive comments about an applicant's claims for promotion, unsubstantiated by any supporting evidence, are no longer submitted to promotion committees. Unless selection committees are primarily influenced by their subjective judgment of the reputation or standing of the author of a referee report, I should have thought that they would obtain most assistance from referee reports which present a balanced appraisal of the candidate for promotion, supported by particulars of the evidence which substantiates the opinions and conclusions reached, whether favourable or adverse. Fortunately, I have also seen examples of this kind of referee report during the course of my review. 141. The crucial issue to my mind is whether future reports of the kind in issue will continue to provide the author's honest opinion on the merits of the candidate for promotion, even though the language be tempered (in which case I would have difficulty in finding a reasonable expectation of a substantial adverse effect on the management or assessment of the University's personnel) or whether disclosure under the FOI Act could reasonably be expected to have the effect that a significant number of Heads of Department, Deans of Faculty and Pro-Vice-Chancellors would actually refrain from expressing in a written report their honest opinion of the merits of some candidates for promotion, and resort instead to providing bland written reports with more forthright opinions expressed orally. If disclosure of reports of this kind on candidates for promotion were available only to the candidate who is the subject of the report, then I think it is reasonable to expect the former rather than the latter. I will explain my reasons for holding that view, while adding the caveat (the consequences of which are addressed at paragraphs 152-154 below) that an assessment of the effects of disclosure of particular documents (for the purpose of determining whether an exemption provision applies) generally requires that regard be had to the effects of disclosure to any person who might apply for them rather than just to the particular applicant for access under the FOI Act (see paragraphs 165-168 below).142. I do not think it is reasonable to expect that if documents 1, 18, 19 and 20 are disclosed to Dr Pemberton (or indeed if reports by Heads of Department, Deans of Faculty or Pro-Vice-Chancellors on candidates for promotion were disclosed to the subjects of the reports) that a significant number of the authors of future reports of that kind would actually refrain from expressing their honest opinions. I consider that people who have manifested the sense of responsibility and achievement orientation to progress to such positions as Head of Department, Dean of Faculty, and Pro-Vice-Chancellor will continue to appreciate the need to ensure that the most worthy candidates for promotion progress through the system in preference to the unworthy or the less worthy. No doubt many will continue to write honest assessments of candidates for promotion without regard to any consequences of disclosure. I do consider, however, that it is reasonable to expect that the prospect of disclosure under the FOI Act will cause many to modify their approach to writing reports of the kind in issue. I consider that reports in future are more likely to be written in temperate and reasoned language, being careful to emphasise the strengths of an applicant for promotion, while drawing attention to any perceived weaknesses in a way which provides justification and substantiation for the points that are made. That is not only likely to benefit the selection process, but to benefit the management of personnel generally by providing considered "feedback" on individual performance. Leading academics are no strangers to the professional discipline of having to marshall evidence to support opinions and conclusions expressed in formal written work. More effort may have to go into the process of preparing reports, but given the importance which the University attaches to ensuring promotion on merit, that effort appears to be warranted, and would certainly greatly assist the tasks of selection committees.143. There are three main factors which reinforce the views I have expressed in the preceding paragraph. Firstly, paragraph 31 of Professor Wilson's statutory declaration indicates that Professor Wilson had instructed staff that a policy be prepared, for consideration by the University Senate, concerning a procedure by which an applicant for promotion would be provided with the substance of adverse comments contained in referee reports. The University has subsequently supplied me with copies of relevant documents relating to the University Senate's consideration of this issue. They disclose that on 25 November 1993, the Senate resolved: That where relevant specific criticisms were made in referees' reports, whether internal or external, a written statement of adverse comments be provided to each applicant at any level of promotion in advance of interview.144. Background papers indicate that the University was concerned that the legal requirement to observe procedural fairness in promotion processes may necessitate such a system in any event. (Cases such as Ansell v Wells [1982] FCA 186; (1982) 63 FLR 127, suggest that the right of an officer in a public sector organisation to be considered for promotion attracts the application of the rules of natural justice: see especially per Lockhart J at pp.147-8.) If this system is to be effective, adverse comment will need to be substantiated by particulars of the evidence on which it is based.145. Secondly, as disclosed at paragraphs 64-65 above, the University has recently been obliged to implement a scheme for regular performance appraisal of academic staff. There is widespread agreement in management literature that performance appraisal is one of the most significant human resource management tools for maintaining a satisfactory level of employee performance. Accurate feedback about performance is regarded as critical to an employee's ability to perform effectively in an organisation. Regular performance appraisal and review has been a management initiative aimed at promoting the performance of leading corporations for several decades. Since the mid-1980s it has gradually been penetrating the Commonwealth and State public sectors. It is based on a simple premise that those charged with management responsibility should, in addition to regular informal feedback on staff performance, undertake regular formal appraisals of staff performance, which afford an opportunity for -(a) acknowledging positive contributions by the employee to the organisation;(b) providing clear goals and standards so that an individual employee knows what is expected in terms of his or her individual performance; and(c) a systematic approach to addressing shortcomings in performance, or room for improvement in performance, in a constructive way aimed at securing better outcomes for the organisation and the individual.146. Performance appraisal carries with it much the same risks as the University claims are likely to follow from disclosure of confidential referee reports. The persons charged with the primary responsibility for making this system work are the Heads of Department and Pro-Vice-Chancellors, with the former usually, but not always, undertaking the appraisal of academic staff in their Departments. It is one of the skills required of good management to make such a system work effectively, and minimise the potential risks posed by, for example, resentment of staff who have difficulty in accepting criticism of their workplace performance. It is, in my opinion, reasonable to expect that Heads of Department and Pro-Vice-Chancellors charged with the responsibility for making that system work effectively, will, in the process, have to master the skills which will also allow them to write reports on candidates for promotion in terms that draw attention to shortcomings in performance against relevant selection criteria in a way that is temperate and reasoned, and provides justification and substantiation for the points that are made. Few people positively welcome criticism of their workplace performance, but when most people think carefully about it, they realise they are far better served by knowing what those in authority consider to be shortcomings in performance, or areas where there is room for improvement in performance, so that they have the opportunity to constructively address them rather than have their desires for career progression stymied by critical views of which they remain unaware.147. According to the terms of the University's scheme (see paragraphs 64-65 above) documentation arising from the performance appraisal system is to remain confidential to those involved in a particular appraisal (and the Head of Department if he or she is not directly involved in the appraisal) and is not to be used as part of any other process, including promotion processes. The scheme nevertheless requires an honest appraisal of staff by the Head of Department, and it would, in my opinion, be unconscionable for a Head of Department to convey to a promotion committee serious criticisms of the performance of a candidate for promotion which the Head of Department had not been prepared to convey to the candidate in the course of staff appraisal. I agree with the comment made in response to the survey questionnaire by the Head of the Department of Medical Biochemistry: Now that the system of performance appraisal has been established, there is no good reason for Heads to conceal their appraisals of the academic merits of staff under their supervision from these individuals.148. The third factor is the recent recognition by the English Law Lords that in a proper case liability in negligence may be imposed on the author of a reference if the subject of the reference suffers damage caused by the reference being compiled without reasonable care: see Spring v Guardian Assurance Plc & Ors [1994] 3 WLR 354. The plaintiff in that case was an insurance salesman whose former employer provided a reference (found to have been compiled without reasonable care) to a prospective employer. One judge described the reference as being "the kiss of death" to the plaintiff's career in insurance. Whether the factors found by the majority of the House of Lords to give rise to a duty of care owed by the author of a reference to the subject of the reference would also be present in the case of an employer (the University of Queensland) who, through the agency of a senior employee (e.g. a Head of Department), produces a referee report on another employee who is a candidate for internal promotion within the employer's organisation, is not a question on which I need to express any considered opinion, other than that the proposition appears to be reasonably arguable. This should be enough in itself to ensure that officers of the University who are obliged, as part of their duties, to provide written referee reports endeavour to comply with the requirements of any duty of care that may be applicable. According to Lord Goff (at p.370): ... the central requirement is that reasonable care and skill should be exercised by the employer in ensuring the accuracy of any facts which either (1) are communicated to the recipient of the reference from which he may form an adverse opinion of the employee, or (2) are the basis of an adverse opinion expressed by the employer himself about the employee.149. This case is also of interest because arguments similar to those raised by the University against disclosure of confidential referee reports under the FOI Act were raised to support a proposition that it would be contrary to public policy to impose liability in negligence on the author of a reference for economic loss suffered by the subject of the reference.That proposition found favour with the minority, for example, Lord Keith of Kinkel said (at pp. 360-1): If liability in negligence were to follow from a reference prepared without reasonable care, the same adverse consequences would flow as those sought to be guarded against by the defence of qualified privilege [in the context of defamation law]. Those asked to give a reference would be inhibited from speaking frankly lest it should be found that they were liable in damages through not taking sufficient care in its preparation. They might well prefer, if under no legal duty to give a reference, to refrain from doing so at all. Any reference given might be bland and unhelpful and information which it would be in the interest of those seeking the reference to receive might be withheld.150. Obviously, such considerations did not inhibit the majority, one of whom, Lord Slynn of Hadley, said (at p.385): I do not accept the in terrorem arguments that to allow a claim in negligence will constitute a restriction on freedom of speech or that in the employment sphere employers will refuse to give references or will only give such bland or adulatory ones as is forecast. They should be and are capable of being sufficiently robust as to express frank and honest views after taking reasonable care both as to the factual content and as to the opinion expressed. They will not shrink from the duty of taking reasonable care when they realise the importance of the reference both to the recipient (to whom it is assumed that a duty of care exists) and to the employee (to whom it is contended on existing authority there is no such duty). They are not being asked to warrant absolutely the accuracy of the facts or the incontrovertible validity of the opinions expressed but to take reasonable care in compiling or giving the reference and in verifying the information on which it is based. The courts can be trusted to set a standard which is not higher than the law of negligence demands. Even if it is right that the number of references given will be reduced, the quality and value will be greater and it is by no means certain that to have more references is more in the public interest than to have more careful references.151. Thus, if I were assessing whether disclosure to a candidate for promotion of the reports required to be prepared on the candidate by the relevant Head of Department, Dean of Faculty and Pro-Vice-Chancellor, could reasonably be expected to have a substantial adverse effect on the management or assessment of the University's personnel, my answer would be in the negative. There may be a small number of senior academics who would prefer to issue a completely bland report in respect of a candidate not supported for promotion, and provide adverse comments by way of verbal reports to the selection committee. I think such instances would be rare because there would be very few instances in which there would be reasonable justification for an officer, with management responsibility for the performance of staff, to withhold an opinion of that nature from the staff member concerned. The prospect of that occurring, if disclosure of reports of the kind in issue were only available to the subject of the report, could not reasonably be expected on a scale sufficient to have a substantial adverse effect for the purposes of s.40(c). Moreover, if it is correct that the promotion processes under consideration attract the common law duty to accord procedural fairness (see paragraph 144), the duty to act fairly ordinarily 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: see Kioa v West [1985] HCA 81; (1985) 60 ALJR 113 at pp.128-9 per Mason J. That principle would apply to adverse oral comments just as much as it would apply to adverse written comments: see paragraph 143 above. 152. However, the prospect of disclosure of reports of this kind to any person who applies for them under the FOI Act (there being no requirement under the FOI Act to show a special interest in obtaining particular information - see the discussion at paragraphs 165-168 below) raises additional factors which lend greater credence to the University's claims, and could well inhibit a substantial number of responsible senior academics from recording in written reports their honest assessments of candidates for promotion. While I have emphasised the view that Heads of Department and Pro-Vice-Chancellors who responsibly perform their management role (including the requirements of the staff appraisal scheme) should not have occasion to convey to a selection committee any substantial adverse comment on the performance of a candidate for promotion which has not been conveyed directly to the candidate (in the interests of constructively addressing the need for improvements in performance), I nevertheless consider that it is reasonable to expect that even responsible managers would baulk at recording in writing such adverse comment if it were to be available for access under the FOI Act to any person who applied for it, including, for instance, the candidate's rivals for promotion, or students in the candidate's Department. The task of constructively addressing shortcomings in staff performance has greater prospects of success through co-operative effort if details of the perceived shortcomings in performance, and the action plan to address them, remain confidential to the relevant managers and the staff member concerned.153. If reports of the kind under consideration were to be available under the FOI Act to any person who applied for them, I think it is reasonable to expect that a great many Heads of Department, Deans of Faculty and Pro-Vice-Chancellors would resort to the preparation of bland written reports, that were not particularly helpful to selection committees, and seek to convey orally to selection committees any adverse comments that they felt must be drawn to attention. I accept that this would carry with it most of the adverse effects identified in the University's submission (see paragraph 116 above, and paragraphs 24-25 of Professor Wilson's statutory declaration reproduced at paragraph 63 above). In one sense, the fact that criticisms are conveyed orally may not substantially prejudice the University's goal of ensuring that the most worthy candidates for promotion are successful. (In many organisations, oral rather than written references are the norm, though few organisations have the elaborate system of selection committees which operate within the University.) However, I accept that it introduces significant inefficiencies into the system of assessment, and makes it less likely that opinions on a candidate will be supported by particulars of the evidence considered to justify the opinion, thereby making it harder for selection committees to make fully informed assessments and denying the candidate for promotion the benefit of meaningful feedback on weaknesses in performance that need to be addressed in order to further future claims for promotion. I think it is reasonable to expect that the reaction I have described would occur in the case of a significant proportion of Heads of Department, Deans of Faculty and Pro-Vice-Chancellors, and I consider that it would have a substantial adverse effect on the management or assessment of the University's personnel for the purposes of s.40(c) of the FOI Act.154. If this were a case where s.6 of the FOI Act was applicable, meaning that the fact that the documents in issue contain matter relating to the personal affairs of the applicant must be taken into account as an element in deciding the effect that the disclosure of the matter in issue might have (for the purposes of s.40(c)), it is possible that I would reach a different finding. However, the information contained in documents, 1, 18, 19 and 20 is information comprising assessments of Dr Pemberton's work capacity and performance, and therefore does not relate to Dr Pemberton's personal affairs, for the reasons explained in Re Stewart and Department of Transport (Information Commissioner Qld, Decision No. 93006, 9 December 1993, unreported) at paragraphs 33-36; and in Re Pope and Queensland Health (Information Commissioner Qld, Decision No. 94016, 18 July 1994, unreported) at paragraphs 108-116. Section 40 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 on persons other than just the particular applicant for access under the FOI Act. (I say "ordinarily", for the reasons explained at paragraphs 165-172 below). On that basis, for the reasons explained in paragraphs 152-153 above, I find that disclosure of documents 1, 18, 19 and 20 could reasonably be expected to have a substantial adverse effect on the management or assessment by the University of the University's personnel.The "retaliation/disruption" argument155. The fourth-claimed adverse effect raised in the University's written submission was that disclosure of some reports to some candidates for promotion may lead to resentment, manifesting itself in deliberate disruption of the Department's or the referees' teaching, administrative and research activities. There is evidence before me to the effect that this behaviour already occurs (see, for example, paragraphs 8 and 9 of the statutory declaration of Professor Rigsby) despite the University's past policy of preserving the confidentiality of referee reports. In some respects, it is not surprising that resentment might be displayed by a candidate for promotion, who has not previously been given any feedback by his or her Head of Department to suggest that the candidate's performance requires improvement in certain areas before the candidate will be supported for promotion, on discovering or deducing that his or her aspirations for promotion have been blocked by an adverse report by the relevant Head of Department. I do not consider it reasonable to expect that a substantial adverse effect of this kind will result from disclosure of reports of the kind under consideration once the staff appraisal scheme is operating properly. Disappointment, even resentment, at failure to obtain promotion is a common and expected human reaction in all organisations, and has to be managed.156. In any event, the prospect that disclosure of some reports on some candidates for promotion could lead to adverse effects of the kind claimed by the University cannot logically justify the non-disclosure of all reports falling into the category under consideration. If there are reasonable grounds for expecting that a particular individual will respond to the disclosure of adverse material in a particular report in a way that would have a substantial adverse effect, that may well constitute sufficient ground for not disclosing that report. However, there is no evidence before me on the basis of which I would be prepared to find that disclosure of documents 1, 18, 19 and 20 to Dr Pemberton could reasonably be expected to result in Dr Pemberton causing disruption of the University's activities.Additional public interest considerations relevant to the public interest balancing test which qualifies s.40(c)157. Having found the prima facie test for exemption under s.40(c) of the FOI Act is satisfied, it is necessary to consider whether disclosure of the documents in issue would, on balance, be in the public interest. As noted at paragraph 117 above, the University has raised three additional public interest considerations said to favour non-disclosure of referee reports. The first (disruption to University resource management) I do not consider to have any real substance, for similar reasons to those explained in paragraphs 155-156 above. As to the second (impact on refereed journals and research projects) even if this carried any substantial weight in relation to the disclosure of confidential referee reports generally, I consider that it carries negligible weight when applied to disclosure of reports which Heads of Department, Deans of Faculty and Pro-Vice-Chancellors are required to prepare on subordinate staff as part of their duties of office. The final factor, reciprocity within the international academic community, can be eliminated entirely given that referee reports from interstate or overseas universities are not here under consideration.158. The first major argument raised by Dr Pemberton as to why disclosure of confidential referee reports would be in the public interest relates to ensuring greater accountability and objectivity in the decision making processes with respect to the system of promotion available to academics within the University of Queensland. In my opinion, this is a public interest consideration of substance, which must be accorded appropriate weight. I note that in the context of promotion in the Commonwealth public sector, Deputy President Gerber of the Commonwealth AAT has said: "There is an element of public interest involved in ensuring that promotions are not only made fairly, but seen to be made fairly" (Re Dyki at p.132).159. I do not think there is substance in some of the individual points identified in the first paragraph extracted from Dr Pemberton's written submission at paragraph 119 above (e.g. point (d), as to which see my comments at paragraph 42 above, and points (e), (f) and (p)), nor that some of the beneficial consequences claimed (e.g. points (c), (k), (o) and (q)) are likely to flow from disclosure of the documents now under consideration. One of the difficulties with Dr Pemberton's case is that it is logically difficult to accord much weight to otherwise pertinent considerations like points (a), (g), (h), (j) and (n), when the University's case, which I have accepted, is that disclosure of the documents in issue could reasonably be expected to have the effect that referees' comments, the disclosure of which would be necessary to achieve the beneficial effects identified by Dr Pemberton, may no longer be made in writing so as to be available for disclosure under the FOI Act. I have therefore to adjust the weight to be given to these considerations, accordingly. I do not think that these considerations, alone, are sufficient to outweigh the public interest in non-disclosure which is inherent in the satisfaction of the prima facie test for exemption under s.40(c).160. If, on the other hand, disclosure of the documents in issue were only to be made to Dr Pemberton, accountability through the prospect of general public scrutiny would not be achieved, but there would still be some benefits in terms of accountability for the conduct of the University's promotion systems since Dr Pemberton is best placed to raise concerns with respect to points (a), (g), (h), (j) and (n) insofar as they apply to the documents now under consideration.161. Some of the beneficial effects of disclosure claimed by Dr Pemberton could only be achieved if all referee reports on all candidates for promotion (and indeed all documents relating to the selection process of all candidates for promotion) were available under the FOI Act to any interested person. I have already stated that I am satisfied that that prospect could reasonably be expected to have a substantial adverse effect for the purposes of s.40(c) and I do not think those claimed beneficial effects (e.g. (l), (m) and (q)) are sufficient to outweigh the substantial adverse effect.162. Dr Pemberton's second major argument is that confidentiality denies candidates for promotion the basic right to answer any criticism made by a referee, thereby denying the opportunity to provide countervailing arguments in current or future applications. I doubt that there is a basic right, in law, which extends as far as Dr Pemberton asserts. If the rules of procedural fairness apply to University promotion processes, the right to answer criticism probably extends only to adverse comment which constitutes the critical factor on which a decision adverse to the candidate for promotion is likely to turn. Even then the duty to follow fair procedures will attempt to accommodate, as far as possible, any relevant duty of confidence: see Science Research Council v Nassé [1979] UKHL 9; [1980] AC 1028 per Lord Wilberforce at p.1067. There is also the consideration, noted in paragraph 159 above, that if criticism is in future to be made orally, disclosure under the FOI Act will not be any kind of effective antidote to the problem perceived by Dr Pemberton. The answer may lie in trying to enforce any applicable duty to accord procedural fairness by insisting that selection committees disclose the substance of adverse oral comments, in addition to any adverse written comments (see paragraphs 143-144 above).163. Point (r) in the first paragraph of Dr Pemberton's written submission is, in my opinion, a legitimate public interest consideration worthy of substantial weight. In another section of his written submission, in which he addresses particular documents in issue (and which is not reproduced above), Dr Pemberton stresses his "right to know" the contents of documents that have affected, and may continue to affect, his interests, and the public interest in his obtaining detailed feedback on the reasons why his work performance and achievements have not been considered sufficient for him to obtain promotion.Recognition of a public interest in a particular applicant having access to particular documents164. There is a large and respectable body of precedent in the case law under the Commonwealth FOI Act and the Freedom of Information Act 1982 Vic (the Victorian FOI Act) which holds that when an exemption provision contains a public interest balancing test, it is possible in an appropriate case to recognise a legitimate public interest which favours disclosure of particular documents to a particular applicant for access, even though no such public interest consideration would be present when disclosure to other applicants was in contemplation (see the cases reviewed at paragraphs 173-190 below).165. In some respects, this does not sit comfortably with the orthodox approach to the application of exemption provisions which turn on the prejudicial effects of disclosure of particular documents (as opposed to whether documents fall within a prescribed class). That orthodox approach ordinarily requires that the motives of a particular applicant for seeking the documents in issue are to be disregarded, and the effects of disclosure were to be evaluated as if disclosure was to any person entitled to apply for the documents. Thus in Searle Australia Pty Ltd v Public Interest Advocacy Centre and Anor (1992) 108 ALR 163 at p.179, a Full Court of the Federal Court of Australia said: Disclosure under the FOI Act is, of course, disclosure to the public, and the particulars and personality of the applicant are of no significance. See s.11 of the [Commonwealth] FOI Act, which provides that "every person has a legally enforceable right to obtain access in accordance with this Act".166. Provisions like s.11 of the Commonwealth FOI Act, and its counterpart, s.21 of the Queensland FOI Act, are important in establishing that there is no test of standing to gain access to documents under the FOI Act, i.e. an applicant for access need not show a special interest in obtaining the information which the applicant seeks. In my opinion, however, the words of s.11 of the Commonwealth FOI Act, or s.21 of the Queensland FOI Act, carry no necessary implication that an applicant having a personal stake or involvement in the subject matter of particular documents, which is greater than other members of the public, has no greater right to obtain them than anyone else.167. A more logically satisfying justification for the orthodox approach of applying exemption provisions by reference to the consequences of disclosure to any person, rather than to the particular applicant for access, was given by Jenkinson J in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) & Anor [1987] FCA 266; (1987) 74 ALR 428 at p.431: The Freedom of Information Act 1982 confers no power to exact any undertaking, or to impose any condition, concerning the use to which a person granted access to a document under that Act would put the document, or information contained in it.168. I do not think, however, that it is appropriate to erect any rigid or inflexible rule based upon these dicta of the Federal Court, which do not appear to have been based on any detailed consideration of all the consequences of such an approach. The justification for the orthodox approach of assessing the effects of disclosure as though disclosure could be to any person, seems to me to be at its highest in respect of those exemption provisions which have specific reservations to make it clear that the exemption is not to apply as against the person whom the information in issue concerns: see s.44(2), s.45(2) and s.45(4) of the Queensland FOI Act. It is proper, therefore, to assess the effects of disclosure of information relating to the business or commercial affairs of a person or organisation, for the purposes of s.45(1) of the FOI Act, as if the contemplated disclosure were to a competitor of that person or organisation, either because any person, including a competitor, is entitled to apply under the FOI Act for the same information, or because there is nothing to prevent the particular applicant, once having obtained the information, from disclosing it to a competitor of the person or organisation whose business or commercial information was in issue: see Re Cannon and Australian Quality Egg Farms Limited (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported) at paragraph 84.169. However, it is necessary to sound a note of caution against any rigid or inflexible adherence to the orthodox approach because, in many instances, it would lead to absurd results which could not, in my opinion, have been intended by the legislatures which have enacted freedom of information legislation. The terms of a particular exemption provision, and the nature of its sphere of operation, may permit account to be taken of the position of the particular applicant for access. There are several examples in reported cases where tribunals have considered the prejudicial effects of disclosure by reference to disclosure to the particular applicant, rather than to any person who could have applied for the documents, because to do otherwise would have been absurd in the context of the particular case and the particular exemption provisions in issue: see, for example, Re Lander and Australian Taxation Office (1985) 85 ATC 4674 (analysed by P Bayne in "Freedom of Information and Access for Privacy Purposes" (1990) 64 ALJ 142 at pp.142-143); Re Saunders and Commissioner of Taxation (1988) 15 ALD 761 (considered at paragraphs 186-187 below). Also, in Re "B" at paragraphs 103-4 and 153, I explained that the exemptions in s.46(1)(a) and s.46(1)(b) could not be applied against a particular applicant to whom disclosure would not be an unauthorised use of the confidential information in issue, even though disclosure to the "world at large" would be an unauthorised use, justifying exemption.170. In Ryder & Anor v Booth; State Superannuation Board v O'Connor [1985] VicRp 86; [1985] VR 869, a Full Court of the Supreme Court of Victoria considered the issue of whether disclosure of confidential medical reports to the persons who were the subjects of those reports would be contrary to the public interest under s.30(1) of the Victorian FOI Act. The exemption provisions were applied solely by reference to the effects of disclosure of the confidential medical reports to the applicants for access, rather than to any person who might have applied for them (which doubtless would have raised different considerations) as was acknowledged by Young C J at the end of the first paragraph of his judgment (at p.870): In each case, the confidential medical reports related to the respective respondents [who were applicants for access under the FOI Act]. No doubt considerations other than those argued might be relevant if the reports had been sought by a third party.171. A further consequence which tells against any rigid adherence to what I have described above as the orthodox approach to the application of exemption provisions which turn on the prejudicial effects of disclosure, is that it would mean that a person who could demonstrate a particular interest or concern in respect of particular documents (perhaps amounting to a justifiable "need to know" that was more compelling than for other members of the public) would have no greater right to obtain access than anyone else. The need to take account of such circumstances probably explains the development by tribunals of the principle outlined in paragraph 164 above. Such an approach is justifiable in conceptual terms, having regard to the objects of freedom of information legislation, and seems to me to be a necessary and justifiable response by courts and tribunals to the need for a degree of flexibility to do justice according to the circumstances of an individual applicant, in an appropriate case. (Agency decision-makers at first instance have that flexibility through the discretion conferred on them by provisions like s.28 of the Queensland FOI Act, which means that the power to refuse access to exempt matter or exempt documents, may be exercised or not exercised at the discretion of the relevant decision-maker: see Re Norman and Mulgrave Shire Council (Information Commissioner Qld, Decision No. 94013, 28 June 1994, unreported) at paragraphs 21-26. That discretion has generally been denied to the independent external review authorities under the various Australian freedom of information statutes, which possess the power to undertake full merits review but only of the question of whether or not documents claimed to be exempt are in fact exempt: see, for example, s.58(2) of the Commonwealth FOI Act; s.88(2) of the Queensland FOI Act).172. A public interest in the disclosure of particular documents to a particular applicant, is capable of being a public interest consideration of determinative weight (depending on the relative weight of competing public interest considerations favouring non-disclosure). This means that if it is to overcome the weight of a public interest consideration favouring non-disclosure which is inherent in the satisfaction of a test for prima facie exemption (where the "orthodox approach" described above has been applied) there must be some implicit judgment that the public interest in the particular applicant obtaining access is strong enough to outweigh any potential prejudicial effects of any wider dissemination by the particular applicant of the documents in issue. (I note that in Re Stewart at p.3, I suggested that the rationale for the exception to the "orthodox approach" made by s.6 of the Queensland FOI Act was because the applicant is the appropriate person to exercise control over any use or wider dissemination of information relating to the applicant's personal affairs, which has been obtained under the FOI Act.)173. The earliest consideration, of which I am aware, of a public interest of this kind is in the reasons for decision of the Commonwealth AAT, chaired by Davies J (President) in Re Witheford and Department of Foreign Affairs (1983) 5 ALD 534, where the Tribunal said (at p.537): These provisions [i.e., s.12(2), s.30(3) and Pt.V of the Commonwealth FOI Act] in our view, make it abundantly clear that this FOI Act intends that an applicant will have a right of access to documents that contain information which relates to his or her personal affairs. We think that the FOI Act intends that, in the determination of a claim for access, a decision-maker will take into account, in relation to documents containing information relating to personal affairs, that the applicant is the person whose affairs are spoken of in the document.174. I should point out that Davies J's understanding of the scope of the phrase "personal affairs" at that early stage in the history of the Commonwealth FOI Act was explained by him in a decision given only a few months earlier, News Corporation Limited & Ors v National Companies and Securities Commission [1983] AATA 311; (1983) 5 ALD 334, where Davies J said (at pp.336-7): ... I am disposed to think the term "personal affairs" refers to the "individual affairs" of a person rather than to the "private affairs" (as distinct from the "business affairs") of a person. In my view, the provision looks to information which relates to the affairs of a particular person rather than to public or general affairs.175. Davies J's understanding of the scope of the phrase "personal affairs" was subsequently overruled by a Full Court of the Federal Court in News Corporation Limited & Ors v National Companies and Securities Commission [1984] FCA 36; (1984) 52 ALR 277 (see Re Stewart at paragraphs 20-25). It seems, however, that Davies J contemplated the approach endorsed in Re Witheford as being appropriate in respect of documents relating to any affairs of the applicant for access, other than public or general affairs.176. A slightly different rationale for arriving at a similar result is evident in the decision of Deputy President Todd of the Commonwealth AAT in Re Burns and Australian National University (No 1) (1984) 6 ALD 193, where, after citing a passage from the decision of Morling J, constituting the Document Review Tribunal, in Re Peters and Department of Prime Minister and Cabinet (1983) 5 ALN N306, Deputy President Todd said (at p.197): But what is important is that his Honour clearly considered that there was a public interest in a citizen having such access in an appropriate case, so that if the citizen's "need to know" should in a particular case be large, the public interest in his being permitted to know would be commensurately enlarged. ... ... the present respondent has not, so far as it appears in the certificate, placed in the balance any concept of public interest in the assertion of private rights. I do not say this critically, because the working out of the concept of "public interest" under the FOI Act is a process of which we are still only at the threshold, and as a concept it is certainly very difficult and amorphous. It has, under the FOI Act, indigenous features that may lead to its not being wholly co-terminous with the concept of public interest as adumbrated in the series of landmark decisions in relation to discovery of documents in litigation. It is called a "multi-faceted concept": see Re Heaney and Public Service Board (1984) 6 ALD 310. But I am sure that it is a concept which should be seen as embodying public concern for the rights of an individual.177. In Re Burns and Australian National University (No. 2) (1985) 7 ALD 425, at p.439, Deputy President Todd dealt with an argument critical of the passage quoted above: [Counsel for the respondent] submitted, at a hearing after my previous reasons were handed down, that the Tribunal should not find that the interest of an individual in obtaining information about himself is a public interest. Such an interest remained, he said, a private interest and the limit of the public interest was in knowing that some particular action or decision had been properly taken. It logically followed that an individual, for the purposes of the FOI Act, could have no higher interest than the community itself, and the test should be the same, whether the applicant seeks information about himself or seeks information as a member of the community.178. Deputy President Todd, however, adhered to his previously stated position, and commented that his conclusion was reinforced by reference to the judgment of Jacobs J of the High Court of Australia in Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473. The relevant part of Jacobs J's judgment (at p.487) was as follows: The words "public interest" are so wide that they comprehend the whole field of objection [to the grant of a mining lease] other than objection founded on deficiencies in the application and in the required marking out of the land applied for. For instance, the public interest may tell against the grant of a mining lease even though the particular interests of an individual are the only interests primarily affected. It may thus be in the public interest that the interests of that individual be not overborne.179. Deputy President Todd's approach was approved and applied by Deputy President Hall of the Commonwealth AAT in Re James and Ors and Australian National University (1984) 6 ALD 687, at p.701. In Re Mann and Australian Tax Office (1985) 7 ALD 698, at p.700, Deputy President Todd further explained the approach he had developed, being careful to state that it was not intended to contradict one of the basic tenets of FOI legislation, i.e. that an applicant for access does not have to establish any special interest, or need to know, in order to obtain access to particular government information: ... it is not necessary for an applicant to establish a particular "need to know" in order to establish a right to access. Nor does it even strengthen an applicant's case, save where a question of public interest arises and an applicant is able to demonstrate that his personal involvement in the matter may cause an element of public interest in his "need to know" to arise (see Re Peters ... and Re Burns ...), to demonstrate some special interest in the documents sought. 180. In a case with some interesting parallels to Dr Pemberton's circumstances, Re Scrivanich and Public Service Board (1984) 6 ALD 98, the applicant, a Commonwealth public servant, sought access to statements provided by her supervisors in the context of a grievance appeal concerning discrimination in promotion. The Tribunal found (at p.107) that disclosure of the documents in issue would, or could reasonably be expected to, have a substantial adverse effect on the management or assessment of personnel. However, in applying the public interest balancing test in s.40 of the Commonwealth FOI Act, the Tribunal held (at p.111): A public interest exists in giving the applicant access to these records for the reasons given in evidence by Mr Christopher [to the effect that the applicant's public sector union was of the view that if an agency held reports on a public servant which could be used for the purpose of making judgments affecting that public servant, the public servant should be given access to that information] and so that she may exercise her rights under the Act. I see it as greater than any public interest in a procedure which allows reporting officers the right to make comments on their subordinates being considered for promotion without the need to justify to the subordinate the fairness of what they say. I am of the opinion that the balance of the public interest lies in the disclosure to the applicant of these documents ...181. The Tribunal was here clearly placing determinative weight on a public interest in the particular applicant having access to the particular documents in issue. The respondent appealed from the Tribunal's decision to the Federal Court of Australia, where Keely J found no legal error in the Tribunal's approach to this aspect of the decision: see Public Service Board v Scrivanich (1985) 8 ALD 44.182. At almost the same time, a similar approach emerged in the case law under the Victorian FOI Act. In O'Connor v State Superannuation Board of Victoria (County Court, Dixon J, 27 August 1984, unreported), the applicant challenged a decision refusing her access to confidential medical reports about her, supplied to the respondent by medical specialists following medical examinations of the applicant for superannuation purposes. The Court had to consider the application of s.30 and s.35 of the Victorian FOI Act, each of which required consideration of whether disclosure of the documents in issue would be contrary to the public interest. Dixon J's approach to the issue is disclosed in the following extracts from pp.29-30, 33 and 44 of his reasons for judgment: The tendency of the disclosure of information to dry up the source of information is a negative aspect of the public interest. One positive aspect of the public interest is the public's right to know, as enshrined in s.3 of the Freedom of Information Act. Such a right includes the right of a citizen to know why he has been treated by an agency in a particular way. Thus, although an applicant for information does not have to show any particular locus standi in making an application under the Act, his right to know why he is affected by a particular decision is one aspect of the public interest, and it is not a private interest as was argued by Mr Uren. As to the suggestion that that would be a private interest, it could be argued that an individual's right not to be treated unfairly by the State in relation to criminal investigations is a private interest. But, Bunning v. Cross [1978] HCA 22; (1978) 52 ALJR 561, demonstrated that this is not so. In that case in the High Court, their Honours Justices Stephen and Aiken said at p.568: On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the protection of the individual from unlawful and unfair treatment. ... [Dixon J then recited the respondent's submissions as to why disclosure of the documents in issue would be contrary to the public interest]. In regard to the submissions it should be remembered that the public interest criterion operates in the consideration of both ss.30 and 35, and considerations in favour of disclosure must be taken into account in each case. The main consideration to be taken into account in favour of disclosure is the general right of the public to know about the administration of governmental matters, as provided by the Act; but in relation to persons whose interests are vitally affected, it includes a right to know why an adverse decision is made, so that the matter can be tested if advisable. I am quite sure that with the growth of the bureaucracy, making in many cases decisions which vitally affect the interests of citizens, the Freedom of Information Act was intended to ensure not only that justice be done, in the field of administrative law, but that it be seen to be done. ... If it were shown to be probable that one or two medical specialists of the Board's choice would be reluctant to give reports in the face of likely disclosure to the examinees, once must weigh against that possibility the public interest in the disclosure to persons affected by the reports of the reasons for their classification.183. An appeal against Dixon J's judgment was heard by a Full Court of the Supreme Court of Victoria, together with another case raising like issues, and is reported under the title Ryder & Anor v Booth; State Superannuation Board v O'Connor [1985] VicRp 86; [1985] VR 869. The Full Court dismissed the appeal against Dixon J's reasons for judgment. In the process, Gray J expressed the following views (at p.879): ... to obtain exemption, the applicant must prove that the disclosure of the reports would be "contrary to the public interest" within the meaning of s.30(1)(b). As was pointed out in argument, there is always difficulty in identifying what is in the public interest in a particular situation. In the present context, I consider that there are only two aspects of the public interest which fall to be considered. One is the public interest in persons having access to documents, including confidential documents, which concern them but which are in the hands of an agency. Second is the public interest in the efficient and economical conduct of a government agency ... ... In other words, I am not satisfied that the risk of adverse consequences to the Board's operations outweighs the public interest expressed by the Act in giving a person access to a document concerning him.184. This approach has been followed in subsequent decisions of the Victorian AAT. Although not explicitly acknowledged, it clearly underlies the finding of Rowlands J in Re Lawless and Secretary to Law Department (1985) 1 VAR 42, that the public interest supported a fairly generous access to the applicant (who had conducted a long campaign for exoneration following his conviction for murder some twelve years previously) to documents relating to his treatment under the processes of criminal justice.185. In Re Young and State Insurance Office (1986) 1 VAR 267, the applicant had been sued for damages for personal injuries arising out of a motor vehicle accident in which he was driving an uninsured vehicle. The defence of the claim was handled by the Incorporated Nominal Defendant, which settled the claim, without reference to the applicant. The Incorporated Nominal Defendant was entitled to seek recovery of moneys from the applicant under s.50(3) of the Motor Car Act 1958 Vic. In determining whether disclosure of documents on the respondent's file relating to the case would be contrary to the public interest, the Tribunal clearly took into account (at p.272, p.275 and p.277) not only the general public interest in access to the documents in issue, but the public interest in the particular applicant (who was "vitally concerned" with the subject matter of the documents in issue) obtaining access to the documents in issue.186. This approach has continued to be applied by the Commonwealth AAT in appropriate cases. For example, in Re Saunders, the applicant sought access to documents relating to his own tax affairs, in particular concerning a decision by the respondent to assess him as liable to pay tax on income received more than six years previously (something only permitted under the relevant legislation where fraud or evasion has occurred). Deputy President Jennings QC found (at p.762) that: The public interest requires that a person who is proceeded against in respect of income earnt more than six years after original assessment is entitled to be told which statutory basis has been chosen to enable such a claim to be made.187. This case affords a useful illustration of how an absurd result could be produced by inflexible adherence to the orthodox approach that in applying exemption provisions which turn on the prejudicial effects of disclosure, the effect of disclosure should be assessed on the basis that disclosure could be to any person entitled to apply under the Act, without regard to the particular position or interests of the particular applicant for access. In Re Saunders the respondent raised grounds as to why the disclosure of the documents in issue would be contrary to the public interest, which basically revolved around prejudice to the respondent's case in any legal challenge by the applicant to the relevant tax assessment. The Tribunal did not consider that the grounds raised by the respondent justified withholding the documents in issue from the applicant. If the Tribunal had been obliged to strictly apply the exemption provision by reference to the effects of disclosure to any person who might apply for the documents in issue, it must have found that it would be contrary to the public interest to disclose, to any person who might apply for them, documents relating to the tax affairs of a particular individual. This would of course be an absurd result, especially since if any other person did actually apply for the documents relating to the applicant's tax affairs, access would almost certainly have been denied by other exemption provisions (such as s.38 or s.41 of the Commonwealth FOI Act), which could not have been claimed against the person whose tax affairs were involved.188. The continuing vitality and relevance of the approach, the development of which I have been tracing, has been reaffirmed comparatively recently by the Presidents of the Commonwealth AAT and the Australian Capital Territory Administrative Appeals Tribunal (the ACT AAT), respectively. In Re Kamminga, the Commonwealth AAT, chaired by O'Connor J (President) said (at p.300): Deciding whether disclosure is contrary to the public interest requires a balancing of competing interests including the public interest in the applicant's right to know [citing re Peters and Department of Prime Minister and Cabinet (No.2) (1984) 5 ALN N306 and Re Burns and Australian National University (No.1)], which is a different thing to the applicant's personal interest in knowing.Comments to like effect appear in O'Connor J's decision in Re Cleary and Department of Treasury [1993] AATA 248; (1993) 31 ALD 214 at p.216.189. In Re B and Medical Board of the ACT (1993) 33 ALD 295, Professor Curtis (President) of the ACT AAT, after reviewing some of the Commonwealth decisions outlined above, said (at pp.303-4): In those cases where considerations of public interest enter into the scope of the exemption, whether by way of being part of the definition of the exemption, as in ss.36 and 44, or by way of cutting down the scope of an exemption, as in ss.39 and 40, the public interest in a person having access to what is recorded about him or her is to be taken into account in determining the scope of the public interests involved. In the case of other exemptions, which do not involve an inquiry into the public interest, there is no scope to introduce that specific public interest into determining whether or not a document is exempt.190. 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.191. The legislative history of s.6 of the FOI Act (see Electoral and Administrative Review Commission, Report on Freedom of Information, Serial No. 90/R6, December 1990, at paragraphs 7.51 to 7.59) indicates that its development was influenced by the issues discussed at paragraphs 164 to 172 above. Section 6 of the FOI Act provides as follows: Matter relating to personal affairs of applicant 6. If an application for access to a document is made under this Act, the fact that the document contains matter relating to the personal affairs of the applicant is an element to be taken into account in deciding - (a) whether it is in the public interest to grant access to the applicant; and (b) the effect that the disclosure of the matter might have.192. Interestingly, the terms of s.6(a) indicate that Parliament contemplated that there may be a public interest in granting access to information to a particular applicant (and not just to any member of the public), and s.6 requires that the fact that the document in issue contains matter relating to the personal affairs of the particular applicant is to be taken into account in deciding that question. 193. The obvious limitation of s.6 is that it applies only where the matter in issue relates to the personal affairs of the applicant. Since the phrase "personal affairs" has a fairly narrow scope (see Re Stewart), s.6 does not extend as far as the cases outlined above, which would permit, in an appropriate case, account to the taken of the public interest in a particular applicant having access to information about the applicant's affairs, which need not be confined to personal affairs. I have already noted at paragraph 1514 above that s.6 has no application to the documents in issue in the present case because they do not contain matter relating to the personal affairs of Dr Pemberton. There is no doubt, however, that the documents in issue contain information about Dr Pemberton and that the information is of particular interest or concern to him. That raises the issue of whether this is an appropriate case for the application of the principle that an applicant's involvement in, and concern with, particular information is of such a nature that it is capable of being taken into account as a public interest consideration when applying the public interest balancing test in s.40 and s.41 of the FOI Act.194. In Re Barkhordar and Australian Capital Territory Schools Authority (1987) 12 ALD 332 the applicant had applied unsuccessfully for promotion to a senior position with the respondent. She had been permitted access to relevant assessments made of herself, including referee reports, but was denied access to similar documents relating to other applicants for promotion. Deputy President Todd found that disclosure of the documents in issue would have a substantial adverse effect in terms of s.40(c) of the Commonwealth FOI Act. It is worth referring briefly to his reasons for that finding since they tend to support my own findings at paragraphs 152-153 above that disclosure of referee reports on candidates for promotion to persons other than the candidate for promotion could reasonably be expected to have a substantial adverse effect on the management or assessment by the University of its personnel. Deputy President Todd said (at p.336): The special characteristics of the teaching service in the public sector include the fact that teachers are very much in the eye of at least a section of the public, namely the parental public. They are not "faceless". They have duties to children, to parents and to the service which employs them, and probably also to the general public. Uncontrolled publication of details of their performance as assessed by peers, selection panels and appeal boards could have most disruptive consequences. It is not really open to predict precisely what consequences might flow from the disclosure of the documents in question. But in terms of assessing the reasonable expectation of which s.40(1) speaks, I agree with the submission made on behalf of the Authority that: ? the morale of participants would be damaged; ? criticism or adverse comments, whilst constructive when used within the system, could undermine the position of teachers in their relationships with pupils and parents of pupils; ? candour and frankness of referees, Advisory Selection Panels and Promotions Appeal Boards could be inhibited; ? an unwillingness on the part of teachers to provide referees' reports and to serve on Advisory Selection Panels and Promotions Appeal Boards could result; ? bad relationships between participants in the promotions system could arise; ? undue stress on participants could ensue. Such consequences will be likely to lead to a breakdown in the system thereby adversely affecting to a serious degree the capacity of the respondent to ensure that the most efficient officers are promoted, and could lead to disputation within the [Commonwealth Teaching Service] and with the teachers' union. This would be clearly contrary to the public interest in having an efficient school system.195. In dealing with the public interest balancing test under s.40 of the Commonwealth FOI Act, Deputy President Todd said (at pp.336-7): It seems to me that the Authority has permitted quite generous provision of such material to teachers involved in such processes. This occurs in controlled circumstances ... . What is asked for here, however, is release under the FOI Act, for which purpose the present applicant has in my opinion no greater or lesser right than a member of the general public. The only qualification in this regard would be in a limited area. In Re Burns and Australian National University ... [I said]: "But what is important is that His Honour clearly considered that there was a public interest in a citizen having such access in an appropriate case, so that if the citizen's "need to know" should in a particular case be large, the public interest in his being permitted to know would be commensurately enlarged." I do not consider that this is such a case. The above-quoted passage has been cited to me in a number of cases. In my view, it remains as a correct expression of view, but it is likely to have a very limited application. Re Burns itself was a case involving deprivation of office. I do not see failure to obtain promotion, in an area wherein promotion is difficult to attain, as likely to attract the stated principle.196. The position of the applicant in Re Barkhordar was materially different from the position of Dr Pemberton. Ms Barkhordar had obtained access to relevant reports on herself, and was seeking access to reports on other candidates for promotion. I think Deputy President Todd was correct to say that her right to know the contents of those documents was no greater than any member of the public, and that, in respect of those documents, her concern at her failure to obtain promotion was not sufficient to elevate her interest into a legitimate public interest. Dr Pemberton, on the other hand, seeks access to reports relating only to himself and though he too is concerned at his failure to obtain promotion, the relevant interests are, in my opinion, considerably wider than that.197. The particular promotion processes within the University that are now under consideration do not involve the selection of the best candidate from a field of applicants for a particular vacancy. Rather they involve a value judgment as to whether a particular candidate has achieved a standard of excellence in his or her contribution to the University, and to his or her academic discipline, that warrants recognition by the University with the reward of personal promotion. I accept what is said in paragraph 4 of Professor Wilson's statutory declaration (set out at paragraph 63 above) to the effect that personnel assessment practices must ensure that those academic staff who are contributing most to the fulfilment of the University's Mission are promoted, so that the University is able to retain them, and so that others will be encouraged to emulate their achievement. However, it seems to me that a promotion process of this kind ought to place at least equal emphasis on affording guidance to those who aspire to promotion, but are unsuccessful, as to how they need to improve their performance so as to make a contribution of sufficient distinction to warrant recognition through personal promotion. Assisting and guiding academic staff towards achieving their full potential in that regard is likely to reap benefits not only for individual academics but for the wider community. If the judgment can properly be made that disclosure of the contents of a particular report by a Head of Department, Dean of Faculty or Pro-Vice-Chancellor should be made to an unsuccessful candidate for promotion in the interests of providing guidance of this type (which I find to be the case in respect of disclosure to Dr Pemberton of documents 18, 19 and 20) then I think there will be a legitimate public interest in disclosure of the report to the subject of the report. A public interest consideration of this kind may be reduced in weight if the unsuccessful candidate has received sufficiently detailed feedback through counselling following the selection process, but I am satisfied that that did not occur in respect of Dr Pemberton and the selection processes for which documents 1, 18, 19 and 20 were created.198. Dr Pemberton is a researcher (and teacher) in a field of science (molecular microbial genetics) where progressive research is capable of producing significant benefits for the wider community. His duties include supervising research undertaken by graduate students in his specialist field. If senior academics, of Professorial calibre, hold opinions to the effect that Dr Pemberton's work on behalf of the University (and indirectly on behalf of the wider community) has shortcomings, or needs to be redirected or improved in some way in order for him to be assessed as having made a sufficiently distinguished contribution to the University, and his academic discipline, as to make him worthy of promotion to Professor, then I consider it to be not only in Dr Pemberton's personal interest, but in the wider public interest, that those opinions be conveyed to Dr Pemberton. Significant sums of public money are contributed to fund research of the kind in which Dr Pemberton is engaged, and to fund the employment of academics generally. It is in the public interest that academics and researchers direct their efforts in a way that optimises the benefit to the wider community from the investment it makes in the tertiary education sector and in scientific research.199. Dr Pemberton has stated (at p.9 of his submission), and I accept, that he received no feedback of any description on his promotion application to which document 1 relates, and why that promotion application failed. In respect of his 1992 application for promotion to Professor, Dr Pemberton states (at p.14 of his submission) that he had a follow-up interview, but the feedback was of a general nature and provided no details whatsoever. I accept that the interview would not have conveyed any details of comments in confidential referee reports, in accordance with the University's policy in that regard, as then in force.200. Dr Pemberton also stated in his submission (p.15), and I accept, that the contents of reports released to him under the FOI Act (with the consent of the authors) would have been of great benefit to him if released to him shortly after the promotion process for which they were obtained.201. The assessments of Dr Pemberton contained in documents 18, 19 and 20 were prepared shortly before the University's staff appraisal scheme was fully implemented, and before the University adopted the policy of conveying adverse comments in written reports to candidates for promotion. The considerations which supported the introduction of these new policies (see also paragraph 29 of Professor Wilson's statutory declaration set out at paragraph 63 above) in my opinion, afford support for the disclosure of documents 18, 19 and 20 to Dr Pemberton. In my opinion, it is in the public interest that Dr Pemberton have access to the assessments contained in documents 18, 19 and 20 so that he has the opportunity to take account of the opinions conveyed in them in making his own decisions as to how to best direct his work efforts to maximise his contribution to the mission and goals of the University so as to establish that he is worthy of promotion to Professor. 202. Document 1 is primarily of historical interest at this stage, and any public interest in its disclosure to Dr Pemberton for the reasons canvassed in the preceding paragraph is not strong. Contrary to Dr Pemberton's suspicions, document 1 is generally supportive of Dr Pemberton's claims for promotion from lecturer to senior lecturer in 1979, and I can see little benefit in its disclosure to Dr Pemberton apart from satisfying his own understandable curiosity. I am not satisfied that there are public interest considerations favouring disclosure to Dr Pemberton of document 1, which are of sufficient weight to overcome the public interest favouring non-disclosure which is inherent in the satisfaction of the test for prima facie exemption under s.40(c). I find document 1 to be an exempt document under s.40(c) of the FOI Act.203. I am satisfied that there are public interest considerations of substantial weight which favour disclosure of documents 18, 19 and 20 to Dr Pemberton (though not to any other persons who might apply for them), not only because of Dr Pemberton's personal interest in having access to the documents, but because of a legitimate public interest in a person in Dr Pemberton's position having access to information that may assist him or her to fully realise his or her potential in performing work that contributes to the benefit of the wider community. There is also the general public interest in accountability (i.e., in ensuring that promotions are not only made fairly, but are seen to be made fairly) which would be served to some extent (see paragraph 160 above) by disclosure of documents 18, 19 and 20 to Dr Pemberton. After weighing these considerations against the public interest in non-disclosure which is inherent in the satisfaction of the test for prima facie exemption under s.40(c) of the FOI Act, I am satisfied that disclosure of documents 18, 19 and 20 to Dr Pemberton would, on balance, be in the public interest. I would have been inclined to the same conclusion in respect of another document in issue, document 22, but document 22 is exempt under s.46(1)(a), an exemption provision which is not qualified by a public interest balancing test.204. One reservation needs to be made in respect of the last three sentences of document 19, wherein the author of document 19 suggests the names of other referees who may be approached to comment on Dr Pemberton's work. One of those nominated was the author of document 22. That author's identity is exempt matter under s.46(1)(a). It would not be in the public interest to disclose this matter to Dr Pemberton, and I find it to be exempt matter under s.40(c). I make the same finding in respect of the last three sentences in the final paragraph of document 18 (the last two pages of which comprise a duplicate of document 19). Consideration of s.41(1)205. Turning to s.41(1) of the FOI Act, I have already found (at paragraph 70 above) that the contents of referee reports submitted for the purpose of use in selection processes for appointment or promotion of staff comprise matter which falls within s.41(1)(a) of the FOI Act. Whether documents 1, 18, 19 and 20 are exempt under s.41(1) will depend on whether I am satisfied that their disclosure would, on balance, be contrary to the public interest (see s.41(1)(b) of the FOI Act).206. The relevant public interest considerations are essentially identical to those considered in respect of s.40(c), with the four claimed adverse effects on the University's management or assessment of its personnel to be treated, to the extent that I have found them to be of substance, as public interest considerations favouring non-disclosure. I consider that disclosure of documents 1, 18, 19 and 20 to persons other than Dr Pemberton (or more generally, the disclosure of reports on a candidate for promotion to persons other than that candidate for promotion) would be contrary to the public interest in the effective functioning of the University's promotion processes for the reasons explained at paragraphs 152-154 above. For the reasons given at paragraph 202 above, I am not satisfied that there are public interest considerations of substantial weight favouring disclosure of document 1 to Dr Pemberton, and I find document 1 to be exempt under s.41(1) of the FOI Act. 207. However, I consider that there are public considerations favouring disclosure of documents 18, 19 and 20 to Dr Pemberton, of the kind explained at paragraphs 197-201 and 203 above, that are of such weight that I am satisfied that disclosure to Dr Pemberton of documents 18, 19 and 20 would not, on balance, be contrary to the public interest. Consistently with paragraph 204 above, I make the reservation that disclosure of the last three sentences in the final paragraph of documents 18 and 19 would be contrary to the public interest, and I find that matter to be exempt matter under s.41(1) of the FOI Act.208. In the decision under review, Mr Porter found that documents 18, 19 and 20 were exempt under s.44(1) of the FOI Act (as well as s.40(c), s.41(1) and s.46(1)). No argument was offered, in the University's submission on external review, in support of this aspect of Mr Porter's decision. I believe this was because the University accepts that this aspect of Mr Porter's decision was mistaken. The information in these reports concerns the work capacity and performance of Dr Pemberton, not the personal affairs of any person. Moreover, the reports were written by their authors in their capacities as officers of the University of Queensland, rather than in a personal capacity. My decision on external review will also, therefore, vary this aspect of Mr Porter's decision.Conclusion209. I affirm that part of the decision under review by which it was determined that the matter withheld from the applicant, as contained in documents 2, 3, 5, 6, 7, 8, 10, 11, 12, 13, 14, 16(a), 16(b), 21, 22 and 24 is exempt matter under s.46(1)(a) of the FOI Act.210. I affirm that part of the decision under review by which it was determined that document 1 is exempt matter under s.40(c) and s.41(1) of the FOI Act.211. I vary the decision under review to the extent that I find that documents 18, 19 and 20 -(a) are not exempt documents under s.46(1)(a) of the FOI Act; and(b) are not exempt from disclosure to Dr Pemberton under s.40(c), s.41(1) or s.44(1) of the FOI Act (except for the last three sentences in the final paragraph of documents 18 and 19, which are exempt matter under s.40(c) and s.41(1))..........................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Tregeagle and Gold Coast City Council [2000] QICmr 14 (18 October 2000)

Tregeagle and Gold Coast City Council [2000] QICmr 14 (18 October 2000) Tregeagle and Gold Coast City Council (L 34/00, 18 October 2000, Deputy Information Commissioner) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.-3. These paragraphs deleted. REASONS FOR DECISION Background The applicant, Mr Tregeagle, seeks review of the decision by the Gold Coast City Council (the GCCC) to refuse him access, under the FOI Act, to documents covered by the terms of an FOI access application dated 18 January 2000, which sought: ".. a complete copy of the Geological and associated reports carried out on the road reserve and adjoining allotments at Dalton Road, Ingleside. We also request under the Act all relevant assessment reports pertaining to this report and all relevant materials." By letter dated 15 March 2000, the GCCC informed the applicant of its decision to refuse him access to all identified documents, relying upon s.43(1) of the FOI Act. The documents identified by the GCCC as being responsive to the FOI access application comprise two two-part reports prepared by Geoff Maiden Partners Pty Ltd, and a report by SMEC Australia Pty Limited. By letter dated 20 March 2000, the applicant sought internal review of the decision. By letter dated 15 May 2000, Mr Geoffrey Bolster affirmed the initial decision. Mr Bolster informed the applicant of his right to apply to the Information Commissioner for external review. The procedure for seeking such a review was set out on an attachment to the internal review decision letter dated 15 May 2000. However, it was not until 9 August 2000 that my office received from the applicant an application for external review of Mr Bolster's decision. By letter dated 15 August 2000, I provided the applicant with a copy of Re Young and Workers' Compensation Board of Qld [1994] QICmr 11; (1994) 1 QAR 543, in which the Information Commissioner had discussed the principles applicable to the exercise of the discretion conferred on the Information Commissioner by s.73(1)(d) of the FOI Act, and invited him to lodge evidence and/or submissions in support of a case that the discretion conferred by s.73(1)(d) of the FOI Act should be exercised in his favour. In reply, the applicant lodged a written submission dated 31 August 2000. That submission made it clear that the applicant did not seek to raise 'sufficiency of search' issues on external review, but wished to challenge the GCCC's claim that the reports relating to geotechnical and geological stability of five properties in Dalton Road, Tallebudgera Valley, qualified for exemption under s.43(1) of the FOI Act. The applicant supplemented his submission with the provision of further information by telephone and by facsimile on 14 and 18 September 2000. From the evidence provided by the applicant in support of his case for an extension of time, it is apparent that Part 1 of the first two-part report prepared by Geoff Maiden Partners Pty Ltd had previously been forwarded to the applicant by the GCCC, under cover of a letter dated 17 March 1999. Accordingly, by letter dated 25 September 2000, the Assistant Information Commissioner informed the GCCC that the applicant was able to show a reasonably arguable case, with reasonable prospects of success, of satisfying the Information Commissioner that at least one of the documents to which the applicant has been refused access does not qualify for exemption under s.43(1) of the FOI Act. The GCCC was, therefore, invited to address the two other key considerations identified in Re Young, namely, the extent of delay in applying for external review, and possible prejudice to the GCCC. In reply, the GCCC lodged a written submission dated 11 October 2000, which opposed the grant of an extension of time. Application of s.73(1)(d) of the FOI Act Section 73(1)(d) of the FOI Act provides: 73.(1) An application for review must— ... (d) be made— (i) within 60 days; or (ii) if the application is for review of a decision referred to in section 71(1)(f)(i)—within 28 days; from the day on which written notice of the decision is given to the applicant, or within such longer period as the commissioner allows (whether before or after the end of that period). In Re Young, the Information Commissioner set out the principles which apply to the exercise of the discretion conferred by s.73(1)(d) of the FOI Act. At paragraph 22 of Re Young, the Information Commissioner identified the key considerations as: (a) the extent of the delay in applying for review and whether the applicant has an acceptable explanation for the delay; (b) the balance of fairness, having regard to any prejudice that would be occasioned to the applicant by a refusal to grant an extension of time compared with any substantial prejudice that would be occasioned to the respondent or to third parties by the grant of an extension of time; and (c) the merits of the substantive application for review: i.e., whether it raises genuine issues and discloses a reasonably arguable case, with reasonable prospects of success, in respect of one or more of the documents in issue; or whether it would be futile to permit the application to proceed because it is apparent that the applicant lacks any grounds of substance for challenging the decision under review and has no reasonable prospects of success. Extent of delay The statutory time period for making an application for external review of a decision refusing access to documents is set by s.73(1)(d) of the FOI Act at 60 days. The application for external review was made approximately 25 days after the 60 day period expired. 15. In the applicant's written submission, dated 31 August 2000, he said: The delay in my application has been caused by my time being taken up by Court action with the [GCCC] (unrelated to this issue) which we subsequently won [personal information deleted]. As a result of all this I overlooked the time limit for my application for External Review. While the extent of the delay in applying for external review does weigh against the applicant, I consider that he has offered a reasonable explanation for the delay, given the exigencies of shifting a family residence, and I do not think the extent of the delay should be accorded any substantial or decisive weight in telling against a favourable exercise of the discretion conferred by s.73(1)(d). Prejudice to other parties In its written submission dated 11 October 2000, the GCCC submitted that an extension of time being granted to the applicant would place "an unreasonable cost and absorption of staff time as Council intends to defend its stance of legal privilege attaching to these documents", and also submitted that no injustice would occur to the applicant should the discretion not be exercised. I note that there has been no suggestion of any prejudice to third parties if an extension of time were granted. I do not accept that any substantial prejudice would be caused to the GCCC by granting an extension of time. The GCCC would not be exposed to any resource costs in defending its decision that it would not have faced if the application for review had been lodged within 60 days, or that it would not face if the applicant now lodged a fresh FOI access application for the same documents (and I note that there is nothing in the scheme of the FOI Act which would prevent him from doing so) and observed the applicable time limits that would allow him to obtain external review by the Information Commissioner, as of right. Nevertheless, it would still be inappropriate to exercise the discretion to extend time in favour of the applicant, if he had no reasonable prospect of successfully challenging the GCCC's decision that the documents in issue are exempt under s.43(1) of the FOI Act. Merits of the application for review The GCCC refused the applicant access to the documents in issue under s.43(1) of the FOI Act, which provides: 43.(1) Matter is exempt matter if it would be privileged from production in a legal proceeding on the ground of legal professional privilege. 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] HCA 67; (1999) 74 ALJR 339. I have obtained and examined copies of the documents in question, which comprise two two-part reports prepared by Geoff Maiden Partners Pty Ltd, and a report by SMEC Australia Pty Limited. In a letter dated 11 September 2000, the GCCC maintains that the first two-part report was obtained "pursuant to an Order of the Planning and Environment Court made 12 March 1999", and that the second two-part report was "also commissioned in anticipation of further legal proceedings". Of the report by SMEC Australia Pty Limited, the GCCC says that it "was commissioned to review the findings of all the Maiden reports and as such, it is considered that privilege attached to these documents also". The GCCC continues to maintain that Part 1 of the first two-part report qualifies for exemption, notwithstanding that it was sent to the applicant by the GCCC on 17 March 1999. The GCCC does not accept that sending this document to the applicant involved a waiver of legal professional privilege (assuming legal professional privilege attached to the document in the first place). I have obtained and examined a copy of the letter dated 17 March 1999 sent to the applicant by the GCCC, and there is nothing on the face of the letter to indicate that the applicant's use of the report forwarded with the letter was to be limited or restricted in any way. The letter contains no reference to proceedings in the Planning and Environment Court, nor to an Order dated 12 March 1999. Not only does the letter enclose a copy of Part 1 of the report, but it also states: Part 2 of the report shall address the failed section of crib wall and shall be provided when available. In its written submission dated 11 October 2000, the GCCC stated that the two-part reports were "verbally" requested by Mr Jeremy Wagner for the GCCC on 9 March 2000. This would seem to be at odds with the GCCC's contention in its earlier letter, dated 11 September 2000, that the reports were obtained pursuant to an order of the Planning and Environment Court made 12 March 1999. The five reports in issue will attract legal professional privilege if they comprise confidential communications to the GCCC or its solicitors 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 communications, and if privilege in the communications has not been waived. From my examinations of the reports and the material provided by the GCCC to date, I consider that there is substantial doubt that the reports were created for the dominant purpose of use, or obtaining material for use, in legal proceedings that had commenced, or were reasonably anticipated, at the relevant time. In respect of one of the reports, the material before me strongly suggests that any privilege that might have attached to the report has been waived. It is not necessary, at this stage, for the applicant to demonstrate that his substantive application for review will be successful, only that he has a reasonably arguable case with reasonable prospects of success. On the material presently available to me, I am satisfied that he does. It is possible that the GCCC can adduce evidence to establish that each of the reports attracted, and still retains, legal professional privilege. It will have the opportunity to do so during the course of dealing with the applicant's substantive application for review. On the material presently available to me, I consider that the merits of the substantive application for review are such that I should exercise the discretion conferred by s.73(1)(d) of the FOI Act in favour of the applicant, notwithstanding the extent of his delay in applying for external review. Decision I decide to exercise the discretion conferred by s.73(1)(d) of the FOI Act in favour of extending the time for the applicant to lodge a valid application for review of Mr Bolster's decision, on behalf of the GCCC, dated 15 May 2000.

queensland

court_judgement

Queensland Information Commissioner 1993-

Q20 and Department of Justice and Attorney-General [2020] QICmr 40 (23 July 2020)

Q20 and Department of Justice and Attorney-General [2020] QICmr 40 (23 July 2020) Last Updated: 22 September 2020 Decision and Reasons for Decision Citation: Q20 and Department of Justice and Attorney-General [2020] QICmr 40 (23 July 2020) Application Number: 315263 Applicant: Q20 Respondent: Department of Justice and Attorney-General Decision Date: 23 July 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - documents in relation to judicial or quasi-judicial functions - entity to which the Act does not apply in relation to a particular function - access application outside scope of Act - application of sections 17, 32(1)(b)(ii) and schedule 2, part 2 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Queensland Civil and Administrative Tribunal (QCAT) for access under the Right to Information Act 2009 (Qld) (RTI Act) to documents created since 17 May 2010 that: contained his personal information; and constituted, evidenced or related to communications passing between QCAT and a party to any of the nine QCAT proceedings to which the applicant was also a party, and that had not already been disclosed to the applicant. Although the application requested access to documents of QCAT, it was processed by the Department of Justice and Attorney-General (DJAG), apparently on behalf of QCAT but without a delegation from QCAT under section 30(3) of the RTI Act.[2] DJAG decided[3] to refuse access to the requested documents. It decided that the application was outside the scope of the RTI Act under section 32(1)(b)(ii) of the RTI Act because QCAT was an entity to which the RTI Act did not apply when it was exercising its judicial or quasi-judicial functions, and the requested documents were in relation to such functions. The applicant applied[4] for internal review of DJAG’s decision. DJAG confirmed that QCAT had advised it that the only documents QCAT held that contained the applicant’s personal information were in relation to QCAT proceedings to which the applicant was a party and which therefore were in relation to the exercise by QCAT of its judicial or quasi-judicial functions. DJAG therefore affirmed its decision[5] under section 32(1)(b)(ii) of the RTI Act. The applicant applied[6] to the Office of the Information Commissioner (OIC) for external review of DJAG’s decision. For the reasons explained below, I set aside DJAG’s decision under section 32(1)(b)(ii) of the RTI Act on the grounds that DJAG is not an entity to which the RTI Act does not apply and therefore has no jurisdiction to make a decision under section 32(1)(b)(ii) of the RTI Act. In substitution, I decide that access to the requested documents may be refused on the grounds that the entity to which the access application was made and which has possession and control of the requested documents - QCAT - is an entity to which the RTI Act does not apply under section 17(b) in relation to the functions mentioned in schedule 2, part 2 of the RTI Act. I find that the requested documents are in relation to the exercise of such functions and that the access application is therefore outside the scope of the RTI Act under section 32(1)(b)(ii) of the RTI Act. Background The applicant was a party to a series of QCAT proceedings relating to a domestic building dispute arising out of the renovation of the applicant’s home. The applicant had terminated the contract with the builder and subsequently made a claim on the statutory insurance scheme administered by the Queensland Building and Construction Commission (QBCC). QBCC declined the claim, which gave rise to the various QCAT proceedings involving the applicant, QBCC and the builder. Significant procedural steps relating to the external review are set out in the Appendix. Reviewable decision The decision under review is DJAG’s internal review decision dated 14 February 2020. Processing of the application by DJAG As noted, although the access application sought access to documents of QCAT,[7] it was received and processed by DJAG, apparently on QCAT’s behalf, but without a formal delegation.[8] This has been the practice of DJAG for some time,[9] and continues despite the jurisdictional issues to which it gives rise, as is demonstrated by DJAG’s reliance in its decision under review on section 32(1)(b)(ii) of the RTI Act, which provision does not, by its wording, apply to DJAG. The relationship between DJAG, which is responsible for providing administrative support to courts and tribunals, and courts and tribunals as separate entities under the RTI Act, was brought into focus in the series of RTI decisions and appeals concerning the former Chief Justice of the Supreme Court, His Honour Justice Carmody.[10] Pursuant to sections 12 and 24 of the RTI Act, a person may apply to an agency for access to a document that is ‘in the physical possession or under the control of that agency.' In the Carmody appeals, Justice Hoeben of QCAT[11] made clear that a court or tribunal cannot be regarded as part of DJAG for the purposes of the RTI Act and that DJAG has no ‘legal entitlement to use or physically possess’[12] the judicial documents of courts or tribunals, as this would amount to an interference by the executive in the independence of courts and tribunals. In discussing the Supreme Court of Queensland and its relationship with DJAG, Justice Hoeben said:[13] ... The framework established by both the Constitution of Queensland 2001 (Qld) and the SCQ Act [Supreme Court of Queensland Act 1991 (Qld)] demonstrate that the Supreme Court, while receiving administrative support from DJAG, is in fact an independent entity. ... It is clear that by the SCQ it is the Chief Justice and not DJAG who exercises management and control of the Court (and access to its documents). The fact that s 91 of the SCQ Act provides that the Court is “part of the Department” for financial purposes reinforces the conclusion that the Court is a stand-alone entity, separate from the executive in the discharge of its functions. It follows that there is no justification in either the SCQ Act nor in the RTI Act for the Supreme Court to be treated as part of DJAG for the purposes of section 12 of the RTI Act. ... ... As a general proposition, the executive ... could not ... compel the production of documents... created by, and passing between, members of the judiciary. This reflects the well established status of the judiciary as wholly independent of the executive and immune from interference by it. ... ... The IC identified the Supreme Court as a “business unit” within DJAG. There are difficulties with that nomenclature in that it obscures the independent standing of the Supreme Court and the fact that it is not part of, nor subject to, the control of DJAG. ... The definition of “document of an agency” in s 12 of the RTI Act is specifically delimited (as is s 23) by the concept of an “agency”. For the reasons set out above, the word “agency” cannot be read so as to include the entity, which is the Supreme Court, (as a department) in relation to the court’s judicial functions. This is so, even if contrary to my interpretation, the Supreme Court were part of DJAG for RTI Act purposes. ... The expression “possession” [in section 12 of the RTI Act] where used to describe the documents of an agency, must be construed ... so as not to capture documents where DJAG is not able to in fact produce them (or where to do so would interfere with judicial independence). The High Court has held in the context of subpoenas, that the concept of “possession’ assumes that a person to whom it is directed “has the ability or capability to produce them.” ... ...In relation to the electronic documents, although DJAG had possession of the servers upon which those documents were stored, it had no present legal entitlement to access the documents (or files) stored upon them. ... ... ... There is no basis for concluding that the documents (or all documents) of the Supreme Court are in the possession or under the control of the Supreme Court. ... ... The Supreme Court, whilst receiving administrative and technical assistance from DJAG, is an independent entity and is not subject to the control of DJAG .... [Footnotes omitted and emphasis added] I consider that these findings apply equally to QCAT as a court of record constituted under the Queensland Civil and Administrative Act Tribunal 2009 (Qld) (QCAT Act).[14] The President of QCAT, and not DJAG, exercises management and control over the business of QCAT.[15] There is no basis for treating QCAT as part of DJAG for the purposes of the RTI Act, such as to permit DJAG to make decisions about access to documents of QCAT without a delegation. QCAT falls with the definition of ‘public authority’ in section 16 of the RTI Act, and therefore is itself an agency under section 14 except where section 17(b) applies. Justice Hoeben made clear in his decisions in the Carmody appeals that DJAG has no right to possess or control judicial documents of courts and tribunals. Such documents cannot therefore be regarded as documents of DJAG within the meaning of section 12 of the RTI Act, and DJAG has no jurisdiction to make decisions about access to them. It is clear from this external review, and from others that have been made to the Information Commissioner since the Carmody appeals concerning requests to access QCAT documents, that DJAG’s RTI decision-makers do not have possession of (nor any right to possession of) responsive documents when making decisions about access to QCAT documents, but rely on advice from QCAT as to the existence, nature and characterisation of the documents. OIC has previously raised with DJAG’s Director-General the appropriateness of DJAG continuing with the practice of making decisions in response to requests for access to documents held by courts and tribunals, contrary to the clear indication in the Carmody appeals that courts and tribunals are not to be regarded as part of DJAG for the purposes of the RTI Act. However, as noted, both the initial and internal review decisions issued by DJAG in this review were made without a delegation from QCAT. The internal review decision refers to QCAT as a ‘DJAG entity’. In contrast, the Queensland Courts website now describes the position of Queensland courts (including QCAT) as follows: Each court sits independently of the Queensland Department of Justice and Attorney-General and Queensland Government, while Court Services Queensland are located within the DJAG portfolio. The documents sought by the applicant in this review do not relate to the court administrative services provided to QCAT by DJAG. On a proper interpretation of the provisions of the RTI Act, and applying the findings of Justice Hoeben in the Carmody appeals, applications seeking access to judicial documents of courts and tribunals should either be received and processed by the relevant court or tribunal itself, or may continue to be dealt with by DJAG on the court or tribunal’s behalf, provided that a delegation is requested and given under section 30(3) of the RTI Act. This conclusion is supported by the wording used in section 32(1)(b)(ii) of the RTI Act, upon which DJAG relied in making its decisions in this review. It indicates that Parliament’s intention was that it apply where the entity to which the access application is made is also the entity to which the RTI Act does not apply.[16] On a strict interpretation, it has no application to DJAG as DJAG is not an entity to which the RTI Act does not apply. Effect of the Carmody appeals on the Information Commissioner’s jurisdiction The decisions by Justice Hoeben in the Carmody appeals effectively nullify, on a practical basis, the right to external review by the Information Commissioner under the RTI Act of a decision that refuses access to documents where it is decided that the documents are in relation to the exercise by the court or tribunal of judicial or quasi-judicial functions under schedule 2, part 2, items 1 to 8 of the RTI Act. In such circumstances, the relevant court or tribunal to which the application was made is excluded from the definition of ‘agency’ in section 14 and is an entity to which the Act does not apply in section 17(b). The application is regarded as being outside the scope of the RTI Act by virtue of the application of section 32(1)(b)(ii). A written notice of that decision is required to be given to the applicant under section 32(2) of the RTI Act. That decision is a ‘reviewable decision’ under schedule 5 of the RTI Act and a person affected may apply to have the decision reviewed by the Information Commissioner under section 85 of the RTI Act, with the Information Commissioner having the right to exercise the powers set out in chapter 3, part 9 of the RTI Act, including an entitlement to ‘full and free access at all times to the documents of the agency or Minister concerned’.[17] However, the decisions by Justice Hoeben in the Carmody appeals found that nothing in the RTI Act should be construed so as to permit interference with the independence of courts and tribunals:[18] As a general proposition, the executive (and an independent statutory appointee such as the IC) [Information Commissioner] could not (in the face of those protections) compel the production of documents and recorded communications created by, and passing between, members of the judiciary. This reflects the well established status of the judiciary as wholly independent of the executive and immune from interference by it. Judicial office stands “uncontrolled and independent and bowing to no power but the supremacy of the law”. As stated by Viscount Simons in Attorney General v The Queen: “...in a federal system the absolute independence of the judiciary is the bulwark of the constitution against encroachment whether by the legislature or by the executive.” This independence is constitutionally enshrined. The State of Queensland is obliged by the Constitution of Australia to maintain a Supreme Court capable of being invested with federal judicial power exercised by judges which are (and are seen to be) independent from the legislature and the executive. Independence from the executive of a Supreme Court is one of the key assumptions upon which Chapter III of the Constitution of Australia is based. It follows that the RTI Act should not be construed so as to permit interference with the Independence of the Court. If it were accepted, as the IC’s decision asserts, that all documents of the Court are documents of DJAG, then a statutory right exists subject, in particular cases to the judgment of the IC, for anyone to require access to all such documents at any time. That includes the executive, individual ministers (often litigants in the courts), their advisers and adversaries and others. A judiciary subject to such scrutiny (qualified only by the exercise of a discretionary judgment by the IC) is not independent. Its institutional integrity is fundamentally flawed. Such a consequence cannot have been intended by the legislature and is indicative of error on the part of the IC in her interpretation of the RTI Act. ... It may be inferred that Parliament’s intention in legislating s 17 and item 1 of schedule 2, part 2 was to ensure that the independence of the judiciary was not compromised.. Parliament is presumed not to have legislated beyond its constitutional bounds and the RTI A should accordingly be interpreted consistently with it being intra vires. Section 9 of the Acts Interpretation Act 1954 (Qld) similarly provides that an Act is to be interpreted as operating to the full extent of, but not to exceed, Parliament’s legislative power. [Footnotes omitted] Following the decisions in the Carmody appeals, where the Information Commissioner has received applications seeking external review of decisions made by DJAG on behalf of QCAT in reliance upon section 32(1)(b)(ii) of the RTI Act, QCAT has declined to provide OIC with copies of responsive documents for the purposes of conducting the review. I acknowledge and respect that this refusal is in accordance with the decisions in the Carmody appeals, and for the purposes of preserving the judicial independence of QCAT. It remains the fact though, that under the RTI Act as it is presently enacted, such a decision is reviewable, and the Information Commissioner has a statutory obligation to conduct the review. OIC is therefore in the unsatisfactory position of being statutorily required to make a decision about whether to affirm, vary or set aside the decision under review without being able to call for and view the requested documents, or make an independent assessment of whether or not they are in relation to judicial or quasi-judicial functions. While it may often times be clear merely from a description of the requested documents that they can properly be so characterised (and I acknowledge that ‘in relation to’ was read extremely widely by Justice Hoeben in the Carmody appeals so as to cover virtually every activity and function carried out by a court or tribunal), the Information Commissioner’s practical powers on review, such as calling for and examining the responsive documents, are effectively nullified. I accept that this is the effect of the decision of the Carmody appeals and I respect Justice Hoeben’s findings about the importance of protecting the independence of the judiciary. However, the position is confusing for affected applicants who expect, from the provisions of the RTI Act as presently enacted, that the Information Commissioner has jurisdiction to conduct an independent merits review of all reviewable decisions made by agencies under the RTI Act. OIC has previously raised with DJAG, as the agency responsible for the administration of the RTI Act, the potential confusion for applicants arising from the impact of the decisions in the Carmody appeals on the administration of the RTI Act. Amendment of legislation is a policy decision for the Queensland government. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including the footnotes and Appendix). I have also had regard to the Human Rights Act 2019 (Qld) (HR Act),[19] 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, an RTI decision-maker will be ‘respecting and acting compatibly with’ this right and others prescribed in the HR Act,[20] 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.’[21] Information in issue The information in issue comprises documents responding to the terms of the applicant’s access application dated 1 December 2019, as summarised at paragraph 1 above. Issue for determination The issue for determination is whether the access application is outside the scope of the RTI Act under section 32(1)(b)(ii) of the RTI Act because the requested documents are documents of an entity that is excluded from the operation of the RTI Act by section 17(b) of the RTI Act when exercising specified functions. That is, the documents are in relation to the exercise by the entity (QCAT) of its judicial or quasi-judicial functions under schedule 2, part 2, items 1 to 8 of the RTI Act. Relevant law Section 23 of the RTI Act relevantly provides that, subject to the Act, a person has a right to be given access under the Act to documents of an agency. Section 24 relevantly provides that a person who wishes to be given access to a document of an agency under the RTI Act may apply to the agency for access to the document. Section 12 relevantly provides that ‘document of an agency’ means a document in the possession or under the control of the agency. Section 14(1) contains the definition of ‘agency’, which includes a public authority. Section 14(2) provides that ‘agency’ does not include an entity to which the RTI Act does not apply. Section 17 relevantly provides that ‘entity to which this Act does not apply’ means an entity mentioned in schedule 2, part 2 in relation to the function mentioned in that part. Schedule 2, part 2, items 1-8 provide that an entity to which the RTI Act does not apply includes: a court, or the holder of a judicial office or other office connected with a court, in relation to the court’s judicial functions a tribunal in relation to the tribunal’s judicial or quasi-judicial functions a tribunal member or the holder of an office connected with a tribunal, in relation to the tribunal’s judicial or quasi-judicial functions; and a registry of a tribunal, or the staff of a registry of a tribunal in their official capacity, so far as its or their functions relate to the tribunal’s judicial or quasi-judicial functions. Conduct of the external review Following a review of the access application, DJAG’s initial and internal review decisions, and correspondence passing between the applicant and DJAG,[22] I wrote to the applicant[23] to express the preliminary view that the documents to which he had requested access appeared to be properly characterised as in relation to the exercise by QCAT of its judicial or quasi-judicial functions. I stated that QCAT’s decisions in the Carmody appeals appeared to be directly applicable, with the effect that the applicant had no right of access to the requested documents because QCAT, which was in possession and control of any such documents, could not be regarded as an ‘agency’ in such circumstances. The applicant did not accept my preliminary view and made further submissions in support of his case for disclosure,[24] which I will discuss below. After considering the applicant’s submissions, I wrote again[25] to advise that I maintained my preliminary view, as explained previously. The applicant responded[26] by advising that he did not withdraw his application ‘and will not do so in future’. It is therefore necessary to prepare formal reasons for decision to finalise this review. The applicant marked his initial submissions to OIC as ‘Confidential’ and purported to place restrictions on their use. After explaining to the applicant that, in conducting an external review, OIC is obliged to observe the requirements of procedural fairness and to give full reasons for its decisions, including a discussion of relevant submissions put forward by the parties to the review, the applicant withdrew his claim for confidentiality.[27] The applicant’s submissions It is clear from the applicant’s submissions that he is dissatisfied with QCAT’s conduct of the proceedings in which he was involved that concerned his dispute with QBCC and the builder.[28] He provided DJAG and OIC with a copy of a letter he had sent to QCAT’s President on 31 August 2018 in which he raised a number of matters of concern to him. Amongst other issues, it appears that the applicant believes that there may have been secret and improper communications between QCAT and other parties to the proceedings, or communications that evidence or express bias by QCAT, and therefore a failure by QCAT to maintain judicial independence, or breach of other statutory duties. In his letter to DJAG dated 17 December 2019, the applicant submitted: As discussed, I contend that the true construction of paragraphs 3 to 5 of Part 2 of Schedule 2 includes that references to ''judicial or quasi-judicial functions" are confined to such functions discharged or exercised properly. Amongst other things, those references do not include functions discharged or exercised in a manner that is, or is reasonably arguable, to be improper because, for example, it evidences or expresses bias and/or constitutes misbehaviour within the meaning of s. 61(2)(a) of the Constitution of Queensland Act, 2001 or s. 43(1) of the Land Court Act, 2000. This construction is consistent with the pro-disclosure objective and interpretation principle expressed at s. 3 of the RTI Act. In my ‘preliminary view’ letter to the applicant dated 29 April 2020, I discussed the application of the decisions in the Carmody appeals and stated: You have argued that the exclusion of documents from the RTI Act that relate to the exercise of judicial or quasi-judicial functions of a tribunal is confined to those functions when they are discharged or exercised properly, ‘and [does] not prevent access to documents that evidence or manifest bias or constitute or evidence a failure to maintain judicial independence or breach of other statutory duties’. It is not the role of the Information Commissioner under the RTI Act to investigate or make any kind of judgement about such matters. The role of this Office is to apply the provisions of the RTI Act in determining whether or not access should be granted to requested documents. On the face of your request, the documents you seek to access are prima facie excluded from the operation of the RTI Act under schedule 2, part 2. Justice Hoeben made it clear in the Carmody decisions that any attempt by a statutory body such as OIC to even attempt to compel the production of judicial or quasi-judicial documents from a court or tribunal for the purposes of a review under the RTI Act (far less investigate or question their contents, or the motives of the officers who generated them) amounted to an interference in the judicial independence of the court or tribunal. If you have concerns about the actions of an officer of QCAT and the manner in which they have discharged their functions, it is appropriate that you raise those issues with the President of QCAT, or the Attorney-General, or the Crime and Corruption Commission, or the Queensland Parliament. The applicant responded in his letter dated 27 May 2020: Upon the preliminary view, a person does not have a right to be given access under the RTI Act to documents even if the documents, without more, disclose judicial misbehaviour that is patent and egregious. That view is contrary to the primary object of the RTI Act in that it is “contrary to the public interest” and the statutory instruction that the act “must be applied and interpreted” to further the primary object. There are a number of reasons for that. First, there is a strong public interest in maintaining confidence in the administration of justice and ensuring that justice is not only done but seen to be done. Like Caesar's wife, Courts and Tribunals should be above reproach. Part of maintaining that confidence is ensuring that remedies for complaint about judicial misbehaviour are efficacious. The preliminary view construction Is contrary to the statutory instruction and public interest because it frustrates such remedies by denying a complainant a means to compel access to evidence. This is allied to the following considerations. Secondly, the public interest is in maintaining confidence in the administration of justice, not the interest (e.g. reputation or standing) of the Tribunal as it is constituted at a particular time or its then members or former members. Those interests may diverge. Such a divergence may be caused by judicial misbehaviour or reasonably based apprehension of such misbehaviour. The prospect of divergence makes it contrary to the public interest for the subject Court or Tribunal to be the sole arbiter of whether access to documents within its possession or under its control is given [volunteered]. Thirdly, there is an inherent conflict of interest if a Tribunal is able to decide whether or not access is given to documents that may reflect adversely upon the Tribunal. It furthers the public interest that is the “primary object” of the RTI Act for the act to be construed and applied so that such documents are not beyond the scope of the documents to which a person has a right to compel access. ... Fourthly, the public interest in the independence of the judiciary does not need the protection of the construction expressed in the preliminary view and is not threatened by the construction for which the writer contends. Rather, it is upheld. The response to an RTI application seeking access to secret communications between judicial officers hearing a proceeding and a party should be factual and straightforward: that there are no such documents. The simple act of making the contest a legal argument about the construction of the legislation, without responding as to the substance (facts) of the application, undermines confidence in the administration of justice and, here, the Tribunal. . Fifthly, the public interest to be furthered is wider than administration of justice simpliciter. The objects of the QCAT Act include enhancing the “openness and accountability of public administration.” The Proceedings and present RTI application engage that object directly. Both flow from the Homeowner’s application for review of an administrative decision made by a GOC. As mentioned in the correspondence before you already, unremedied bias and breaches of duties by a captured Tribunal permits, conceals and facilitates a GOC’s breaches of duty (e.g. those under QCAT Act, s.21), contempt of the Tribunal (e.g. by improper attempts to influence homeowners’ conduct of proceedings before the Tribunal) and other dishonest conduct. That is contrary to the above-mentioned object of the QCAT Act. [Footnotes omitted] The applicant referred to material that he placed before QCAT’s President in his letter to the President dated 31 August 2018 and that he considered evidenced secret and improper communications passing between QCAT and other parties to the proceedings in which the applicant was involved. He disputed that the Information Commissioner could not, on a true construction of the RTI Act, investigate the matters he had raised in order to determine whether to grant access to documents, arguing that ‘in relation to’ in schedule 2, part 2 of the RTI Act necessarily gives rise to investigation and judgments: ‘it is not contempt to comply with a statutory obligation.’[29] He submitted that it was wrong to assume that all documents held by QCAT that contained his personal information were in relation to the exercise of QCAT’s judicial or quasi-judicial functions, contending that responsive documents needed to be examined and considered on a case by case basis in order to arrive at the correct conclusion. In response,[30] I acknowledged the difficulties in administering the RTI Act in respect of its application to courts and tribunals that had been brought about by the decisions in the Carmody appeals. However, the Information Commissioner is bound to follow the decisions of QCAT. I maintained that the decisions in the Carmody appeals were directly relevant and applied to prevent the release to the applicant of any responsive documents: QCAT is of the view that any documents prepared or received by it in connection with its function of administering, hearing and determining matters under the QCAT Act are ‘in relation to’ the exercise by it of its judicial or quasi-judicial functions and are therefore excluded from the ambit of the RTI Act. This is in reliance upon the very wide interpretation that Justice Hoeben gave to the phrase ‘in relation to ... judicial or quasi-judicial functions’ in the Carmody appeals. Justice Hoeben, amongst other things, found that something is a 'judicial function' if, whatever else it might be, it is a task conferred upon a judge. A function that could be categorised as 'administrative' does not exclude those powers from also being 'judicial' and nor is it necessary for a judicial 'determination' to be made for a function to be considered 'judicial'. He further stated: The test for the application of the exemption for courts and judges in the RTI Act is made even wider by the use of the words 'in relation to'. These are words of wide import and numerous cases have demonstrated that the words 'in relation to' require no more than a relationship, whether direct or indirect, between two subject matters. Item 1, part 2 of schedule 2 extends to documents which have a connection with the court's judicial functions. The exemption is not limited to the adjudication by one judge of a particular dispute before that judge but means something broader. This breadth is enhanced by the connecting words selected by the drafter namely 'in relation to'. Something which is not itself the discharge of a judicial function (an administrative one) can nonetheless 'relate to' the judicial function. The wide connecting words show that Parliament intended things which were not themselves documents produced in the performance of judicial functions, would also be within the scope of the exemption as documents 'relating to' that judicial function. Justice Hoeben’s findings on this issue are in direct conflict with the submissions you have made at paragraph 21 of your email. The Information Commissioner decided in the Carmody external reviews that the exercise of a judicial function was limited to the hearing and determination of a dispute (in that case, the hearing of a matter by the Court of Disputed Returns) and did not cover ancillary correspondence/exchanges between judges leading up to that hearing, including discussions, for example, about which judge should hear the matter. The Information Commissioner determined that such exchanges concerned the exercise of administrative functions, and not judicial. Justice Hoeben rejected that finding, and decided that all functions exercised by a judicial member are ‘in relation to’ the exercise of judicial or quasi-judicial functions, including the exercise of functions that can be regarded as ‘judicial administration’. Based on that finding, all documents that you refer to in paragraph 21 of your email would properly be found to be ‘in relation to’ the exercise of judicial or quasi-judicial functions. In terms of the function given to the Information Commissioner under the RTI Act to obtain copies of, and review, documents in order to determine whether or not they comprise exempt matter ..., QCAT has, in the previous reviews that I referred to above, rejected the suggestion that the Information Commissioner can compel the production of, or has any role in reviewing, such documents because to do so would amount to an interference in the independence of the judiciary, which Justice Hoeben specifically rejected in the Carmody appeals. Justice Hoeben held that nothing in the RTI Act can be interpreted as permitting interference by the executive in the independence of the judiciary. I acknowledge your submission that it is contrary to the public interest for the ‘subject Court or Tribunal to be the sole arbiter of whether access to documents within its possession or under its control is given (volunteered)’. I also accept that that would not appear to have been Parliament’s intention when drafting and enacting the relevant provisions in the RTI Act. However, the practical effect of the decisions in the Carmody appeals is that the Information Commissioner, as a statutory office-holder appointed by the Executive, is prevented from taking any action under the RTI Act that could be regarded as interfering in the independence of the judiciary. This includes reviewing documents that a court or tribunal determines have been brought into existence in the exercise of their judicial or quasi-judicial functions. In any event, as previously explained, I am satisfied simply from the terms of your access application that the documents to which you seek access are in connection with your various applications made to QCAT under the QCAT Act, and are, therefore, based on the wide interpretation given to ‘in relation to’ in the Carmody appeals, clearly to be characterised as having been brought into existence in relation to the exercise by QCAT of its judicial or quasi-judicial functions. [Footnotes omitted] The applicant rejected the views I had expressed, asserting that there was a ‘critical’ problem with QCAT, some of its judicial officers, and the QBCC, ‘that is causing life changing harm to many ordinary Queenslanders ... and cries out for redress. The system will not self-correct but protect itself. Someone has to press for remedy.‘[31] The applicant argued that the decisions in the Carmody appeals were decisions of a single Judge that did not consider the specific issues raised by the applicant’s application, and that did not express a ratio decidendi that concluded his application: With the greatest respect to the learned judge who decided Carmody v Information Commissioner, the reasons err in relation to the case law about the construction of the words “in relation to”. Such expressions are not intended to make it “sufficient that the [second matter] be in some way connected, however remotely, with the [first matter].... There must ... be some reasonably direct connection.... ” There must be “an appropriate relationship”. Presciently, Kirby J foresaw, in the context of judicial immunities, that “Cases might arise in which an issue as to the characterization of a judicial officer’s functions and powers is presented so as, arguably, to take the exercise of those functions and powers out of the immunity provided for in the legislation. It is unnecessary in this appeal to explore the circumstances in which that might be so.” Whether there is a “reasonably direct connection” or “appropriate relationship” so as to establish the statutory relationship (“in relation to the tribunal’s judicial or quasi-judicial functions”) is informed by the statutory purposes. (Italics added). The learned Judge in Carmody v Information Commissioner placed weight upon the statutory purpose of preserving judicial independence. That purpose is not furthered by a construction that includes documents that evidence a lack of judicial independence. Such documents include documents that constitute or evidence a secret communication between the Tribunal and a litigant, or that false information was provided by the Tribunal to a litigant about a secret communication. The evidence before you points to such a documents within the scope of the present application for access. There are other relevant statutory purposes that inform the construction of the words “in relation to”. One of them is the public interest in the confidence of the judiciary. A construction of those words that takes documents that constitute or evidence secret communications outside the scope of documents to which access is available is directly contrary to, and would undermine, this purpose. The other statutory purposes include achieving the objects of the QCAT Act. Those purposes have been drawn to your attention by prior correspondence. Those submissions are not repeated here beyond drawing to your attention one further aspect of those objects. That is, that those considerations did not fall for consideration in Carmody v Information Commissioner and are thus a basis upon which that decision is distinguishable. They fall for consideration here because a GOC was a party to the proceedings before the Tribunal and the specific example of a secret communication that I have identified to you was between the Tribunal and that GOC. For reasons including those noticed above, your letter under reply errs when it states that “the application of schedule 2, part 2, of the RTI Act is clear, and it prevents access being given to judicial or quasi-judicial documents, regardless of their contents.” [Footnotes omitted]Findings I have given careful consideration to the applicant’s submissions. I acknowledge that he is dissatisfied with the way QCAT dealt with the proceedings in which he was involved, and that he wishes to ascertain whether documents may exist in QCAT’s possession or under its control that may evidence improper conduct by a Tribunal member in connection with those proceedings. He is clearly frustrated at being unable to access documents under the RTI Act that would allow him to explore this issue. However, I do not accept that there exist grounds for distinguishing the findings made by in the Carmody appeals. For the reasons explained in my correspondence with the applicant during the course of the review, and set out above, I consider that those findings apply to the circumstances of this review. I find that: there are no reasonable grounds before me for expecting that QCAT holds documents that fall within the terms of the applicant’s access application other than in connection with QCAT administering, hearing and determining legal proceedings before QCAT to which the applicant was a party such documents are properly to be characterised as in relation to the exercise by QCAT of its judicial or quasi-judicial functions within the meaning of schedule 2, part 2, items 1 to 8 of the RTI Act; and QCAT is not an ‘agency’ for the purposes of the RTI Act when it is exercising its judicial or quasi-judicial functions and is therefore an entity to which the RTI Act does not apply. My findings in that regard are based on: a description of the documents sought by the applicant as contained in his access application; and Justice Hoeben’s interpretation of the phrase ‘in relation to’ contained in schedule 2, part 2 of the RTI Act. I note the applicant’s submissions regarding the public interest in release of the documents he seeks. However, there is no provision in the RTI Act for public interest considerations to be taken into account when considering the application of section 17 and schedule 2, part 2 of the RTI Act. Justice Hoeben made clear that any attempt by a statutory office-holder appointed by the Executive, such as the Information Commissioner, to attempt to compel the production of judicial or quasi-judicial documents from a court or tribunal for the purposes of a review under the RTI Act amounted to an interference in the judicial independence of the court or tribunal, and that nothing in the RTI Act could be construed as having that effect. It follows as a consequence of that, that in preserving judicial independence, the Information Commissioner can play no role in making a judgment about whether or not a judicial officer has engaged in improper conduct or demonstrated bias in discharging their judicial duties. Concerns of that type should be raised with persons or bodies holding appropriate powers or jurisdiction. DECISION For the reasons explained, I set aside DJAG’s decision under section 32(1)(b)(ii) of the RTI Act on the grounds that DJAG is not an entity to which the RTI Act does not apply under section 17 of the RTI Act and therefore has no jurisdiction to make a decision under section 32(1)(b)(ii) of the RTI Act. In substitution, I decide that access to the requested documents may be refused on the grounds that the entity to which the access application was made, and which has possession and control of the requested documents - QCAT - is an entity to which the RTI Act does not apply under section 17(b) of the RTI Act in relation to the functions mentioned in schedule 2, part 2, items 1 to 8 of the RTI Act. I find that the requested documents are in relation to the exercise of such functions and that the access application is therefore outside the scope of the RTI Act under section 32(1)(b)(ii) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Louisa Lynch Right to Information CommissionerDate: 23 July 2020 APPENDIX Significant procedural steps Date Event 11 March 2020 OIC received the application for external review. 19 March 2020 OIC emailed the applicant acknowledging receipt of the external review application. OIC requested preliminary jurisdictional information from DJAG. 24 March 2020 DJAG provided the requested information. 29 April 2020 OIC conveyed its preliminary view to the applicant. 27 May 2020 The applicant provided OIC with submissions. 3 June 2020 OIC conveyed a further preliminary view to the applicant. 11 June 2020 The applicant provided OIC with submissions. 16 June 2020 OIC received an email from the applicant. [1] Application dated 1 December 2019.[2] The decision notice contains no reference to the decision-maker holding a delegation from QCAT. On 13 July 2020, the Director of DJAG’s RTI unit confirmed to OIC that DJAG did not hold a delegation from QCAT and that the initial and internal review decisions were made by DJAG. [3] On 18 December 2019.[4] On 16 January 2020.[5] On 14 February 2020. [6] On 11 March 2020. [7] QCAT is a public authority, and therefore an agency, for the purposes of the RTI Act and capable of receiving and processing RTI applications: see sections 14, 16 and 24 of the RTI Act. [8] Section 30(3) of the RTI Act provides that an agency’s principal officer may, with the agreement of another agency’s principal officer, delegate the power to deal with the application to the other agency’s principal officer. [9] QCAT’s website directs persons wishing to apply for RTI access to ‘departmental information’ to DJAG’s website. [10] The primary decision in a series of six decisions is Carmody v Information Commissioner & Ors [2018] QCATA 14 (2 March 2018) (collectively referred to as the ‘Carmody appeals’ in this decision and reasons for decision). [11] His Honour Justice Hoeben is Chief Judge at Common Law of the New South Wales Supreme Court. He was appointed as a supplementary judicial member of QCAT during the relevant period to assist with QCAT’s caseload. [12] At [69].[13] At [41] to [70].[14] Section 164 of the QCAT Act. [15] Section 172(2) of the QCAT Act. Section 162 of the QCAT Act provides that, in exercising its jurisdiction, QCAT must act independently and is not subject to direction or control by any entity[16] As per the use of ‘the entity’ in both section 32(1)(b) and section 32(1)(b)(ii), indicating a reference to the same entity. [17] Section 100 of the RTI Act. [18] At [47]-[49] and [60].[19] Which came into force on 1 January 2020. [20] 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].[21] XYZ at [573].[22] Letters to DJAG from the applicant dated 17 December 2019 and 10 February 2020. [23] Letter dated 29 April 2020.[24] Letter dated 27 May 2020. [25] Letter dated 3 June 2020. [26] Letter dated 11 June 2020. [27] Email dated 27 May 2020. [28] See paragraph 6 above. [29] At [19].[30] Letter to the applicant dated 3 June 2020.[31] Letter dated 11 June 2020.

queensland

court_judgement

Queensland Information Commissioner 1993-

McCrystal and Queensland Building and Construction Commission [2017] QICmr 32 (10 August 2017)

McCrystal and Queensland Building and Construction Commission [2017] QICmr 32 (10 August 2017) Last Updated: 1 December 2017 Decision and Reasons for Decision Citation: McCrystal and Queensland Building and Construction Commission [2017] QICmr 32 (10 August 2017) Application Number: 312924 Applicant: McCrystal Respondent: Queensland Building and Construction Commission Decision Date: 10 August 2017 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - application for information about an investigation of the applicant’s complaint concerning an alleged regulatory breach - 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 information - sections 47(3)(a) and 48 and schedule 3, section 10(1)(f) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - application for information about an investigation of the applicant’s complaint concerning an alleged regulatory breach - accountability, transparency, administration of justice and procedural fairness considerations - personal information of other individuals - business and commercial information of entities - flow of information to agency - 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 - IRRELEVANT INFORMATION - application for information about an investigation of the applicant’s complaint concerning an alleged regulatory breach - whether deleted information was 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 - NONEXISTENT OR UNLOCATABLE DOCUMENTS - application for information about an investigation of the applicant’s complaint concerning an alleged regulatory breach - whether agency has taken all reasonable steps to locate 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 Queensland Building and Construction Commission (QBCC) under the Right to Information Act 2009 (Qld) (RTI Act) for access to documents,[1] covering the period from 30 October 2015 to 21 April 2016, relating to: THE QBCC investigation into a complaint made by Dr McCrystal against LJ Technical Control Construction Pty Ltd (QBCC Licence No. 1263834) concerning unlicensed contracting at [Property A]. On 30 October 2015, Dr McCrystal lodged a complain[t] with the QBCC concerning unlicensed contracting at [Property A]. On 20 January 2016, the QBCC wrote to Dr McCrystal noting that breaches of the legislation had been detected and that the QBCC had issued a warning to LJ Technical Construction Control Pty Ltd for the offence. QBCC located responsive documents and decided[2] to disclose 1276 pages, 4 audio recordings and parts of 120 pages. QBCC refused access to 41 pages, 7 audio recordings and parts of 120 pages on the grounds that other access was available, it was exempt information or it was information the disclosure of which would, on balance, be contrary to the public interest. QBCC also deleted information from the documents released to the applicant on the basis that it was not relevant to the access application. The applicant applied[3] to the Office of the Information Commissioner (OIC) for external review of QBCC’s decision, seeking access to all information not disclosed by QBCC. The applicant also raised general concerns that QBCC had not located all relevant recordings of telephone conversations. On external review, QBCC released some of the information to which access had been refused. For the reasons set out below, I vary QBCC’s decision and find that access to the information remaining in issue in this review may be refused or deleted on the grounds that: it is exempt information its disclosure would, on balance, be contrary to the public interest it is not relevant to the access application; or it is nonexistent or unlocatable. Background QBCC regulates the building industry throughout Queensland. A range of legislation falls within QBCC’s regulatory responsibilities.[4] As part of its regulatory responsibilities, QBCC provides services[5] which include encouraging and enforcing compliance with the laws the QBCC is responsible for administering.[6] Under QBCC’s policy documents, and as noted on its website,[7] QBCC will not investigate all complaints that it receives and it will ‘make effective use of limited resources by targeting issues and licensees in line with risks, new and emerging issues and enforcement priorities’.[8] QBCC also has a range of administrative, civil and criminal enforcement remedies available to it under the legislation that it administers.[9] The applicant has made a number of complaints to QBCC relating to residential building works, including: unlicensed contracting by LJ Technical Control Construction Pty Ltd (LJ Technical) at Property B[10] certifier complaints concerning Property B;[11] and unlicensed contracting by LJ Technical at Property A (the Complaint).[12] The Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) relevantly provides that: an excluded individual includes an individual who becomes bankrupt and three years have not elapsed since the relevant bankruptcy event[13] a company is an excluded company if an individual who is a director or secretary of, or an influential person for, the construction company is an excluded individual;[14] and QBCC must cancel the company’s licence if, within 28 days of being notified about the excluded individual, the relevant individual does not stop being a director or secretary of, or an influential person for, the company.[15] A QBCC license search of LJ Technical[16] confirms that: its licensed classes are currently cancelled it is an excluded company by reason of a listed influential person, Mr Jie Lin (Excluded Individual), who is excluded from holding a contractor or nominee supervisor licence or from running a licensed company due to an insolvency event; and it has one listed director and secretary, Ms Chao Ren Liu. On external review, the applicant has expressed his concern that the outcomes of QBCC’s investigations of the Complaint and a similar complaint concerning Property B were not the same. The applicant also believes that disclosure of the refused or deleted information in this review will confirm that the building works at Property A have been ‘covertly’ carried out by the Excluded Individual.[17] The 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 14 July 2016. Information in issue During the review: QBCC withdrew its claim for exemption in respect of information that it had decided to refuse on 15 pages[18] and released that information to the applicant the applicant confirmed that he did not seek access to certain categories of information;[19] and QBCC accepted OIC’s view that there was no basis under the RTI Act to refuse or delete 1 page[20] and small portions of information on 37 pages[21] and released that information to the applicant. The Information in Issue remaining for consideration in this decision comprises: information refused in 18 full pages[22] small portions of information refused or deleted on 85 pages;[23] and 7 audio recordings.[24] Issues to be determined Taking into consideration the matters resolved informally during the review process,[25] the remaining issues to be determined are whether the: Information in Issue may be refused or deleted on the grounds that it is exempt information, its disclosure would, on balance, be contrary to the public interest or it is not relevant to the access application; and additional information raised by the applicant should have been located by QBCC. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). The applicant provided OIC with extensive submissions.[26] To the extent the applicant’s submissions are relevant to the issues for determination in this review, I have addressed them below. OIC’s jurisdiction under the RTI Act relates to decisions about access to and, where relevant, amendment of, documents held by agencies. The applicant’s submissions[27] raise a number of concerns that OIC is unable to consider or address on external review, and which are not relevant to the issues for determination in this review. Such concerns generally relate to: perceived delays in QBCC’s processing of the access application the applicant’s belief that QBCC has improperly imposed limitations on its own ability to meet its obligations under the QBCC Act, by indicating it cannot investigate all complaints that it receives the appropriateness of the action QBCC took against LJ Technical in respect of the Complaint the applicant’s concerns about what he considers to be illegal license-lending and financial arrangements ASIC deciding not to take further action against the Excluded Individual a refusal by QBCC to refer evidence of various offences (some of which are unrelated to the Complaint) to ‘the appropriate authority by refusal to investigate the offence, refusal to release its determination on the authenticity of relevant documents, or refusal to release the information pursuant to RTI request’ his concerns about an individual’s ability to secure credit and act as an officer of various companies (which do not include the company that is the subject of the Complaint); and the applicant’s belief that certain documents provided to QBCC’s investigation may have been ‘hastily rewritten’. Further, the applicant’s submissions also refer to the subject matter of, and the issues being considered in, the applicant’s four other external reviews, concerning separate decisions issued by QBCC. Those matters are not relevant to the issues for determination in this review and are not addressed in this decision. Preliminary issues – scope and third party consultation Before considering the Information in Issue, it is necessary to deal with a number of procedural issues raised by the applicant. Section 24(2) of the RTI Act sets out the criteria that an applicant must meet in order to have a valid RTI application. Of relevance here is the requirement that the applicant give sufficient information concerning the documents sought to enable a responsible officer of the agency to identify the documents. The applicant contends that: information relating to Property B provides background and contextual information about why QBCC acted in particular way at Property A[28] ‘any document, discussion or correspondence relating to [Property B]’ and any information located in this review which relates to Property B is relevant to the ‘Reasons for the decision’ at Property A and should be released;[29] and QBCC’s decision regarding the Complaint is in direct conflict with ‘what QBCC allowed to transpire at [Property B]’ and in order to understand the Complaint decision, ‘the decisions, and iniquity, at [Property B] must also be understood’.[30] Previous decisions of the Information Commissioner specify that the terms of an application will set the parameters for an agency’s search efforts and that it is not open for an access applicant to unilaterally expand the scope of an access application on external review.[31] In Robbins, the Information Commissioner noted that where there is ambiguity in the terms of an application, it is rarely appropriate to apply legal construction techniques in preference to consulting with the applicant for clarification.[32] In this review, the terms of the access application are clear. The applicant has sought information about QBCC’s investigation of his complaint about unlicensed contracting at Property A. The access application does not seek access to information about QBCC’s separate investigation of the applicant’s complaint about unlicensed contracting at Property B.[33] Based on the terms of the access application which is the subject of this external review, I am satisfied that the scope of the application does not extend to information about QBCC’s separate investigation of the applicant’s unlicensed contracting complaint concerning Property B. Unless it is clear on the face of a document that information concerning Property B has been used to inform the investigation of the complaint about unlicensed contracting at Property A, the information concerning Property B is not relevant to the terms of the access application. I have dealt with this issue later in this decision. The applicant’s submissions[34] question why the QBCC decision-maker refused access to the personal information of third parties when, in undertaking consultation with relevant third parties, the decision-maker has: either not sought authorisation from third parties to release such personal information or sought release authorisation from third parties and those third parties objected ‘but did not lodge a subsequent submission’; and contemplated release of personal information but then proceeded to redact the information ‘without authorisation to refuse access’. The applicant also submits[35] that the Information Commissioner should conduct consultation with relevant third parties regarding the personal information to which access has been refused, as he believes such consultation would reveal: ‘iniquity’; and whether the QBCC decision-maker engaged with the Excluded Individual and knew that the consulted third parties existed and/or engaged in the communications recorded in the documents. The applicant’s submissions in this regard appear to stem from his belief that disclosure of the Information in Issue will confirm that the Excluded Individual was in some way involved in QBCC’s investigation of the Complaint. They also point to a misunderstanding on the part of the applicant about the process for consulting with relevant third parties about the proposed disclosure of information under the RTI Act and the steps a decision-maker is required to take under section 49 of the RTI Act in determining whether disclosure of information would, on balance, be contrary to the public interest. Section 37(1) of the RTI Act provides that an agency may give access to a document that contains information, the disclosure of which may reasonably be expected to be of concern to a government, agency or person (relevant third party) only if the agency has taken steps to obtain the relevant third party’s views about whether the document is a document to which the RTI Act does not apply or the information is exempt information or contrary to the public interest information. Where an agency obtains such relevant third party views but decides to release information contrary to such view, the agency is required to provide written notice of its decision to the relevant third party.[36] In the present case, I have reviewed the steps taken by QBCC’s decision-maker and it is evident from the information before me that the QBCC decision-maker sought the views of various third parties about proposed disclosure of certain information (consultation information) and considered the views received from those parties when determining if disclosure of the consultation information would, on balance, be contrary to the public interest. As set out in the subsequent sections of this decision, I am satisfied that grounds exist for refusing or deleting the Information in Issue. Accordingly, the requirement to take steps to obtain the views of the relevant third parties about disclosure of the Information in Issue does not arise. In these circumstances, I am not required to consult with any third parties, and have not done so. I will now turn to consideration of the substantive issues to be determined in this review. Exempt Information QBCC refused access to portions of information appearing in 2 pages of the Information in Issue[37] on the ground that it is exempt information (Points Information). The Points Information appears in an internal QBCC checklist, which is used by QBCC in dealing with a received complaint.[38] In this case, it is clear from the access application that QBCC dealt with the Complaint by conducting an investigation. I also note that, apart from the Points Information, QBCC released the checklist to the applicant and the released checklist information confirms that the QBCC offence points allocated to the Complaint totalled 50 points and, as a result, the Complaint was dealt with by referring it to an investigation. While I am constrained as to the level of detail that I can provide regarding the Point Information,[39] QBCC describes the Points Information as information which ‘reveals a lawful and identifiable method or procedure used by QBCC’.[40] Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[41] The RTI Act is administered with a pro-disclosure bias, meaning that access should be given to a document unless giving access would, on balance, be contrary to the public interest.[42] The RTI Act sets out certain grounds on which access to information may be refused.[43] It is Parliament’s intention that these grounds are to be interpreted narrowly.[44] An agency may refuse access to documents to the extent they comprise exempt information.[45] Relevantly in this review, information will qualify as exempt information[46] if 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.[47] To enliven this exemption, the following requirements must be met:[48] there exists an identifiable method or procedure it is a method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law; and disclosure of the information could reasonably be expected to prejudice the effectiveness of that method or procedure. The requirements of the phrase ‘could reasonably be expected to’ in the particular context of the exemptions in schedule 3, section 10(1) were discussed by the Information Commissioner in Gold Coast Bulletin and Queensland Police Service (Gold Coast Bulletin).[49] That phrase requires that the expectation is reasonably based, that it is neither irrational, absurd or ridiculous,[50] nor merely a possibility.[51] Whether the expected consequence is reasonable requires an objective examination of the relevant evidence.[52] 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.[53] There are exceptions to the exemption and they are set out in schedule 3, section 10(2) of the RTI Act. Findings Requirement a) – Is there an identifiable method or procedure? I have carefully reviewed the Points Information. Taking into consideration the context in which the Points Information appears, I am satisfied that it reveals an identifiable method or procedure. I note that the applicant has accepted that requirement a) has been met.[54] Requirement b) – Is it a method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law? The Points Information is a methodology used by QBCC, as noted in paragraph 35 above, to determine how it will deal with received complaints concerning legislation which QBCC administers. Given the nature of the Points Information and the context in which it appears, I am satisfied that it is an identifiable method or procedure used by QBCC for dealing with a contravention or possible contravention of the laws which QBCC administers. The applicant submits[55] that, in order to meet requirement c), it must be demonstrated under requirement b) that the Points Information is effective for preventing, detecting, investigating or dealing with contravention or possible contravention of the law. I have carefully considered the applicant’s submissions and the caselaw to which he refers in support of his submissions[56] and I am satisfied that such an interpretation of requirement b) is not supported by the Information Commissioner’s decisions and I do not accept that section 10(1)(f) should be interpreted as the applicant contends.[57] I consider the question that I must address is whether the effectiveness of the method or procedure will be prejudiced not whether the method or procedure is effective. Requirement c) – Could disclosure of the Points Information reasonably be expected to prejudice the effectiveness of that method or procedure? The Points Information is not publicly available and it cannot be deduced from publicly available information. Although the Point Information may appear innocuous, on its face, or when read in isolation, I consider that its disclosure would inform persons who are regulated by the legislation which QBCC administers, about how QBCC deals with various offences under that legislation. This, in turn, has the potential to result in such regulated persons making decisions to commit a numbers of offences, with knowledge that they would only receive a warning letter (on the basis that such offences would not cumulatively reach the 50 point threshold for referral to an investigation). As to whether this expectation of prejudice is reasonable, I am satisfied that revealing the Points Information under the RTI Act, where there can be no restriction on its use, dissemination or republication, could reasonably be expected to alert such regulated persons to this method for dealing with received complaints and potentially enable them to subvert QBCC’s points method. The applicant submits[58] that requirement c) is not met as ‘the RTI Act requires that disclosure could reasonably be expected to cause a relevant harm’. More particularly, the applicant submits that: for requirement c) to be met, the decision-maker must be satisfied that disclosing the Points Information would prejudice the effectiveness of the relevant method or procedure and cause a relevant harm there is no relevant harm in disclosure of the Points Information;[59] and warning letters provide the same information to regulated persons, who would use that information to further unlawful activity and subvert QBCC’s investigation processes. As set out above, I am required, as a decision-maker conducting a merits review, to consider whether disclosure of the Points Information could reasonably be expected to prejudice the effectiveness of QBCC’s method for dealing with a contravention or possible contravention of the law. For the reasons set out in paragraphs 46-47 above, I am satisfied that such a reasonable expectation exists. The information from the checklist that has been released to the applicant indicates that, if the 50 point threshold for a complaint is not reached and there are no other offences for referral, a warning letter is to be issued. On the information before me, I am not satisfied that a warning letter provides ‘the same information’ as the Points Information and I therefore do not accept the applicant’s contention that a warning letter ‘has the same potential to inform persons who are regulated by the legislation which QBCC administers about how QBCC ranks various offences under that legislation’[60] and deals with contraventions or possible contraventions of the law. There is no evidence before me that any exception to the exemption contained in schedule 3, section 10(2) applies to the Points Information.[61] The applicant also submits that: disclosure of the Points Information would be reasonably expected to reveal the reason for a Government decision (to investigate) since it provides background or contextual information that informed the decision;[62] and under a public interest balancing exercise, factors under schedule 4 of the RTI Act ought to be afforded significant weight and outweigh those factors under schedule 3 that are contrary to the public interest.[63] These submissions raise issues relative to public interest factors that may favour disclosure of the Points Information in the context of assessing under the RTI Act whether or not disclosure would, on balance, be contrary to the public interest. However, when information qualifies as exempt information—as is the case in relation to the Points Information—the arguments for disclosure that the applicant has raised cannot be taken into consideration. This is because Parliament has determined that disclosure of exempt information would, on balance, be contrary to the public interest in all instances.[64] Further, while agencies may decide to exercise discretion to release exempt information, OIC cannot.[65] In any event, I am satisfied that disclosure of the Points Information is not required to reveal the reason for QBCC’s decision to refer the Complaint for investigation. The information that has been released to the applicant from the checklist confirms that the 50 point threshold for dealing with the Complaint by referral to an investigation was reached and, therefore, the Complaint was investigated. Conclusion For the reasons set out above, I find that that: the Points Information comprises exempt information under section 48 and schedule 3, section 10(1)(f) of the RTI Act; and access to the Points Information may be refused under section 47(3)(a) of the RTI Act on that basis. Contrary to the public interest information QBCC refused access to 18 full pages, small portions of information on 82 pages and 7 audio recordings in the Information in Issue, on the basis that its disclosure would, on balance, be contrary to the public interest.[66] While the RTI Act prevents me from disclosing the content of this refused information,[67] I generally categorise it as: small portions of information appearing on 57 pages which comprise names of individuals and individuals’ contact details (Category A Information)[68] 7 audio recordings, 7 pages and portions of information appearing on 29 pages, which QBCC obtained, including from individuals who were contacted by QBCC in the course of conducting the investigation, or information which QBCC recorded[69] about its interactions with those individuals, some of which also includes Category A Information (Category B Information)[70] numbers appearing against a box titled ‘BSA licence number or owner-builder number’ on two pages of information provided to the QBCC investigation (Category C Information)[71] 11 pages[72] of building contract information provided to the QBCC investigation and small portions of information which refer to the value of the building contract on 22 pages[73] (Category D Information) three portions of information appearing on two pages comprising QBCC’s summary of information it obtained from RP Data and ASIC searches (Category E Information);[74] and portions of fee information appearing on two pages, which are screen shots of QBCC’s CMS system (Fee Information).[75] Relevant law Agencies may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[76] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[77] identify factors irrelevant to the public interest and disregard them[78] 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. 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 Generally, the applicant submits[79] that the factors favouring disclosure of the refused information outweigh the nondisclosure factors. The applicant’s submissions identify the factors favouring disclosure of the refused information that he considers relevant, namely, where disclosure of the refused information could reasonably be expected to: enhance the government’s accountability[80] 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[81] allow or assist with inquiry into possible deficiencies in the conduct or administration of an agency or official[82] reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct[83] advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies.[84] reveal the reason for a government decision and any background or contextual information that informed the decision[85] reveal the information is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant[86] reveal environmental or health risks or measures relating to public health and safety[87] contribute to the administration of justice generally, including procedural fairness[88] contribute to the administration of justice for a person;[89] and disclosure of the information could reasonably be expected to contribute to the enforcement of the criminal law.[90] Findings - Category A and B Information While the Category A Information appears on 57 pages, most of it appears in email chains, resulting in a significant level of duplication in the portions of information which comprise the Category A Information. By way of example, the two occurrences of Category A Information appearing on page 216 in File 1263834 Compliance EDRMS are duplicated on pages 274, 376, 381, 385, 391-392, 397-398, 405, 412, 421 and 429 in File 1263834 Compliance EDRMS. Similarly, there is a level of duplication in the portions of information which comprise the Category B Information, for example: the portion of information refused on page 226 in File 1263834 Compliance EDRMS is duplicated on page 267 in File 1263834 Compliance EDRMS; and the portion of information refused on page 375 in File 1263834 Compliance EDRMS is duplicated on pages 380, 384-385, 390, 397, 404, 411 and 420 in File 1263834 Compliance EDRMS. Irrelevant factors The applicant submits[91] that the reasons why additional audio recordings he believes exist have not been located by QBCC ‘are relevant under Schedule 4 of the RTI Act’. The issue of why additional audio recordings sought by the applicant do not exist is not, as the applicant contends, relevant to my determination of whether access to Information in Issue may be refused on the basis that its disclosure is contrary to the public interest. The existence or nonexistence of documents is a separate consideration under sections 47(3)(e) and 52 of the RTI Act and I have considered it separately in this decision. I have not taken this submission, or any other irrelevant factors, into account in making my decision. Factors favouring disclosure Accountability, transparency and informing the community The RTI Act recognises the following factors favouring disclosure will arise where disclosing information could reasonably be expected to: enhance the government’s accountability;[92] and 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;[93] and reveal the reason for a government decision and any background or contextual information that informed the decision.[94] The applicant submits that it is not contrary to the public interest to release ‘correspondence (external or internal) between parties who are not legal counsel and are engaged in a deliberative process, where that information reveals the reason for a Government decision’.[95] As noted in paragraph 58 above, section 49(3) of the RTI Act requires that I consider relevant factors in determining whether disclosure would, on balance, be contrary to the public interest. Where disclosure of information may reveal the reason for a Government decision is just one factor to be taken into account in deciding whether it would be contrary to the public interest to release information and the weight afforded to this factor favouring disclosure may not necessarily be determinative of the public interest. QBCC must be transparent and accountable in how it deals with investigations of complaints it receives about potential breaches of the legislation which it administers. I accept that disclosing the Category A and B Information would provide the applicant with the minutiae of how QBCC handled its investigation into the Complaint and give him an augmented picture of the information that was available to QBCC, including the identity of all individuals who were contacted by QBCC during its investigation and further details of the information provided to or obtained for the investigation. However, I note that QBCC has released a substantial amount of information to the applicant about the handling of its investigation and the investigation outcome. I consider this has afforded the applicant significant understanding of how the investigation was conducted and provided background and contextual information about QBCC’s investigation of and decision concerning the Complaint. Given the nature of the Category A and B Information, I do not consider that its disclosure would provide greater transparency about QBCC’s investigation or enhance QBCC’s accountability, nor do I consider that disclosure of the Category A and B Information would inform the community any further about QBCC’s investigative processes. Taking into consideration the nature of the Category A and B Information and the content of the information that has already been released to the applicant, I afford moderate weight to the factors favouring disclosure which relate to QBCC’s accountability and transparency and informing the community about QBCC’s investigation processes.[96] Advance fair treatment and procedural fairness 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[97] and contribute to the administration of justice generally, including procedural fairness.[98] 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, 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 is complainant, not the person or entity the subject of the decision. While the applicant may consider that the action taken by QBCC at the conclusion of its investigation of the Complaint was either inconsistent with its prior decisions or insufficient, there is no evidence before me that suggests the Complaint, and the evidence the applicant provided to QBCC’s investigation, was disregarded or not properly considered by QBCC. Further, it is unclear how disclosure of the Category A and B Information would contribute to procedural fairness for any other individual or entity. The investigation of the Complaint has been finalised and QBCC has issued a warning letter to LJ Technical as the outcome of its investigation findings. The investigation outcome and the action taken by QBCC was also notified to the applicant.[99] Given this, I am unable to determine how disclosure of the Category A and B Information will advance the applicant’s fair treatment in his dealings with QBCC. For these reasons, I consider that the factors favouring disclosure relating to fair treatment and the administration of justice generally, including procedural fairness[100] do not arise in respect of Category A and B Information. 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, they nonetheless warrant low to no weight in favour of disclosing the Category A and B information. A public interest factor favouring disclosure will also arise if disclosing information could reasonably be expected to contribute to the administration of justice for a person,[101] for example, by allowing a person subject to adverse findings to access information that may assist them in legal proceedings. The applicant’s submissions do not elaborate on how disclosure of the Category A and B Information would contribute to administration of justice for him. He has not, for example, indicated that disclosure of the information is required in connection with a further legal remedy he wishes to pursue.[102] 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 requested information held by an agency would assist the applicant to pursue the remedy, or evaluate whether a remedy is available or worth pursuing.[103] As noted above, in this case, the investigation of the Complaint is complete and the adverse findings were made against LJ Technical, not the applicant. While I understand the applicant does not consider the action taken by QBCC in respect of the Complaint is sufficient and that he has concerns: that the QBCC decision about the Complaint is not the same as a decision about a similar complaint concerning Property B; and about the outcomes of other complaints that he has made to QBCC, I am satisfied that he has not been ‘adversely affected’ by the QBCC decision regarding the Complaint in the sense relevant to natural justice and procedural fairness. As the applicant already has access to a substantial amount of information concerning QBCC’s handling of its investigation and the investigation outcome, I also consider that he does not require the Category A and B Information to seek a legal remedy or take his concerns about QBCC’s decisions to relevant complaint handling bodies. In these circumstances, I am satisfied that the release of Category A and B Information is not required to enable the applicant to evaluate whether a further legal remedy against any individual, entity or agency is available and worth pursuing or to pursue such legal remedy. For these reasons, I afford low to no weight to this factor favouring disclosure[104] of the Category A and B Information. Disclosure would reveal that information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant The RTI Act also recognises that a public interest factor favouring disclosure will arise where disclosing information could reasonably be expected to reveal that the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.[105] The applicant submits that he believes disclosure of the Category A and B Information will reveal that: the Excluded Individual was involved in the QBCC investigation of his unlicensed contracting complaint;[106] and the contact details are in fact those of the Excluded Individual.[107] There is nothing on the face of the Category A and B Information, nor in any other information before me, to suggest that: the names and contact details recorded in the Category A Information are not correct the information provided or obtained for the investigation which comprises the Category B Information is not correct; or disclosure of the Category A and B Information will reveal that the Excluded Individual was involved in the QBCC investigation. I also confirm that, where the name of an email addressee has been released and an email address has been redacted, the email address, on its face, corresponds to the person whose name has been released.[108] For these reasons, I do not consider this factor arises to be considered in respect of the Category A and B Information. For the sake of completeness, I note that even if I were incorrect in this regard, and the factor could be said to apply, it nonetheless warrants low to no weight in favour of disclosing the Category A and B Information. Deficiencies in the conduct or administration of an agency or official Public interest factors in favour of disclosure also arise where disclosure of information could reasonably be expected to: allow or assist with inquiry into possible deficiencies in the conduct or administration of an agency or official;[109] and reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.[110] The applicant submits[111] that an important factor that ‘allows or assists inquiry into the deficiencies of the QBCC’ is the omission of specific information from QBCC’s publicly searchable registers.[112] The appropriateness of what is recorded or not recorded in QBCC’s publicly searchable registers is not a matter which OIC has any jurisdiction to consider on external review. Nor is it necessarily evidence of possible deficiencies in the conduct or administration of an agency or official or that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct. For these factors to be relevant, there must be a reasonable expectation that disclosing the Category A and B Information would allow or assist enquiry into, reveal or substantiate, agency or official conduct deficiencies. I have carefully considered the Category A and B Information, together with the information which has been released to the applicant, and I am satisfied that there is nothing in that information which gives rise to such an expectation. The applicant has not specifically identified how he considers disclosure of the Category A and B Information would allow or assist inquiry into, or substantiate claims about, agency or official conduct deficiencies. The applicant’s submissions do, however, extensively detail: the various complaints that he has lodged with QBCC; and the manner in which QBCC has addressed or investigated those complaints. I have carefully considered the applicant’s submissions and it is clear that he considers disclosure of the Information in Issue will substantiate his concerns about the inconsistency in how QBCC has dealt with his various complaints and reveal that the Excluded Individual played some role in the investigation of his complaint which is the subject of this review and reveal ‘iniquity’. In this regard, I have again noted the applicant’s concerns about QBCC decisions in respect of his various complaints and his belief that the action taken against LJ Technical in respect of the Complaint was not consistent with the legislation QBCC administers or adequate for an offender he considers has knowingly engaged in a contravention of the law. Generally, there is a public interest in 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. To the extent that the applicant has raised ‘iniquity’ arguments, I have dealt with these later in this decision. As noted above: a substantial amount of information concerning QBCC’s handling of its investigation of the Complaint and the outcome of that investigation has been released to the applicant; and there is nothing in the information before me which indicates that disclosure of the Category A and B Information will reveal that the Excluded Individual was involved in the QBCC investigation. In these circumstances, I afford no weight to the factors favouring disclosure of the Category A and B Information which relate to allowing or assisting inquiry into, or substantiating claims about, agency of official conduct deficiencies.[113] Reveal environmental or health risks The applicant asserts that this factor favouring disclosure is relevant. However, he has not identified or addressed how disclosure of the Category A Information (names of individuals and their contact details) and Category B Information (information provided by or obtained about other individuals, including audio recordings) could reasonably be expected to reveal environmental or health risks or measures relating to public health and safety.[114] As noted above, the Category A and B Information comprises name and contact details and information of a personal nature provided to or obtained for QBCC’s regulatory investigation of the Complaint. By its nature, this information relates to those other individuals, rather than environmental or health risks or measures relating to public health and safety. In these circumstances, I am satisfied there is no reasonable expectation that disclosing the Category A and B Information could reveal environmental or health risks or measures relating to public health and safety. Accordingly, I do not consider that this factor[115] favouring disclosure of the Category A and B Information arises for consideration in balancing the public interest. For the sake of completeness, I note that even if I were incorrect in this regard, and the factor could be said to apply, it nonetheless warrants low to no weight in favour of disclosing the Category A and B Information. Contribute to enforcement of the criminal law A public interest factor favouring disclosure will arise where disclosure of information could reasonably be expected to contribute to the enforcement of the criminal law.[116] The Complaint relates to potential breaches of legislation administered by QBCC. QBCC investigated the Complaint and issued a warning letter to LJ Technical. The action taken by QBCC constitutes QBCC’s enforcement of the legislation which it administers, as it relates to the Complaint. Further, as noted above, LJ Technical’s previously licensed classes are currently cancelled. Apart from the applicant’s submissions, there is no evidence before me that the potential fraud and impersonation raised by the applicant has occurred or that any criminal investigation is currently being undertaken regarding those matters that might necessitate disclosure of the Category A and B Information. I also note that the applicant has raised concerns about such potential fraud and impersonation based on the information that has been disclosed to him relating to QBCC’s investigation of the Complaint. In these circumstances, I am satisfied that he does not require disclosure of the Category A and B Information to refer his concerns, should he wish to do so, to other law enforcement and investigative bodies, such as the Queensland Police Service. Given the enforcement action that has been taken by QBCC in respect of the Complaint, the nature of the Category A and B Information and the context in which it appears, I am satisfied there is no reasonable expectation that disclosing the Category A and B Information would contribute to the enforcement of the criminal law. Accordingly, I do not consider that this factor[117] favouring disclosure of the Category A and B Information arises for consideration in balancing the public interest. Iniquity The applicant’s submissions[118] also raise what the applicant describes as the ‘Iniquity Principle’. The applicant describes this principle as follows:[119] The iniquity principle, or exception, is traditionally applied as a defence to legal professional privilege that has been intended to act as a cloak for illegal activity, such as crime or fraud. The scope of the iniquity exception has evolved over time, and although many reported cases at common law relate to the iniquity exception for breach of confidence, the underlying principle remains the same - the disclosure of information that represents crime or illegal activity will outweigh nondisclosure. For ease of reference in this decision, I have adopted the applicant’s wording and simply refer to this concept as Iniquity. The applicant submits[120] that: ‘If it can be demonstrated that an exception to exempt information could be raised for the Information in Issue (if it were deemed exempt), then the weight in favour of disclosure of that information is significant and will outweigh non-disclosure factors in a public interest balancing exercise’ the relevant factors under schedule 4 favouring disclosure of the information in this context particularly include schedule 4, part 2, items 12, 16, 17 and 18 to establish Iniquity ‘a prima facie case of illegal activity or improper purpose must first be brought, rather than merely the suggestion of the activity’ and ‘by virtue of the QBCC’s own findings of illegal activity, a prima facie case is already made out since it is already established that disclosure of the Information in Issue will in fact disclose the existence of an iniquity that is a crime, civil wrong or serious misdeed of public importance’ (applicant’s emphasis) the requirements to favour disclosure have been made out[121] the refusal of access to the Information in Issue has made QBCC ‘the confidant of a crime or a fraud’ and is elevating the private right to confidentiality above the interest of the community; and ‘In order to ensure that the breadth of the existence of an iniquity that is a crime, civil wrong or serious misdeed of public importance is known in the public interest, and referred to appropriate agencies, full disclosure of the information in issue is favoured’. I understand the applicant’s submission to have twofold meaning. Firstly, where there is Iniquity, this is akin to an exception to a public interest ground of refusal, in the same way as some of the exemption provisions in the RTI Act contain exceptions to the exemption (for example, as an exception to information being subject to legal professional privilege). Secondly, as a public interest factor favouring disclosure. In support of his submissions about Iniquity as an overarching exception to public interest, the applicant has referred to the Information Commissioner’s decisions in Grant and Pine Rivers Shire Council; Chapman (Third Parties) (Grant)[122] and Boulton and Whitsunday Regional Council (Boulton).[123] I note that: these decisions considered Iniquity in the context of it being an exception or defence to the application of the breach of confidence exemption contained in section 46(1)(a) of the FOI Act;[124] and unlike the RTI Act, the now repealed FOI Act set out various exemptions to disclosure and did not contain a provision similar to the public interest balancing test set out in section 49 of the RTI Act. In Grant, the Information Commissioner relevantly noted: ... to succeed with such a defence release of the matter in issue would need to have the effect of disclosing the existence of or the real likelihood of, the existence of an iniquity that is a crime, civil wrong or serious misdeed of public importance. Following the decision in Callejo and Department of Immigration and Citizenship (Callejo),[125] the Information Commissioner considered the application of Iniquity under the RTI Act in TSO08G and Department of Health (TSO08G).[126] Iniquity in TSO08G was considered in the context of exceptions to the breach of confidence exemption contained in schedule 3, section 8(1) of the RTI Act and the Information Commissioner relevantly commented[127] at [15-16]: The issue of whether defences to a breach of confidence action should be considered in applying the exemption is also subject to different views. Recently, in Callejo the Administrative Appeals Tribunal of Australia decided it was not necessary to consider defences on the basis that the section only requires that disclosure would “found” an action for breach of confidence. While the Information Commissioner has previously considered defences to be relevant in applying the breach of confidence exemption, the Information Commissioner has acknowledged that if defences cannot be considered, evidence of an iniquity may still be relevant in determining whether information has the necessary quality of confidence. Having considered the relevant authorities, I am satisfied that the availability of defences is not a separate requirement when applying the breach of confidence exemption in schedule 3, section 8 of the RTI Act. In the particular circumstances of this case, I have assessed whether evidence of an iniquity is present in the context of requirement (b), that is, whether the Information in Issue has the necessary quality of confidence. (footnotes omitted). In each of Grant, Boulton and TSO08G, Iniquity was considered in the context of a defence or exception to disclosure exemptions. The applicant has not referred to any decision under the RTI Act which supports his contention that Iniquity may also apply as an exception to the contrary to the public interest ground of refusal and I am not aware of any such decision. As noted in paragraph 58 above, in assessing whether disclosure of information would, on balance, be contrary to the public interest, I must apply the balancing test specified in section 49(3) of the RTI Act. Those requirements do not import any overriding exception to the application of the balancing test. I have carefully considered the applicant’s extensive submissions concerning the application of Iniquity to the Information in Issue and, while I acknowledge the applicant’s dissatisfaction with and concerns about the different outcomes of QBCC’s investigations into his various complaints, I do not accept that Iniquity applies as an exception to the contrary to the public interest ground of refusal in section 47(3)(b) of the RTI Act as the applicant contends. I am instead satisfied that the concept captured by the applicant’s Iniquity submissions is now recognised by individual public interest factors favouring disclosure in the RTI Act, such as those relating to Government accountability and transparency, administration of justice, assisting enquiry into or reveal agency or official conduct deficiencies and contributing to enforcement of the criminal law. My consideration of these factors is set out above. 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. Given this, I have also considered the applicant’s submissions regarding Iniquity in the context of an additional factor favouring disclosure of the Category A and B Information. I agree with the applicant’s submissions that LJ Technical is an excluded company, which is no longer licensed by QBCC to undertake building works and I note the provisions of the QBCC Act[128] relating to requirements for an excluded individual to stop being a director, secretary or influential person. These matters are not in dispute. However, the applicant submits that disclosing the Information in Issue ‘will further demonstrate evidence of falsified records and misleading information; and that an individual managing a company whilst disqualified (as an undischarged bankrupt), engaged in fraud, and committed impersonation’.[129] More particularly, the applicant submits[130] that: personal information which reveals any communications by the Excluded Individual for, or on behalf of, LJ Technical and the relevant method of that communication, is activity that is illegal or for an improper purpose and must be released pursuant to Iniquity the ‘clustering’ of refused personal information is relevant to the consideration of Iniquity, as he believes an email may come from an address attributed to and be written in the name of a third party, but an accompanying mobile number might belong to the Excluded Individual and, therefore, he expects that such communications have been made by the Excluded Individual the only time in which QBCC truly communicated with a third party who is not the Excluded Individual is recorded telephone conversations or documented conversations that were held in person, however, he considers such records are also ‘subject to iniquity’ as the communications were made under the instruction of the Excluded Individual; on behalf of or to further the interests of an excluded company; or such third parties were either ‘complicit’ in the delivery of representations known to be false or made such representation to gain benefit or advantage or cause detriment; and ‘Since LJ Technical Control Construction Pty Ltd was an illegal entity (as an Excluded Company) and its building and construction activity was also illegal (through Unlicensed Contracting) ... communications between the company and the QBCC when it was investigated can be considered in furtherance of the interests of the illegal company or the illegal activity’. On the information before me, there is nothing to suggest, as the applicant contends, that QBCC has, in its investigation of the Complaint, communicated directly with the Excluded Individual or made agreements for the Excluded Individual to provide information to the investigation. There is also nothing before me, apart from the applicant’s submissions, which suggests that disclosing the Category A and B Information would reveal a crime, civil wrong or serious misdeed of public importance. Given the enforcement action that has been taken by QBCC in respect of the Complaint, the nature of the Category A and B Information and the context in which it appears, I am not satisfied that a factor favouring disclosure relating to Iniquity arises in respect of the Category A and B Information. For the sake of completeness, I note that even if I were incorrect in this regard, and such a factor could be said to apply, I nevertheless consider that it warrants no weight in favour of disclosing the Category A and B Information. Factors favouring nondisclosure Personal information of other individuals The RTI Act recognises factors favouring nondisclosure will arise where disclosure of information could reasonably be expected to: prejudice the protection of an individual’s right to privacy;[131] and cause a public interest harm if it would disclose personal information of a person, whether living or dead.[132] QBCC identified[133] that the personal information contained in the Category A and B Information includes third parties’ names, individuals’ mobile and other phone numbers, individuals’ email addresses, personal opinions, other personal information and QLeave information for an individual.[134] Whilst the applicant submits[135] that ‘it is not disputed’ that part of the Information in Issue comprises the personal information of individuals related to LJ Technical and these nondisclosure factors are relevant, those submissions also argue that ‘relevant information is not personal information but rather information that is in the public domain and/or belonging to an ASIC registered and QBCC-licensed company’. I have carefully considered the Category A and B Information and I am satisfied that it comprises the personal information of other individuals, such as their identifying information, including their names and contact details (such as their mobile telephone numbers and email addresses), information about their personal circumstances and their recollections and opinions. I also note that, in some instances, it is quite clear from the information that has been released to the applicant whose personal information has been refused. It is relevant to consider the extent of the harm that could result from disclosing the personal information of these other individuals under the RTI Act. The applicant submits that: ‘it is not contrary to the public interest, an individual’s right to privacy, or legal professional privilege’ to release contact information that is used by an ASIC registered or QBCC licensed company, including names of employees or agents, telephone numbers, email addresses and postal or place of business addresses that are provided as company information[136] to the extent that the Category A and B Information comprises names and position titles of LJ Technical employees, it should be disclosed[137] any person using what might be considered a ‘private email’, ‘private telephone number’ or ‘private address’ for work related purposes must be prepared to have their use of that information scrutinised, particularly if these private mediums are used in contravention of the law[138] it is in the public interest for individuals who are engaged in contraventions of the law to be identified and referred to appropriate authorities[139] and the relevant parties remain in positions to continue to engage in contravention of the law; and references to the Western or English name of a director of a QBCC licensed company, or any nickname or known alias of the same individual, should be released.[140] In respect of the applicant’s reliance on the Information Commissioner’s comments in Barlow, the factual circumstances and the information in issue in that decision are different to those in this matter. The Barlow decision concerned the refusal of access to names and position titles of employees in statutory declarations, where the substance of the statutory declarations was not in issue. In those circumstances, the Information Commissioner considered that disclosing the names and position titles would merely reveal that the individuals were employees and, due to their role in the company, they have signed statutory declarations that certain information relevant to a contract was true. In contrast, the Category A and B Information is not limited to names and position titles appearing in a documents which are otherwise not in issue. The Category A and B Information appears in information provided to or obtained by QBCC in respect of its investigation of alleged regulatory breaches and it includes names, contact details, personal opinions and other personal information, including information in audio recordings. I am satisfied that the nature of the Category A and B Information and the context in which is appears demands a higher level of privacy than was afforded to the quite different information that was the subject of the decision in Barlow. I am therefore not persuaded that the Information Commissioner’s findings in Barlow support the applicant’s contention that no weight should be afforded to the factors favouring nondisclosure of the Category A and B Information which relate to personal information and privacy. While some of this information appears against business contact details in the screen shots of QBCC’s CMS system, I am satisfied, on the material before me, that: the names are of individuals who are not officers of a QBCC licensed company or they are not the publicly available names of officers of a QBCC licensed company the email addresses are private email addresses of individuals, not the email addresses of a QBCC licenced company, and such email addresses are not publicly available an address on page 205 in File 1263834 Compliance EDRMS is a residential address of an individual and not a business address; and the telephone numbers (including mobile telephone numbers) are the contact numbers of individuals and are not publicly available information. In respect of the other Category B Information, I consider the individuals who provided this information or about whom this information relates would have expected such information may be disclosed in any formal proceedings that resulted from QBCC’s investigation, but they would not have anticipated further disclosure of such information under the RTI Act, where there can be no restriction on its use, dissemination or republication. The publicly available names of directors of QBCC licensed companies which appear in the documents located by QBCC have been released to the applicant. The applicant submits[141] that the "Western" or "English" name of directors of QBCC licensed companies, or any nickname or known alias of such individuals, should also be released. While I consider that the privacy of the names[142] of such directors is diminished by reason of those names being publicly available, including on QBCC’s website and on signage at the relevant construction site, I do not consider that westernised names of any such individuals are so publicly available. While the applicant may be aware that certain individuals may at times refer to themselves by such westernised versions of their names, such references are not reflected in the publicly available information identifying directors of QBCC licensed companies. The applicant has made extensive submissions that it is relevant to consider ‘who might be considered the “public face” of’ LJ Technical and who controlled relevant contact mediums, as he believes the Excluded Individual has made many (if not all) representations to QBCC on behalf of LJ Technical. As discussed in paragraph 19 above, OIC’s jurisdiction under the RTI Act relates to decisions about access to and, where relevant, amendment of, documents held by agencies and does not extend to investigating or confirming the applicant’s concerns about who may have ‘controlled’ the contact details of individuals or provided the information to QBCC’s investigation which appears within the category A and B Information. Having carefully considered the applicant’s submissions, the Category A and B Information and the context in which it appears, I consider that disclosing Category A and B Information under the RTI Act would be a significant intrusion into the privacy of these individuals, as that information includes the names, contact details, personal circumstances and opinions of these individuals, and the extent of the public interest harm that could be anticipated from disclosure is significant. For these reasons, I afford significant weight to the public interest factors relating to the protection of personal information and privacy[143] for the Category A and B Information. Flow of information The RTI Act recognises that a factor favouring nondisclosure of information arises where disclosing information could reasonably be expected to prejudice the flow of information to the police or another law enforcement or regulatory agency.[144] The efficacy of QBCC’s investigation of received complaints is facilitated by QBCC being able to seek and obtain information from a range of individuals (including complainants and representatives of and advisers to entities which are the subject of complaints) with as much cooperation as possible. Agencies such as QBCC rely significantly on information from those individuals to pursue investigations into potential breaches of the legislation which QBCC administers, and there is a very strong public interest in protecting the free flow of information to QBCC for that purpose.[145] Routinely disclosing all information provided by such individuals to QBCC’s investigations, including information such as witness statements, would tend to discourage individuals from coming forward with relevant information and cooperating with future QBCC investigations.[146] This, in turn, would significantly prejudice QBCC’s ability to effectively investigate the complaints that it receives. In this case, some but not all of the information provided by other individuals to the investigation has been released by QBCC. I do not consider that there would be any implicit understanding on the part of these other individuals that the applicant (as the complainant) would receive the information they provided to QBCC for the investigation or records of their interactions with QBCC during the investigation. Further, as noted in paragraph 123 above, I consider these individuals would have not have anticipated disclosure of the Category B Information under the RTI Act, where there can be no restriction on its use, dissemination or republication. For these reasons, I am satisfied that routinely disclosing the Category B Information would tend to discourage individuals from cooperating with future QBCC investigations. The applicant submits[147] that individuals who provide information to an investigating agency are required to answer truthfully. I note, however, that the legislation which QBCC administers does not contain provisions which enable QBCC to compel the provision of information or the answering of questions in a complaint investigation. The applicant also submits[148] that: an individual cannot reasonably believe that, if they engage in contravention of the law, crime or fraud, their personal information will be protected; and any contravention of the law is subject to prosecution under relevant Acts and an offender’s personal information can and will be disclosed. As noted above, there is nothing before me, apart from the applicant’s submissions, to suggest that the potential fraud and impersonation has occurred or that any criminal investigation in that regard is being undertaken. Evidence gathered by QBCC in the investigation was obtained to prove or disprove the allegations against LJ Technical, as the entity which was the subject of the Complaint. In this case, while the applicant may consider that QBCC should have prosecuted LJ Technical, it did not take such action, but rather issued a warning letter to LJ Technical as the outcome of its investigation of the Complaint. As noted above, the public interest does not extend to affording complainants a right to second-guess or reinvestigate such investigations. For these reasons, I afford the public interest factor relating to protecting the flow of information to QBCC[149] significant weight in respect of the Category A and B Information. Balancing the public interest I consider the factors relating to the need to protect the personal information and privacy of individuals and the flow of information to QBCC in its investigations outweigh the relevant factors favouring disclosure of the Category A and B Information and disclosing that information would, on balance, be contrary to the public interest. Accordingly, I find that the Category A and B Information may be refused on this basis.[150]. Findings - Category C Information The Category C Information appears on the second page of an IDAS form, which was provided to QBCC for the investigation.[151] Almost all of the remaining information in the IDAS form has been released to the applicant. The licence numbers of QBCC licenced entities may be searched on QBCC’s website.[152] While the Category C Information appears in a text box titled ‘BSA licence number or owner-builder number’, it is not a licence number but is in fact a mobile telephone number of an individual, which appears elsewhere in the Information in Issue and forms part of the Category A Information. The applicant submits[153] that this information ‘demonstrates the iniquity by the building contractor, the Certifier, and the QBCC’ and numerous factors favouring disclosure of this information are relevant. Further, the applicant submits:[154] Irrespective of what information has been inserted into the BSA licence number or owner builder number on the IDAS document, unless it is the Licence Number belonging to the named Applicant – LJ Technical Control Construction Pty Ltd – then the information is not correct as a matter of fact and law. Irrelevant factors I do not consider that any irrelevant factors arise in respect of the Category C Information and I have not taken any irrelevant factors into account. Factors favouring disclosure The applicant submits[155] that the ‘transparency and accountability of QBCC is in issue’. More specifically, the applicant submits[156] that it is ‘deeply concerning’ that the certifier and QBCC ‘accepted a building contractors IDAS application form as true and correct, when the property owner’s details are incorrect and the building contractor in fact does not provide a current QBCC-license number (a requirement by law)’. Taking into consideration the nature of the Category C Information and that most of the IDAS form in which the Category C Information appears has been disclosed to the applicant, I consider that disclosure of the Category C Information will not further advance QBCC’s accountability and transparency or inform the community about QBCC’s investigation processes. Accordingly, I afford low to no weight to the factors favouring disclosure of the Category C Information which relate to QBCC’s accountability, transparency and informing the community about QBCC’s investigation processes.[157] I consider that disclosing the Category C Information would reveal that the information is incorrect, which raises a factor favouring disclosure.[158] However, the Category C Information appears within a regulatory document that was lodged with council and which was provided to QBCC only for the purpose of its investigation of the Complaint. On the information before me, I do not accept the applicant’s suggestion that, in conducting its investigation, QBCC made any determination concerning the correctness or otherwise of the IDAS form in which the Category C Information appears. In these circumstances, I afford this factor[159] moderate to low weight. For the reasons set out in paragraphs 71-78 and 84-113 above, I find that: low to no weight is afforded to the factors favouring disclosure relating to administration of justice and fair treatment[160] no weight is afforded to the factors relating to allowing or assisting inquiry into, or substantiating claims about, agency or official conduct deficiencies[161] and Iniquity; and the factor relating to revealing environmental health risks[162] and contributing to enforcement of the criminal law[163] does not arise for consideration in balancing the public interest in respect of disclosing the Category C Information. Factors favouring nondisclosure I am satisfied that the telephone number which comprises the Category C Information is the personal information of an individual which is not publicly available information. I consider that disclosing Category C Information under the RTI Act would be a significant intrusion into the privacy of this individual and the extent of the public interest harm that could be anticipated from disclosure is significant. For these reasons, I afford significant weight to the public interest factors relating to the protection of personal information and privacy[164] for the Category C Information. As the Category C Information appears in information that was provided to QBCC for the purpose of the investigation, I afford significant weight to the public interest factor relating to protecting the flow of information to QBCC[165] for the reasons set out in paragraphs 129-135 above. Balancing the public interest For the reasons set out above, I am satisfied that the nondisclosure factors outweigh the factors favouring disclosure of the Category C Information and its disclosure would, on balance, be contrary to the public interest. Accordingly, the Category C Information may be refused on this basis.[166] Findings - Category D Information Irrelevant factors I do not consider that any irrelevant factors arise in respect of the Category D Information and I have not taken any irrelevant factors into account. Factors favouring disclosure The applicant submits[167] that: accountability and transparency factors are relevant as ‘Although it was submitted in the complaint it investigated, and was obviously substantiated, the QBCC never took action for LJ Technical Control Construction Pty Ltd attempting to exceed its Maximum Financial Revenue’ as he expects the value of the building contract is based on a building of 2 storeys instead of 3 storeys, disclosure of the Category D Information will show it is incorrect, inaccurate, or false and misleading, does not reflect the insurable amount taken out against the building and will be well below the reasonable price range another building contractor may have nominated for the building work disclosure of the Category D Information will confirm that LJ Technical actually exceeded its maximum financial revenue by ‘a more significant amount’. QBCC’s Minimum Financial Requirements Policy[168] sets out the financial requirements for QBCC licensed entities, including those related to maximum revenue. The Category D Information was provided to QBCC for the purpose of its investigation of the Complaint. It records the terms of one commercial arrangement for building works entered by LJ Technical and the value of that commercial arrangement. The applicant is not a party to the commercial arrangement. I note that the question of whether a QBCC licensed company has exceeded a relevant maximum financial revenue may require consideration of more than just one commercial arrangement. Accordingly, I consider that disclosing the Category D Information may not, of itself, show that LJ Technical has exceeded the maximum financial revenue, as the applicant contends. While disclosing the Category D Information would provide the applicant with an augmented picture of the information that was available to QBCC, the significant amount of information that has been released to the applicant indicates what QBCC did, or did not do, in the investigation in respect of the applicant’s concerns about LJ Technical’s maximum financial revenue. This released information forms the basis of the applicant’s contention that QBCC did not take action about his concern regarding LJ Technical’s maximum financial revenue. In these circumstances, I consider that disclosure of the Category D Information would not further advance QBCC’s accountability and transparency about its investigation of the Complaint to any significant degree or further inform the community about QBCC’s investigative processes. Accordingly, I afford low weight to factors favouring disclosure of the Category D Information which relate to QBCC’s accountability and transparency and informing the community about QBCC’s investigation processes.[169] There is nothing on the face of the Category D Information, nor any other information before me, to suggest that the Category D Information is anything other than correct. It is, as noted above, a commercial arrangement for building works between two entities and the value of that commercial arrangement. While the applicant may consider the commercial arrangement, and the value of it, should have been arrived at on a particular commercial basis, he is not a party to the commercial arrangement and his belief about what the arrangement should record is not evidence that the Category D Information was incorrect, inaccurate, false or misleading or not reflective of other commercial arrangements and the insurable value of the building. For these reasons, I do not consider the factor favouring disclosure relating to revealing incorrect and misleading information[170] arises to be considered in respect of the Category D Information. For the sake of completeness, I note that even if I were incorrect in this regard, and the factor could be said to apply, it nonetheless warrants low to no weight in favour of disclosing the Category D Information. As noted above, that the information that has been released to the applicant indicates what QBCC did, or did not, do in the investigation in respect of the applicant’s concerns about LJ Technical’s maximum financial revenue. Given this, I consider that the applicant does not require the Category D Information to seek a legal remedy or take his concerns about QBCC’s decision to relevant complaint handling bodies. In these circumstances, I am satisfied that the release of the Category D Information is not required to enable the applicant to evaluate whether a further legal remedy against any individual, entity or agency is available and worth pursuing or to pursue such legal remedy and I afford low to no weight to this factor favouring disclosure[171] of the Category D Information. While I have no jurisdiction to make any finding about the applicant’s concern that QBCC did not take action regarding his concern that LJ Technical exceeded its maximum financial revenue, the applicant already has information which indicates what QBCC did, or did not do, in respect of that concern. On consideration of the nature of the Category D Information, I afford low to no weight to the factors favouring disclosure which relate to assisting inquiry into, or revealing, possible deficiencies in conduct or administration by an agency of official.[172] For the reasons set out in paragraphs 71-74 and 100-113 above, I find that low to no weight is afforded to the factors favouring disclosure relating to administration of justice and fair treatment[173] and no weight is afforded to Iniquity. The offences which were the subject of the Complaint were regulatory offences under the QBCC Act and the issue of a warning letter to LJ Technical was the outcome of QBCC’s investigation. In these circumstances and given the nature of the Category D Information, I am unable to determine how disclosing the Category D Information could reasonably be expected to: reveal environmental or health risks or measures relating to public health and safety;[174] or contribute to the enforcement of the criminal law.[175] Accordingly, I do not consider that these factors favouring disclosure arise for consideration in respect of the Category D Information. Factors favouring nondisclosure Nondisclosure factors arise under the RTI Act where disclosing information could reasonably be expected to: prejudice the private, business, professional, commercial or financial affairs of entities[176] 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 could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of information of this type to government;[177] and prejudice the flow of information to the police or another law enforcement or regulatory agency.[178] The applicant submits[179] that the factor relating to the protection of business and financial affairs is irrelevant and no weight should be afforded to it because: LJ Technical was found to be an Excluded Company therefore, the business and financial affairs of the company and individuals making representations on its behalf were illegal or for an improper purpose, in furtherance of an illegal or improper purpose or in frustration of justice or enforcement of the criminal law; and as LJ Technical’s QBCC licence has been cancelled, protection of its business and financial interests is redundant. As noted in paragraph 10 above, on QBCC’s publicly available records, LJ Technical is an excluded company by reason of a listed influential person and it is not currently licensed by QBCC to undertake building works. However, this of itself is not evidence that LJ Technical’s business and financial affairs, such as those recorded in the Category D Information, were illegal or for an improper purpose, in furtherance of an illegal or improper purpose or in frustration of justice or enforcement of the criminal law. Further, the fact that LJ Technical is no longer licensed by QBCC to undertake building works, does not of itself diminish the private, commercial, business and financial character of the commercial arrangements, including those recorded in the Category D Information, that it had previously entered, the details of which were provided to or obtained by QBCC for the purpose of QBCC’s investigation of the Complaint. In any event, the Category D Information relates not only to the business and financial affairs of LJ Technical – it also relates to the private, business, professional, commercial or financial affairs of the entity which contracted LJ Technical to undertake building works. I am satisfied that the Category D Information is the private, business, professional, commercial or financial affairs of both contracting entities. On the evidence before me, the Category D Information is information that is not publicly available. I also note that some of the Category D Information was provided to QBCC in the context of an investigation into the Complaint. Given the nature of the Category D Information and the context in which it was provided or in which it appears, I afford the nondisclosure factors relating to protection of an entity’s private, business, professional commercial and financial information significant weight.[180] For the reasons set out in paragraphs128-135 above, I afford the public interest factor relating to protecting the flow of information to QBCC[181] significant weight in respect of the Category D Information. Balancing the public interest For these reasons, I am satisfied that the nondisclosure factors outweigh the factors favouring disclosure of the Category D Information and its disclosure would, on balance, be contrary to the public interest. Accordingly, the Category D Information may be refused on this basis.[182]Findings - Category E Information The applicant does not seek access to information that QBCC obtained from RP Data and ASIC (commercially available information) for the purpose of the investigation. The portions of information comprising the Category E Information summarise certain aspects of such commercially available information and the information released to the applicant confirms the sources of such summaries. Irrelevant factors I do not consider that any irrelevant factors arise in respect of the Category E Information and I have not taken any irrelevant factors into account. Factors favouring disclosure While disclosing the Category E Information would provide the applicant with a marginally more complete picture of the information that was available to QBCC, I consider that the substantial amount of information that has been released to the applicant regarding QBCC’s investigation of the Complaint, has significantly advanced the accountability and transparency of QBCC’s investigation and informed the applicant about the types of enquiries QBCC undertook in its investigation of the Complaint. I also note that some of the information that has been released to the applicant specifically identifies what commercially available information was obtained by QBCC.[183] In these circumstances, I do not consider that disclosing the Category E Information will advance these factors favouring disclosure to any significant degree. Accordingly, I afford low to no weight the factors favouring disclosure of the Category E Information which relate to QBCC’s accountability and transparency and informing the community about QBCC’s investigation processes.[184] On the information available to me, including the commercially available information that the applicant did not seek access to, I am satisfied that the Category E Information accurately records information QBCC extracted from the commercially available information that it obtained during its investigation. In these circumstances, I do not consider the factor relating to revealing that the Category E Information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant[185] arises for consideration. For the reasons set out in paragraphs 71-78 and 100-113 above, I find that low to no weight is afforded to the factors favouring disclosure relating to administration of justice and fair treatment[186] and no weight is afforded to Iniquity. Taking into consideration the nature of the Category E Information, for reasons similar to those set out in paragraphs 93-99 above, I do not consider that the factors favouring disclosure which relate to revealing environmental or health risks or measures relating to public health and safety;[187] or contributing to the enforcement of the criminal law[188] arise for consideration in respect of the Category E Information. Factors favouring nondisclosure The Category E Information, although extracted from commercially available information, includes the personal information of other individuals and the business and commercial information of entities. Accordingly, nondisclosure factors relating to protection of personal information and privacy[189] and the business and commercial affairs of entities[190] arise for consideration in balancing the public interest. The applicant submits[191] that the Category E Information should not be ‘protected’ under these factors. To the extent the Category E Information includes the personal information of individuals other than the applicant, I am satisfied that it is personal in nature. Further, I am satisfied that disclosing that personal information under the RTI 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. While the applicant may obtain information, including this personal information, through commercial searches, I consider this reduces, but does not negate, the weight to be afforded to the factor favouring nondisclosure. For these reasons, to the extent the Category E Information includes personal information of individuals, I afford moderate weight to the public interest factors relating to the protection of personal information and privacy.[192] Similarly, a small amount of the Category E Information includes the business information of an entity. While the applicant may obtain information, including this business and commercial information, through commercial searches, I consider this reduces, but does not negate, the weight to be afforded to the factor favouring nondisclosure. For these reasons, to the extent the Category E Information includes business and commercial information of entities, I afford moderate weight to the public interest factors relating to the protection of business and commercial affairs of entities.[193] Balancing the public interest For the reasons set out above, the factors favouring nondisclosure of the Category E Information outweigh the relevant factors favouring disclosure and, therefore, disclosing the Category E Information would, on balance, be contrary to the public interest and this information may be refused.[194] Findings - Fee Information The Fee information appears in screen shots of QBCC’s CMS system that were obtained for the purpose of QBCC’s investigation of the Complaint. Irrelevant factors I do not consider that any irrelevant factors arise in respect of the Fee Information and I have not taken any irrelevant factors into account. Factors favouring disclosure The Fee Information is costing information. Its disclosure would provide the applicant with a marginally more complete picture of the information that was available to QBCC. However, given the nature of the Fee Information and the significant amount of information that has been released to the applicant concerning QBCC’s investigation of the Complaint, I consider that its disclosure would only marginally advance the factors favouring disclosure which relate to QBCC’s accountability and transparency and the community’s understanding about QBCC’s investigation processes. Accordingly, I afford these factors favouring disclosure[195] low to no weight. For the reasons set out in paragraphs 71-113 above, I find that: low to no weight is afforded to the factors favouring disclosure relating to administration of justice and fair treatment[196] no weight is afforded to a factors favouring disclosure relating to allowing or assisting inquiry into, or substantiating claims about, agency or official conduct deficiencies[197] and Iniquity; and the factors relating to revealing information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant,[198] revealing environmental health risks or contributing to enforcement of the criminal law[199] do not arise for consideration in balancing the public interest in respect of disclosing the Fee Information. Factors favouring nondisclosure The applicant submits[200] that disclosure of the Fee Information should not be protected under the factors favouring nondisclosure relating to the protection of business and financial affair[201] and flow of information[202] because: The flow of monies through LJ Technical Control Construction Pty Ltd, where its income has been derived from mortgages taken out under the name of Mr Jie Ling’s young son or company of which he is reportedly the director, and the use of that income has been directed by Mr Jie Lin (who is an undischarged bankrupt at the relevant time and QBCC permanently-excluded individual) who should not have held the position, responsibility or authority to use those monies, is relevant. There is no evidence before me, apart from the applicant’s submissions, to support these contentions. I am satisfied that the Fee Information is commercial and financial information of an entity. There is no evidence before me which suggests that the Fee Information appears in a QBCC system that can be publicly accessed or that such information is routinely disclosed about QBCC licensed companies. It appears in information that was obtained by QBCC for the purpose of its investigation of the Complaint. For these reasons, I afford the nondisclosure factor relating to protection of commercial and financial information of entities[203] significant weight in respect of the Fee Information. Balancing the public interest For these reasons, I am satisfied that the nondisclosure factors outweigh the factors favouring disclosure of the Fee Information, and, therefore, disclosure of the Fee Information would, on balance, be contrary to the public interest. Accordingly, I find that the Fee Information may be refused on this basis.[204] Irrelevant informationRelevant law The RTI Act permits an agency to delete information that the agency reasonably considers is not relevant to the access application before giving access to a copy of a document.[205] This is not a ground for refusal of access, but a mechanism to allow irrelevant information to be deleted from documents which are identified for release to an applicant. Findings QBCC deleted small portions of information from 14 pages[206] on the basis that the information was not relevant to the access application. As QBCC agreed to release information that was deleted on 1 page,[207] the deleted information remaining for consideration in this review appears on 13 pages (Irrelevant Information). There is a significant level of duplication in the portions of information which comprise the Irrelevant Information, as it appears in email chains. For example, the portions of Irrelevant Information appearing on pages 387 and 388 in File 1263834 Compliance EDRMS are duplicated on pages 394-395, 401-402, 409-410, 417-418 and 426-427 in File 1263834 Compliance EDRMS. The access application seeks access to information about QBCC’s investigation of the Complaint and the Complaint concerns Property A. The applicant submits that the Property B information is ‘sufficiently intertwined with the [Property A] information’, that it is not irrelevant to the access application.[208] I have carefully considered the Irrelevant Information and can confirm that it concerns matters that are unrelated to the application which is the subject of this review. On its face, the Irrelevant Information has not been used to inform the investigation of the Complaint and it has not been dealt with by QBCC in its investigation of the Complaint. Based on the terms of the access application, and given that the Irrelevant Information clearly falls outside the scope of it, I am satisfied that the Irrelevant Information may be deleted on the basis that the information is irrelevant to the access application.[209] QBCC also partially released information on page 669 in File 1263834 Compliance EDRMS, which relates to Property B. For the reasons outlined above, I consider that the balance of the information on this page (which was refused on the basis that its disclosure would, on balance, be contrary to the public interest) falls outside the scope of the access application. Accordingly, I am satisfied that this information may be deleted on the ground that it is irrelevant to the application.[210] For completeness, I also note that portions of the Irrelevant Information appearing in the first redaction box of the 12 January 2016 email appearing on pages 387, 394, 401, 409, 417 and 426 in File 1263834 Compliance EDRMS were considered relevant to an access application which is the subject of one of the applicant’s other external reviews and that information has been released to the applicant in that other external review. Nonexistent of unlocatable documentsRelevant law Access to a document may be refused if the document is nonexistent or unlocatable.[211] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[212] 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.[213] 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.[214] When proper consideration is given to relevant factors, it may not be necessary for searches to be conducted. However, if searches are relied on to justify a decision that the documents do not exist, all reasonable steps must be taken to locate the documents. What constitutes reasonable steps will vary from case to case as the search and enquiry process an agency will be required to undertake will depend on which of the key factors are most relevant in the particular circumstances. To determine whether a document exists, but is unlocatable, the RTI Act requires consideration of whether there are reasonable grounds for the agency to be satisfied that the requested document has been or should be in the agency’s possession; and whether the agency has taken all reasonable steps to find the document. In answering these questions, regard should again be had to the circumstances of the case and the key factors.[215] Findings In processing the access application, QBCC located a number of audio recordings, some of which were released to the applicant.[216] The applicant queried[217] why the following audio recordings of telephone conversations or meetings have not been located by QBCC: telephone conversation Mr Townshend and Mr Bleakley on 29 November 2015 telephone conversation Mr Townshend and Mr Bartley on or around 26 November 2015 Mr Barnard and Mr Cregan on 3 December 2015 Mr Barnard and LJ Technical on 4 December 2015 telephone conversation Mr Barnard and Mr Bartley and/or Mr Cregan on 14 December 2015 telephone conversation between Mr Barnard and LJ Technical on 11 January 2016; and meeting between Mr Barnard (and possibly others) and Ms Chao Ren Liu (and others) on 18 January 2016. OIC requested that QBCC conduct further searches for additional audio recordings responsive to the access application, including the 7 audio recordings identified above. QBCC did not locate any further audio recordings responsive to the access application. The applicant submits[218] that: two audio recordings, being those identified as a. and b. in paragraph 194 above have not been located other documentation located by QBCC demonstrates that Mr Townshend engaged in relevant conversations as part of QBCC’s investigation of his complaint and recordings of those conversations should exist any failure to record conversations that are part of a QBCC compliance investigation would appear to constitute a breach of QBCC policy and the Public Records Act 2002 (Qld).[219] As QBCC conducted further searches on external review for information responsive to the applicant’s sufficiency of search submissions, the question OIC must consider is whether QBCC has taken all reasonable steps to locate documents relevant to the access application. This does not require OIC to deal separately with each of the applicant’s sufficiency of search submissions or to make separate findings about QBCC’s search efforts in relation to each of the audio recordings the applicant believes exist.[220] OIC sought information from QBCC about its audio recording policies and the searches it conducted for information requested in the access application. QBCC provided the following information: QBCC conducted searches of its Meridio system (which is QBCC’s electronic document and records management system) and CMS system (which is QBCC’s contractor management system) and did not locate any additional audio recordings or file notes relevant to the conversations and meetings which are the subject of the applicant’s sufficiency of search submissions the searches were conducted by a senior QBCC officer QBCC’s compliance investigation unit routinely makes audio recordings of their telephone calls as part of their law enforcement obligations, however, it is not the standard practice of QBCC’s certification section to record telephone conversations; and the conversations referred to in items a. and b. of paragraph 194 are conversations undertaken by Mr Townshend, who is the Manager of QBCC’s certification section and the matters for which QBCC’s certification section is responsible include investigating complaints against building certifiers. Taking into consideration the applicant’s submissions concerning the additional audio recordings he believes exist and QBCC’s submissions regarding its administrative systems, telephone recording practices and searches, I consider that QBCC ensured that an appropriate officer undertook comprehensive, suitably targeted searches of possible locations where it was reasonable to expect that audio recordings responsive to the access application, including those raised in the applicant’s sufficiency of search submissions, would be found. In these circumstances, I am satisfied that: QBCC has taken all reasonable steps to locate documents responsive to the access application; and there are reasonable grounds to be satisfied that any additional audio recordings responsive to the access application are nonexistent or unlocatable, and such information may be refused on this basis. [221] DECISION I vary QBCC’s decision and find that: access to the Points Information may be refused[222] on the ground that it is exempt information access to the Category A, B, C, D and E Information and the Fee Information may be refused[223] on the ground that its disclosure would, on balance, be contrary to the public interest the Irrelevant Information and information refused in page 669 in File 1262824 Compliance EDRMS may be deleted[224] on the ground that it is not relevant to the access application; and the additional information the applicant contends should have been located may be refused[225] on the ground that it does not exist or is unlocatable. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. Assistant Information Commissioner CorbyDate: 10 August 2017 APPENDIX Significant procedural steps Date Event 11 August 2016 OIC received the external review application. 30 August 2016 OIC notified applicant and QBCC that it had accepted the external review application and asked QBCC to provide information. 14 September 2016 OIC received the requested information from QBCC. 27 September 2016 OIC updated the applicant on the status of the review. 4 November 2016 An OIC staff member spoke with the applicant about the review and the applicant agreed he did not seek access to commercially available information. 25 January 2017 An OIC staff member spoke with the applicant and the applicant agreed that he did not seek access to mobile telephone numbers of QBCC employees. 3 March 2017 An OIC staff member spoke with the applicant and the applicant agreed that he did not seek access to duplicate documents and email greetings and pleasantries in emails between government agencies. OIC received the applicant’s email confirming he did not seek access to information redacted with title ‘sch. 3(10)(1)(b)’ on page 142 in File 92089 Ministerials. 10 March 2017 OIC asked QBCC to provide further information and requested the applicant’s confirmation as to whether he continued to seek access to certain categories of information. 16 March 2017 OIC received the applicant’s email requesting additional information to respond to OIC’s 10 March 2017 request. 17 March 2017 OIC received QBCC’s confirmation that it withdrew its claim of exemption, on the basis of legal professional privilege, in relation to certain information. 24 March 2017 An OIC staff member spoke with the applicant about the review and OIC’s 10 March 217 request. 14 June 2017 OIC conveyed a preliminary view to the applicant that, apart from small portions of information, the information in issue in the review may be refused or deleted on the basis that it was exempt information, its disclosure would be contrary to the public interest or it was not relevant to the access application. OIC invited the applicant to provide submissions if he did not accept the preliminary view. 12 July 2017 OIC received the applicant’s submissions. 19 July 2017 OIC requested that QBCC conduct further searches to address the applicant’s sufficiency of search submissions. 20 July 2017 OIC conveyed a preliminary view to QBCC concerning the small portions of information that OIC considered may be disclosed to the applicant. OIC received QBCC’s search response. 21 July 2017 OIC received QBCC’s confirmation that it accepted the preliminary view. 24 July 2017 OIC conveyed a preliminary view to the applicant regarding the sufficiency of search issues in the review. OIC invited the applicant to provide submissions if he did not accept the preliminary view. 31 July 2017 OIC received the applicant’s further submissions. [1] The applicant identified the types of documents he sought as: ‘Reasons for the decision, all material considered by the decision maker, case notes, internal and external correspondence and memos, details of interviews or meetings with any person, inspectors’ or other reports, any documents provided by LJ Technical Construction Control Pty Ltd, any other documents in relation to [Property A]’. [2] On 14 July 2016. [3] On 11 August 2016. [4] Refer to http://www.qbcc.qld.gov.au/about-us/overview and http://www.qbcc.qld.gov.au/about-us/legislation. [5] Which are broadly identified on its website as licensing service, dispute prevention and resolution service, home warranty insurance and information and education. [6] Refer to QBCC’s Compliance and Enforcement Policy 2014, which is available at http://www.qbcc.qld.gov.au/about-us/our-policies. [7] Refer to section 2.1 of QBCC’s Compliance and Enforcement Policy 2014. QBCC’s website also states: ‘Also, be aware that we can’t investigate every complaint. To make the best use of our resources, we focus on areas where there is evidence and where consumers will be most at risk’. Refer to http://www.qbcc.qld.gov.au/contractor-offences/make-complaint-against-contractor. [8] Section 2.3 of QBCC’s Compliance and Enforcement Policy 2014. [9] The QBCC ‘Compliance and Enforcement Policy 2014’ relevantly states: ‘Where breaches are blatant, repeated and/or cause significant detriment, the QBCC will target those licensees or unlicensed individuals for prosecution. The QBCC has a range of other tools available, which may be used as an alternative to prosecution.’[10] Complaint dated 10 July 2014. QBCC investigated the complaint and, on 24 July 2014, QBCC issued a stop work order and an infringement notice. However, the infringement notice was subsequently withdrawn by QBCC on 8 August 2014 and construction was permitted to continue. [11] Complaints dated 30 March 2015 and 11 August 2015. QBCC investigated both complaints. [12] Complaint dated 26 October 2015. QBCC investigated the complaint and, on 18 January 2016, issued a warning letter to LJ Technical. The access application seeks information about QBCC’s investigation of this complaint. [13] Section 56AC(3) of the QBCC Act. [14] Section 56AC(6) of the QBCC Act. [15] Section 56AG(3) of the QBCC Act. [16] Search conducted 28 July 2017, via QBCC’s website. [17] Submissions dated 12 July 2017. [18] Being the information refused on the ground that it was subject to legal professional privilege on page 11 in File 1263834_6 Case Notes and pages 340, 343-344, 346, 349-350, 353, 360, 365, 371, 433, 437, 442 and 446 in File Compliance EDRMS. [19] As confirmed in OIC’s letters dated 14 June 2017 and 19 July 2017, the applicant does not seek access to information which is commercially available, such as RP Data and ASIC extracts, mobile telephone numbers of QBCC employees, duplicate documents, email greetings and pleasantries in emails between government agency employees, the information refused by QBCC on page 142 in File 92089 Ministerials and certifier mobile telephone numbers. [20] Page 431 in File 1263834 Compliance EDRMS. [21] Pages 2 and 10 in File 1263834_6 Case Notes and pages 117, 190, 212, 216, 218, 220, 227, 231, 261, 269, 274, 289, 297, 374-376, 378, 380, 381, 384-385, 390, 391, 397-398, 404, 405, 411-412, 420-421, 428-429, 433 and 442 in File 1263834 Compliance EDRMS. [22] Pages 214, 276-286, 290-293, 382 and 430 in File 1263834 Compliance EDRMS. [23] Pages 2, 3, 5 and 10 in File 1263834_6 Case Notes and pages 66-67, 190, 200, 202-206, 208-213, 216, 220, 226, 228, 258, 261, 267, 270, 273-274, 341, 347, 354, 361, 366, 372, 374-376, 378, 379-381, 384-385, 387-392, 394-398, 400-405, 408-412, 415-421, 424-429, 433-434, 438, 442, 447 and 669 in File 1263834 Compliance EDRMS. [24] Audio recordings 4-10. [25] As set out at paragraph 14 above.[26] As set out in the Appendix. [27] External review application and submissions dated 12 July 2017. [28] External review application. [29] External review application. [30] Submissions dated 12 July 2017. [31] Arnold and Redland City Council (Unreported, Queensland Information Commissioner, 17 October 2013) at [21], citing Robbins and Brisbane North Regional Health Authority (1994) QAR 30 (Robbins) at [17]. See also 8RS6ZB and Metro North Hospital and Health Service [2015] QICmr 3 at [14]. [32] While this decision considered the issue in the context of the Freedom of Information Act 1992 (FOI Act), the principles have equal application to a consideration of the issue in the context of the RTI Act. [33] I note that some of the applicant’s other external reviews relate to applications seeking access to information about QBCC’s investigation of his other complaints, including his unlicensed contracting complaint concerning Property B. [34] Submissions dated 12 July 2017. [35] Submissions dated 12 July 2017. [36] Section 37(3) of the RTI Act. [37] Being pages 66 and 67 in File 1263834 Compliance EDRMS. [38] That is, the checklist is used to determine whether QBCC issues a warning notice or refers the complaint for investigation by QBCC’s investigation unit or its regulatory services unit. [39] Section 108(1) of the RTI Act. [40] QPS decision dated 28 July 2016. [41] Section 23 of the RTI Act. [42] Section 44(1) of the RTI Act. [43] Section 47(3) of the RTI Act. [44] Section 47(2)(a) of the RTI Act. [45] Section 47(3)(a) of the RTI Act. Schedule 3 of the RTI Act sets out the types of information that comprise exempt information: section 48 of the RTI Act. [46] Schedule 3 of the RTI Act contains a number of exemption provisions and this one is relevant in this review. [47] Schedule 3, section 10(1)(f) of the RTI Act. [48] Harris and Queensland Police Service [2014] QICmr 10 (18 March 2014) (Harris) at [11]. [49] (Unreported, Queensland Information Commissioner, 23 December 2010) at [20]-[21]. [50] Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97 (Cockcroft) at 106.[51] Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744 (Murphy) at [44], citing Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at [160]. [52] Murphy at [45]-[47].[53] Cockcroft at 106, cited in Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009) at [192]. [54] Submissions dated 12 July 2017. [55] Submission dated 12 July 2017. [56] In support of this submission, the applicant refers to the Information Commissioner’s decision in Gold Coast Bulletin. I have carefully considered that decision and do not consider that it supports the applicant’s contention for a more limited reading of requirement (b). [57] The applicant has made additional submissions about how he considers the points in the checklist may be awarded. Under section 108(3) of the RTI Act, I am unable to disclose information claimed to be exempt information in these reasons for decision. I am therefore, constrained in the extent to which I can respond to how the applicant considers the Points Information is used by QBCC in support of his submissions about the application of this exemption. [58] Submissions dated 12 July 2017. [59] In this regard the applicant submits: ‘A warning letter has the potential to inform persons who are regulated by the legislation which QBCC administers about how QBCC ranks various offences under that legislation’. [60] Submissions dated 12 July 2017. [61] The applicant has made submissions regarding the application of what he describes as ‘the Iniquity Principle’ in respect of information that has been refused as contrary to the public interest information, however, the applicant has not contended that such a principle applies as an exception to the exemption in respect of the Points Information. I have therefore dealt with the applicant’s submissions concerning Iniquity in my consideration of the Information in Issue refused as contrary to the public interest information. [62] External review application. [63] Submissions dated 12 July 2017. [64] Section 48(2) of the RTI Act. [65] Section 105(2) of the RTI Act. [66] QBCC also refused access to portions of information appearing on page 669 in File 1263834 Compliance EDRMS, however, for the reasons set out in this decision, I consider that this information may be deleted on the basis that it is irrelevant to the access application. [67] Section 108(3) of the RTI Act which requires that the Information Commissioner must not, in a decision, include information that is claimed to be contrary to the public interest information. [68] Appearing on page 10 in File 1263834_6 Case Notes; pages 204, 208, 212, 216, 220, 228, 261, 270, 273, 274, 374-376, 378-381, 384-385, 387-392, 394-398, 400-405, 408-412, 415-421, 424-429, 433 and 442 in File 1263834 Compliance EDRMS. [69] Including by audio recording. [70] Appearing on pages 2, 3, 5 and 10 in File 1263834_6 Case Notes; pages 205, 214, 226, 267, 290-293, 375, 379, 380, 382, 384-385, 388-390, 395, 396, 397, 402, 404, 410-411, 418-420, 424, 427, 430, 434 and 442 in File 1263834 Compliance EDRMS and audio recordings 4-10. [71] Pages 228 and 270 in File 1263834 Compliance EDRMS. [72] Pages 276-286 in File 1263834 Compliance EDRMS. [73] Page 3 in File 1263834_6 Case Notes and pages 200, 202-203, 204-206, 208-213, 258, 341, 347, 354, 361, 366, 372, 438 and 447 in File 1263834 Compliance EDRMS. On pages 200, 202, 203, 206, 209, 210, 213, 258, 341, 347, 354, 361, 366, 372, 438 and 447 in File 1263834 Compliance EDRMS, the contract value reference is the only information that has been refused. [74] Page 2 in File 1263834_6 Case Notes and page 190 in File 1263834 Compliance EDRMS. [75] Pages 211 and 212 in File 1263834 Compliance EDRMS. [76] Sections 47(3)(b) and 49 of the RTI Act. [77] Section 49(3) of the RTI Act. [78] I have not taken any irrelevant factors into account in this review. [79] Submission dated 12 July 2017. [80] Schedule 4, part 2, item 1 of the RTI Act. [81] Schedule 4, part 2, item 3 of the RTI Act. [82] Schedule 4, part 2, item 5 of the RTI Act. [83] Schedule 4, part 2, item 6 of the RTI Act. [84] Schedule 4, part 2, item 10 of the RTI Act. [85] Schedule 4, part 2, item 11 of the RTI Act.[86] Schedule 4, part 2, item 12 of the RTI Act. [87] Schedule 4, part 2, item 14 of the RTI Act. [88] Schedule 4, part 2, item 16 of the RTI Act. [89] Schedule 4, part 2, item 17 of the RTI Act. [90] Schedule 4, part 2, item 18 of the RTI Act. [91] Submission dated 31 July 2017. [92] Schedule 4, part 2, item 1 of the RTI Act. [93] Schedule 4, part 2, item 3 of the RTI Act. [94] Schedule 4, part 2, item 11 of the RTI Act.[95] External review application. [96] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act. [97] Schedule 4, part 2, item 10 of the RTI Act. [98] Schedule 4, part 2, item 16 of the RTI Act. [99] I am also aware, from material considered in the applicant’s separate external reviews, that the applicant has received information about QBCC’s investigations, and outcomes of such investigations, regarding certain of the applicant’s other complaints to QBCC. [100] Schedule 4, part 2, items 10 and 16 of the RTI Act. [101] Schedule 4, part 2, item 17 of the RTI Act. [102] I am, however, aware from material considered in the applicant’s separate external reviews that there has been some reference to legal action or potential legal action concerning a boundary dispute. [103] Willsford and Brisbane City Council ([1996] QICmr 17; 1996) 3 QAR 368 at [17] and confirmed in 10S3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, (16 December 2011). [104] Schedule 4, part 2, item 17 of the RTI Act. [105] Schedule 4, part 2, item 12 of the RTI Act. [106] Submission dated 31 July 2017. In support of this submission, the applicant refers specifically to the name of an individual refused in a 4 December 2015 email, which appears on pages 216, 274, 376, 381, 385, 392, 398, 405, 412, 421 and 429 in File 1263834 Compliance EDRMS. Section 108(3) of the RTI Act prevents me from revealing the identity of the individuals whose names have been refused in the Information in Issue. [107] Submission dated 31 July 2017. In support of this submission, the applicant has referred to the disclosed email address, ljtechnicalcontrol@hotmail.com, as being an address ‘known to be used’ by the Excluded Individual. There is nothing on the evidence before me which supports this contention and I note that this referenced email address appears, on its face, to be the email address of LJ Technical. [108] For example, on pages 216, 274, 375, 376, 380, 381, 384, 385, 390, 391, 397, 404, 405, 411, 412, 420, 421, 428 and 429 in File 1263834 Compliance EDRMS. [109] Schedule 4, part 2, item 5 of the RTI Act. [110] Schedule 4, part 2, item 6 of the RTI Act. [111] Submissions dated 12 July 2017. [112] Specifically being the failure to record QBCC’s determination in respect of the Complaint and detailed information about the Excluded Individual and his offences. I note that the applicant’s submissions set out in detail the reasons why the Excluded Individual was excluded under section 56AC(3) of the QBCC Act. [113] Schedule 4, part 2, items 5 and 6 of the RTI Act. [114] Schedule 4, part 2, item 14 of the RTI Act. [115] Schedule 4, part 2, item 14 of the RTI Act. [116] Schedule 4, part 2, item 18 of the RTI Act. [117] Schedule 4, part 2, item 18 of the RTI Act. [118] Submissions dated 12 July 2017. [119] Submissions dated 12 July 2017. The applicant provided extensive submissions about the origin of this principle, his opinion that its traditional application was as a defence to legal professional privilege claims and its extension to deny protection of information that would otherwise be confidential or private, in the context of breach of confidence claims. [120] Submissions dated 12 July 2017. [121] The applicant more specifically submits that the offences of unlicensed contracting, excluded company and influential person are not trivial; he submits that the excluded individual was permitted to construct a class of buildings outside a licence class and those buildings represent an unacceptable risk to the community and the excluded person has been allowed to continue to engage in building construction activities; he submits that both the third parties and QBCC are seeking to protect the information and doing so in order to prevent disclosure to a third party who has a real and direct interest in redressing the crimes and wrongdoings or misdeeds. [122] (Unreported, Queensland Information Commissioner, 30 April 2007). [123] (Unreported, Queensland Information Commissioner, 30 June 2008). [124] A similar breach of confidence exemption appears in schedule 3, section 8(1) of the RTI Act, however, that exemption is not relevant to the issues for determination in this review. The applicant’s submissions also refer to the decision in Godwin and Department of Police (Unreported, Queensland Information Commissioner, 7 November 1997) which also considered the application of the breach of confidence exemption under the FOI Act. [125] [2010] AATA 244. [126] (Unreported, Queensland Information Commissioner, 13 December 2011). [127] At [15]-[16]. [128] Section 56AG of the QBCC Act. [129] The applicant submits that evidence in the Information in Issue supports that contraventions of the Criminal Code Act 1899 (Qld) have occurred in this regard. [130] Submissions dated 12 July 2017. [131] Schedule 4, part 3, item 3 of the RTI Act.[132] Schedule 4, part 4, section 6(1) of the RTI Act.[133] Decision dated 14 July 2016. [134] Section 108(3) of the RTI Act prevents me from providing any further description of the Category A and B Information. [135] Submissions dated 12 July 2017. [136] External review application. [137] Submissions dated 12 July 2017. The applicant refers to The Barlow Group Pty Ltd and Department of Housing and Public Works; JM Kelly (Project Builders) Pty Ltd (Third Party) [2014] QICmr 12 (Barlow) in support of this submission. [138] Submissions dated 12 July 2017. [139] Which the applicant has identified as including, but not limited to, the Queensland Ombudsman, the Attorney-General, the Queensland Police Service, ASIC, Queensland Fire and Emergency Services and the Queensland Crime and Corruption Commission. In this regard, I note that most of these bodies have formal powers to obtain information and can therefore use those powers to obtain information to which access may be refused under the RTI Act. Refer for example to the Queensland Ombudsman’s powers described at https://www.ombudsman.qld.gov.au/what-we-do/investigations. [140] Submissions dated 31 July 2017. [141] Submission dated 31 July 2017. [142] That is, the given names of individuals, as listed in QBCC’s publicly available records. [143] Schedule 4, part 3, item 3 and schedule 4, part 4, section 7(1) of the RTI Act. [144] Schedule 4, part 3, item 13 of the RTI Act. [145] Gregory and Queensland Police Service [2014] QICmr 48 at [25].[146] Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [29]. [147] Submission dated 12 July 2017. [148] Submissions dated 12 July 2017. [149] Schedule 4, part 3, item 13 of the RTI Act. [150] Under section 47(3)(b) of the RTI Act. [151] Page 270 duplicates page 228 and the Category C Information is the same on both pages. [152] Refer to http://www.qbcc.qld.gov.au/. [153] Submission dated 12 July 2017. [154] Submission dated 12 July 2017. [155] Submissions dated 12 July 2017. [156] Submissions dated 12 July 2017. [157] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act. [158] Schedule 4, part 2, item 12 of the RTI Act. [159] Schedule 4, part 2, item 12 of the RTI Act. [160] Schedule 4, part 2, items 10, 16 and 17 of the RTI Act. [161] Schedule 4, part 2, items 5 and 6 of the RTI Act. [162] Schedule 4, part 2, item 14 of the RTI Act. [163] Schedule 4, part 2, item 18 of the RTI Act. [164] Schedule 4, part 3, item 3 and schedule 4, part 4, section 7(1) of the RTI Act. [165] Schedule 4, part 3, item 13 of the RTI Act. [166] Under section 47(3)(b) of the RTI Act. [167] Submissions dated 12 July 2017. [168] Refer to http://www.qbcc.qld.gov.au/contractors/forms-fact-sheets-publications/publications. [169] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act. [170] Schedule 4, part 2, item 12 of the RTI Act. [171] Schedule 4, part 2, item 17 of the RTI Act. [172] Schedule 4, part 2, items 5 and 6 of the RTI Act. [173] Schedule 4, part 2, items 10 and 16 of the RTI Act. [174] Schedule 4, part 2, item 14 of the RTI Act. [175] Schedule 4, part 2, items 14 and 18 of the RTI Act. [176] Schedule 4, part 3, item 2 of the RTI Act.[177] Schedule 4, part 4, section 7(1)(c) of the RTI Act.[178] Schedule 4, part 3, item 13 of the RTI Act. [179] Submissions dated 12 July 2017. [180] Schedule 4, part 3, item 2 and schedule 4, part 4, section 7(1)(c) of the RTI Act.[181] Schedule 4, part 3, item 13 of the RTI Act. [182] Under section 47(3)(b) of the RTI Act. [183] For example, some of the Category E Information appearing on page 2 in File 1263834_Case Notes identifies that it relates to an ASIC search of a particular company. [184] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act. [185] Schedule 4, part 2, item 12 of the RTI Act. [186] Schedule 4, part 2, items 10, 16 and 17 of the RTI Act. [187] Schedule 4, part 2, item 14 of the RTI Act. [188] Schedule 4, part 2, item 18 of the RTI Act. [189] Schedule 4, part 2, item 3 and schedule 4, part 4, section 6(1) of the RTI Act. [190] Schedule 4, part 3, item 2 and schedule 4, part 4, section 7(1)(c) of the RTI Act. [191] Submissions dated 12 July 2017. [192] Schedule 4, part 3, item 3 and schedule 4, part 4, section 7(1) of the RTI Act. [193] Schedule 4, part 3, item 2 and schedule 4, part 4, section 7(1)(c) of the RTI Act. [194] Under section 47(3)(b) of the RTI Act. [195] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act. [196] Schedule 4, part 2, items 10, 16 and 17 of the RTI Act. [197] Schedule 4, part 2, items 5 and 6 of the RTI Act. [198] Schedule 4, part 2, item 12 of the RTI Act. [199] Schedule 4, part 2, items 14 and 18 of the RTI Act. [200] Submissions dated 12 July 2017. [201] Schedule 4, part 3, item 2 of the RTI Act. [202] Schedule 4, part 3, item 13 of the RTI Act. [203] Schedule 4, part 3, item 2 of the RTI Act. [204] Section 47(3)(b) of the RTI Act. [205] Section 73 of the RTI Act. [206] On pages 117, 384, 387-388, 394-395, 401-402, 409-410, 417-418, 426-427 in File 1263834 Compliance EDRMS. I note however, that. [207] As noted in paragraph 14, QBCC agreed to release the information refused as irrelevant on page 117 in File 1263834 Compliance EDRMS. [208] Submissions dated 12 July 2017. The applicant’s other submissions regarding irrelevant information have been addressed in the ‘Preliminary issues’ section of this decision. [209] In accordance with the requirements of section 73 of the RTI Act. [210] In accordance with the requirements of section 73 of the RTI Act. [211] Sections 47(3)(e) and 52 of the RTI Act. [212] Section 52(1)(a) of the RTI Act. [213] Section 52(1)(b) of the RTI Act. [214] 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 [2009] QICmr 7 (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.[215] Pryor at [21]. [216] QBCC located 11 audio recordings and decided to release four audio recordings and refuse access to seven audio recordings. [217] Submission dated 12 July 2017. [218] Submissions dated 31 July 2017. [219] The applicant also submitted that he considered Mr Townshend’s involvement in the investigation of his complaint was ‘superfluous’ and that such involvement materially affected the outcome of QBCC’s investigation of his unlicensed contracting complaint. OIC’s jurisdiction does not extend to any consideration of these concerns. [220] Refer to Goodman and Department of Justice and Attorney-General [2014] QICmr 4 (6 February 2014) at [23]. [221] Under sections 47(3)(e) and 52 of the RTI Act. [222] Under section 47(3)(a) of the RTI Act. [223] Under section 47(3)(b) of the RTI Act. [224] Under section 73 of the RTI Act. [225] Under sections 47(3)(e) and 52 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Prisoners' Legal Service Inc and Queensland Corrective Services Commission [1997] QICmr 4; (1997) 3 QAR 503 (27 March 1997)

Prisoners' Legal Service Inc and Queensland Corrective Services Commission [1997] QICmr 4; (1997) 3 QAR 503 (27 March 1997) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 97004Application S 173/93 Participants: PRISONERS' LEGAL SERVICE INC. Applicant QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - report by a prison inspector following investigation of a fatal assault on a prisoner - whether report contains matter the disclosure of which could reasonably be expected to -(i) endanger the security of a building, or facilitate a person's escape from lawful custody - application of s.42(1)(g) and s.42(1)(i) of the Freedom of Information Act 1992 Qld;(ii) enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained - application of s.42(1)(b) of the Freedom of Information Act 1992 Qld; or(iii) 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 report contains deliberative process matter falling within the terms of s.41(1)(a) of the Freedom of Information Act 1992 Qld - whether disclosure of deliberative process matter would, on balance, be contrary to the public interest - consideration of the public interest in accountability of the respondent for the death, by fatal assault, of a prisoner in its custody - whether disclosure of identifying details of prison officers adversely referred to in the report, but not made subject to further disciplinary action, would be contrary to the public interest in fair treatment of the prison officers concerned - application of s.41(1) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - refusal of access - matter claimed to have been communicated in confidence - whether exempt matter under s.46(1)(a) or s.46(1)(b) of the Freedom of Information Act 1992 Qld. i FREEDOM OF INFORMATION - refusal of access - whether report contains information which concerns the personal affairs of certain prisoners and/or members of their families - whether disclosure of personal affairs information would, on balance, be in the public interest - application of s.44(1) of the Freedom of Information Act 1992 Qld. i Freedom of Information Act 1992 Qld s.41(1), s.41(1)(a), s.41(1)(b), s.41(2), 41(2)(b), s.42(1)(a), s.42(1)(b), s.42(1)(c), s.42(1)(d), s.42(1)(e), s.42(1)(g), s.42(1)(i), s.44(1), s.46(1)(a), s.46(1)(b), s.48(1), s.52, s.52(6), s.81Freedom of Information Act 1982 Vic s.31(1)(c)Freedom of Information Act 1982 CthCorrective Services Act 1988 Qld s.13(1), s.17, s.27, s.29(1)(b), s.29(1)(c), s.29(2)Corrective Services (Administration) Act 1988 Qld s.20, s.43, s.46 Criminal Law (Rehabilitation of Offenders) Act 1986 Qld Criminal Law (Sexual Offences) Act 1978 QldJuvenile Justice Act 1992 Qld s.62(1)Oaths Act 1867 QldAttorney-General (NSW) v Quin (1989-90) 170 CLR 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 663Department of Health v Jephcott [1985] FCA 370; (1985) 62 ALR 421Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Re [1993] QICmr 2; (1993) 1 QAR 60Harris v Australian Broadcasting Corporation [1983] FCA 242; (1983) 50 ALR 551 Hudson as agent for Fencray Pty Ltd and Department of the Premier, Economic and Trade Development, Re [1993] QICmr 4; (1993) 1 QAR 123J v L & A Services Pty Ltd [1995] 2 Qd R 10Kahn and Australian Federal Police, Re (1985) 7 ALN N190Kavvadias v Commonwealth Ombudsman [1984] FCA 179; (1984) 2 FCR 64Lapidos and Office of Corrections, Re (1989) 4 VAR 31Lapidos and Office of Corrections (No. 3), Re (1990) 4 VAR 150McEniery and the Medical Board of Queensland, Re [1994] QICmr 2; (1994) 1 QAR 349Murphy and Queensland Treasury & Ors, Re (Information Commissioner Qld, Decision No. 95023, 19 September 1995, unreported)O'Sullivan and Victoria Police Force (No. 5), Re (Victorian AAT, No. 1989/39673, Fricke J, 23 March 1990, unreported)Pasamonte and Victorian Police, Re (Victorian AAT, No. 1992/35274, Deputy President Dimtscheff, 18 May 1993, unreported),Pope and Queensland Health, Re [1994] QICmr 16; (1994) 1 QAR 616SRD v Australian Securities Commission & Anor [1994] FCA 1252; (1994) 123 ALR 730Shaw and The University of Queensland, Re (Information Commissioner Qld, Decision No. 95032, 18 December 1995, unreported)Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227"T" and Queensland Health, Re [1994] QICmr 4; (1994) 1 QAR 386Trustees of the De La Salle Brothers and Queensland Corrective Services Commission, Re (Information Commissioner Qld, Decision No. 96004, 4 April 1996, unreported) DECISION 1. I set aside the decision under review (which is identified in paragraph 2 of my accompanying reasons for decision).2. In substitution for it, I decide that, after taking into account the matter in the document in issue to which the applicant no longer wishes to pursue access (in accordance with concessions by the applicant which are noted in paragraphs 8 and 113 of my accompanying reasons for decision) - (a) the matter in issue which is identified in the findings stated at the ends of paragraphs 21, 49, 96, 110 and 115 of my accompanying reasons for decision is exempt matter under the Freedom of Information Act 1992 Qld; and (b) the balance of the matter remaining in issue is not exempt matter under the Freedom of Information Act 1992 Qld, and the applicant therefore has a right to be given access to it under the Freedom of Information Act 1992 Qld.Date of decision: 27 March 1997............................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS Page Background 1External review process Application of s.42(1) of the FOI Act Application of s.42(1)(g) and s.42(1)(i) of the FOI Act Application of s.42(1)(b) of the FOI Act Application of s.42(1)(c) of the FOI Act Application of s.42(1)(e) of the FOI Act Application of s.41 of the FOI Act Application of s.46(1)(a) and s.46(1)(b) of the FOI Act Application of s.44(1) of the FOI Act Conclusion OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 97004Application S 173/93 Participants: PRISONERS' LEGAL SERVICE INC. Applicant QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent REASONS FOR DECISION Background1. The applicant seeks review of the respondent's decision to refuse the applicant access, under the Freedom of Information Act 1992 Qld (the FOI Act), to a report prepared by the respondent's Director of Audit and Investigations (Mr Wayne Shennan), into the death of a prisoner, David Eames, following an assault in the Townsville Correctional Centre gymnasium on 28 October 1991. The document in issue will be referred to as 'the Eames Report'.2. On 5 May 1993, the Prisoners Legal Service Inc. (the PLS) applied to the Queensland Corrective Services Commission (the QCSC) for access to a copy of the Eames Report. By letter dated 31 May 1993, Ms P Cabaniuk, on behalf of the QCSC, informed the PLS of her decision to refuse access to any part of the Eames Report (described as consisting of a 23 page report, plus annexures) on the basis that it comprised exempt matter under a combination of the following exemption provisions in the FOI Act: s.42(1)(a), s.42(1)(b), s.42(1)(c), s.42(1)(d), s.42(1)(e), s.42(1)(g), s.44(1), s.46(1)(a) and s.48(1). On 28 June 1993, the PLS applied for internal review of Ms Cabaniuk's decision, in accordance with s.52 of the FOI Act.On 2 September 1993 (having received no response from the QCSC to the application for internal review), the PLS applied to me for review, under Part 5 of the FOI Act, of the decision which the QCSC was deemed to have made, in accordance with s.52(6) of the FOI Act, affirming the original decision of Ms Cabaniuk.3. The Eames Report was prepared by Mr Shennan pursuant to his appointment as an inspector under s.27 of the Corrective Services Act 1988 Qld. The powers and functions of such an inspector are set out in Part 2, Division 4 of the Corrective Services Act, which (so far as relevant for present purposes) includes the following provisions:27. Appointment of inspectors.(1) The Commission [i.e. the QCSC] may by instrument appoint any person, whether or not he is an officer of the Commission or is employed in the public service of the State, as an inspector for the purpose of advising upon or inquiring into any matter relating to corrective services.(2) The instrument of appointment of an inspector shall specifyC (a) the term of appointment;(b) the purpose for which he is appointed;(c) any powers conferred upon the inspector;(d) such other matters as are determined by the Commission.(3) An inspector shall give the Commission his advice in writing or, as the case may be, a written report containing the results of his inquiry.... 29. Powers of inspector. (1) An inspectorC (a) shall at any time have access to any prison or community corrections centre; (b) may at any time require a prisoner or an officer or employee of the Commission to provide any information or answer any question relevant to any inquiry being conducted by the inspector; (c) shall have access to and may examine any document or stored information kept under or for the purposes of this Act or the Corrective Services (Administration) Act 1988 and require that he be provided with a copy of any document or with any part of any stored information in a manner specified by him; (d) shall have such of the powers of the Director of Custodial Corrections or the Director of Community Corrections as are conferred upon him by the Commission. (2) The Governor in Council may by Order in Council declare that an inspector shall have such of the powers, authorities, rights, privileges, protection and jurisdiction of a Commission of Inquiry under the Commissions of Inquiry Act 1950-1988 as are specified in the Order in Council. 30. Privacy of communication with inspector. An inspector may, as he thinks fit, conduct any interview with a prisoner or a person who is subject to a parole order, a probation order, a community service order or a fine option order out of the hearing of any officer or employee of the Commission.4. I note that there is no suggestion in the evidence and written submissions lodged on behalf of the QCSC that the powers of a Commission of Inquiry were bestowed on Mr Shennan by the Governor in Council, under s.29(2) of the Corrective Services Act. The following parts of the instrument appointing Mr Shennan as an inspector under s.27 of the Corrective Services Act are relevant for present purposes:The appointment is made for the purposes of investigating and reporting upon the serious injury and subsequent death of prisoner EAMES, D W on 28 October 1991. Without limiting the scope or generality of your inquiry you are to seek evidence and report upon the following matters:(a) how, when and why the incident occurred and the circumstances surrounding the occurrence;(b) whether all relevant orders were complied with and in the event of non-compliance, who failed to comply and to what extent;(c) whether there was any breach of procedures;(d) whether it is considered necessary to: (i) issue or amend instructions; (ii) modify training procedures; and (iii) modify facilities or equipment;(e) whether any immediate measures are considered necessary to prevent a recurrence of the incident;(f) whether the occurrence was caused or contributed to by any weakness in the system and method of control;(g) obtain signed statements from any person or persons who are able to give material information as to the time, date, place and circumstances of the incident; and(h) recommend what disciplinary, remedial or other action should be taken.External review process5. A copy of the Eames Report was obtained from the QCSC and examined. A member of my staff conferred with Ms Cabaniuk and Mr Shennan of the QCSC in February 1994, following which it became clear that the QCSC was not prepared to make any concessions with respect to disclosure of some parts of the Eames Report. Directions were then given to the QCSC to lodge any evidence and written submissions on which it wished to rely to support its case for exemption in this external review, and also to clearly apportion exemption provisions to particular segments of the Eames Report (something which had not been done in the QCSC'soriginal decision). Unfortunately, Mr Shennan, the QCSC's key witness, was ill for an extended time, which delayed the preparation of the QCSC's evidence and submissions.6. Following the death of Mr Eames, four prisoners were charged with his murder. There was a committal hearing in the Townsville Magistrates Court in May 1992, followed by a trial before Cullinane J and a jury in the Supreme Court at Townsville in December 1992. (At the commencement of the committal, the Crown Prosecutor indicated that the prosecution would not offer any evidence against one of the prisoners who had been charged, and the proceedings against that prisoner were dismissed.) The result of the trial was that the three prisoners tried for the murder of Mr Eames were acquitted. Transcripts of the committal and the trial (i.e., the record of evidence given in open court during those proceedings) were obtained and examined for the purpose of comparing them to the material contained in the Eames Report.The results of the comparison were forwarded to the QCSC for comment, during the course of the QCSC's preparation of its written submissions, with the suggestion that the QCSC may not wish to press claims for exemption in respect of matter in the Eames Report which corresponded to evidence given in open court during the course of the committal and/or trial.The QCSC, however, refused to disclose any part of the Eames Report to the PLS.7. By letter dated 15 June 1994, the QCSC lodged its written submission, accompanied by a schedule apportioning the exemption provisions relied upon by the QCSC to particular segments of the Eames Report, and a statutory declaration of Mr Wayne Edward Shennan dated 10 June 1994. I note that the QCSC no longer sought to rely on s.42(1)(a), s.42(1)(d) or s.48 of the FOI Act (which had been relied upon in Ms Cabaniuk's original decision).8. The material lodged by the QCSC was forwarded to the PLS for response, subject to a number of deletions of matter claimed by the QCSC to be either exempt or confidential. I am satisfied that, despite that editing, the substance of the QCSC's case has been adequately conveyed to the PLS. I drew the attention of the PLS to the schedule apportioning exemption provisions to particular segments of the Eames Report, and requested the PLS to indicate whether it wished to obtain the entire Eames Report (including the large number of attachments to that report) or merely the body of the report containing Mr Shennan's analysis of the evidence he had obtained, plus the recommendations made by Mr Shennan. The PLS subsequently indicated that it wished to press for access only to the analysis and recommendations in the Eames Report. This very reasonable concession significantly narrowed the extent of the matter in issue in this external review. The result of that concession is that the matter remaining in issue in this external review consists of a cover page and 22 page report by Mr Shennan. The annexures to the Eames Report (and the index describing them), which largely comprise statements obtained by Mr Shennan and copies of documents he obtained from the Townsville Correctional Centre (being the raw material on which his report was based), are no longer in issue in this review.9. Following the PLS's concession that it only wished to press for access to the analysis and recommendations contained in the Eames Report, the QCSC was asked to indicate whether it would be prepared to release any part of that material to the PLS. The QCSC indicated, by letter dated 5 August 1994, that it was not prepared to release any part of the analysis and recommendations in the Eames Report. The PLS was informed accordingly, and, under cover of a letter dated 23 September 1994, the PLS lodged a written submission in support of its case. The PLS also asked that I take into account, so far as they remained relevant to the matter still in issue, the detailed submissions it lodged with the QCSC in support of its application for internal review.10. A number of custodial correctional officers at the Townsville Correctional Centre were adversely referred to in the Eames Report and Mr Shennan had recommended that disciplinaryaction be taken against a number of officers. The PLS confirmed to me that it sought access to Mr Shennan's recommendations concerning disciplinary action against officers of the QCSC. Procedural fairness required that each officer who was adversely referred to in the Eames Report be consulted and given the opportunity to argue against disclosure of the adverse material: see s.74 and s.78 of the FOI Act. I wrote to each officer (there were ten in all), providing the following material:(a) the FOI access application made by the PLS;(b) the original decision made by Ms Cabaniuk;(c) the application for internal review of that original decision;(d) the application made by the PLS for external review;(e) the evidence and submissions lodged with me by the QCSC;(f) the submission lodged with me by the PLS;(g) a copy of Part 3, Division 2 of the FOI Act (containing the exemption provisions available under the FOI Act);(h) those parts of the Eames Report which adversely referred to the officer (each officer was provided only with those parts which adversely referred to him, and not to parts which adversely referred to other officers);(i) where an officer had given evidence in the Supreme Court trial, which acknowledged that disciplinary action had been taken against him by the QCSC, a copy of that part of the trial transcript.11. Each officer was given the opportunity to apply to be a participant in this review, and to lodge evidence and submissions in support of any claim for exemption that an officer wished to make, in respect of matter in the Eames Report which adversely referred to him. Most of the officers responded, with most of them objecting to disclosure of the material adverse to them (though some indicated they would be satisfied with the deletion of any identifying details in respect of them).12. The QCSC was informed of the responses received from QCSC officers and former officers.The PLS was also informed of the responses, although without disclosing matter claimed to be exempt, or the identities of the officers concerned. Both the QCSC and the PLS lodged short points of reply to the responses received from the officers.Application of s.42(1) of the FOI Act13. In light of the QCSC's written submissions, the following provisions of s.42(1) of the FOI Act are relevant: 42.(1) Matter is exempt matter if its disclosure could reasonably be expected toC ... (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 ... (e) prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (including revenue law); or ... (g) endanger the security of a building, structure or vehicle; or ... (i) facilitate a person's escape from lawful custody; or ... .14. In my reasons for decision in Re "B" and Brisbane North Regional Health Authority (1994) [1994] QICmr 1; 1 QAR 279, at pp.339-341 (paragraphs 154-160), I analysed the meaning of the phrase "could reasonably be expected to" (which governs each paragraph of s.42(1) of the FOI Act), by reference to relevant Federal Court decisions interpreting the identical phrase as used in exemption provisions of the Freedom of Information Act 1982 Cth. Those observations are also relevant here. In particular, I said in Re "B" (at pp.340-341, paragraph 160):The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist.The ordinary meaning of the word "expect" which is appropriate to its context in the phrase "could reasonably be expected to" accords with these dictionary meanings: "to regard as probable or likely" (Collins English Dictionary, Third Aust. ed); "regard as likely to happen; anticipate the occurrence ... of" (Macquarie Dictionary, 2nd ed); "Regard as ... likely to happen; ... Believe that it will prove to be the case that ..." (The New Shorter Oxford English Dictionary, 1993). Application of s.42(1)(g) and s.42(1)(i) of the FOI Act15. The QCSC has submitted as follows (from p.5 of its written submission):The [Eames Report] is interspersed with references to the gymnasium, the procedures and compliances with Orders and Rules, prisoner movement and supervision, security and safety procedures. Disclosure could endanger the security of the prison. This information is considered to be confidential and extremely sensitive.The report covers in detail the scene of the crime and discusses the security aspects of the area which is considered to be confidential. The method ofassault is also discussed to a great extent which is interspersed with information relating to the issue of security.It is important to ensure that prison security remains confidential so as not to prejudice the safety of the prison. It is submitted that this also extends to the exemption which states that disclosure of the matter could reasonably be expected to facilitate a person's escape from lawful custody [s.42(1)(i) of the FOI Act]. Knowledge of prison layout, prisoner involvement, officers rounds, etc could facilitate this.16. I also note that in paragraph 7 of his statutory declaration, Mr Shennan stated:Another major concern is that in many cases information is disclosed which is clearly likely to adversely affect the Centre in question and indeed some or all similar Centres. This is particularly the case in respect of security, safety, and operational routine. Public disclosure of information contained in these reports is likely to be prejudicial to the QCSC and indeed to the persons involved, most of whom are usually not the perpetrators.17. Unfortunately, evidence which is as bare as the quoted paragraph is of no great assistance to me in my deliberations, because of its lack of particularity. It is also not clear whether Mr Shennan is referring to the annexures to the Eames Report, or to the body of the report (and if so, which segments). Some assistance is gained from the schedule attached to the QCSC's submission which indicates that s.42(1)(g) is claimed to apply to paragraphs 8, 12, 13, 24-32, 36 and 37 of the Eames Report. 18. In response, the PLS has submitted (at p.5 of its written submission):[The PLS] is in possession of all Commission and General Manager rules relating to each Queensland Correctional Centre. We are aware that laws relating to security and safety procedures are not to be made available to inmates and are in fact not even provided to [the PLS]. We have no problem with this in respect of the Commission's need for protection of security measures. We do however have copies of the rules relating to the conduct and movement of [prisoners in relation to] Correctional Centre Gymnasiums and these rules are also readily available to inmates. They therefore cannot contain confidential and extremely sensitive information. In any case why would the procedures for supervision of a gymnasium be in any way confidential and/or sensitive information. If however the recommendations and analysis of Mr Shennan refer to confidential and extremely sensitive information relating to security and safety measures, we would not expect to be given that information and would be happy for it to be obliterated from the document.19. In its submission to the QCSC in support of its application for internal review (at p.10), the PLS had argued:We believe that the subject document contains factual matter regarding the circumstances of a murder which took place in a prison gymnasium. It is absurd to suggest that if prisoners or the public are informed by findings of fact in the document which would suggest that the crime occurred because there was no supervision in the prison gymnasium, access to such information is likely to endanger the security of that building or place. If the documentmakes findings that it was the lack of supervision which permitted the offence to occur, then it could be implied that the best form of protection of that place would be to provide adequate staffing and supervision. If such a recommendation was contained in the document and it was released under the Act, it could only assist in the security of the area.20. In any case in which reliance on s.42(1)(g) or s.42(1)(i) is invoked, the crucial judgment to be made is whether or not the prejudicial consequences contemplated by the terms of those exemption provisions could reasonably be expected to follow, as a consequence of disclosure of the particular matter in issue. There may be instances where the nature of the matter in issue is such that it is self-evident that its disclosure could reasonably be expected to have the prejudicial consequences contemplated by s.42(1)(g) or s.42(1)(i) of the FOI Act (such is the case with the matter identified in paragraph 21 below). Ordinarily, however, in a review under Part 5 of the FOI Act, it will be incumbent on the respondent agency to explain to me (if necessary, in a submission kept confidential from the applicant for access) the precise nature of the prejudice that it expects to be occasioned by disclosure of the particular matter in issue, and to satisfy me that the expectation of prejudice is reasonably based. Although, in many instances, I will not be able to refer in my reasons for decision to the precise nature of the apprehended prejudice (as to do so would subvert the reasons for claiming an exemption in the first place), I must, in any event, 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.21. Noting the concession made by the PLS in the last sentence of the extract from its submission quoted at paragraph 18 above, I am satisfied that disclosure of the following parts of the Eames Report could reasonably be expected to endanger the security of a building or structure, or to facilitate a person's escape from lawful custody, and hence that they comprise exempt matter under either or both of s.42(1)(g) and s.42(1)(i) of the FOI Act:(a) paragraph 31, except for the first two lines of that paragraph;(b) paragraph 37, except for the last 11 words of that paragraph; and(c) subparagraph e. and subparagraph i. of paragraph 45.22. Based on my examination of the other parts of the Eames Report claimed to be exempt under s.42(1)(g), and the evidence and submissions lodged by the QCSC, I am not satisfied that the tests for exemption under s.42(1)(g), or under s.42(1)(i), of the FOI Act are established. This material largely refers to non-compliance with prescribed safety and security procedures which, of their nature, must have been made known (or else must have been obvious) to the prison population at Townsville Correctional Centre. On the material before me, I cannot identify any reference to a safety or security procedure the effectiveness of which might be prejudiced by disclosure of the parts of the Eames Report now under consideration.23. Paragraphs 8, 12 and 13 of the Eames Report contain detail about the fatal assault on Mr Eames. This material has been thoroughly traversed in evidence given at the committal hearing in the Townsville Magistrates Court and/or in the Supreme Court jury trial. I am not satisfied that there is any reasonable basis for expecting that disclosure of those paragraphs could have the prejudicial consequences referred to in s.42(1)(g) or s.42(1)(i) of the FOI Act.24. The matter in the Eames Report which refers to the gymnasium (the scene of the fatal assault on Mr Eames), and the security aspects of that area, deals principally with the need for control of prisoner movements to and from the gymnasium, and for supervision of prisoners using gymnasium equipment. I am not satisfied that disclosure of this matter could reasonably be expected to endanger the security of a building, structure or vehicle, or to facilitate a person's escape from lawful custody.25. There is matter in the Eames Report about the movements of particular prisoners on the day of the fatal assault (it appears in paragraphs 8, 12 and 13 of the Eames Report, which I have already dealt with above), and about general systems for control of prisoner movements. The nature of the latter information is such that it must have been generally known to the prison population at the Townsville Correctional Centre. I am not satisfied that disclosure of this matter could reasonably be expected to endanger the security of a building, structure or vehicle, or to facilitate a person's escape from lawful custody.26. There is matter in the Eames Report in which Mr Shennan expresses opinions about the extent of compliance with orders and rules. The authority of a General Manager of a custodial correctional centre to issue rules is dealt with in s.17 of the Corrective Services Act as follows: 17.(1) The general manager of a prison may make rules (called the "General Manager's Rules"), not inconsistent with this Act or the Corrective Services (Administration) Act 1988 (or regulations made under either Act) or the Commission's Rules, in respect of the management and security of the prison and for the safe custody and welfare of prisoners detained in or who, for the time being, may be detained in the prison. (2) The general manager shall cause the General Manager's Rules to be brought to the notice of persons to whom they apply. (3) Rules made under this section may differ according to the persons or classes of persons to whom they are expressed to apply.27. The submission made by the PLS is consistent with that provision, in that the PLS says it has been provided with General Manager's Rules relating to Queensland correctional centres, but has not been provided with rules relating to security and safety procedures. The QCSC has not lodged any evidence to assist me in determining which of the rules referred to in the Eames Report have been brought to the attention of prisoners, as persons to whom those rules apply (though it is clear from the nature of the discussion in the Eames Report that many of them must fall into this category), and which have not. However, I consider that no significance attaches to this distinction, since the rules themselves have been referred to only by number (the text of the rules is not set out in the body of the report), and there is nothing in Mr Shennan's discussion of the extent of compliance with rules which, if disclosed, could reasonably be expected to have any of the prejudicial consequences contemplated in s.42(1)(g) or s.42(1)(i) of the FOI Act. I am not satisfied that disclosure of any of the material in the Eames Report which deals with rules or orders, or the extent of compliance with them, could reasonably be expected to endanger the security of a building, structure or vehicle, or facilitate a person's escape from lawful custody.28. Paragraphs 32 and 36 of the Eames Report are of a different character, in that they, in essence, make recommendations for change to some aspects of the administration of the Townsville Correctional Centre, and/or note changes that had been set in train following the death of Mr Eames. Some of this matter (e.g., subparagraphs 36b. and 36d.) is of such a nature that it must necessarily have been known to the prison population at the Townsville Correctional Centre, and the balance is of such a nature that there could not, in my opinion, be any reasonable basis for expecting that its disclosure could endanger the security of a building, structure or vehicle, or facilitate a person's escape from lawful custody.29. Apart from the matter identified in paragraph 21 above, I find that the matter contained in the Eames Report does not satisfy the test for exemption under s.42(1)(g), or s.42(1)(i), of the FOI Act.Application of s.42(1)(b) of the FOI Act30. The QCSC asserts that s.42(1)(b) of the FOI Act (the terms of which are set out at paragraph 13 above) applies to all, or parts of, paragraphs 5, 6, 8, 12, 13, 19, 20, 22, 24 and 27-32 of the Eames Report. My views on the proper interpretation and application of s.42(1)(b) of the FOI Act are set out in detail in Re McEniery and Medical Board of Queensland (1994) [1994] QICmr 2; 1 QAR 349, where I said (at pp.356-357, paragraph 16):Matter will be eligible for exemption under s.42(1)(b) of the FOI Act if the following requirements are satisfied:(a) there exists a confidential source of information;(b) the information which the confidential source has supplied (or is intended to supply) is in relation to the enforcement or administration of the law; and(c) disclosure of the matter in issue could reasonably be expected toC (i) enable the existence of the confidential source of information to be ascertained; or (ii) enable the identity of the confidential source of information to be ascertained.31. The submissions of the QCSC in respect of the s.42(1)(b) exemption are as follows (from p.4 of its written submission):This report also contains confidential sources of information in relation to the enforcement and administration of the law. Prison management is considered to be encompassed within the definition of "enforcement and administration of the law". Disclosure of the report would enable the existence and identity of this confidential source of information to be ascertained.Further, deletion of the informants' names would not guarantee anonymity as it would be possible to deduce the identity of the informant from the circumstances. This could prejudice their personal safety and unnecessarily create tension.The inspector evaluates the information and refers to the names of inmates and/or officers who provided the information. It is crucial that the Inspector receives as much information as possible so that the report gives full account of the incident. The Inspector's report relies heavily upon information provided on a confidential basis.... It is evident from the annexures [to the report itself, i.e., the statements of prisoners and custodial correctional officers] that the Inspector is capable of obtaining a full account from officers and prisoners. Disclosure would prejudice this method and procedure of investigating the incident.It is crucial that the internal investigation by the Inspector remain uninhibited.32. Paragraph 6 of Mr Shennan's statutory declaration appears to be relevant to several of the exemption claims made by the QCSC, including s.42(1)(b):I should stress that in these investigations and, in particular, those affecting vicious assaults resulting in deaths, that information volunteered by witnesses is done so by them on the basis of confidentiality. The information provided is expected to remain "in house" and is not to be used in the public forum. In many serious incidents which are investigated we, and officers of the Queensland Police Service, rely very heavily on volunteered information from staff and, in particular, inmates. Open forum disclosure of such information may well be prejudicial to the health and safety of the informants.Particularly, inmates and to a lesser extent, officers of the QCSC. It is my experience that in all criminal matters where an operational investigation is also conducted that should it become knowledge or accepted practice that information volunteered in a confidential manner is likely to be publicly disclosed in, for example, courts, inquests and the media, that such sources will not only dry up but may indeed result in misleading information being provided to deflect information from the informant.33. In response to Mr Shennan's evidence, the PLS submitted (at p.4 of its written submission):We find it difficult to accept that an inmate, officer or administrative person who provides information to either the Police or a QCSC investigator in a criminal matter does not realise that they are placing themselves in a position where they may possibly be called to give evidence either before a Court or Coronial Inquiry. The prison environment is not that shallow and naive. As for the possibility of misleading information being provided, this already happens, with prisoners changing their statements prior to trial or simply stating that they "do not know anything" or they "did not see anything".The PLS also submitted that the identities of those persons referred to in the Eames Report who gave evidence at the trial of those charged with the murder of Mr Eames, are already publicly available information. 34. In this regard, however, I should note that, while Mr Shennan's investigation was conducted in parallel with the investigations by the Queensland Police Service into the murder of Mr Eames, each investigation had its own objects, not all of which overlapped. Thus, it is not necessarily the case that all the witnesses interviewed by Mr Shennan gave evidence in the committal hearing and/or the Supreme Court trial, or that the evidence given by witnesses in the committal hearing and/or the Supreme Court trial necessarily corresponded with all the issues on which Mr Shennan wished to, and did, obtain evidence (see paragraph 4 above).35. In paragraph 4 of his statutory declaration, Mr Shennan gave evidence of the methods he used to conduct his investigation. It is clear that he liaised with investigators from the Corrective Services Investigation Unit (CSIU) of the Queensland Police Service, and that his investigation was conducted in parallel with the police investigation. Mr Shennan appears to have interviewed witnesses shortly before or after they were interviewed by investigating police. In nearly all instances, Mr Shennan has obtained a statement, a substantial part of which is identical, or virtually identical, to the statement which the Queensland Police Service obtained from the same witness, but Mr Shennan has in some instances gone on to deal with additional issues of concern to him (see paragraphs (b), (c), (d), (e), (f) and (h) of the instructions given to Mr Shennan in his instrument of appointment, as set out in paragraph 4 above).36. Statements obtained by police investigators from some prisoners and several QCSC officers were tendered at the committal hearing in the Townsville Magistrates Court, and thus becamea matter of public record. Some prisoners and several QCSC officers also gave evidence in the Supreme Court jury trial. To the extent that the statements obtained by Mr Shennan reproduce the material in the police statements tendered in the committal, or evidence given in the Supreme Court trial, I do not consider it possible to find that the persons who gave that evidence are confidential sources of information under s.42(1)(b), applying the principles referred to in Re McEniery at p.357 (paragraphs 17 and 18). I should note, however, that only one of several prisoners interviewed by Mr Shennan gave evidence at the committal hearing and Supreme Court jury trial. I should also note that not every name mentioned in the body of the Eames Report identifies a person who was interviewed by, or gave information to, Mr Shennan. Mr Shennan was able to gather information from records routinely kept by the Townsville Correctional Centre (see s.29(1)(c) of the Corrective Services Act, reproduced at paragraph 3 above) such as ‘Incident Reports’ in respect of incidents involving prisoner Eames in the days preceding the fatal assault.37. The first element which must be satisfied to establish that matter is exempt under s.42(1)(b) of the FOI Act is that there exists a confidential source of information. At p.358 (paragraphs 21-22) of Re McEniery, I adopted the statement of Keely J, sitting as a member of a Full Court of the Federal Court of Australia in Department of Health v Jephcott [1985] FCA 370; (1985) 62 ALR 421 (at p.426), in finding that the phrase "a confidential source of information" in s.42(1)(b) of the FOI Act means a person who has supplied information on the understanding, express or implied, that his or her identity will remain confidential.38. Pursuant to s.81 of the FOI Act, the QCSC has the onus of establishing that the decision under review was justified, or that I should give a decision adverse to the applicant. The only evidence lodged by the QCSC relevant to the first element of s.42(1)(b) of the FOI Act is that part of Mr Shennan's statutory declaration which is reproduced at paragraph 32 above. That evidence does not establish that express assurances were given to witnesses to the effect that their identities, as sources of information, would be kept confidential. Mr Shennan has purported to give evidence of what other people expected in terms of confidentiality, but has not given evidence of any statements made by him, or any other material facts or circumstances, that would afford a basis for a finding that there was an express understanding between Mr Shennan, on behalf of the QCSC, and any of the witnesses, that their identities as sources of information would be kept confidential.39. It is therefore necessary to assess the circumstances surrounding the communication of information by persons interviewed by Mr Shennan in order to determine whether there was an implicit mutual understanding that the identities of persons who supplied information would remain confidential. I discussed the factors relevant to an assessment of this kind in Re McEniery at pp.359-364 (paragraphs 24-34), and also at p.371 (paragraph 50) where I said:50. The determination of whether the relevant information was supplied by the informant and received by the respondent on the implicit understanding that the informant's identity would remain confidential (and hence whether the informant qualifies as a confidential source of information for the purposes of s.42(1)(b)) requires a careful evaluation of all the relevant circumstances including, inter alia, the nature of the information conveyed, the relationship of the informant to the person informed upon, whether the informant stands in a position analogous to that of an informer (cf. paragraph 25 above), whether it could reasonably have been understood by the informant and recipient that appropriate action could be taken in respect of the information conveyed while still preserving the confidentiality of its source, whether there is any real (as opposed to fanciful) risk that the informant may be subjected toharassment or other retributive action or could otherwise suffer detriment if the informant's identity were to be disclosed, and any indications of a desire on the part of the informant to keep his or her identity confidential (e.g. a failure or refusal to supply a name and/or address, cf. Re Sinclair, McKenzie's case, cited in paragraph 36 above).40. Also of relevance in the present context are the comments of Victorian judges on the equivalent exemption provision in Victoria (s.31(1)(c) of the Freedom of Information Act 1982 Vic), which are noted in Re McEniery at pp.359-360 (paragraphs 24 and 25):24. In Re Croom and Accident Compensation Commission (1989) 3 VAR 441, the documents in issue were a medical report on the applicant who had been examined by a doctor on behalf of a workers' compensation insurer following an industrial injury, and an investigator's report concerning the industrial injury compiled from statements taken from three witnesses. The then President of the Victorian AAT, Jones J, said (at p.459):What is at the heart of the exemption is the protection of the informer not the subject matter of the communication. The provision clearly does not apply to the medical report. The identity of the medical practitioner is known. What is sought is the subject matter of the communication from him to the Commission.The doctor is not a confidential source of information within the meaning of the provision. Nor do I think that the provision applies to the investigator's report.The witnesses who provided information to the investigator are not confidential sources of information in the relevant sense. As appears from the evidence, they were also employed by [the applicant's employer] in varying capacities -management, leading hand and fellow worker. In my view, it is likely that their identities, if not well known, could easily be ascertained independently of the investigator's report.Further, the statements did not result from an undertaking that they would be kept confidential and only provided on that basis. [The investigator] agreed that he did not assert that the witnesses would not have spoken to him unless they received an undertaking as to confidentiality. He could not guarantee the confidentiality of statements but would do his best to keep them confidential and told worker witnesses that whatever they said to him was confidential for the insurance company. The reality is that the people interviewed by [the investigator] were potential witnesses in a hearing in a court or before the Tribunal or body dealing with workers' compensation. In my view they would be likely to realise this and that notwithstanding the statements by [the investigator] about confidentiality, the information they provided might ultimately become public through some formal process. Indeed, that could easily occur through the tender of the report and proceedings before the [Accident Compensation Tribunal], which is a relatively common occurrence.In these circumstances I do not consider that the witnesses who provided information to the investigator are confidential sources of information within the meaning of s.31(1)(c).25. On appeal to a Full Court of the Supreme Court of Victoria, the Tribunal's decision was upheld, O'Bryan J (with whom Vincent J agreed) observing (at p.329):In relation to [s.31(1)(c) of the Victorian FOI Act], the critical words are 'confidential source of information'. Clearly, this paragraph has no application to the medical report because the author of the report is known to the respondent and Mr Uren conceded that his submission was confined to three witnesses' statements taken by [the investigator] in the course of his investigation.I am of the opinion that it was clearly open to the Tribunal to arrive at the finding that the evidence did not disclose that any witness provided information in confidence to [the investigator]. [The investigator] offered to maintain confidence in respect of information provided to him but was never informed by a person from whom he took a statement that the person wished his identity to be protected from disclosure.... The plain meaning that one might ascribe to this paragraph is that it is concerned with protection of the 'informer' and not with the protection of a potential witness who would prefer not to be identified. Public interest has dictated for a long time the need to protect the true 'informer' but a reluctant witness has never attracted immunity at common law. For instance, the 'newspaper rule' which protects confidential sources of information must yield whenever the interests of justice override the public interest: cf. Herald and Weekly Times Ltd v Guide Dog Owners and Friends Association [1990] VicRp 40; [1990] VR 451 and British Steel Corporation v Granada Television Ltd [1981] AC 1096.Mr Uren submitted that to release the report would disclose the identities of 'confidential' sources of information. The sources were confidential because they gave the information contained in their statements after being given (or offered) a promise of confidentiality.In my opinion, the words 'confidential source of information' do not apply to a potential witness in a civil proceeding who would prefer to remain anonymous for the time being. A potential witness cannot clothe himself with secrecy in relation to the administration of the law unless he is able to invoke 'informer' immunity. Nor may an investigator confer upon a potential witness 'confidential' status until it is convenient to his principal to reveal the name of the witness.41. Applying the principles referred to above to the circumstances of the present case, a number of observations can be made. Where a person who has given information to Mr Shennan stands in a position analogous to that of an informer, i.e., one who has informed on another person attributing responsibility to the other person for acts and/or omissions which contravene the law (or perhaps also, in the case of prisoners or prison officers, acts and/or omissions which could warrant disciplinary proceedings), that would tend to afford support (always depending on the significance of other relevant facts and circumstances) for a finding that there was an implicit mutual understanding that the identity of the source of the information would remain confidential. Moreover, in the potentially volatile environment of a prison, where many peopleprone to violence may be confined, it will frequently be appropriate to find that there is a real risk that an informer, whether a prisoner or prison officer, may be subjected to harassment or other retributive action. 42. While the factors referred to in the preceding paragraph would, where applicable to particular matter in issue, tend to support a finding that there was an implicit mutual understanding that the identity of a source would remain confidential, the PLS has, in my opinion, correctly identified a factor that would tend to support the opposite finding, i.e., the fact that persons interviewed must have realised they were potential witnesses at a coroner's inquest, or in criminal proceedings, or perhaps even in a QCSC disciplinary hearing. (I note that each of the signed statements obtained by Mr Shennan bears an endorsement under the Oaths Act 1867 Qld, signed by the witness, which specifically refers to the possibility of the signed statement being "admitted as evidence", and to the consequences of stating anything in it that is known to be false). This would not necessarily rule out the possibility of a finding that there existed an implicit mutual understanding that the identity of a source of information would be kept confidential unless and until it must be disclosed in some kind of formal proceeding or through some other legal requirement (see Re McEniery at p.364, paragraph 33).43. However, under our system of law, even the identity of a true informer cannot be protected beyond the point where revelation of his or her identity is necessary in the course of the committal or trial (or in procedures preparatory thereto) of a person charged with a criminal offence. The statements obtained by Mr Shennan from QCSC officers comprise information falling into two broad categories - (a) information relating to how, when, and why the death of prisoner Eames occurred; and(b) information relating to prison systems and procedures (e.g., any weaknesses or needed improvements) and the extent of compliance with established rules and procedures.In the first category, Mr Shennan obtained statements which, for the most part, duplicated the statements given to investigating police officers. In the case of witnesses from whom statements were obtained and tendered at the committal hearing in the Townsville Magistrates Court and/or who gave evidence in the Supreme Court jury trial, whatever the understanding may have been at the time that statements were given by them to Mr Shennan, I find that it is no longer possible for them to qualify as confidential sources of information under s.42(1)(b) of the FOI Act.44. To the extent that persons interviewed by Mr Shennan have provided information falling into the second broad category referred to in paragraph 43 above, the information has in part been used by Mr Shennan in assessing whether to recommend disciplinary action against prison officers for breach of duty. Disciplinary proceedings of that kind are considered in law to be civil proceedings rather than criminal proceedings. However, significant sanctions can be imposed, and I consider that the factors referred to in paragraph 41 above could (always depending on the significance of other relevant facts and circumstances) apply in respect of a source of information who informs on another, attributing responsibility for acts or omissions which involve a breach of duty/breach of discipline. Short of that situation, however,I consider that a witness who has supplied information falling into the second broad category referred to in paragraph 43 above, is in no materially different position to that of a potential witness in a civil proceeding, as referred to in the two Victorian cases of Croom (see paragraph 40 above), and would not, in my opinion, ordinarily qualify as a confidential source of information within the terms of s.42(1)(b) of the FOI Act.45. Having regard to the factors referred to in paragraph 41 above, I consider that where a prisoner interviewed by Mr Shennan has given information about criminal conduct or wrongdoing by another person, it is proper to find that the information communicated by the prisoner was communicated on the basis of an implicit mutual understanding that the identity of the prisoner as a source of information would remain confidential to the recipients of Mr Shennan's report within the QCSC, unless and until it was necessary to be disclosed in the course of taking action against a person charged with a criminal or disciplinary offence.Where the identity of such a prisoner as a source of information has not in fact been disclosed in the committal proceedings in the Townsville Magistrates Court or in the Supreme Court jury trial (or otherwise entered the public domain), and has not been disclosed to the person informed against in the context of QCSC disciplinary proceedings, I consider that it is proper to find that such a prisoner remains a confidential source of information, within the terms of s.42(1)(b) of the FOI Act.46. I note that, in the matter which remains in issue (after the concessions by the PLS noted at paragraph 8 above), no QCSC officer is identified in a context that indicates or suggests that he has informed against another person, so no occasion arises for considering whether s.42(1)(b) applies so as to require the deletion of identifying references to a QCSC officer from the matter which remains in issue.47. In Re McEniery at pp.365-369, I made some general observations on the second element of s.42(1)(b), i.e., the requirement that information relate to the enforcement or administration of the law. The QCSC asserts that prison management is encompassed within the phrase "enforcement or administration of the law". This will largely be true because so much of prison management is conducted within a framework of laws, including delegated rule-making power, to which sanctions attach for any breach. However, some of the material in issue indicates that the QCSC may have overstated its case to some extent. Segments of the Eames Report which deal with topics such as training programs for prison officers, and strategic plans for the Townsville Correctional Centre, must, in my opinion, be properly characterised as relating to the QCSC's internal management processes rather than the enforcement or administration of the law. Nevertheless, I am satisfied that information supplied by the persons who qualify as confidential sources of information within the terms of s.42(1)(b), was information which clearly related to the enforcement or administration of the law.48. With respect to the third element of s.42(1)(b), I made some brief observations in Re McEniery at pp.357-358 (paragraph 19). I note that most cases on the application of s.42(1)(b) involve disputes over disclosure of the identity of a source of information, where it is known (or obvious) that a source of information exists. However, s.42(1)(b) can also be invoked to prevent disclosure of information which could reasonably be expected to enable the existence of a confidential source of information to be ascertained. In such a case, while the respondent agency must still satisfy me that the three requirements for exemption under s.42(1)(b) are established, it will not ordinarily be possible to provide details of that claim in published reasons for decision, for fear of causing one of the kinds of prejudice which the exemption provision was intended to avoid.49. Applying the principles discussed above, I am satisfied that the following segments of the Eames Report comprise exempt matter under s.42(1)(b) of the FOI Act:(a) in paragraph 19 -(i) the third sentence;(ii) that part of the fourth sentence which follows the word "statements"; and(iii) the fifth sentence;(b) the first two sentences of paragraph 22;(c) the first two sentences, and all words appearing before the word "is" in the third sentence, of paragraph 23;(d) in subparagraph 24f. -(i) the last six words in line one;(ii) the first word, and the name following it, in line 2;(iii) the sixth, seventh, eighth and ninth words in line 8; and(iv) the second, third and fourth words in line 9;(e) all words in the last line of subparagraph 26d. appearing after the name "(Eames)";(f) paragraph 44;(g) subparagraph 46h.50. I have examined other segments of the Eames Report claimed by the QCSC to be exempt under s.42(1)(b), but I am satisfied that the segments identified above comprise the only matter which meets all the requirements for exemption under s.42(1)(b) of the FOI Act.Application of s.42(1)(c) of the FOI Act51. The correct approach to the interpretation and application of s.42(1)(c) of the FOI Act was discussed in my reasons for decision in Re Murphy and Queensland Treasury & Ors (Information Commissioner Qld, Decision No. 95023, 19 September 1995, unreported) at paragraphs 43-57. The only paragraph of the Eames Report which has been claimed by the QCSC to be exempt under s.42(1)(c) is paragraph 22. I have already found that the first two sentences of paragraph 22 are exempt matter under s.42(1)(b), and it is not necessary to consider the application of s.42(1)(c) to those sentences. With respect to the third (and final) sentence of paragraph 22, I am not satisfied on the material before me that any grounds exist to support a reasonable expectation that its disclosure could endanger a person's life or physical safety. I find that the third sentence of paragraph 22 is not exempt matter under s.42(1)(c) of the FOI Act.Application of s.42(1)(e) of the FOI Act52. The QCSC has claimed that paragraphs 4-13, 19, 21-35 and 38-44 of the Eames Report are exempt under s.42(1)(e) of the FOI Act (the terms of which are set out at paragraph 13 above). I have already found some of those paragraphs, or parts of them, to be exempt under s.42(1)(g) or s.42(1)(b) of the FOI Act, so I do not need to consider the application of s.42(1)(e) to that matter. I have previously set out my views on the correct approach to the interpretation and application of s.42(1)(e) of the FOI Act in Re "T" and Queensland Health [1994] QICmr 4; (1994) 1 QAR 386.53. The QCSC has made the following submissions on the application of s.42(1)(e) of the FOI Act (at p.5 of its written submission):It is submitted that the disclosure of the report would prejudice the effectiveness of the lawful method and procedure for investigating and dealing with a contravention of the law.The inspector is appointed under Section 27 of the Corrective Services Act 1988 by the Director-General to investigate and report into the circumstances surrounding the incident.This lawful method/procedure consists of visiting the crime scene, discussing certain aspects with the General Manager of the Correctional Centre, examining reports, conducting interviews, and gathering statements in conjunction with the Police Service.The effects on the disclosure of the report have been discussed above. [This is a reference to submissions made by the QCSC in respect of s.41(1) of the FOI Act which are set out in paragraph 73 below.]Officers and prisoners will be reluctant to provide any information to the inspector if it became known that the report could be disclosed.54. Paragraph 6 of Mr Shennan's statutory declaration, which is reproduced at paragraph 32 above, also appears relevant to the claim for exemption under s.42(1)(e) of the FOI Act.55. In its written submission, the PLS rejected the QCSC's claim of prejudice to the effectiveness of the lawful method or procedure of investigations by an inspector, through reluctance by prisoners and prison officers to provide information to an inspector, on the same basis that it contested the application of s.42(1)(b): the PLS submitted that the trial of those accused of the murder of Mr Eames made public the names and relevant evidence of prisoners and QCSC officers who provided evidence to both the investigator and the police, and further that a prisoner or QCSC officer who provided information to the QCSC inspector must have appreciated that he was placing himself in a position where he may possibly be required to give evidence before a court or coronial inquiry.56. In addition, the PLS submitted that the investigation conducted by Mr Shennan was for the purpose of reviewing institutional and administrative operations following the death of Mr Eames, and that his report was not therefore concerned with detecting, investigating or dealing with a contravention of the law. The PLS submitted that the Queensland Police Service was the responsible agency in that regard. However, I think it is clear that Mr Shennan's instructions (see paragraph 4 above) extended to the investigation of several matters, including possible contraventions of rules, or the code of conduct for QCSC officers (made by the QCSC under s.20 of the Corrective Services (Administration) Act 1988 Qld), possible breaches of discipline by QCSC officers under s.43 of the Corrective Services (Administration) Act, and possible offences or breaches of discipline by prisoners under Part 3, Division 7 of the Corrective Services Act. The QCSC was a proper authority to investigate and/or deal with those matters, which involved a "contravention or possible contravention of the law" according to the meaning of that phrase which I explained in Re "T" at pp.391-392 (paragraphs 16-20).57. The PLS also argued that the lawful methods or procedures identified in the QCSC's submission were so obvious and well-known that disclosure could not prejudice their effectiveness in future investigations, citing the cases referred to in Re "T" at pp.394-395, paragraphs 28-32. I think it is certainly correct that disclosure of the methods and procedures used by Mr Shennan in his investigation could not in itself prejudice the effectiveness of thosemethods or procedures. The QCSC, however, appears to be basing its case under s.42(1)(e) simply on the assertion that disclosure under the FOI Act of the information obtained by Mr Shennan will prejudice the effectiveness of the methods and procedures used by an inspector, by inhibiting future co-operation by prisoners and QCSC officers in providing full and frank information to an inspector. In this respect, the QCSC's case under s.42(1)(e) overlaps, in whole or in part, its case under s.41(1), s.42(1)(b) and s.46(1) of the FOI Act.58. I consider that the last sentence in paragraph 6 of Mr Shennan's statutory declaration (which is reproduced at paragraph 32 above) involves considerable overstatement, unless it was meant to be confined to informers rather than witnesses generally. A prisoner or prison officer questioned by an investigator in connection with a serious crime would ordinarily appreciate that he or she was a potential witness in some kind of formal legal proceeding, and that any information given to an investigator would not remain confidential in that event. Yet many prisoners and prison officers co-operated with both the police investigators and Mr Shennan, and gave evidence in subsequent court proceedings. An investigator ordinarily needs to identify relevant witnesses and establish that they can give relevant and reliable evidence in any formal legal proceeding that may be in contemplation. An investigator who bound himself or herself to an obligation of confidence with respect to the information obtained from a particular source could not use or further disclose the information so obtained in a manner that was not authorised by the particular source. This might be considered worthwhile in some instances (e.g., promises of confidentiality may be given to secure the co-operation of a genuine informer) for the sake of obtaining crucial information that could lead to other sources of material evidence, which could be used in a formal legal proceeding.However, investigators would ordinarily be reluctant to be bound to such an obligation of confidence - they need the flexibility to put evidence obtained from one source to other sources in order to test the reliability of evidence, pursue fresh lines of inquiry, et cetera, and they must ultimately be able to confront an alleged wrongdoer with sufficient reliable evidence of the wrongdoing with which he or she is to be charged. (Hence the endorsement under the Oaths Act 1867 which Mr Shennan obtained from each witness who supplied a signed statement: see paragraph 42 above).59. I am sympathetic to the difficulties which must attend the task of an inspector appointed under s.27 of the Corrective Services Act, particularly in securing the co-operation of relevant prisoner witnesses, who may be particularly vulnerable to recrimination or retribution, and many of whom may have a philosophical predisposition toward non-co-operation with prison authorities. However, leaving aside the matter which I have already found to be exempt, none of the matter remaining in issue would, if disclosed, reveal information obtained by Mr Shennan from an identifiable prisoner (other than those prisoners who gave evidence at the committal hearing in the Townsville Magistrates Court and/or the Supreme Court jury trial), and I therefore consider that there is no reasonable basis for expecting that disclosure under the FOI Act of the matter remaining in issue would prejudice the effectiveness of the lawful method or procedure by which an investigator appointed under s.27 of the Corrective Services Act interviews, and obtains statements from, prisoners.60. I find it difficult, for a number of reasons, to accept the QCSC's contention that QCSC officers would be reluctant to provide information to an inspector, if the matter from the body of the Eames Report, which remains in issue, were to be disclosed under the FOI Act. (I note again that the information obtained by Mr Shennan from QCSC officers fell into the two broad categories identified in paragraph 43 above). 61. Firstly, in respect of the information obtained by Mr Shennan which corresponds to the statements by QCSC officers which have been tendered in the committal hearing in the Townsville Magistrates Court, and/or which corresponds to the evidence given by QCSCofficers in the Supreme Court jury trial, I consider that there is no reasonable basis for expecting that any prejudice of the kind contemplated by s.42(1)(e) could be caused by disclosure of Mr Shennan's analysis and recommendations to the extent that they are based on that information. That information is now a matter of public record. Moreover, I consider that the QCSC officers interviewed by Mr Shennan must have appreciated, at the time, that they were likely to be required to give the information in formal legal proceedings consequent upon the commission of such a serious crime (i.e., they could not realistically have held the expectation that the information which they gave in the form of signed statements, endorsed in accordance with the Oaths Act 1867 (see paragraph 42 above), was likely to remain confidential to Mr Shennan and senior management of the QCSC).62. Secondly, there are at least two bases on which QCSC officers are subject to a legal duty to co-operate with an investigation by an inspector appointed by their employer under s.27 of the Corrective Services Act. Section 29(1)(b) of the Corrective Services Act provides that an inspector may at any time require an officer or employee of the QCSC to provide any information or answer any question relevant to any inquiry being conducted by the inspector.Subject to the privilege against self-incrimination (if applicable), a failure or refusal by a QCSC officer to provide information or answer a question, or the wilful supply by a QCSC officer of information known to be false, would expose the officer to disciplinary action. In addition, employees of the QCSC owe duties of good faith and fidelity to their employer, which would encompass a positive obligation (which applies with greater force to employees holding positions of special trust and responsibility, especially managerial responsibility) to disclose to their employer any information, acquired in the capacity of employee, which the employer might reasonably require for identifying and/or remedying deficiencies in the systems and procedures by which the employer conducts its operations: see Re Shaw and the University of Queensland (Information Commissioner Qld, Decision No. 95032, 18 December 1995, unreported) at paragraphs 55-56, and the cases there cited.63. The QCSC might counter that such legal duties will not necessarily secure full and frank co-operation with an inspector, and that guarantees that information supplied will remain confidential within the QCSC are necessary in that regard. However, in any investigation of serious crime or wrongdoing where punitive action of some kind is a possible outcome, promises of confidentiality afford no real guarantee of full and frank co-operation. Experience of human nature indicates that some people will be prepared to give less than a complete and honest account of their knowledge of relevant facts and circumstances (perhaps even maliciously seeking to focus blame on another person), in the hope of avoiding adverse consequences for themselves, or a friend or colleague. It is part of the investigator's art to take account of such motives, and to test, and weigh the reliability of, different witnesses and their evidence. 64. In the case of persons not otherwise entitled to protection under the FOI Act (e.g., as an informer protected by s.42(1)(b) of the FOI Act), would promises to the effect that information supplied to an inspector would remain confidential within the QCSC really afford any additional incentive for full and frank co-operation with an inspector, beyond that afforded by the threat of disciplinary sanction for non-compliance with the legal duty imposed by s.29(1)(b) of the Corrective Services Act? Mr Shennan's investigation was conducted against the background of a serious crime, where QCSC officers had no direct involvement in the commission of the crime but must have appreciated that the making of recommendations for disciplinary action against QCSC officers for inefficiency, carelessness, failure to comply with rules, et cetera, was part of the inspector's brief. The most directly intimidating consequences for QCSC officers in such an investigation lay in the consideration of their evidence and conduct by senior management of the QCSC (for whom the Eames Report was always intended), and the possibility of disciplinary action under s.43 of the Corrective Services(Administration) Act, rather than in any subsequent disclosure outside the QCSC. In the circumstances, I have difficulty in accepting that the possibility of disclosure outside the QCSC, of information given to the inspector, could have been a factor inhibiting full and frank co-operation by QCSC officers with the inspector's investigation, or that disclosure outside the QCSC of the matter remaining in issue in this case (which would disclose Mr Shennan's analysis of the information he obtained, rather than extracts from the officers' statements themselves) would be a significant factor inhibiting full and frank co-operation with similar investigations in the future.65. On the material before me, I am not satisfied that disclosure of the matter from the body of the Eames Report which remains in issue (which consists of Mr Shennan's analysis of information obtained in his investigation, rather than extracts from statements given by QCSC officers) could reasonably be expected to prejudice the effectiveness of a method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law, and I find that it is not exempt matter under s.42(1)(e) of the FOI Act.Application of s.41 of the FOI Act66. The QCSC contends that paragraphs 16, 17, and 22-45 (inclusive) of the Eames Report are exempt matter under s.41(1) of the FOI Act. I note that some of those paragraphs, or parts of them, have already been found to be exempt matter under other exemption provisions, so it is not necessary for me to consider the application of s.41 to that matter. 67. Section 41(1) and s.41(2) of the FOI Act provide: 41.(1) Matter is exempt matter if its disclosureC(a) would discloseC(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 ofC(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.68. 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. ...69. 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(1) needs to establish that specific and tangible harm to an identifiable public interest (or interests) would result from disclosure of the particular deliberative process matter in issue. It must further be established that the harm is of sufficient gravity when weighed against competing public interest considerations which favour disclosure of the matter in issue, that it would nevertheless be proper to find that disclosure of the matter in issue would, on balance, be contrary to the public interest.70. Under s.41(2)(b) of the FOI Act, matter is not exempt under s.41(1) if it merely consists of factual or statistical matter: see Re Eccleston at p.71, paragraphs 31-32. Having regard to the principles referred to there, and explained more fully in Re Hudson as agent for Fencray Pty Ltd and Department of the Premier, Economic and Trade Development [1993] QICmr 4; (1993) 1 QAR 123 at pp.144-147 (paragraphs 49-58), I consider that paragraph 17 and many segments of paragraphs 22-45 of the Eames Report comprise merely factual matter, which is severable from opinion, advice or recommendations expressed by Mr Shennan, and which is therefore not eligible for exemption under s.41(1) of the FOI Act, by virtue of s.41(2). I will refrain from adding to the length of this decision by specifying the matter which I consider to be merely factual matter. That is not necessary since I am satisfied that (even if I were mistaken as to its characterisation as merely factual matter), none of it is matter the disclosure of which would, on balance, be contrary to the public interest, for reasons explained below. It would not, therefore, satisfy the test for exemption posed by s.41(1)(b) in any event.71. Apart from the merely factual matter referred to in the preceding paragraph, I am satisfied that the balance of the matter claimed to be exempt under s.41(1) answers the description in s.41(1)(a) of the FOI Act. Mr Shennan's opinions and recommendations were prepared for the purposes of the deliberative processes of senior management of the QCSC in considering measures to be taken by the QCSC in response to the death of prisoner Eames.72. The deliberative process matter in the body of the Eames Report falls into two broad categories -(a) analysis and recommendations with respect to problems in systems and methods of control at Townsville Correctional Centre; and(b) analysis and recommendations in respect of possible disciplinary action against QCSC officers, and comments otherwise adverse to particular QCSC officers.73. The case presented by the QCSC (at p.3 of its written submission) as to why disclosure of the deliberative process matter in issue would be contrary to the public interest is essentially the same as the case it has presented in respect of the application of s.42(1)(b), s.42(1)(e) and s.46(1) of the FOI Act:The [QCSC] submits that the likelihood of information drying up in future as a result of the disclosure of this report would seriously prejudice the Inspector's investigations and method of dealing with same. The disclosure of this report would affect the [QCSC's] operations significantly. It is in the public interest that the [QCSC] and Executive receive a full and comprehensive report on such an incident. In order to obtain a full and frank report, it is necessary that an appointed Inspector obtains as much information as possible.A large degree of this information is attained by interviewing and speaking with officers and prisoners. If it were known that Inspectors' Reports were released, then this would seriously prejudice the future supply of such information. While the [QCSC] recognises that the public ought to know about the incident, it is considered that this "internal" report, which is of an inherently confidential nature, remains protected so that the [QCSC] can make proper and well-informed decisions which are in the public interest.It is in the public interest that the [QCSC] not fail in its responsibility to the community at large namely, that is, by ensuring the security and management of prisons and the safe custody and welfare of prisoners by virtue of section 13 of the Corrective Services Act 1988.There is a real need to protect the integrity and viability of the decision-making process. This report is part of this decision-making process. The disclosure of this report will significantly affect the efficient performance and proper workings of an Inspector.If inadequate inspectors' reports are furnished because officers and prisoners are loathe to provide information then the conclusions and recommendations will be seriously affected. It is of critical importance that the [QCSC] receives comprehensive inspectors' reports. Informants and interviewees need to be assured that information provided will remain confidential.74. In essence, the QCSC submits that the comprehensiveness and reliability of reports prepared by inspectors will be prejudiced if sources of information are reluctant to co-operate with inspectors, and the ability of the QCSC (in response to such reports) to take appropriate measures for the security and management of prisons, and the safe custody and welfare of prisoners, would consequently be prejudiced. There is no doubt that it is in the public interest that inspectors appointed under s.27 of the Corrective Services Act be able to furnish reportsthat are as comprehensive and reliable as possible (given the exigencies which generally attend any investigation of serious wrongdoing - see paragraph 63 above), and that the QCSC take appropriate measures in response to such reports.75. However, I have already stated my reasons for finding that disclosure of most of the matter in the body of the Eames Report that is claimed to be exempt under s.41(1) could not reasonably be expected to prejudice co-operation with future investigations by inspectors (see paragraphs 59-65 above). I have already found that any informants who are still (following the court proceedings) able to qualify as confidential sources of information in relation to the enforcement or administration of the law, will be protected under s.42(1)(b) of the FOI Act.I have indicated generally my view that disclosure under the FOI Act of Mr Shennan's analysis and recommendations, to the extent that they are based on information that is already in the public domain (as evidence given in court proceedings), could not reasonably be expected to prejudice co-operation with future investigations by inspectors. For all these reasons,I consider that the weight to be accorded to the public interest considerations referred to in the preceding paragraph, as considerations favouring non-disclosure of the matter claimed to be exempt under s.41(1) of the FOI Act, is significantly diminished.76. On the other hand, the PLS has pointed (at pp.8-9 of its submission) to a number of public interest considerations favouring disclosure of the matter in issue, which in my view are deserving of substantial weight:We submit that there are a number of reasons why it is actually in the public interest for access to be given to the subject document. They are as follows: it reported on the murder in a state prison the murder was the fourth murder in a prison in two years of operation by the QCSC the murder occurred in the gymnasium in a high security prison where prisoners were given access to the gymnasium without staff supervision prosecutions for the murder resulted in the acquittals of all defendants no coronial inquest was held into the death of David Eames within 18 months of the David Eames murder, another murder occurred in the gymnasium of a high security prison where prisoners were given access to the gymnasium without staff supervision.It is in the public interest that the Prisoners' Legal Service knows the contents of the subject document in order to ensure that steps are taken to protect the interests of the Services' client group. It is submitted that the contents of the document should have been useful and effective in addressing issues of supervision in prison gymnasiums and in ensuring that there was not a re-occurrence of such an event. With the occurrence of a later murder of Bart Vosmaer at the Sir David Longland Correctional Centre in virtually identical circumstances to the murder of David Eames in Townsville eighteen months before, it became apparent that appropriate steps had not been taken toaddress the risks. It is submitted that in the wake of two deaths in unsupervised prison gymnasiums it is indisputable that it is in the public interest that the contents of the subject document be made available.77. The PLS also submitted (at p.1):These two incidents raised the interest of the [PLS] as to what recommendations arose out of the report of the internal investigator into the death of Eames and whether those recommendations were implemented so as to avoid any similar incidents occurring in other State Correctional Centres.78. The PLS referred to paragraph 5 of Mr Shennan's statutory declaration which states that Mr Shennan was aware that all recommendations of the Eames Report had been addressed.The PLS submitted (at p.1):There is however no way of checking this without seeing what those recommendations were and the [PLS] cannot help but be suspicious that those recommendations, although they may have been implemented at the Townsville Correctional Centre, were not made far reaching and implemented in all Queensland Correctional Centres.79. Responding to the QCSC's submission that: "... this internal report, which is of an inherently confidential nature, [should remain] protected so that the [QCSC] can make proper and well informed decisions which are in the public interest", the PLS submitted (at p.2) that:We say that such non-disclosure may also provide the [QCSC] with the opportunity to hide mistakes and take no effective action, as there is no requirement for accountability. It is therefore in the public interest that the recommendations and analysis of the investigator be made available so that there is some form of accountability to the public to ensure that recommendations will be acted upon.80. The PLS made further submissions as to the accountability of the QCSC (at p.10):We would submit that access to the subject document might reveal inefficiencies or lack of process in the operation of the [QCSC], the disclosure of which would be in the public interest if it results in a reduction in the numbers of murders in State prisons....The subject document we would suggest, addresses the factual matters of the circumstances of the murder of David Eames and may also consider the need for the staff and resources in the area of the prison where the murder took place.81. I might add that disclosure of the matter in issue would be of significance to the wider public interest, and not just to the interests of the PLS's client group. I note and endorse the comments of Jones J, then President of the Victorian Administrative Appeals Tribunal, in Re Lapidos and Office of Corrections (1989) 4 VAR 31 at p.44:As pointed out by the Full Supreme Court in Department of Public Prosecutions v Smith [1991] VicRp 6; [1991] VR 63, [the Freedom of Information Act 1982Vic] does not contain any definition of public interest and there are many areas of national and community activities which may be the subject of the public interest. There is the public interest in the proper and due administration of criminal justice. With respect to prisons and prisoners, there is the public interest in the fair and humane treatment of prisoners and in their rehabilitation into the community and the security and good order of prisons and the welfare of prisoners and the staff who work in prisons: Re Mallinder and Office of Corrections (1988) 2 VAR 566. There is also the public interest in the due and proper administration of prisons.82. A similar view was expressed by Fricke J in Re Lapidos and Office of Corrections (No. 3) (1990) 4 VAR 150, at p.153: "... I accept that the public interest in the disclosure of information relating to penal administration is a strong one." The punishment and rehabilitation of criminal offenders, the effectiveness of the administration of systems established for that purpose, and their cost to the public, are matters of real public interest, and there is, in my opinion, a strong public interest in disclosure of information which will enhance public scrutiny of, and accountability for, the conduct of those operations on behalf of the people of Queensland. Mr Eames was sentenced to a term of imprisonment, not a sentence of death. One of the fundamental responsibilities of the QCSC is the safe custody and welfare of prisoners (see s.13(1) of the Corrective Services Act 1988) and, while I do not underestimate the considerable practical difficulties of prison management, it is clear that the QCSC did not successfully discharge its statutory responsibility in respect of prisoner Eames. It is appropriate that it be accountable to the public for the occurrence of a fatal assault on a prisoner in its custody, and for the measures taken to prevent a similar incident occurring in future. Disclosure of the matter in issue will enhance the accountability of the QCSC in that regard, and to the extent that disclosure of the matter in issue can be made without prejudicing the ability of the QCSC to continue to ensure the security of prisons and the safe custody and welfare of prisoners, then the balance of the public interest, in my opinion, clearly favours disclosure of the matter in issue.83. I am not satisfied that disclosure of the matter claimed by the QCSC to be exempt under s.41(1) of the FOI Act would, on balance, be contrary to the public interest, except for some matter which falls into the second broad category identified in paragraph 72 above, and is dealt with in the following paragraphs.84. As noted above, ten QCSC officers who were adversely referred to in the Eames Report, were contacted and invited to participate in the review. A summary of their responses is set out below (since the identity of the officers concerned is itself matter claimed to be exempt, I have referred to each officer by a number, for purposes of identification): Officer 1 did not respond. Officer 2 indicated that he did not have a strong objection to the release of matter contained in the Eames Report which adversely refers to him, provided that his name was deleted in connection with that matter. Officer 3 indicated that he had no objection to release of the Eames Report as such, apart from those matters which adversely refer to him. The officer contended that parts of the recommendations of Mr Shennan are not accurate. The officer received a letter indicating that he was not to be subject to disciplinary action (despite the recommendation of Mr Shennan). Officer 4 strongly objected to release of any part of the Eames Report which referred to him. The officer indicated that the comments made by Mr Shennan about him disclose an opinion which was later proved to be wrong. (I take this to mean that although a recommendation was made concerning disciplinary action against this officer, no disciplinary action was ever taken). The officer indicated his belief that disclosure of the documents which refer to him would involve a grave injustice and may adversely affect his career. He contended that the deletion of his name would not be sufficient should those parts of the Eames Report which adversely refer to him be released, and that not only his name, but also his title, should be deleted. Officer 5 indicated in a telephone conversation with a member of my staff that he had no objection to release of those matters which refer to him, although he was concerned for other persons referred to in the Eames Report. He was asked to write to my office confirming that he had no objection to the disclosure of matter which refers to him, but he has not done so. Officer 6 made a strong objection to any part of the Eames Report being released.Allegations against this officer contained in the Eames Report were strongly denied by him.Disciplinary action initiated against this officer by the QCSC was subsequently withdrawn.The officer submitted that this indicates that the recommendation of Mr Shennan in respect of this officer was wrong. The officer submitted that any portion of the Eames Report being released to any person would seriously affect his career as parts of the Eames Report would no doubt end up in the media. The officer submitted that the deletion of his name would not protect him from any innuendos and that further accusations would be made by the media and any other person wishing to denigrate an officer of the QCSC. Officer 7 lodged a written response in similar terms to the response by officer 6. Officer 8 endorsed the QCSC's written submissions (a copy of which had been forwarded to him). In his written submission, this officer requested that consideration be given to the purpose for which the Eames Report was being sought, whether the PLS was likely to have a "sectional interest" in accessing the information, and whether the public interest was likely to be served by the PLS's anticipated or probable use of sensitive information in other cases. This officer submitted that disclosure of the Eames Report, either in its entirety, or more particularly, in part, would place the QCSC in a position where it would be subjected to a biased representation of the facts in issue and trial by media. This officer submitted that impartial adjudication of the facts in issue by the public would be prejudiced. In conclusion, this officer submitted that public disclosure of all or, more particularly, part of the Eames Report, would present an unbalanced and misleading report to the reader. No disciplinary action was initiated against this officer by the QCSC, although Mr Shennan had recommended that consideration be given to disciplinary action. Officer 9 objected to any part of the Eames Report being released to any person for any reason. This officer noted that he had been mentioned adversely in the Eames Report but was not charged with any disciplinary breach. He submitted that release of the report would cast a slur on his character and would endanger his future career prospects. He submitted that deletion of his name would not protect him from any further allegations of misconduct. Officer 10 indicated that he had no objection to the finding adverse to him being released, but he did object to his name being associated with those findings. He would be happy for the information to be released if his name were deleted. No disciplinary action was taken against this officer.85. After a summary of the responses received from QCSC officers was provided to the PLS, the PLS lodged a reply specifically concerning the recommendations by Mr Shennan that disciplinary action be taken against certain QCSC officers. The PLS submitted that the material relating to proposed disciplinary action does not relate to the officers' personal affairs, within s.44(1) of the FOI Act, since the material relates to the officers' employment affairs and work performance. This is clearly correct (see Re Pope and Queensland Health (1994) [1994] QICmr 16; 1 QAR 616 at pp.658-660, paragraphs 110-116), but irrelevant for present purposes, since no claim has been made that the matter concerning recommended disciplinary action against QCSC officers is exempt matter under s.44(1) of the FOI Act.86. The QCSC also lodged a reply to the responses received from the officers consulted. The QCSC submitted that it would be contrary to the public interest for the recommendations relating to disciplinary action to be disclosed, and that this was particularly so in the case of those officers against whom disciplinary action was recommended but not proceeded with, and those officers adversely named in the Eames Report against whom no disciplinary action was taken.87. Mr Shennan recommended disciplinary action against seven QCSC officers. He also expressed the opinion that the Commissioners of the QCSC may need to give consideration to disciplining another officer. (No disciplinary action was, in fact, taken against that officer).Mr Shennan adversely referred to two other officers as having failed to comply with rules as to searching of prisoners, but did not recommend that disciplinary action be taken against those two officers, and none was taken by the QCSC.88. Two officers were dismissed by the QCSC for breaches of discipline, but had their appeals against dismissal upheld by an appeal tribunal constituted under s.46 of the Corrective Services (Administration) Act 1988. Relevantly for present purposes, however, both officers acknowledged, in the evidence they gave in the Supreme Court jury trial (see transcript of R v Scrivener, Hills and Farr, p.402, p.407, p.1176), that they had been dismissed from the QCSC for breaches of discipline and were awaiting the outcome of an appeal. 89. Of the five other officers against whom Mr Shennan recommended disciplinary action, action was initiated against two officers, but subsequently withdrawn by the QCSC. One officer was merely warned that formal disciplinary action would be taken against him if the impugned conduct was repeated. No disciplinary action was taken against the remaining two officers.No evidence concerning disciplinary action proposed or taken against those five officers was given in court proceedings, so no material adverse to them in that respect has become a matter of public record. 90. Disclosure of the Eames Report, with identifying references to those five officers intact, would, in my opinion, damage the reputations of those five officers in respect of the performance of their employment duties. That would not ordinarily be unfair, or contrary to the public interest, in circumstances where, after being given a fair opportunity to answer charges against them, the officers were found to have performed their duties in an unsatisfactory manner. I consider, however, that disclosure of matter damaging to the reputations of those five officers would be unfair in the circumstances of this case, where the QCSC, after more careful reflection on Mr Shennan's report, after considering responses by those officers required to show cause why disciplinary action should not be taken against them, and presumably after monitoring the evidence given in the committal and trial (following ongoing investigations by police under the guidance of lawyers from the Office of the Director of Public Prosecutions), decided that disciplinary action should not be pursued against the five officers. That decision by the QCSC should itself be the subject of an appropriate level of public scrutiny and accountability, which would be assisted by disclosure of Mr Shennan'sanalysis of the evidence obtained in his investigations, on the basis of which he believed recommendations for disciplinary action were warranted (cf. the passage from Re Pope set out at paragraph 92 below). However, I consider that the public interest in fair treatment of the five officers can be reconciled with the public interest in appropriate accountability of the QCSC (in respect of the death of prisoner Eames and the measures taken in response to it) by disclosing the body of the Eames Report subject to deletion of identifying references to the five QCSC officers referred to in this paragraph. I consider that the same reasoning ought to apply to the three other QCSC officers who were adversely mentioned in the Eames Report, and against whom no disciplinary action was taken.91. In two previous decisions, I have referred to the kinds of public interest considerations which support my findings in the preceding paragraph as to deletion of identifying references to QCSC officers. The courts have recognised that: "the public interest necessarily comprehends an element of justice to the individual" (per Mason CJ in Attorney-General (NSW) v Quin (1989-90) 170 CLR 1 at p.18). In Re Eccleston at p.109 (paragraph 138),I referred with approval to decisions of the Federal Court of Australia in Harris v Australian Broadcasting Corporation [1983] FCA 242; (1983) 50 ALR 551 and Kavvadias v Commonwealth Ombudsman [1984] FCA 179; (1984) 2 FCR 64 where it was held that it would be contrary to the public interest to disclose interim reports critical of particular persons who were still to be given the chance to respond to those reports, because their responses might result in further refinement or greater balance in those reports. A similar principle is evident in the remarks of Hill J of the Federal Court of Australia in SRD v Australian Securities Commissioner & Anor [1994] FCA 1252; (1994) 123 ALR 730 at p.736.92. In Re Pope, I concluded that the public interest in appropriate public scrutiny of, and accountability with respect to, the process and outcome of an investigation into alleged breaches of acceptable standards of scientific research in a publicly funded research institution, outweighed any public interest considerations favouring non-disclosure of the report in issue in that case, including the possibility of an adverse effect on Dr Pope's reputation as a research scientist. The following extract from Re Pope (at pp.649-650, paragraph 96) is relevant generally to the present case, and I have underlined the parts which have particular relevance to the issue of deleting identifying references to some of the QCSC officers adversely referred to in the Eames Report: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 allegationsought 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.93. In Re Pope, specific allegations against Dr Pope were the subject of the report in issue, and the applicants for access knew this; thus deletion of Dr Pope's name was not an option.Moreover, Dr Pope was given the opportunity to answer the allegations against him. Deletion of identifying references to the QCSC officers who were adversely referred to in the Eames Report (at a stage prior to them being given the opportunity to answer the allegations against them, if indeed the QCSC decided to pursue disciplinary action) remains an option in the present case, and I consider that it would strike an appropriate balance between the relevant competing public interests which are referred to earlier in this decision, and in the above extract from Re Pope.94. In respect of the two officers whose dismissal for breaches of discipline has become a matter of public record (see paragraph 88 above), I consider that no further significant damage to their reputations could be caused by disclosure of the references to them in the body of the Eames Report, and I am not satisfied that the balance of the relevant public interest considerations warrants deletion of identifying references to those two officers. I have already noted at paragraph 88 above (so that it too is a matter of public record) that those two officers succeeded in having their dismissals from the QCSC overturned following a hearing by an appeal tribunal constituted under s.46 of the Corrective Services (Administration) Act 1988.95. Apart from identifying references to eight of the QCSC officers adversely referred to in the Eames Report, I am satisfied that disclosure of three further segments of the Eames Report (the last two sentences of paragraph 23, sub-paragraph 24f., and the last 21 words of the second sentence in paragraph 41) would be contrary to the public interest. In those three segments, Mr Shennan expresses opinions that are severely prejudicial to the reputation of one QCSC officer, based on information Mr Shennan had obtained from a prisoner informant.Mr Shennan was no doubt acting in good faith, and (in the second segment of information) qualified his conclusion with the proviso that it was conditional on the information proving to be correct. It appears, however, that by the time of the Supreme Court jury trial, the Crown Prosecutor had established that the information provided by this prisoner informant was completely unreliable (transcript, R v Scrivener, Hills and Farr, pp.409-411). I consider that it would be contrary to the public interest in the fair treatment of the QCSC officer concerned, for this severely prejudicial material, based on evidence now known to be completely unreliable, to be disclosed.96. In summary then, I am satisfied that the following matter in the body of the Eames Report is exempt matter under s.41(1) of the FOI Act -(a) the last two sentences in paragraph 23;(b) in subparagraph 24b. - (i) the fourth last word in line 2; (ii) the last word in line 8; (iii) the name of an officer, and the abbreviation of that officer's title, appearing in line 9; (iv) the name of an officer appearing in line 10; (v) the last word in line 12;(c) in subparagraph 24d. - (i) the last four words in line 8; (ii) line 9; (iii) the names of officers, and the abbreviation of one officer's title, appearing in line 10; (iv) the last word in line 11; (v) the first two words in line 12; (vi) the names of officers, and the abbreviations of their titles, appearing in lines 16, 17 and 19;(d) subparagraph 24f.;(e) the first, third and fourth lines on page 13;(f) the names of officers, and the abbreviations of their titles, appearing at the end of subparagraph 26b.(ii);(g) in subparagraph 26b.(iii) - (i) the last two words in line 6; (ii) the first word in line 7; (iii) the name of an officer, and the abbreviation of that officer's title, appearing at the end of subparagraph 26b.(iii);(h) in subparagraph 26c. - (i) the fifth, sixth and seventh words in line 10; (ii) line 11; (iii) the last three lines, in which names of officers appear;(i) the last 21 words of the second sentence in paragraph 41;(j) the names of officers, and the abbreviations of their titles, appearing in the first lines of subparagraphs 46(a), (b), (c), (d) and (e) respectively; and(k) in paragraph 47 - (i) the last word on the fifth line; and (ii) the sixth line.97. In respect of the balance of the matter claimed by the QCSC to be exempt under s.41(1) of the FOI Act, I am not satisfied that its disclosure 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.46(1)(a) and s.46(1)(b) of the FOI Act98. Section 46 of the FOI Act provides: 46.(1) Matter is exempt ifC(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 thanC(a) a person in the capacity ofC(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.99. The QCSC has claimed that paragraphs 19 and 23 of the Eames Report are exempt under s.46(1)(a) of the FOI Act, and that paragraphs 27-32 of the Eames Report are exempt under s.46(1)(b) of the FOI Act. I have already found that paragraph 23 is exempt matter (partly under s.42(1)(b), and partly under s.41(1), of the FOI Act), and that parts of paragraph 19 are exempt under s.42(1)(b) of the FOI Act, so I need only consider the application of s.46(1)(a) to the balance of paragraph 19.100. At p.7 of its written submission, the QCSC submitted that: "The information which was conveyed to the Inspector [i.e., Mr Shennan] by prisoners is considered to be of a confidential nature and disclosure could bring an action for breach of confidence. ... The criteria to establish the equitable action for breach of confidence are considered to be satisfied." The elements of an action in equity for breach of confidence are set out, and discussed at some length, in my reasons for decision in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at pp.302-330. An essential element is that the information in question has the necessary quality of confidence (as to which see Re "B" at pp.304-310). The first, second and fourth sentences in paragraph 19 of the Eames Report do not have the necessary quality of confidence to found an action for breach of confidence. The substance of the information contained in those sentences is in the public domain: see p.219 of the transcript of proceedings of the committal hearing in the Townsville Magistrates Court, Stanley & Ors (Complainants) v Farr, Hills, Scrivener and Levi; see also p.405 and p.407 of the transcript of proceedings of the Supreme Court jury trial, R v Scrivener, Hills and Farr. I find that the first, second and fourth sentences of paragraph 19 of the Eames Report do not qualify for exemption under s.46(1) of the FOI Act.101. The last six sentences of paragraph 19 do not record information communicated to Mr Shennan by other persons, and I think that the QCSC cannot have intended to include them amongst the matter claimed to be exempt under s.46(1)(a). In any event, I find that they clearly do not qualify for exemption under s.46(1)(a), since they do not record any information communicated to Mr Shennan in confidence.102. Turning to paragraphs 27-32, I note that I have already found that most of paragraph 31 is exempt matter under s.42(1)(g) of the FOI Act (see paragraph 21 above), so I do not need to consider the application of s.46(1)(b) to that segment of paragraph 31.103. The elements which must be satisfied to establish that matter is exempt under s.46(1)(b) of the FOI Act are identified and explained in Re "B" at pp.337-341. I need not repeat them here, because I can identify only one sentence in paragraphs 27-32 (the first sentence in paragraph 28) which records information communicated by other persons to Mr Shennan. The balance of the matter in paragraphs 27-32 comprises expressions of opinion by Mr Shennan, or statements of fact about things Mr Shennan has said or done, and cannot qualify for exemption under s.46(1)(b) as matter communicated to Mr Shennan in confidence. Most of it is matter of a kind mentioned in s.41(1)(a) of the FOI Act (the terms of which are set out at paragraph 67 above), and hence, because of the effect of s.46(2), does not qualify for exemption under s.46(1) of the FOI Act, given that Mr Shennan was acting in the capacity of an officer of an agency (for a detailed explanation of the effect of s.46(2), see Re "B" at p.292, paragraphs 35-36, and Re Cairns Port Authority and Department of Lands [1994] QICmr 17; (1994) 1 QAR 663 at pp.683-687, paragraphs 40-46).104. The first sentence of paragraph 28 summarises information said to have been communicated to Mr Shennan by a number of prison officers, all voicing a similar complaint. In my opinion, it comprises matter of a kind mentioned in s.41(1)(a) of the FOI Act (being expressions of opinion obtained, prepared or recorded for the purposes of the deliberative processes of Mr Shennan in compiling his report, and/or the deliberative processes of senior management of the QCSC in considering, and taking action in response to, Mr Shennan's report), and since the information was given to Mr Shennan by prison officers in their capacities as officers of an agency, it is not eligible for exemption under s.46(1) of the FOI Act, because of the effect of s.46(2).105. Even if this information were eligible for exemption under s.46(1)(b) of the FOI Act, I could not be satisfied that disclosure of complaints of this nature could reasonably be expected to prejudice the making of similar complaints to the QCSC in future, and hence the first sentence of paragraph 28 would not qualify for exemption under s.46(1)(b) in any event.106. I find that none of the matter contained in paragraphs 27-32 of the Eames Report is exempt matter under s.46(1)(b) of the FOI Act.Application of s.44(1) of the FOI Act107. The QCSC has claimed that paragraphs 3, 5, 6, 15, 17 and 19 of the Eames Report, or parts of them, contain exempt matter under s.44(1) of the FOI Act, which provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest.108. 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 thepersonal 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.109. In my reasons for decision in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227,I identified the various provisions of the FOI Act which employ the term "personal affairs" and discussed in detail the meaning of the phrase "personal affairs of a person", and relevant variations thereof in the FOI Act. I held that information concerns the "personal affairs of a person" if it relates to the private aspects of a person's life, and that, while there may be a substantial grey area within the ambit of the phrase "personal affairs", that phrase has a well accepted core meaning which includes: family and marital relationships health or ill health relationships with and emotional ties with other people domestic responsibilities or financial obligations.Whether or not matter contained in a document comprises information concerning an individual's personal affairs is essentially a question of fact, to be determined according to the proper characterisation of the information in question.110. There is a small amount of matter in the body of the Eames Report which refers in passing to personal relationships between prisoners and members of their respective families. This is information which clearly falls within what I have described above as the core meaning of the phrase "personal affairs". Moreover, it is information the disclosure of which would not in any way serve to further the public interest in accountability of the QCSC in respect of the death of prisoner Eames. I can think of no public interest considerations which tell in favour of the disclosure of this personal affairs information, and accordingly I find that the following matter in the body of the Eames Report is exempt matter under s.44(1) of the FOI Act:(a) subparagraph 3e. (including the notation under it, which precedes subparagraph 3f.);(b) the notation appearing at the end of subparagraph 15c.; and(c) the last line of paragraph 17.111. The other material claimed by the QCSC to be exempt under s.44(1) mostly comprises information about criminal offences for which Mr Eames, and the prisoners charged with his murder, had been convicted, plus security classifications, sentence details and like information. Whether the fact that a person has been convicted of a particular criminal offence, and sentenced to a term of imprisonment for it, is information which concerns that person's personal affairs seems to me to involve difficult questions of judgment. Subject to proper exceptions (see s.62(1) of the Juvenile Justice Act 1992 Qld and the Criminal Law (Sexual Offences) Act 1978 Qld), and the inherent jurisdiction of a court to suppress the publication of information concerning a proceeding in the interests of the proper administration of justice (see J v L & A Services Pty Ltd [1995] 2 Qd R 10 and SRD & Australian Securities Commission & Anor, cited above, at p.732), the administration of criminal justice takes place in open court, and information of the kind in question becomes a matter of public record.Arguably, there could be some difficulty in characterising such information as information which concerns the private aspects of a person's life. On the other hand, legislation like the Criminal Law (Rehabilitation of Offenders) Act 1986 Qld provides for the suppression of records of less serious offences, after a qualifying period in which the offender must not re-offend, in the interests of aiding the prospects of rehabilitation of offenders.I note that in three cases decided in other jurisdictions, it has been held that references to a person's criminal charges or convictions comprise exempt matter under exemption provisions which correspond to s.44(1) of the FOI Act (see Re Kahn and Australian Federal Police (1985) 7 ALN N190; Re O'Sullivan and Victoria Police Force (No. 5), Victorian AAT, No. 1989/39673, Fricke J, 23 March 1990, unreported; Re Pasamonte and Victorian Police, Victorian AAT, No. 1992/35274, Deputy President Dimtscheff, 18 May 1993, unreported), though in each case, the finding appears to have been treated as self-evident, with no supporting analysis.112. Because of concessions made by the PLS, I do not need to decide this issue (which had not been fully argued by the participants in any event). Even assuming that such information concerns the personal affairs of Mr Eames and the prisoners who were charged with his murder, I am inclined to the view that disclosure of information about the nature of their respective convictions, and their prison security classifications, would, on balance, be in the public interest. In the context of the Eames Report, this information is integral to an understanding of Mr Shennan's assessment of weaknesses in systems and methods of control at Townsville Correctional Centre, and its disclosure would serve the public interest in accountability that is addressed in paragraphs 76-82 above.113. It is not necessary for me to rule on the QCSC's claims for exemption in respect of this matter, since the PLS has indicated that it does not wish to pursue access under the FOI Act to matter of this kind, concerning Mr Eames and the prisoners who were charged with his murder.I understand that the PLS already has sufficient knowledge of these matters for its purposes.The matter in the body of the Eames Report which is no longer in issue in this review, in accordance with the concession by the PLS, is -(a) subparagraphs 3b., 3c. and 3d.;(b) the information contained in points (1), (2), (3), (4) and (5) of subparagraphs 15a., 15b. and 15c. respectively;(c) the information contained in points (1), (2), (3) and (4) of subparagraph 15d.; and(d) the second, third, fourth and fifth lines of paragraph 17.114. In respect of the matter which remains in issue, the names of the prisoners charged with Mr Eames' murder, and the names of some other prisoners, are mentioned in Mr Shennan's account of incidents leading up to the fatal assault on Mr Eames. I consider that the names appear in the context of information which concerns the personal affairs of the prisoners (under either of the second and third dot-point subparagraphs in paragraph 80 of Re Stewart).However, with the exception of the incident referred to in subparagraph 5b. of the Eames Report, all the incidents, and the names of the prisoners involved, have been thoroughly canvassed in the committal hearing and Supreme Court jury trial, and in my opinion the weight to be attached to any privacy interest of the prisoners involved in the incidents is negligible.Because it relates directly to the fate which befell Mr Eames, and because it is integral to an understanding of Mr Shennan's analysis and recommendations (disclosure of which would serve the public interest in accountability that is addressed at paragraphs 76-82 above), I find that disclosure of this information, including prisoners' names, would, on balance, be in the public interest, and hence, that it is not exempt matter under s.44(1) of the FOI Act.115. The incident referred to in subparagraph 5b. of the Eames Report appears to have had no connection to Mr Eames, but is of significance in demonstrating shortcomings in security measures at Townsville Correctional Centre prior to the fatal assault on Mr Eames.Subparagraph 5b. should be disclosed for that reason, but the names of the prisoners involved are irrelevant to an understanding of the significance of the incident in the context of the Eames Report. I consider that identifying references to the prisoners should be deleted fromparagraph 5b. as exempt matter under s.44(1) of the FOI Act, in accordance with the principle stated in Re Stewart at p.258 (paragraph 81). I find that the following matter in subparagraph 5b. of the Eames Report is exempt matter under s.44(1) of the FOI Act -(a) the names, and the words in brackets after them, appearing in lines 1 and 2, respectively;(b) all names appearing in lines 3, 4, and 5; and(c) the words in brackets at the start of line 5.116. After taking into account the concessions made by the PLS (see paragraph 113 above), and the matter which I have found to be exempt under s.44(1) of the FOI Act, I am not satisfied that any of the other matter claimed by the QCSC to be exempt matter under s.44(1) qualifies for exemption under that provision.Conclusion117. For the foregoing reasons, I set aside the decision under review. In substitution for it,I decide that, after taking into account the matter in the Eames Report which is no longer in issue following concessions made by the applicant (see paragraphs 8 and 113 above) -(a) the matter in issue which is identified in the findings stated at the ends of paragraphs 21, 49, 96, 110 and 115 above is exempt matter under the FOI Act; and(b) the balance of the matter in issue is not exempt matter under the FOI Act, and the applicant therefore has a right to be given access to it under the FOI Act.............................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Aries Tours Pty Ltd and Environmental Protection Agency [2002] QICmr 9 (28 March 2002)

Aries Tours Pty Ltd and Environmental Protection Agency [2002] QICmr 9 (28 March 2002) Aries Tours Pty Ltd and Environmental Protection Agency (S 27/01, 28 March 2002, Deputy Information Commissioner) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.-2. These paragraphs deleted. REASONS FOR DECISION Background This is a "reverse FOI" application by Aries Tours Pty Ltd ("Aries Tours") challenging a decision by the Environmental Protection Agency ("EPA") to give the FOI access applicant, Koala Blue Tours ("Koala Blue"), access under the FOI Act to parts of two Deeds of Agreement dated 23 December 1999 between the EPA and Aries Tours. Aries Tours claims that the matter in issue is exempt from disclosure under s.45(1)(b), s.45(1)(c) and/or s.46(1) of the FOI Act. The Deeds of Agreement contain the various terms and conditions upon which Aries Tours is permitted to take tour groups to the Natural Bridge in Springbrook National Park. In June 1999, the EPA invited tourism operators to lodge expressions of interest to conduct commercial activities at the Natural Bridge. Advertisements were placed by the EPA in the Courier Mail and Gold Coast Bulletin newspapers. Aries Tours lodged a tourism proposal in response to the EPA's invitation. The proposal was accepted by the EPA, and Aries Tours and the EPA then negotiated the terms of the two Deeds of Agreement under s.63 of the Nature Conservation Regulation 1994 Qld. By letter dated 21 September 2000, Koala Blue (which is a competitor of Aries Tours) applied to the EPA for access to various documents concerning the Natural Bridge. The EPA identified the two Deeds of Agreement between Aries Tours and the EPA as falling within the terms of Koala Blue's FOI access application. Under s.51 of the FOI Act, the EPA consulted Aries Tours regarding disclosure of the Deeds to Koala Blue. Aries Tours advised that, while it did not object to disclosure of some parts of the Deeds (it identified the particular sections), it claimed that other parts (including all Schedules to the Deeds) were exempt from disclosure under s.45(1)(b) or s.45(1)(c) of the FOI Act. Aries Tours claimed that the relevant matter was "commercial-in confidence" information. By letter dated 30 November 2000, Ms Judy Lloyd of the EPA advised Aries Tours of her decision that, with the exception of a small number of references to financial information contained in the Schedules to the Deeds (which information Ms Lloyd decided was exempt from disclosure to Koala Blue under s.45(1)(c) of the FOI Act), the bulk of the Deeds did not qualify for exemption under the FOI Act, and Koala Blue was therefore entitled to obtain access to that material. Ms Lloyd advised Aries Tours that, as her decision was contrary to Aries Tours' objection to disclosure in respect of some segments of the Deeds, the EPA would defer giving Koala Blue access to that matter, until expiry of the time limit for Aries Tours to seek internal review of her decision. (By another letter dated 30 November 2000, Ms Lloyd informed Koala Blue of her decision that some financial information contained in the Schedules to the Deeds was exempt from disclosure under s.45(1)(c) of the FOI Act. Ms Lloyd also decided that various other documents falling within the terms of Koala Blue's FOI access application (but which did not concern Aries Tours) were exempt from disclosure under the FOI Act. Koala Blue sought internal review of Ms Lloyd's decision refusing access to some documents and parts of documents, and subsequently applied to the Information Commissioner for external review under Part 5 of the FOI Act. Accordingly, the financial information contained in the Schedules to the Deeds which the EPA decided was exempt from disclosure to Koala Blue (along with various other documents and parts of documents) is in issue in application for review no. S 47/01, lodged with the Information Commissioner by Koala Blue.) By letter dated 22 December 2000, Aries Tours sought internal review of Ms Lloyd's decision. The internal review was conducted by Mr John Gilmour of the EPA. By letter dated 5 January 2001, Mr Gilmour advised Aries Tours that he had decided to affirm Ms Lloyd's decision. By letter dated 1 February 2001, Aries Tours applied to the Information Commissioner for review, under Part 5 of the FOI Act, of Mr Gilmour's decision. External review process Copies of the two Deeds of Agreement were obtained and examined. During the course of the review, Aries Tours withdrew its objection to disclosure of the information contained in the body of the Deeds, with the exception of clause 3 in each of the Deeds, which specifies the term (i.e., the commencement and expiry dates) of each Agreement. (With the exception of clause 3, Koala Blue has been given access to the body of both Deeds and that information is no longer in issue in this review.) However, Aries Tours maintained its claim for exemption in respect of that information contained in the various Schedules to both Deeds which the EPA had decided was not exempt from disclosure under the FOI Act. By letter dated 21 August 2001, Assistant Information Commissioner Shoyer advised Aries Tours that he had formed the preliminary view that the matter remaining in issue did not qualify for exemption under s.45(1)(b), s.45(1)(c) or s.46(1) of the FOI Act. Aries Tours responded by letter dated 30 November 2001. It advised that it did not accept the Assistant Information Commissioner's preliminary view. It provided documents in support of its contention that its negotiations with the EPA, which had resulted in the signing of the Deeds, were conducted on a commercial-in-confidence basis. It stated that it required my office to contact the two EPA officers who were involved in the negotiation process, as they would confirm that the Deeds were confidential. The issue of the confidentiality of the Deeds was referred to the EPA for response. Mr Henderson (of the Queensland Parks and Wildlife Service division of the EPA) responded by undated facsimile, received at my office on 6 December 2001. Mr Henderson advised that "confidentiality was always an important part of negotiating the agreement with Aries Tours". He provided certain documents relating to the negotiation process. I will discuss the issue of confidentiality and the submissions of Aries Tours and the EPA in that regard in further detail below, in the context of the application of s.46(1) of the FOI Act to the matter in issue. In making my decision in this matter, I have taken into account: the contents of the matter in issue; Koala Blue's FOI access application dated 21 September 2000; Aries Tours' letter of objection to the EPA dated 23 November 2000; its applications for internal and external review dated 22 December 2000 and 1 February 2001, respectively; and its letters to my office dated 11 May 2001 and 30 November 2001; and the EPA's initial and internal review decisions dated 30 November 2000 and 5 January 2001, respectively; its letter to my office 7 February 2001, and its undated facsimile received at my office on 6 December 2001. Matter in issue The matter in issue in this review consists of: clause 3 contained in a Deed of Agreement dated 23 December 1999 between the EPA and Aries Tours relating to tours of the Natural Bridge between 4.30am and 6.30am (hereinafter referred to as "Deed 1"); the whole of Schedules A, D and E to Deed 1, and parts of Schedules B and C to Deed 1; clause 3 contained in a Deed of Agreement dated 23 December 1999 between the EPA and Aries Tours relating to tours of the Natural Bridge between 10pm and 11pm (hereinafter referred to as "Deed 2"); and the whole of Schedules A, C, D and E to Deed 2, and parts of Schedule B to Deed 2. (As I noted at paragraph 7 above, the financial information which is contained in the Schedules to both Deeds 1 and 2, and which the Department decided was exempt from disclosure to Koala Blue under s.45(1)(c) of the FOI Act, is in issue in external review no. S 47/01, and will not be dealt with in these reasons for decision.) Application of s.45(1)(b) and s.45(1)(c) of the FOI Act to the matter in issue Section 45(1)(b) and s.45(1)(c) of the FOI Act provide: 45.(1) Matter is exempt matter if— ... (b) its disclosure— (i) would disclose information (other than trade secrets) that has a commercial value to an agency or another person; and (ii) could reasonably be expected to destroy or diminish the commercial value of the information; or (c) its disclosure— (i) would disclose information (other than trade secrets or information mentioned in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or another person; and (ii) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to government; unless its disclosure would, on balance, be in the public interest. The Information Commissioner explained the correct approach to the interpretation and application of s.45(1) of the FOI Act in Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491. He observed that s.45(1) is the primary vehicle for reconciling the main objects of the FOI Act (i.e., promoting open and accountable government administration, and fostering informed public participation in the processes of government) with legitimate concerns for the protection from disclosure of commercially sensitive information. Its basic object is to provide a means whereby the general right of access to documents in the possession or control of government agencies can be prevented from causing unwarranted commercial disadvantage to: (i) persons carrying on commercial activity who supply information to government, or about whom government collects information; or (ii) agencies which carry on commercial activities. In Re Cannon (at p.516, paragraph 66), the Information Commissioner discussed the relationship between s.45(1)(a), s.45(1)(b) and s.45(1)(c): Just as the words of s.45(1)(b) exclude trade secrets from its sphere of operation, the s.45(1)(c) exemption is so worded (see paragraph 25 above) that it applies only to information other than trade secrets or information mentioned in s.45(1)(b). This means that particular information cannot ordinarily be exempt under more than one of the s.45(1)(a), s.45(1)(b) or s.45(1)(c) exemptions. (However, an agency or other participant may wish to argue on a review under Part 5 of the FOI Act that information is exempt under one of those provisions, and put arguments in the alternative as to which is applicable). Whereas both s.45(1)(a) and (b) require that the information in issue must have an intrinsic commercial value to be eligible for exemption, information need not be valuable in itself to qualify for exemption under s.45(1)(c). Thus, where information about a business has no commercial value in itself, but would, if disclosed, damage that business, s.45(1)(c) is the only one of the exemptions in s.45(1) that might be applicable. For information to be exempt under s.45(1)(c) it must satisfy the cumulative requirements of s.45(1)(c)(i) and s.45(1)(c)(ii), and it must then survive the application of the public interest balancing test incorporated within s.45(1)(c). The requirements for exemption under both s.45(1)(b) and s.45(1)(c) turn in large measure on the test imported by the phrase "could reasonably be expected to". In his 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), the Information Commissioner analysed the meaning of that phrase by reference to relevant Federal Court decisions interpreting the identical phrase as used in exemption provisions of the Freedom of Information Act 1982 Cth. Those observations are also relevant here. In particular, 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 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). Requirements for exemption under s.45(1)(b) of the FOI Act 21. The Information Commissioner explained the correct approach to the interpretation and application of s.45(1)(b) of the FOI Act at pp.511-516 (paragraphs 50-65) of Re Cannon. At paragraphs 51-60 of Re Cannon, the Information Commissioner explained the meaning of "commercial value" in s.45(1)(b). He said that there are two possible interpretations of the phrase "commercial value" which are not only supportable on the plain meaning of those words, but also apposite in the context of s.45(1)(b) of the FOI Act. The first and primary meaning is that information has a commercial value to an agency or person if it is valuable for the purposes of carrying on the commercial activity in which that agency or other person is engaged. The information may be valuable because it is important or essential to the profitability or viability of a continuing business operation, or a pending 'one off' commercial transaction. The second meaning is that information has a commercial value to an agency or person if a genuine arms-length buyer is prepared to pay to obtain that information from that agency or person, such that the market value of the information would be destroyed or diminished if it could be obtained under the FOI Act from a government agency which has possession of it. The Information Commissioner noted in that regard in Re Cannon that he was not referring to transactions in the nature of industrial espionage or the like, but rather to the existence of a legitimate market in which an agency or person could sell particular information to a genuine arms-length buyer at a market value which would be destroyed or diminished if the information could be obtained under the FOI Act. The information in question must have a commercial value to an agency or another person at the time that an authorised decision-maker under the FOI Act comes to apply s.45(1)(b), i.e., information which was once valuable may become aged or out-of-date such that it has no remaining commercial value (see Re Brown and Minister for Administrative Services (1990) 21 ALD 526, at p.533, paragraph 22). Analysis Dealing firstly with the secondary meaning of "commercial value", I am not satisfied that there is a market for the purchase of the particular matter in issue in this review. I note that the terms of both Deeds of Agreement have now expired. The matter in issue comprises general information about the conditions upon which Aries Tours is permitted to take tour groups to the Natural Bridge, including the obligation of Aries Tours to perform certain services in connection with its tourism operations. I note that at least some of that information has been disclosed, in general terms, in a newspaper article dated 27 April 2000, concerning tourism activities in Springbrook National Park. There is no evidence before me of the existence of genuine, arms-length buyers prepared to pay Aries Tours to obtain a copy of the matter in issue in this review. As to the primary meaning of "commercial value", Aries Tours submitted as follows in its letter dated 11 May 2001: The reason for my concern over the Schedules in the Deed is that the approach Aries Tours took in responding to the expression of interest was innovative, novel and very comprehensive. ... ... Traditionally, commercial operators would respond to an expression of interest with a price-only based offer. Aries Tours made an offer based on a strong interaction with the QPWS [Queensland Parks and Wildlife Service] and other operators through ... [details of the offer are then given]. This approach remains the intellectual property of Aries Tours. The value of such an approach is considerable and should not be made freely available to the public or our competitors. ... The contents of the Schedules outlines the innovative approach Aries Tours adopted and if released publicly provides our competitors with significant insight into: the scope of initiatives ... ; the dollar value of initiatives; the linking of the initiatives with the draft management plan for Springbrook National Park; and the timing, frequency and terms of initiatives. Aries Tours has argued that its overall approach to the conduct of tours in Springbrook National Park (as disclosed in the Schedules to the Deeds) is innovative, and therefore of commercial value to Aries Tours. Even accepting that such information could be said to have had a commercial value at the time it was first proposed by Aries Tours, the fact of this different approach is discussed in the newspaper article which I have referred to above. While I accept that the article only discusses such matters in general terms, I am satisfied that disclosure of the particular matter in issue could not reasonably be expected to diminish any commercial value to Aries Tours in adopting that particular approach. Aries Tours can continue to adopt such an approach, but any competitor (including Koala Blue) which has had access to the newspaper article would already be aware of the general nature of the approach, and would be in a position to adopt a similar approach in the future. It must also be remembered that the Deeds were entered into over two years ago and have now expired. I think it is reasonable to expect that, quite apart from the discussions contained in the newspaper article, aspects of Aries Tours' operations in Springbrook National Park would be apparent, simply on the basis of participation in, and/or observation of, those operations by the general public and other tour operators. Accordingly, I am not satisfied that any of the matter in issue has a commercial value to Aries Tours that could reasonably be expected to be diminished by disclosure of the matter in issue. I find that none of the matter in issue qualifies for exemption under s.45(1)(b) of the FOI Act. Requirements for exemption under s.45(1)(c) of the FOI Act The correct approach to the interpretation and application of s.45(1)(c) is explained in Re Cannon at pp.516-523 (paragraphs 66-88). In summary, matter will be exempt under s.45(1)(c) of the FOI Act if: (a) the matter in issue is properly to be characterised as information concerning the business, professional, commercial or financial affairs of an agency or another person (s.45(1)(c)(i)); and (b) disclosure of the matter in issue could reasonably be expected to have either of the prejudicial effects contemplated by s.45(1)(c)(ii), namely: (i) an adverse effect on the business, professional, commercial or financial affairs of the agency or other person, which the information in issue concerns; or (ii) prejudice to the future supply of such information to government; unless disclosure of the matter in issue would, on balance, be in the public interest. Section 45(1)(c)(i) - Information concerning business, professional, commercial or financial affairs The correct approach to the characterisation test required by s.45(1)(c)(i) of the FOI Act is explained in Re Cannon at pp.516-520 (paragraphs 67-76). I am satisfied that the matter in issue concerns the business, commercial or financial affairs of Aries Tours. First limb of s.45(1)(c)(ii) - Adverse effect The common link between the words "business, professional, commercial or financial" in s.45(1)(c) is to activities carried on for the purpose of generating income or profits. Thus, an adverse effect under s.45(1)(c) will almost invariably be pecuniary in nature, whether directly or indirectly (see p.520, paragraphs 81-82, of Re Cannon). At p.521, paragraph 84, of Re Cannon, the Information Commissioner said: In most instances, the question of whether disclosure of information could reasonably be expected to have an adverse effect will turn on whether the information is capable of causing competitive harm to the relevant agency, corporation or person. Since the effects of disclosure of information under the FOI Act are, with few exceptions, to be evaluated as if disclosure were being made to any person, it is convenient to adopt the yardstick of evaluating the effects of disclosure to a competitor of the agency which, or person whom, the information in issue concerns. (This yardstick is also appropriate when considering the application of s.45(1)(b).) A relevant factor in this regard would be whether the agency or other person enjoys a monopoly position for the supply of particular goods or services in the relevant market (in which case it may be difficult to show that an adverse effect on the relevant business, commercial or financial affairs could reasonably be expected), or whether it operates in a commercially competitive environment in the relevant market. It is also appropriate to note the observations by the Information Commissioner at paragraph 83 of Re Cannon: For similar reasons to those noted in respect of s.45(1)(b) (see paragraphs 59, 60 and 64 above), if information is already in the public domain, or is common knowledge in the relevant industry, it will ordinarily be difficult to show that disclosure of that information under the FOI Act could reasonably be expected to have an adverse effect on the business, professional, commercial or financial affairs of the agency which, or person whom, the information concerns. I am unable to identify any specific adverse effect which disclosure of the particular matter in issue in this review could reasonably be expected to have on Aries Tours' business, commercial or financial affairs. I acknowledge that Aries Tours and Koala Blue are competitors. However, for the reason explained below, it is not clear to me how disclosure of the particular matter in issue could assist Koala Blue, or any other competitor, to take steps which could result in competitive harm to Aries Tours. In its letter dated 11 May 2001, Aries Tours submitted: Aries Tours does not have ongoing tenure under the Agreement. Our sensitivity to the release of the information may not be so great if that was so. However, Aries Tours has only two years tenure under the Agreement, and within six months may be faced with responding to a fresh 'expression of interest' for its late evening and morning tours at Springbrook National Park. ... When the Expressions of Interest is next called Aries Tours will be seriously disadvantaged if our competitors are armed with Aries Tours' intellectual property. However, I note that clause 25 of each of the Deeds of Agreement provides Aries Tours with a "right of first refusal", which entitles it to receive the first offer of any new Agreement which the EPA proposes to enter into for the conduct of tours in Springbrook National Park. Recent advice received from the EPA indicates that no fresh 'Expressions of Interest' have been called by the EPA and that negotiations are currently occurring between Aries Tours and the EPA regarding the execution of new Deeds of Agreement. Accordingly, it appears that Aries Tours has not had to enter into a competitive process regarding the continuation of its tour operations in Springbrook National Park. In those circumstances, it is difficult to see how disclosure of the matter in issue could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of Aries Tours. In any event, as I have already noted at paragraphs 28-29 above, the general nature of Aries Tours' approach to conducting tours in the Springbrook National Park has been in practical operation for over two years. It is effectively information that is in the public domain in the relevant industry, and which could be adopted (or be proposed for adoption) by Aries Tours' competitors, regardless of the disclosure or otherwise of the matter in issue under the FOI Act. The situation is analogous to that which occurs when a new product is released in the market place, and any technically innovative aspects of its design become available to competitors through 'reverse engineering' of the product: cf. Re GSA Industries (Aust) Pty Ltd and Brisbane City Council [1994] QICmr 20; (1994) 2 QAR 49 at pp.61-62, paragraphs 36-38. Any innovative element which the matter in issue may once have possessed has been lost with the passage of time and its practical implementation in the market place (for tour operators servicing tourists in South East Queensland), such that I am not satisfied that its disclosure could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of Aries Tours. Second limb of s.45(1)(c)(ii) - prejudice to future supply of information Matter which answers the description in s.45(1)(c)(i) may also qualify for prima facie exemption under s.45(1)(c) if its disclosure could reasonably be expected to prejudice the future supply of such information to government. At paragraph 161 of Re "B" the Information Commissioner said: Where persons are under an obligation to continue to supply such ... information (e.g. for government employees, as an incident of their employment; or where there is a statutory power to compel the disclosure of the information) or 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. (my underlining) In its letter to the EPA dated 23 November 2000, Aries Tours stated that "the release of commercial-in-confidence information to the public could jeopardise Aries Tours preparedness to participate in future expressions of interest offered by the Queensland Government". As noted above, whether or not Aries Tours would refrain from participating in future expressions of interest is not the relevant test. The issue is whether it is reasonable to expect that a substantial number of organisations would so refrain. I do not consider that it is reasonable to expect that a substantial number of organisations would refrain from responding to expressions of interest for the opportunity to enter into lucrative commercial agreements with the government, simply because some of the information they submit in support of their successful proposals may become subject to disclosure under the FOI Act (and, in this case, after the expiry of the relevant agreements). It is possible that some sensitive commercial information would not be volunteered if it could not be safeguarded from disclosure to competitors. However, if the information was required for evaluation of the proposal, an offer or would either have to withdraw from the process, or seek agreement on a contractual obligation not to disclose the information that was of particular commercial sensitivity. I have already recorded my finding that none of the matter in issue in this review has sufficient commercial sensitivity to qualify for exemption under s.45(1)(c) of the FOI Act. (Without expressing any view about the commercial sensitivity or otherwise of the financial information contained in the Schedules to the Deeds, I simply note that that information is in issue in external review no. S 47/01 and will be dealt with in that review in due course, with both Koala Blue and Aries Tours being given the opportunity to argue their respective cases for disclosure/non-disclosure of that information). I am not satisfied that disclosure of the matter in issue in this review could reasonably be expected to prejudice the future supply of such information. Public interest balancing test Even if I were to be persuaded that some of the matter in issue meets the requirements of s.45(1)(c)(i) and (ii) of the FOI Act, that would establish a prima facie public interest consideration favouring non-disclosure. It would then be necessary for me to consider whether there are public interest considerations favouring disclosure of the matter in issue which, on balance, outweigh the public interest in protecting the business, commercial or financial affairs of Aries Tours. For the reasons which I have discussed below at paragraphs 62-63, I consider that there is a strong public interest in disclosure of the matter in issue, such that its disclosure would, on balance, be in the public interest. Application of s.46(1) of the FOI Act to the matter in issue 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. The correct approach to the interpretation and application of s.46(1) of the FOI Act was explained by the Information Commissioner in Re "B". Requirements for exemption under s.46(1)(a) of the FOI Act The test for exemption under s.46(1)(a) must be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, with appropriate standing to bring an action to enforce an obligation of confidence claimed to bind the respondent agency not to disclose the information in issue. I am satisfied that Aries Tours would have standing to enforce an obligation of confidence claimed to bind the EPA not to disclose the contents of the Deeds. 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 of confidence. The Deeds of Agreement contain no reference to any obligation of confidentiality. Accordingly, an action for breach of confidence in the circumstances of this case would be reliant on establishing a breach of an equitable obligation of confidence. (It might also be possible to contend that an obligation of confidence is based on an implied contractual term, but it would seem to matter little in practical terms whether an equitable obligation of confidence, or an implied contractual obligation of confidence, is relied upon. As the Information Commissioner noted in Re "B" at pp.298-299, paragraphs 49-52, there are cases in which the courts have indicated that whether implied contract or equity is chosen is irrelevant because they are interchangeable, and the extent of the obligations under each is identical.) As the Information Commissioner explained in Re "B", there are five cumulative requirements for protection in equity of allegedly confidential information: (a) it must be possible to specifically identify the information, 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 have "the necessary quality of confidence"; i.e., the information must not be trivial or useless information, and it must have a degree of secrecy sufficient for it to be the subject of an obligation of conscience (see Re "B" at pp.304-310, paragraphs 64-75); (c) the information must have been communicated in such circumstances as to fix the recipient with an equitable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it (see Re "B" at pp.311-322, paragraphs 76-102); (d) disclosure to the applicant for access would constitute an unauthorised use of the confidential information (see Re "B" at pp.322-324, paragraphs 103-106); and (e) disclosure would be likely to cause detriment to the confider of the confidential information (see Re "B" at pp.325-330, paragraphs 107-118). If I find that any one of the above criteria is not established in respect of the matter in issue, the matter in issue will not qualify for exemption under s.46(1)(a) of the FOI Act. Requirement (a) I am satisfied that the information claimed to be confidential can be specifically identified. Requirement (b) I am not satisfied that all of the matter in issue has a degree of secrecy sufficient for it to be the subject of an obligation of confidence. As I have noted at paragraphs 28 and 38 above, at least some of the matter in issue is in the public domain. Accordingly, while I accept that some of the matter in issue may still be confidential in nature, it is clear that much is not. Given my findings below, however, it is not necessary for me to identify specifically those parts of the matter in issue which I consider do or do not satisfy requirement (b) to found an action in equity for breach of confidence. Requirement (c) Determining whether or not an enforceable obligation of confidence exists (and, if so, construing its scope) requires 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 Re Smith Kline and French Laboratories (Aust) Limited and Ors ats 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). I would firstly note that not all of the information in issue in the Schedules to the Deeds can be said to have been communicated by Aries Tours to the EPA. Some of the details no doubt came about by negotiation between the EPA and Aries Tours. Other details (for example, the address for service of notices and contact persons at the EPA which are contained in Schedule E to both Deeds 1 and 2), were supplied by the EPA. With respect to the issue of whether any assurances were given by the EPA regarding the confidentiality of the information contained in the Deeds that was supplied by Aries Tours, Ms Lloyd of the EPA said as follows in her decision dated 30 November 2000: ...In relation to your claim that the documents are commercial in confidence, I have not been able to find any documentation confirming this. I have consulted with Departmental officers who have advised that assurances were given to treat the expressions of interest in confidence but not the Deeds of Agreement, although I agree it may have been reasonable that you would have had an expectation that the financial amounts were peculiar to your company and should therefore have been kept confidential. ... In its letter to this office dated 30 November 2001, Aries Tours submitted: I also include [a] letter from Minister Welford's office (July 1999) noting the commercial in confidence of the process. I also include a letter received 23 June 1999 from Mr Bob Spiers, which was forwarded to all operators at Natural Bridge, that negotiations would be on a commercial-in-confidence basis. I require your office contact EPA and interview the two officers present, Ralph Henderson and Bob Spiers, whom both believe our agreement is confidential. I have examined the letters from Mr Welford and from Mr Spiers, copies of which were provided by Aries Tours. Both contain assurances to the effect that information contained in an expression of interest submitted in response to the EPA's invitation, would be treated in confidence by the EPA, as do the advertisements which were published in the Courier Mail and Gold Coast Bulletin newspapers. I also note that the Expressions of Interest guidelines issued by the EPA contain the following statement: Information contained in the proposals will be kept confidential and not publicly disclosed, except as required under the provisions of the Freedom of Information Act 1992. A process by which expressions of interest are called for is similar to a tender process. Like tenders, while it may be reasonable to expect that information contained in preliminary proposals (which are yet to be assessed/evaluated, and in respect of which a decision as to their acceptance or otherwise is yet to be made) will be kept confidential during the assessment/evaluation stage, I consider that the situation is materially different once a decision is made to accept a proposal. The matter in issue in this review is contained in Deeds of Agreement, negotiated and executed following the acceptance by the EPA of Aries Tours' proposal. There is nothing in the material I have reviewed which expressly refers to the confidentiality or otherwise of information contained in the Deeds, as opposed to information provided in a preliminary proposal. As requested by Aries Tours, contact was made with Mr Bob Spiers and Mr Ralph Henderson of the EPA regarding their understanding of the confidentiality or otherwise of the contents of the Deeds. In his undated facsimile received at this office on 6 December 2001, Mr Henderson advised that confidentiality was an important part of negotiating the agreements with Aries Tours. He stated that Aries Tours had prepared a confidentiality agreement which the EPA had declined to sign, "but we agreed to keep the information confidential". He also stated that "Confidentiality of the agreement was not highlighted specifically as confidentiality of the whole process was assumed by all" and "The schedules to the final agreements contain the information that was in the proposals, so to release the schedules would be to release the proposals". The position taken by Mr Henderson appears to be contrary to that taken by Ms Lloyd and Mr Gilmour in their decisions on behalf of the EPA. Mr Henderson appears to be of the view that it was understood by the EPA that any information contained in Aries Tours' proposal, which was then incorporated into the executed Deeds of Agreement, would be kept confidential by the EPA. I do not consider that it was reasonable in all the circumstances for either the EPA or Aries Tours to have formed an expectation that the matter in issue would be kept confidential. Aries Tours entered into commercial agreements with a government agency. Those agreements entitled Aries Tours to access, for purely commercial purposes, a valuable natural resource, the responsibility for the management of which vests in the EPA on behalf of the public of Queensland. Given the significance of the Natural Bridge as an area of environmental value and sensitivity, I consider that Aries Tours and the EPA should always have anticipated a legitimate public interest in the EPA being accountable to the Queensland public for its management of that area, including giving the public the opportunity to scrutinise the terms of any agreements entered into by the EPA (on the public's behalf) with commercial tour operators, so as to ensure that the area is being properly managed and not suffering environmental damage. Such public accountability is fundamental to all government agencies which perform functions on behalf of the public. At paragraph 93 (page 319) of Re "B", the Information Commissioner 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. I do not consider that equity would hold the EPA conscience-bound not to disclose the matter in issue, because that information should be available to any interested member of the public who wishes to scrutinise how well the EPA is discharging its function of licensing, and supervising the performance of, commercial tour operators in national parks, having regard to the legitimate public interest in the proper management and protection of a valuable, publicly-owned, natural resource. In my view, this case falls squarely within the principle explained by the Information Commissioner in some detail in Re Cardwell Properties Pty Ltd & Williams and Department of the Premier, Economic and Trade Development [1995] QICmr 19; (1995) 2 QAR 671 at pp.693-698, paragraphs 51-60, but more succinctly in Re Swickers Kingaroy Bacon Factory Pty Ltd and Department of Primary Industries [1998] QICmr 11; (1998) 4 QAR 498, where he said (at p.507, paragraph 29): I note that, in an action for breach of confidence concerning information supplied to government, it has been established that Australian law will recognise a public interest exception (the precise scope of which is not yet clear), on the basis that an obligation of confidence claimed to apply in respect of information supplied to government will necessarily be subject to the public's legitimate interest in obtaining information about the affairs of government: see Esso Australia Resources Ltd & Ors v Plowman & Ors (1995) 183 CLR 10, Commonwealth of Australia v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662, and my comments on this development in Re Cardwell Properties Pty Ltd & Williams and Department of the Premier, Economic and Trade Development [1995] QICmr 19; (1995) 2 QAR 671, at pp.693-698, paragraphs 51-60. Even if there were an implicit mutual understanding, or an implied contractual term, about confidential treatment of the matter in issue in this case, I consider that its disclosure would be required in any event pursuant to this public interest exception, having regard to the public's legitimate interest in obtaining information of the kind in issue for the reasons indicated above. In this regard, I note and endorse the following view expressed in a report by the Industry Commission on Competitive Tendering and Contracting by Public Sector Agencies (Report No.48, 24 January 1996, AGPS, Melbourne) at p.95: For individuals to be able to hold elected representatives and their agents (the contracting agencies) accountable, information is required on how well they have performed in relation to their delegated responsibilities. For a contracting agency to be held accountable therefore, information is required on the type of service it has decided should be delivered, the choice of the service provider and how well the chosen service provider has performed. I find that the matter in issue does not satisfy requirement (c) to found an action in equity for breach of confidence, and that it therefore does not qualify for exemption under s.46(1)(a) of the FOI Act. It is unnecessary to consider requirements (d) and (e) set out in paragraph 49 above. Requirements for exemption under s.46(1)(b) of the FOI Act Matter will be exempt under s.46(1)(b) of the FOI Act if: (a) it consists of information of a confidential nature; (b) it was communicated in confidence; (c) its disclosure could reasonably be expected to prejudice the future supply of such information; and (d) the weight of the public interest considerations favouring non-disclosure equals or outweighs that of the public interest consideration favouring disclosure. (See Re "B" at pp.337-341; paragraphs 144-161). The first two requirements for exemption under s.46(1)(b) are similar in nature to requirements (b) and (c) to found an action in equity for breach of confidence. I note that some of the matter in issue is not information of a confidential nature, for the reasons explained at paragraphs 28 and 38. As to the second requirement for exemption under s.46(1)(b), the Information Commissioner explained the meaning of the phrase "communicated in confidence", at paragraph 152 of Re "B", as follows: I consider that the phrase "communicated in confidence" is used in this context to convey a requirement that there be mutual expectations that the information is to be treated in confidence. One is looking then for evidence of any express consensus between the confider and confidant as to preserving the confidentiality of the information imparted; or alternatively for evidence to be found in an analysis of all the relevant circumstances that would justify a finding that there was a common implicit understanding as to preserving the confidentiality of the information imparted. 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). Unlike the position under s.46(1)(a) where equity might, in the circumstances of a particular case, impose an obligation of confidence even where the recipient of information honestly believed that no confidence was intended, s.46(1)(b) operates by reference to mutual understandings. In the present case, as I have noted above, there appears to be some conflict within the EPA regarding whether or not the EPA understood that the information in issue would be treated in confidence. In any event, however, for the reasons explained at paragraphs 39-43 and 62-63 respectively above, I am satisfied that requirements (c) and (d) for exemption under s.46(1)(b) are not satisfied by the matter in issue. I am not satisfied that disclosure of the matter in issue could reasonably be expected to prejudice the future supply of such information. Moreover, consistently with my finding at paragraphs 44 and 62-64 above, I am satisfied that disclosure of the matter in issue would, on balance, be in the public interest. Accordingly, I find that the matter in issue does not qualify for exemption under s.46(1)(b) of the FOI Act. DECISION I affirm the decision under review (being the decision of Mr John Gilmour on behalf of the EPA dated 5 January 2001) that the matter in issue in this review (identified at paragraph 15 above) is not exempt from disclosure under the FOI Act, and that Koala Blue is therefore entitled to be given access to it under the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Flori and Queensland Police Service [2017] QICmr 5 (16 February 2017)

Flori and Queensland Police Service [2017] QICmr 5 (16 February 2017) Last Updated: 1 December 2017 Decision and Reasons for Decision Citation: Flori and Queensland Police Service [2017] QICmr 5 (16 February 2017) Application Number: 312935 Applicant: Flori Respondent: Queensland Police Service Decision Date: 16 February 2017 Catchwords: ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT - REFUSAL TO DEAL - applicant seeking access to information about searches for his personal information appearing in police database - whether application is expressed to relate to all documents containing information of a stated kind - 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 ADMINISTRATIVE LAW - RIGHT TO INFORMATION ACT - EXEMPT INFORMATION - LAW ENFORCEMENT AND PUBLIC SAFETY INFORMATION - whether disclosure of information about searches for an 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 - whether information is exempt under schedule 3, section 10(1)(f) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION ACT - EXEMPT INFORMATION - LAW ENFORCEMENT AND PUBLIC SAFETY INFORMATION - applicant alleges culture of unlawful access to citizens’ personal information within police service - whether information in police database consists of matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law - whether the exception in schedule 3, section 10(2)(a) of the Right to Information Act 2009 (Qld) applies REASONS FOR DECISION Summary The applicant, a police officer, applied to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act), for access to all records of QPRIME[1] searches conducted on him, in a specified date range.[2] QPS decided to neither confirm nor deny the existence of the requested information under section 69 of the IP Act.[3] The applicant applied to OIC for external review of the QPS decision. In support of his right to access his personal information in the QPRIME database, the applicant submitted that he was ‘highly concerned and very suspicious that his profile on the QPRIME database has been accessed unlawfully by QPS officers’.[4] On external review, I have decided to vary the QPS decision, for the reasons set out below. In summary, I have found that all of the documents to which the application relates comprise exempt information under schedule 3, section 10(1)(f) of the Right to Information Act 2009 (Qld) (RTI Act), as their disclosure could reasonably be expected to prejudice QPS’ lawful methods and procedures, and that therefore, section 59 of the IP Act applies 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. On external review, QPS confirmed to OIC[5] that the information requested by the applicant would be contained in a document known as a QPRIME Activity Report. The applicant is a QPS officer. He is therefore, familiar with the purpose served by, and way in which, the QPRIME system operates. The applicant has made previous IP Act applications to QPS requesting access to his personal information appearing in the QPRIME system and QPS has, in the past, released QPRIME Activity Reports to the applicant.[6] In response to the current application, QPS decided to neither confirm nor deny the existence of documents.[7] Generally, that provision will only apply where confirming the very existence of documents is likely to cause the harm that an agency would otherwise seek to avoid by refusing access to the relevant information.[8] As set out above, the applicant has previously obtained access to a QPRIME Activity Report under the IP Act, albeit for a different date range. In the circumstances of this case, I formed, and conveyed to QPS, a view that the earlier disclosure of QPRIME Activity Reports to the applicant rendered the neither confirm nor deny provision inapplicable.[9] QPS accepted this view and made alternative submissions, as set out below.[10] Reviewable decisions The reviewable decision is the QPS decision dated 15 August 2016 to neither confirm nor deny the existence of the documents requested by the applicant in the access application dated 30 June 2016. 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). Issue to be determined External review by the Information Commissioner[11] is merits review, i.e., an administrative reconsideration of a case which can be described as ‘stepping into the shoes’ of the primary decision-maker to reach the correct and preferable decision. As such, the Information Commissioner has the power to decide any matter in relation to an application that could have been decided by the agency, under the IP Act.[12] 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.[13] As set out in paragraph 7 above, QPS is no longer advancing the argument that section 69 of the IP Act applies to neither confirm nor deny the existence of documents requested in the access application. Therefore, that provision is not examined in these reasons for decision. Instead, I consider the issue for determination is whether the application may be the subject of a refusal to deal decision under section 59 of t[14] IP Act.14 To enliven that provision, the following issues must be considered: whether the application is expressed to relate to all documents of a stated kind or relate to a stated subject matter; and whether all of the documents to which the application relates comprise exempt information. The applicant has made extensive submissions to OIC in support of his right to access his personal information in the QPRIME database. I have carefully considered all of those submissions. However, some of the submissions concern issues that are beyond OIC’s jurisdiction, or outside the scope of this review. Accordingly, the applicant’s submissions are only addressed below to the extent they are relevant to the issues for determination. 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] Section 59 of the IP Act states that one of the only circumstances in which it would not be in the public interest to deal with an access application, is 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] The RTI Act provides that certain law enforcement information is exempt, as follows: 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; ...... (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...[17] Findings Recently, in Isles, I considered the application of section 59 of the IP Act to an access application which was framed in very similar terms to, and sought access to the same type of information as, the application which is the subject of this review. As set out in Isles,[18] for section 59 of the IP Act to apply, a decision maker 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. To determine this issue, the terms of the access application must be considered. In his access application, the applicant requested access to: QPRIME searches on – [applicant’s name and QPS badge number] after 19.8.2014 till even date.[19] I am satisfied that the application is framed as a request for access to all records, or all data that demonstrates instances of the applicant’s name being searched in the QPRIME database, including which officers accessed the information.[20] I am also satisfied that the application is expressed to relate to all documents that contain information of a stated kind, i.e., search history relating to the applicant’s personal information in the QPRIME database, within the specified timeframe. Accordingly, I find that the first limb of section 59 of the IP Act is satisfied. Secondly, I must be satisfied that all of the documents to which the application relates are comprised of exempt information. The relevant exemption relied on by QPS is set out in schedule 3, section 10(1)(f) of the RTI Act, and it applies 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. QPS has submitted that disclosure of QPRIME Activity Reports would generally reveal the number of occasions on which QPS officers have accessed QPRIME in relation to a particular individual, and would disclose the badge number of the inquiring officer and the reasons for access. QPS has serious concerns that the disclosure of such information would enable an individual to deduce the level of QPS surveillance/investigation they are under, and/or identify any particular QPS units which may/may not be monitoring an individual’s behaviour/involvement in activities.[21] Having considered the evidence provided by QPS on external review,[22] I am satisfied that the process of QPS officers accessing the QPRIME database forms an integral part of QPS’s lawful methods and procedures for preventing, detecting or investigating contraventions, or possible contraventions of the law, specifically in terms of intelligence and surveillance operations. I am also satisfied that revealing the extent of information in QPRIME Activity Reports and the specific circumstances of each instance of access, for any individual, could reasonably be expected to prejudice these lawful methods and procedures. QPRIME Activity Reports show when, how often and, in some cases, why QPS officers have accessed the QPRIME database in relation to an individual and I find that the disclosure of such information could reasonably be expected to prejudice QPS’s ability to gather intelligence. As to whether this expectation of prejudice is reasonable,[23] I am satisfied that QPS has demonstrated to OIC that there are particular circumstances in which disclosing information could reasonably be expected to prejudice QPS’s lawful methods and procedures, even though the information may appear innocuous, on its face, or when read in isolation.[24] On the basis of my findings in paragraphs 20 to 21 above, I am satisfied that the requirements of the exemption in schedule 3, section 10(1)(f) of the RTI Act are made out, on the facts of this case. However, I have considered below the various submissions made by the applicant which seek to set aside the application of this exemption to QPRIME Activity Reports. The applicant accepts that accessing the QPRIME database can form an integral part of QPS’ lawful methods or procedures in the relevant sense and that an individual’s QPRIME data could comprise ‘lawful accesses which may conceivably be covered by’ the exemption.[25] However, the applicant goes on to argue that, it is clear from various media reports[26] and a Crime and Corruption Commission (CCC) publication,[27] that ‘there is a culture within QPS of unlawful access’ of QPRIME data and as such, QPRIME Activity Reports should be subject only to partial redaction of legitimately exempt information, with the remainder disclosed as it would fall within one of the stated exceptions to the exemption, specifically, schedule 3, section 10(2)(a) of the RTI Act.[28] I acknowledge that the relevant CCC publication reports on substantiated findings against QPS officers of unlawfully accessing another individual’s personal information. However, there is no evidence available to OIC to suggest that any of those cases have involved access to the applicant’s personal information. I have also considered the media articles referred to by the applicant and note that they too concern individuals other than the applicant. I also note that most of the media reports refer to cases at investigation stage only, which is of limited evidentiary value. As I identified in Isles, for the exception to apply, a decision-maker would generally need to have available to them some form of objective and authoritative finding that the scope of a law enforcement investigation has exceeded the limits imposed by law and that the information subject to the access application consists of material revealing this.[29] I do not consider the RTI Act intends for a decision-maker to draw a conclusion of this nature by assessing untested evidence or unsubstantiated allegations, or by drawing an inference based on the findings in unrelated investigations. On the basis of the above, I am satisfied that the evidence in this case does not establish that the exception in schedule 3, section 10(2)(a) of the RTI Act applies. I also find that there is no evidence available to OIC to find that any of the other exceptions in schedule 3, section 10(2) of the RTI Act apply in the circumstances of this case. In addition, the applicant submits that applying a ‘blanket exemption’ to information in QPRIME Activity Reports is contrary to the legislative requirement to interpret the grounds for refusal of access narrowly.[30] The applicant also suggests that this approach is inconsistent with other exemptions provided for in schedule 3, section 10 of the RTI Act.[31] Specifically, the applicant argues that the exemption for QPRIME information used by the QPS State Intelligence Group could validly be set aside when that group’s investigation is finalised[32] but that there appears to be no such capacity to set aside the exemption with respect to QPRIME Activity Reports used by ‘ordinary members of the QPS’.[33] The applicant argues that the preferable approach is to thoroughly examine the particular content of QPRIME information in each individual case, and to narrowly apply any relevant exemptions. With respect, this line of argument is somewhat misconceived. Finding that one exemption has not been made out, or a valid exception applies, does not preclude the application of another exemption to the same information. In other words, it is possible for the relevant information to meet the requirements of a different exemption, particularly given the ambit of the exemptions in schedule 3, section 10 of the RTI Act which are all directed at protecting law enforcement and public safety information. In deciding this matter, I am conscious of the requirement to interpret the grounds for refusal of access narrowly. For the reasons set out in paragraphs 21 to 22 above, I have found that the evidence and submissions put forward by QPS in support of the expected prejudice to its lawful methods and procedures is compelling and determinative, in this case. Further, I am satisfied that schedule 3, section 10(1)(f) of the RTI Act applies to wholly exempt QPRIME Activity Reports and enliven section 59 of the IP Act. The applicant also submits that there is a significant public interest in disclosing the type of information he is seeking. Broadly speaking, the applicant considers there is a need for accountability and transparency in the performance of QPS’ functions and that disclosure would serve to promote the administration of justice for individuals whose QPRIME records may have been the subject of unlawful access.[34] 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 they may be in a particular case.[35] As I have found that the requirements of the exemption are established on the facts of this case, I have not considered it is necessary, to examine, in the alternative, whether disclosure would, on balance, be contrary to the public interest.[36] In any event, I note that any concerns about alleged unlawful access to QPRIME records are able to be considered by other bodies that would have access to such records.[37] The applicant also seeks to rely on the prior disclosure of QPRIME Activity Reports by QPS to both him, and other individuals, to support his right of access.[38] As I acknowledged in Isles,[39] QPS has, in the past, decided to disclose this type of information under the IP Act.[40] However, a series of access applications has, in recent months, been made to QPS under the IP Act, by various individuals seeking access to their personal information in QPRIME Activity Reports. In processing these applications, QPS identified a number of issues associated with disclosure of QPRIME Activity Reports, which led it to make submissions to OIC regarding an expectation of prejudice to its methods and procedures, as they relate to the QPRIME database.[41] As a decision-maker conducting merits review, I am 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 response to a previous access application. Similarly, there is nothing in the IP Act which prevents an agency from, over time, reconsidering its position on disclosure of particular information. In any event, an agency retains the discretion to disclose exempt information, whereas the Information Commissioner does not.[42] On the basis of the above, I am satisfied that the position previously taken by QPS in relation to disclosure of QPRIME Activity Reports under the IP Act 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. Conclusion In summary, while I have given careful consideration to the applicant’s submissions in this case, I have not been persuaded by any of the applicant’s arguments which seek to set aside the application of the relevant exemption. Accordingly, I find that the second limb of section 59 of the IP Act is satisfied as all of the information to which the access application relates comprises exempt information under schedule 3, section 10(1)(f) of the RTI Act. DECISION I vary the decision of QPS and find that section 59 of the IP Act applies on the basis that the access 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.K ShepherdAssistant Information Commissioner Date: 16 February 2017 APPENDIX Significant procedural steps Date Event 24 August 2016 OIC received the external review application. 25 August 2016 OIC asked QPS to provide relevant procedural documents. 31 August 2016 QPS provided OIC with relevant procedural documents. 2 September 2016 OIC notified the applicant and QPS that the external review application had been accepted and asked QPS to provide further information. 2 September 2016 OIC received the requested information from QPS. 16 September 2016 OIC received further oral submissions from QPS. 29 September 2016 OIC conveyed a preliminary view to the QPS and invited QPS to provide submissions in response. 7 October 2016 QPS notified OIC that it accepted the preliminary view. 18 October 2016 OIC conveyed a preliminary view to the applicant and invited him to provide submissions in response. 2 November 2016 The applicant provided written submissions to OIC. 30 January 2017 OIC provided the applicant’s lawyer with an update on the status of the external review. [1] 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 30 June 2016.[3] QPS decision dated 15 August 2016.[4] Submission to OIC dated 2 November 2016.[5] Oral submissions made to OIC on 16 September 2016.[6] During external review the applicant provided OIC with a copy of the QPRIME Activity Report that was disclosed to him by QPS under an earlier IP Act application. The access application which is the subject of this review was dated to capture any QPRIME access records that were generated since the date of the previous disclosure. QPS has also previously released this type of information under the IP Act to other individuals, see Wolfe and Queensland Police Service [2016] QICmr 27 (30 June 2016) (Wolfe) at [56] – [58]. However, QPS has since reconsidered its approach to releasing QPRIME Activity Reports under the IP Act, see Isles and Queensland Police Service [2017] QICmr 1 (12 January 2017) (Isles) and paragraph 32 below. [7] Section 69 of the IP Act.[8] EST and Department of Family Services and Aboriginal Affairs [1995] QICmr 20; (1995) 2 QAR 645 at [11] cited with approval in Tolone v Department of Police (Unreported Queensland Information Commissioner, 9 October 2009) at [25].[9] Letter to QPS dated 29 September 2016. [10] Letter to OIC dated 7 October 2016.[11] Or delegate. [12] Section 118(1)(b) of the IP Act. [13] Section 123(1) of the IP Act. [14] QPS does not contest the application of section 59 of the IP Act. [15] Section 58(1) of the IP Act.[16] The Dictionary in schedule 5 of the IP Act provides that ‘exempt information’ means information that is exempt information under the RTI Act. See section 48 and schedule 3 of the RTI Act. [17] The applicant specifically emphasised these subsections in his submissions to OIC dated 2 November 2016, at page 5. [18] At [12].[19] QPS’ decision incorrectly quoted a broader date range. However, the extent of the date range is of no material effect on my finding on the issues for determination in this review. [20] As confirmed in the applicant’s submissions to OIC dated 2 November 2016.[21] Oral submissions made by QPS to OIC in a meeting on 16 September 2016.[22] Particularly the oral submissions made by QPS to OIC on 16 September 2016.[23] 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]. [24] 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. [25] Submission to OIC dated 2 November 2016, pp 12-13.[26] For example, the applicant refers to the following two media articles 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 ; CCC Media Release, “Police officer charged for unauthorised access and disclosure of confidential information” (17 May 2016) http://www.ccc.qld.gov.au/news-and-media/ccc-media-releases/police-officer-charged-for-unauthorised-access-and-disclosure-of-confidential-information-17-may-2016. [27] CCC Confidential Information Paper http://www.ccc.qld.gov.au/research-and-publications/publications/ccc/confidential-information-paper.pdf (accessed on 23 January 2017). This publication sets out the CCC’s findings in relation to the Queensland public sector generally, but also makes specific reference to QPS cases.[28] Page 5 of the applicant’s submissions dated 2 November 2016 appear to indicate that the exception in schedule 3, section 10(2)(d) of the RTI Act may also apply. However, the arguments put forward by the applicant focus primarily on the application of the 10(2)(a) exception and therefore, that is what I have considered in these reasons. [29] See Isles at [21].[30] Section 58 of the IP Act and section 47(2)(a) of the RTI Act.[31] Submissions to OIC dated 2 November 2016, page 14. [32] Schedule 3, section 10(5)-(6) of the RTI Act.[33] Submissions to OIC dated 2 November 2016, page 14.[34] Applicant’s submissions dated 2 November 2016.[35] Also, the Information Commissioner does not have the power to direct that access to an exempt document be granted – see section 118 of the IP Act.[36] Section 47(3)(b) of the RTI Act. This approach was supported in the decision of BL v Office of the Information Commissioner, Department of Communities [2012] QCATA 149 at [15].[37] See for example the CCC’s role as discussed in its publication referred to at footnote 27 above.[38] Applicant’s submissions dated 2 November 2016.[39] At [24].[40] See Wolfe at [56] – [58]. [41] See paragraphs 19 to 21 above.[42] Sections 64(4) and 118(2) of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Fotheringham and Queensland Health [1995] QICmr 24; (1995) 2 QAR 799 (19 October 1995)

Fotheringham and Queensland Health [1995] QICmr 24; (1995) 2 QAR 799 (19 October 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 75 of 1993COMMISSIONER (QLD) ) (Decision No. 95024) Participants: DR RICHARD ALLEN FOTHERINGHAM Applicant - and - QUEENSLAND HEALTH Respondent - and - ANOTHER Third Party DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access - matter in issue comprising medical records relating to the first wife of prominent Queensland author Arthur Hoey Davis ("Steele Rudd") - applicant seeking access to the matter in issue to assist in the preparation of a biography of Arthur Hoey Davis - matter in issue concerns the personal affairs of a deceased person - whether disclosure of the matter in issue would, on balance, be in the public interest within the terms of s.44(1) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.28(1), s.44(1), s.51(3), s.78Libraries and Archives Act 1988 QldLibraries and Archives Regulation 1990 Qld s.23(1), s.23(3)Getman v National Labor Relations Board [1971] USCADC 259; 450 F.2d 670 (D.C. Cir. 1971)Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227Uksi and Redcliffe City Council, Re (Information Commissioner Qld, Decision No. 95018, 16 June 1995, unreported) DECISION1. I affirm the decision under review (being the internal review decision made on behalf of the respondent by Mr David Butt on 5 March 1993).2. I also find that the additional documents falling within the terms of the applicant's FOI access application, that were discovered during the course of my review, comprise exempt matter under s.44(1) of the Freedom of Information Act 1992 Qld.Date of Decision: 19 October 1995...........................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) S 75 of 1993COMMISSIONER (QLD) ) (Decision No. 95024) Participants: DR RICHARD ALLEN FOTHERINGHAM Applicant - and - QUEENSLAND HEALTH Respondent - and - ANOTHER Third Party REASONS FOR DECISIONBackground1. Dr Fotheringham seeks review of the respondent's decision to refuse him access to information concerning Mrs Violet Christina Davis, who for the last 33 years of her life (until her death in July 1952) was resident in institutions controlled by the respondent. The former husband of Violet Christina Davis, Mr Arthur Hoey Davis (who died in 1935), was an author well known in Australia by his pen name, "Steele Rudd". Dr Fotheringham is a senior lecturer in the Department of English at the University of Queensland. At the time he sought access to the matter in issue, Dr Fotheringham was preparing a biography of Arthur Hoey Davis, commissioned by the University of Queensland Press. The matter in issue is claimed by the respondent to be exempt matter under s.44(1) (the "personal affairs" exemption) of the Freedom of Information Act 1992 Qld (the FOI Act).2. By letter dated 27 November 1992, the applicant sought access under the FOI Act to "any and all information" held by the respondent in relation to Violet Christina Davis. The initial decision on behalf of the respondent was made by Ms Susan Harris, and was communicated to the applicant by letter dated 5 February 1993. Ms Harris identified one document as falling within the terms of Dr Fotheringham's FOI access application. Ms Harris decided to refuse access to the document under s.44(1) of the FOI Act on the basis that the document contained matter concerning the personal affairs of Violet Christina Davis and that the balance of public interest favoured protection of the document from disclosure.3. By letter dated 21 February 1993, Dr Fotheringham applied for internal review of Ms Harris' decision, making fairly detailed submissions as to why disclosure to him (for the purposes of his research) of the information concerning Violet Christina Davis would, on balance, be in the public interest. The internal review was undertaken by the respondent's Director, Executive Support Services, Mr David Butt. By letter dated 5 March 1993, Mr Butt informed the applicant that in addition to the "one page file card" previously located, another three folios had been located which fell within the terms of the FOI access application. Mr Butt also advised that he had contacted the "next of kin" of Violet Christina Davis, a granddaughter, who objected to the applicant being given access to the documents on the basis that it would constitute an invasion of her grandmother's privacy. Mr Butt determined to refuse the applicant access to all four documents, under s.44(1) of the FOI Act. The relevant parts of Mr Butt's reasons for decision are as follows: The facts upon which I have based my decision are as follows: (1) The documents contain matter which relate to the personal affairs of Mrs Davis and that of a third party. (2) Persons who have matter relating to their own health record or who are cited in official records of this Department have the right to have information which relates to their own personal affairs kept confidential and would not expect to have this information released publicly. (3) The next of kin has been further consulted regarding release of the documents and has, with your consent, been provided with your arguments for release. (4) The next of kin has argued strongly to have the personal affairs of her grandmother remain confidential and has refused permission for the document to be released. (5) The documents contain information which, if released, could reasonably be expected to be of concern to Mrs Davis, if she were alive. ... I have considered the public interest issues for and against release of the documents. I have taken into consideration your argument that as an important literary figure to both Queensland and Australia there is a public interest in having information pertinent to Arthur Hoey Davis and his immediate family being placed in the public domain. You argue this will assist biographers, readers and students of Australian literature to fully and accurately understand the circumstances in which he wrote. You also argue that for a person of such major public significance the public interest for release 57 years after Mr Davis' death and 40 years after Mrs Davis' death outweighs the rights of increasingly distant descendants to restrict access to material which is personal principally to the original person and his or her immediate family. Given this length of time you argue that sufficient time has elapsed for the document to be released to bona fide researchers. You also argue that to deny access to these documents, being the only unbiased contemporaneous reports of matter of some cultural and historical significance already partly placed in the public domain, would be contrary to the public interest. I have weighed the above public interest considerations against the public interest of Mrs Davis' and other third parties and the expressed desire of her next of kin to exempt these particular documents. An attempt was made to raise the consciousness of the next of kin in regard to your arguments for release particularly about the cultural significance of the documents to Australian literature. However, even after having read your papers the next of kin is adamant that release of the documents would constitute an invasion of her grandmother's privacy ... . I have considered your argument for public interest release against the public interest of individuals who are treated in the Queensland Public Hospital system, albeit some considerable years after an individual's death. Health records usually contain information which is highly sensitive and personal to the individual being treated. I have decided that the next of kin's desire for this information to remain confidential to the family should be respected and is in the public interest ... .4. By letter dated 29 April 1993, Dr Fotheringham applied to me for review, under Part 5 of the FOI Act, of Mr Butt's decision.The external review process5. The granddaughter of Violet Christina Davis, who had been consulted by the respondent pursuant to s.51 of the FOI Act, was informed of Dr Fotheringham's application for review. Pursuant to s.78 of the FOI Act, she applied to participate in the review and her request was granted. She is referred to in these reasons for decision as the third party.6. The respondent provided me with copies of the documents dealt with in Mr Butt's internal review decision. These documents had been obtained by Mr Butt from records held at the Baillie Henderson Hospital, Toowoomba. During the course of the review, Dr Fotheringham wrote to me on 3 May 1994 stating that his own research had indicated that the State Archives held some records relating to Violet Christina Davis for the period 1919-1928, when she was a resident at Goodna mental hospital. Dr Fotheringham asserted that the terms of his FOI access application were wide enough to cover these documents and asked that they be dealt with in this review. The respondent subsequently agreed to my request that it locate and forward to me copies of any documents held by the State Archives concerning the residence of Violet Christina Davis at Goodna mental hospital between 1919 and 1928. The documents in issue (hereinafter referred to as documents 1-4, respectively) therefore comprise the following:1. a file record card concerning Violet Christina Davis (which was included among the records obtained from both the Toowoomba and Goodna hospitals);2. patient admission, and observation, records in respect of Violet Christina Davis during her residence at Goodna mental hospital from August 1919 to May 1928 (2 pages in length);3. patient admission, and observation, records in respect of Violet Christina Davis during her residence at Toowoomba mental hospital from May 1928 to her death in July 1952 (2 pages in length); and4. laboratory report, results of blood test on Violet Christina Davis, July 1951.7. Dr Fotheringham stated in his application for external review that he accepted that the documents, the subject of his application for external review, would disclose information about the personal affairs of a deceased person, but submitted that disclosure would be in the public interest. The issue for determination in this review is, therefore, easy to define, but involves a difficult value judgment, i.e. whether disclosure of information in the medical records of Violet Christina Davis would, on balance, be in the public interest, because of the significance of her life and circumstances to the life and work of Arthur Hoey Davis, a major figure in Queensland's literary/cultural history.8. In his application for external review, Dr Fotheringham summarised his case for disclosure of the documents in issue as follows: In summary the reasons why it is in the public interest to disclose these documents to me are: (i) the significance of the material to the cultural history of Queensland because of the importance of Steele Rudd as a writer in Queensland; (ii) the length of time since these documents came into existence; (iii) Mrs Davis was hospitalised on 8 August 1919 and died on 28 July 1952. The documents have no continuing relevance to any issue currently being decided. None of the children of Mr and Mrs Davis are still alive; (iv) the fact that the information contained in these documents appears to already be substantially in the public domain. I referred earlier to the biography of Steele Rudd by Eric Davis. I enclose marked with the letter "K" pages 143-146 and 151-152 which deal with these matters. I have also obtained oral accounts of these events from members of the Davis family and there was contemporaneous reference to them in the Courier Mail (see Courier Mail 17/10/1933 page 11c which is attached and marked with the letter "L") and Mr Davis divorced his wife in October 1933 on the grounds of incurable insanity. (v) the importance of the issues in writing a scholarly biography of a literary figure. One must look at his life not for scandalous or prurient reasons but because the major and significant events of that person's life affect both their writing and their literary reputation. The incarceration of Mr Davis' wife was obviously a most significant event in his life and without any objective and proper reference to it, his biography would suffer enormously. I dealt with these matters in more detail in my [application for internal review] (Attachment F). (vi) the Act does not provide a blanket exemption for documents of the type I have requested. As there is no more important writer in Queensland's history, it is difficult to see, if I am not allowed access, in what circumstances a biographer would be allowed to inspect such material over the objection of a dead person's next of kin. Such a person has a right to be consulted but the Act does not provide a right of veto. The reasons put forward by Mr Butt would apply equally to any personal health records of this type where a descendant of a dead person did not agree to their release. Such a blanket exemption is not provided by the Act. Although it may be correct to take [the third party's] views into account, it must be remembered that Arthur Hoey Davis was not only a private person he is an important public figure in the history of Queensland. A decision to release the documents in this case would not give carte blanche to the release of the medical records of persons who have been dead for 40 years. It would however recognise that in the particular circumstances of this case where the documents deal with the life of one of Queensland's most important historical figures that their release is justified in the public interest.9. In fairness to the respondent, I do not think it is correct to say that it has approached the question of access to the documents in issue as though the third party had a right to veto access. Since it is obviously not possible to consult with a deceased person over a question of access to information concerning the deceased person's personal affairs, the practical alternative recognised by the legislature (see s.51(3) of the FOI Act) is consultation with the deceased person's closest relative. The views expressed by the closest relative, whether for or against disclosure of information concerning the deceased's personal affairs, will ordinarily be relevant factors for an agency to take into account when deciding, pursuant to the discretion conferred by s.28(1) of the FOI Act, whether or not to claim an exemption which is available. The views expressed by the closest relative may also, according to the circumstances of a particular case, be entitled to some weight in the application of the public interest balancing test incorporated within s.44(1) of the FOI Act. Dr Fotheringham is correct to say that the mechanism for obtaining views from the closest relative was not intended to permit the closest relative a right to veto access; however, I do not think it can fairly be said from the terms of the respondent's initial and internal review decisions that the relevant decision-makers approached their tasks on that basis.10. In support of his case in this review, Dr Fotheringham supplied letters from some eminent academics in the field of Australian literature, attesting to Dr Fotheringham's reputation as a leading scholar and researcher in the field of Australian literature, and to the literary/cultural significance of Dr Fotheringham's research on the life of Arthur Hoey Davis. Dr Fotheringham also provided evidence, from his research to date, of the extent to which information about the medical history and personal affairs of Violet Christina Davis was already in the public domain, and argued that it was important that he be allowed to draw on all relevant records for the purpose of his biography, rather than "conclusions being based on surmise and an incomplete or fragmented record".11. I considered Dr Fotheringham's case to be well-presented and persuasive in raising a public interest consideration favouring disclosure that was worthy of being accorded considerable weight. It was, however, pitted against public interest considerations (favouring non-disclosure of the matter in issue) which are universally recognised in our community as carrying substantial weight, namely, privacy considerations and the preservation of the confidentiality of a person's medical records.12. With Dr Fotheringham's publication deadline looming, an opportunity was arranged for him to confer at my office with the third party and representatives of the respondent, to present his case for disclosure of material (which he anticipated may be contained in the documents in issue) that would be of significance to his biography of Arthur Hoey Davis. The meeting took place on 14 November 1994. Dr Fotheringham prepared a fresh written submission, and other materials, which he distributed to the third party and the respondent's representatives in the course of addressing them on the public interest in disclosure. In Dr Fotheringham's absence, the Deputy Information Commissioner explored with the other participants the possibility of a compromise solution, whereby some parts of the matter in issue, considered to be the only parts which could conceivably be of significance for the purposes of Dr Fotheringham's project (in light of the case presented by Dr Fotheringham) would be disclosed by consent of the participants, in return for Dr Fotheringham agreeing not to pursue access to the balance of the matter in issue. This proposal, however, was not acceptable to the respondent or the third party.13. Directions were then given for the preparatory steps necessary to ready the matter for a formal determination. On 19 December 1994, the respondent lodged with me, and provided to the other participants, a written submission in support of its claims for exemption. Both the applicant and the third party subsequently informed me that they did not wish to make further submissions, but wished to rely on the material (and expressions of view) that they had previously conveyed in the course of the review.The application of s.44(1) to the matter in issue14. 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.This provision clearly extends the scope of its protection to information concerning the personal affairs of deceased persons.15. In my reasons for decision in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, I identified the various provisions of the FOI Act which employ the term "personal affairs", and discussed in detail the meaning of the phrase "personal affairs of a person" (and relevant variations thereof) as it appears in the FOI Act. In particular, I said that information concerns the "personal affairs of a person" if it relates to the private aspects of a person's life and that, while there may be a substantial grey area within the ambit of the phrase "personal affairs", that phrase has a well accepted core meaning which includes: ? family and marital relationships; ? health or ill-health; ? relationships and emotional ties with other people; and ? domestic responsibilities or financial obligations.Whether or not matter contained in a document comprises information concerning an individual's personal affairs, is essentially a question of fact based on a proper characterisation of the matter in question.16. All of the matter in issue (apart from two brief notations in document 3 recording the existence of divorce proceedings and the grant of a decree nisi) concerns the health and medical treatment of Violet Christina Davis. There is no doubt (and I understand Dr Fotheringham concedes) that disclosure of the matter in issue would disclose information concerning the personal affairs of Violet Christina Davis. Accordingly, the matter is prima facie exempt from disclosure to the applicant under s.44(1) of the FOI Act, subject to the application of the public interest balancing test incorporated within s.44(1). The question posed for my determination, therefore, is whether the public interest inherent in satisfaction of the test for prima facie exemption under s.44(1), in combination with any other public interest considerations favouring non-disclosure, is outweighed by public interest considerations which favour disclosure of the matter in issue.17. Dr Fotheringham submits that there is a public interest in making available to members of the public a detailed and accurate biography of Arthur Hoey Davis, a Queenslander whose works have cultural significance Australia-wide. As "Steele Rudd", Mr Davis wrote the "Dad and Dave" series, including "On our Selection", amongst other works. Dr Fotheringham submits that elements of the biography are unsatisfactory in that there is little detail known of the effect upon Arthur Hoey Davis, and upon his writing, of his wife's illness and hospitalisation. The applicant submits that disclosure of the documents would provide an accurate record and put an end to rumours concerning the nature of the illness suffered by Violet Christina Davis, and whether she received support from her family and in particular Arthur Hoey Davis.18. The applicant submitted as evidence his curriculum vitae and references by other academics, namely Professor Elizabeth Webby, Professor of Australian Literature at the University of Sydney, Professor Ken Goodwin, former Professor of Australian Literature at the University of Queensland, Professor Peter Edwards, Darnell Professor of English at the University of Queensland, and Dr Craig Munro, publishing editor at the University of Queensland Press. These establish Dr Fotheringham's skills and experience in the fields of drama and literary studies, and his reputation as a leading Australian literary scholar. I mention this having regard to a decision under U.S. freedom of information legislation by the U.S. Court of Appeals in Getman v National Labor Relations Board [1971] USCADC 259; 450 F.2d 670 (D.C. Cir. 1971). The applicants there were law professors proposing to conduct a study into aspects of labor union election rules. They sought details of union members' names and addresses. The court considered as relevant to its determination the study's public interest purpose, the researchers' skills, and the likelihood of completing the proposed study without the requested information.19. The references provided by Dr Fotheringham are also intended to support his claim that disclosure of the matter in issue would be in the public interest. For example, Dr Craig Munro opined: Richard Fotheringham's biographical research on the life and work of this public literary figure is of considerable national significance. Along with Lawson, Paterson and C.J. Dennis, "Steele Rudd" defined in his books an Australian ethos, and it is now important to establish historically the key facts of his life for this scholarly biography. Richard Fotheringham is a scholar of skill and experience, whose integrity is beyond question. It is of vital public interest that he be given access to all files relating to Steele Rudd to enable the publication of a balanced and accurate study which will benefit the whole community as well as advance Australian literary scholarship.Professor Webby and Professor Edwards made comments to similar effect.20. Professor Goodwin went a little further. He said that Dr Fotheringham's biography "would be seriously incomplete without some accurate mention of the difficult relations between "Rudd" and his wife. That story can be told only through access to Mrs Rudd's [sic] health records. Professor Edwards also opined that "[it] will be a great pity if he [Dr Fotheringham] is denied access to material which is undoubtedly of crucial biographical importance and which relates to events so far in the past." These comments are based on mere surmise as to what information might be contained in the documents in issue. While I have no pretensions to expertise as an historian or literary biographer, I feel quite confident, based on my examination of the matter in issue, in asserting that most of it could have no conceivable benefit or significance for the purposes of Dr Fotheringham's project. Dr Fotheringham had, for instance, indicated during the course of the review that he has no use for document 4 (the results of blood tests on Violet Christina Davis). Most of the matter in issue is similar in character, being of a routine medical nature: its disclosure would be merely invasive of personal privacy with no compensating benefit of the kind asserted by Dr Fotheringham, i.e. shedding light on the nature of the mental illness suffered by Violet Christina Davis and its effect on the life and work of Arthur Hoey Davis. I consider that most of the matter in issue is, therefore, clearly exempt matter under s.44(1) of the FOI Act.21. During the course of the review, Dr Fotheringham identified the kinds of information (which he anticipated might be contained in the documents in issue) which would be of benefit or significance for the purposes of his project. These were:(a) any information which would shed light on the nature of the illness suffered by Violet Christina Davis (including how it was described at the time of diagnosis/admission) particularly whether it had a physical or psychological basis, or whether it was a hereditary mental illness, or one induced by circumstances and incidents in her life, especially in her married life;(b) any information regarding what support or lack of support her family, and in particular Arthur Hoey Davis, gave to her; and(c) any material which might relate to some anecdotal information, obtained by Dr Fotheringham in his research, to the effect that Violet Christina Davis did recover to some extent, and was in the opinion of some members of the family able to be released, but Arthur Hoey Davis refused to approve her release.22. In fact, there is no information in the documents in issue relevant to (b) and (c) above. There is a small amount of information relevant to (a) above in document 2, and on the first page of document 3 (which, in effect, reproduces part of the first page of document 2).23. I accept that there is a public interest in making available to members of the public a detailed and accurate biography of Arthur Hoey Davis. The public interest considerations which may (according to the terms of particular exemption provisions in the FOI Act) impact on whether or not access should be allowed to information in the possession of government agencies are not confined to considerations of the kind recognised in s.5 of the FOI Act. There is no doubt that one of the major reasons why the Queensland government regulates the preservation of, and access to, public records (see the Libraries and Archives Act 1988 Qld and the Minister's second reading speech on its introduction, Hansard, 12 November 1987, pp.4161-4162) is in recognition of the public interest in facilitating historical and cultural research which can contribute to a society's understanding and identification of itself, as well as medical, scientific and many other kinds of research which benefit the community.24. The question is whether disclosure of the small segment of the matter in issue, which might further the public interest considerations relied upon by Dr Fotheringham, is warranted when weighed against the public interest favouring non-disclosure which is inherent in the satisfaction of the test for prima facie exemption under s.44(1), and any other relevant public interest considerations which favour non-disclosure of the matter in issue. In this regard, the respondent submitted that there is a very strong public interest in protecting the privacy of health records of individuals, and preserving the trust and confidence of the public in the confidentiality of health records. The respondent submitted that: ... this argument is of particular significance in relation to the sensitive area of mental health records. Many patients of public mental health services have no choice but to attend such facilities, due to their mental health status or financial situation. Individuals' health records held by these facilities can contain extremely intimate details about their condition, feelings and behaviour (which could, at times, be seen to be maladaptive). As you would appreciate, it is critical that health workers are aware of such details for the ongoing care and treatment of these patients. The failure of individuals who may be suffering a mental illness to provide this information for fear that it may become public (during their life or after their death) could reasonably be expected to have an adverse effect on these persons' health status and treatment. As a consequence, the Department would not be able to successfully fulfil its mandate [to provide optimal quality health services to the public].25. In his application for external review, Dr Fotheringham correctly pointed out that a decision to release the documents in this case, because (through circumstances particular to this case) their release is justified in the public interest, would not give carte blanche to the release of the medical records of other deceased persons. While I am not prepared to discount entirely an inhibiting effect of the kind referred to in the respondent's above-quoted submission (should some of the matter in issue be disclosed), I do not think that factor carries any great weight as an additional public interest consideration favouring non-disclosure. The crucial issue, in my view, is whether the public interest considerations favouring disclosure to which Dr Fotheringham has pointed are sufficiently strong to justify the intrusion into the personal affairs of Violet Christina Davis, which in this case involves intrusion into the confidentiality of her medical records.26. The applicant submitted that the substance of the information which concerns the personal affairs of Violet Christina Davis has become matter in the public domain. In Re Uksi and Redcliffe City Council (Information Commissioner Qld, Decision No. 95018, 16 June 1995, unreported), at paragraph 48, I found that, in the particular circumstances of that case, the public interest favouring non-disclosure which is inherent in satisfaction of the test for prima facie exemption under s.44(1) of the FOI Act, carried less weight than usual because the substance, and much of the detail, of the information concerning the personal affairs of Mr and Mrs Uksi had become a matter of public record.27. The applicant submitted that under s.44(1) there must be a real question as to whether the matter in issue is not otherwise already disclosed, except in particulars relating to the accuracy and detail of information which is public property and public knowledge.28. In the present case, the applicant submitted evidence to support his contention that the following facts are in the public domain:(a) Violet Christina Davis suffered from a mental illness causing her admission to hospital in 1919 (per Eric Davis, Life and Times of Steele Rudd; and the divorce petition filed in the Supreme Court of Queensland by Mr Davis in 1933);(b) Violet Christina Davis remained hospitalised due to her mental illness apart from two brief furloughs in the early 1920s (mentioned in the divorce petition);(c) Arthur Hoey Davis was granted a divorce in 1934 on the grounds of the unsoundness of mind of Violet Christina Davis (Courier Mail, 17 October 1933; and the divorce petition records filed in the Supreme Court);(d) Violet Christina Davis died, aged 83, in the Toowoomba Mental Hospital, on 28 July 1952 (noted in her death certificate).On the evidence, I am satisfied that the information in points (a) to (d) above is in the public domain. 29. While the fact that Violet Christina Davis suffered from a mental illness is a matter of public record, there is no evidence before me to establish that other information contained in the documents in issue, apart from the facts recited in (a) to (d) above, is in the public domain. It would appear that details of the diagnosis, and ongoing health and treatment, of Violet Christina Davis are not in the public domain. In my opinion, that information cannot properly be characterised as mere detail or particulars of information already in the public domain. Therefore, I do not propose to accord less weight than is ordinarily appropriate to the public interest favouring non-disclosure which is inherent in the satisfaction of the test for prima facie exemption under s.44(1).30. In his final written submission, prepared for the purposes of the conference on 14 November 1994, Dr Fotheringham summarised the reasons why disclosure of the matter in issue would be in the public interest, as follows: a. The undoubted importance of 'Steele Rudd' as an author and Arthur Hoey Davis as a figure in Queensland and Australia's cultural and literary past, present and future; b. The desirability of the truth being known rather than conclusions being based on surmise and an incomplete or fragmented record; c. The necessity to examine the effect on many lives of a regime which dealt with psychiatric patients by incarcerating them for very long periods often until their deaths and separating them from their families with the shame rather than compassion with which the community reacted to such a situation; d. The need to do justice to the memory of [Violet Christina] Davis by an account which refers to the facts and separates them out from the conflicting family accounts; e. The widespread acceptance that mental illness is no longer a cause of shame but an important matter whose effect on the lives of those it has touched must be dealt with in order to begin to understand what they went through: viz the play and film Tom and Viv with regard to T.S. Eliot and his wife Vivienne who spent the last eleven years of her life in a mental asylum. f. The fact that the matter sought refers to events which occurred between 42 and 75 years ago, and that mental health records from earlier ages are freely available for research purposes in major archives such as the Archives Office of New South Wales.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, Violet Christina Davis 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.32. I am not sure that Dr Fotheringham is correct in his assertions about the Archives regime which applies in New South Wales, but it is not necessary to pursue the point. It is because of the current legislative and administrative policy under the Archives regime which applies in Queensland that it falls to me to deal with the question of access to the documents in issue which were in the possession of the State Archives. Under the Libraries and Archives Regulation 1990 Qld, public records are ordinarily open to access 30 years from the date of the "last dealing" with that public record, or 65 years in respect of personal or staff files. However, s.23(1) of the Libraries and Archives Regulation vests a general discretion in the chief officer of a public authority to impose prohibitions, conditions or restrictions on access. Without limiting this general power, s.23(3) provides that the chief officer may impose prohibitions, conditions or restrictions on access because records contain information the disclosure of which - (a) is prohibited or restricted by law;(b) may be prejudicial to the public interest; or(c) may adversely affect the privacy of any person.The respondent has apparently adopted a policy which involves exercising its discretion under the Libraries and Archives Regulation to prohibit open access to records of the kind in question, and instead dealing with any request for access to such records under the FOI Act, thereby ensuring that appropriate attention is given to privacy concerns and other public interest considerations: respondent's written submission, p.5. 33. Subject to the reservation I have expressed at paragraph 29 above, I accept the force of Dr Fotheringham's submissions. He has identified public interest considerations which favour disclosure of some of the matter in issue (being that matter identified in the last sentence of paragraph 22 above), and has drawn attention to factors which detract from the weight to be accorded to the public interest considerations which favour non-disclosure of the matter in issue. Undertaking the relevant balancing process involves a difficult value judgment: one on which, I suspect, reasonable minds might well differ. Ultimately, however, I have reached the conclusion that the public interest considerations favouring disclosure, which have been identified by Dr Fotheringham, are not sufficiently strong to justify intrusion into the medical records of Violet Christina Davis, and I am not satisfied that disclosure of any 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.44(1) of the FOI Act.Conclusion34. For the foregoing reasons, I affirm the decision of Mr Butt, on behalf of the respondent, dated 5 March 1993. Mr Butt did not deal with the additional documents discovered during the course of my review (see paragraph 6 above). I find that those additional documents also comprise exempt matter under s.44(1) of the FOI Act...........................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

K95 and Department of Education [2019] QICmr 28 (9 August 2019)

K95 and Department of Education [2019] QICmr 28 (9 August 2019) Last Updated: 17 September 2019 Decision and Reasons for Decision Citation: K95 and Department of Education [2019] QICmr 28 (9 August 2019) Application Number: 314372 Applicant: K95 Respondent: Department of Education Decision Date: 9 August 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - complainant’s information - student witness statements - third party personal information - personal information and privacy - prejudice agency’s ability to obtain confidential information - administration of justice and procedural fairness - 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 Education (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to a range of information relevant to his employment with the Department, including complaints made against him and procedural documents. The Department located 539 pages and decided[2] to refuse access to 90 pages and parts of 76 pages on the basis that disclosure would, on balance, be contrary to the public interest. The applicant sought[3] internal review. The Department varied[4] the decision on some pages and affirmed its decision to refuse access to 84 pages in full and parts of 81 pages. The applicant applied[5] to the Office of the Information Commissioner (OIC) for external review of the internal review decision.[6] For the reasons set out below, I affirm the internal review decision and find that access may be refused to information on the ground that disclosure would, on balance, be contrary to the public interest. Background Appendix A 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 28 November 2018. 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 The information sought by the applicant on external review[7] comprises 84 pages in full and parts of 69 pages (Information in Issue). While the RTI Act limits the extent to which I can describe the content of those pages,[8] it generally comprises the personal information[9] of staff, school students and parents[10] connected to schools where the applicant was employed. Generally, the Information in Issue can be divided into two categories for consideration. The first category relates to allegations against the applicant including statements made by students about incidents involving the applicant (Complaint Information). The second category of information records observations and opinions of student behaviour and correspondence with parents and other staff about students recorded in the students’ OneSchool[11] records and in correspondence between school staff and parents (Student Information). Issue for determination The issue for determination[12] is whether access to the Information in Issue may be refused under section 47(3)(b) of the RTI Act, on the basis that its disclosure would, on balance, be contrary to the public interest. Some of the applicant’s submissions raises concerns that he holds about the Department’s investigation into his conduct.[13] In making this decision under section 110 of the RTI Act, I have considered whether access to the information requested by the applicant may be granted. I have not made findings about the Department’s investigation processes. I have considered the applicant’s submissions in this regard to the extent that it relates to the public interest factors relating to disclosure of the Information in Issue. Relevant law The RTI Act confers on an individual a right to access documents of an agency.[14] This right of access is subject to certain limitations, including grounds for refusal of access.[15] Access to information may be refused where its disclosure would, on balance, be contrary to the public interest.[16] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest and explains that a decision maker must take the following steps in deciding the public interest: identify any irrelevant factors and disregard them identify any 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.[17] Findings No irrelevant factors arise in the circumstances of this case and I have not taken any into account in making my decision.[18] Schedule 4 of the RTI Act contains non-exhaustive lists of factors that may be relevant to determining where the balance of the public interest lies in a particular case. I have carefully considered these factors, the RTI Act’s pro-disclosure bias[19] and Parliament’s requirement that grounds for refusing access to information be interpreted narrowly[20] in reaching this decision Factors favouring disclosure There is a general public interest in promoting access to government-held information. Revealing information about the Department’s complaint management processes could reasonably be expected to enhance the Department’s accountability for the outcomes of those processes,[21] and provide the applicant with the relevant background or contextual information that informed any decisions.[22] I also acknowledge that the public interest is advanced by the disclosure of information that allows or assists inquiry into possible deficiencies in the conduct or administration of an agency or official.[23] In considering whether these factors apply, I note that the Department has released to the applicant, information about its decision-making processes where it appears separate to the personal information of other individuals. The Information in Issue provides limited detail about the steps taken by the Department and the reasons for why it made particular decisions. The Information in Issue comprises the personal information[24] of the students, parents and other members of the school community. In these circumstances, I am satisfied that the factors favouring disclosure relating to the Department being open and accountable, and disclosure allowing inquiry into any deficiencies in the Department’s conduct would only be slightly advanced by disclosure. Therefore, I afford these factors favouring disclosure low weight.[25] Some of the Information in Issue comprises the applicant’s personal information, which raises a factor favouring disclosure.[26] Generally, this factor carries high weight as one of the purposes of the RTI Act is to provide individuals with a mechanism to access their personal information held by government. However, the nature of the Information in Issue is such that the applicant’s personal information is intertwined with that of others, including students, and gives rise to factors favouring nondisclosure of personal information as discussed below.[27] I am satisfied that the intertwined nature of the personal information lessens the weight of this factor. Accordingly, I afford moderate weight to this factor. On external review, the applicant’s submissions have mainly focussed on his request to access the information so that he can defend himself from what he believes to be false allegations.[28] In his submissions, the applicant makes clear that he is aware of the circumstances of those allegations and requires the Complaint Information to refute those allegations. The applicant’s submissions in this regard raise the issue of procedural fairness in relation to two allegations made against him.[29] I have also considered whether disclosure of the Complaint Information would assist with the administration of justice for the applicant.[30] I acknowledge the applicant was the subject of the allegations and that he has concerns that his employment and reputation may be impacted by these allegations. The applicant submits that access to witness statements would assist him to be able to lodge a further review with the Integrity and Employee Relations Unit (IERU) in relation to its findings that the relevant allegations were substantiated.[31] I have considered the significant amount of information that has been released to the applicant by the Department in response to this application (Released Documents) as well as the information that the applicant has indicated he is already aware of in his submissions to OIC.[32] The released documents demonstrate that the Department advised the applicant of reported incidents and the substance of the allegations and the applicant was provided an opportunity to respond to the allegations and supplied detailed written statements in response to what was alleged. The Released Documents further demonstrate that the applicant communicated with the IERU about the investigation process and has been advised of his opportunity to request an internal review. I acknowledge that should the applicant seek to review the adverse findings that have been made by the Department, having full access to the Complaint Information may assist him in preparing his case. However, having carefully examined the applicant’s and Department’s submissions, the Information in Issue and the background and contextual information provided by the Department and the applicant, I am satisfied that the weight of the public interest factors concerning procedural fairness and the administration of justice carry only moderate weight in the particular circumstances of this case.[33] The applicant also submitted[34] that he was instructed by the IERU to seek access to information through the RTI Act process. While an agency may refer an individual to seek access to information through the RTI process, where other administrative processes are not appropriate, this is not an assurance that all requested information will be disclosed. While I acknowledge the applicant’s frustration about being refused access to information following a process that he was advised to follow by the IERU, this in itself, does not raise any further factor in favour of disclosure. Factors favouring nondisclosure Complaint Information Given the nature of the Complaint Information, 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[35] disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy;[36] and disclosure of the information could reasonably be expected to prejudice the flow of information to a law enforcement or regulatory agency.[37] I am satisfied the Complaint Information comprises the personal information of other individuals involved in the investigations into allegations made against the applicant, including complainant(s), witness(es) and staff. Information provided by complainant(s) and witness(es) to the school and Department setting out their version of events, opinions and emotions, also comprises their personal information. Given the nature of the Complaint Information, I am satisfied that disclosing the personal information of other individuals, could reasonably be expected to lead to a public interest harm. Information that details an individual’s interactions with a government agency attracts a level of privacy where that information forms part of an individual’s private and personal sphere.[38] In this case, the relevant communications with the Department occurred within the context of an investigation into incidents at school involving students. I consider that the personal information of the students and parents, as it appears in this particular circumstance, attracts a very high level of privacy. Accordingly, I afford this factor high weight in favour of nondisclosure of the Complaint Information. The applicant submitted[39] that he understood some documents would need to be redacted but disagreed, saying that he thought the witness statements can be meaningfully redacted, that if necessary completely redact all witness statements, incident reports etc., so that there is absolutely no risk of me viewing the personal information of other people. The applicant is likely to know the identities of the other individuals through his involvement in the particular incidents. The Complaint Information comprises their written version of events, including expression of feelings and emotions associated with the complaints. I find that disclosure of such information, even if names and personal details were to be redacted, would be an unwarranted intrusion into the personal sphere of these other individuals. For this reason, I consider that the Complaint Information cannot meaningfully be redacted and still protect the personal information and privacy of the other individuals involved. Lastly, there is a recognised public interest in ensuring the Department’s functions are not prejudiced through disclosure of information provided by individuals involved in a complaint process.[40] The Department relies on students and other members of the school community to provide information which enables it to administer and enforce relevant laws for the protection of children. The applicant submits[41] that the OIC is naïve regarding what actually happens in schools regarding the dynamic between students and teachers. That ‘...not all teenage students are honest. Sometimes they lie, for a variety of reasons.’ The applicant contends that ‘the OIC choose to completely ignore the possibility that some students are not ignorant and develop an ability to act in their own best interests within the system...’ The applicant further submitted[42] an example of an incident which he advised would prove that even young students ‘are savvy enough to coordinate their stories in such as (sic) manner as to avoid known consequences for being disruptive and non-compliant in class. Student protection policy and procedure can be weaponized against teachers...’ In reaching this decision, I have not made any judgement as to the accuracy of the student statements. Comments made in witness statements are for the consideration of the investigator and subsequent decision maker in testing the evidence.[43] It is important that the flow of information is not prejudiced so that information can be gathered and assessed. I am satisfied that routinely disclosing information identifying and/or provided by complainant(s) and witness(es) under the RTI Act would discourage individuals from coming forward with information and cooperating with the Department. This, in turn and irrespective of the veracity of the statements, could reasonably be expected to negatively the Department’s ability to obtain this information in future. In this case, the potential negative impact is further heightened by the fact that some of the relevant witness(es) are school children who could reasonably be expected to be deterred from making complaints against teachers, should their identities and the information that they provide be disclosed through processes such as disclosure under the RTI Act. I have accordingly afforded this factor significant weight in favour of nondisclosure. Student Information The Student Information comprises OneSchool information from three schools at which the applicant was employed. This includes: Information about contact with parents about students - created by the applicant Information about behaviour incidents - created by the applicant Information about behaviour incidents not created by the applicant but that mention his name in the details of the incident; and emails between the applicant and parents. Whilst this information includes some of the applicant’s personal information, it essentially comprises information about student behaviour and performance. I consider that such information is about the students and is therefore the personal information of those students and, in some cases, their parents. I acknowledge that the applicant has had access to the OneSchool information during his employment at the relevant schools. However, on the evidence before me, the applicant no longer has access to this information. I also consider that the disclosure of student information stored on the OneSchool system under the RTI Act process, where there are no limits on the use of this information, could reasonably be expected to prejudice the privacy of the relevant students and their families. As such, the factors favouring nondisclosure relating to personal information and privacy, apply to this Information in Issue and carry significant weight.[44] I have also considered whether disclosure of the Student Information could reasonably be expected to prejudice the management function of the Department.[45] The OneSchool system provides a platform to record information relating to student behaviour and parental contact, for use within schools. I consider that schools must be able to create, store and manage the personal information of students and their families for the purposes of education and behaviour management with confidence that it will not be released through the RTI process with no restrictions on dissemination. I consider that disclosure of the sensitive student information recorded in OneSchool, outside of the context in which it is created and used, would prejudice the ability of schools to effectively collect and record information for the purposes of managing student behaviour and parental contact. I assign this factor favouring nondisclosure significant weight. Balancing the public interest factors In balancing the relevant public interest factors, I have had specific regard to the nature of the Information in Issue. It is information that comprises the shared personal information of the applicant and students, parents and other third parties. This information includes allegations made by students about the applicant. I have identified a number of factors in favour of disclosure of the Information in Issue.[46] I have afforded low weight to the factors relating to the Department’s accountability and transparency[47] and moderate weight to the factors relating to advancing the fair treatment of individuals and procedural fairness. I have also afforded moderate weight to the factor relating to disclosing the applicant’s own personal information.[48] I consider that the weight to be attributed to the factors favouring disclosure of the information in issue is significantly reduced by the volume of information that has been released to the applicant about the relevant allegations and the Department’s investigation of these allegations. On the other hand, given the nature of the Information in Issue, I have afforded significant weight to the nondisclosure factors safeguarding personal information and privacy, as well as the flow of information to, and the management function of, the Department. I am satisfied that the factors favouring nondisclosure carry greater weight and accordingly find that disclosure of the Information in Issue would, on balance, be contrary to the public interest.[49]DECISION I affirm the Department’s internal review decision to refuse access to the Information in Issue 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.Shiv MartinAssistant Information CommissionerDate: 9 August 2019 APPENDIX A Significant procedural steps Date Event 28 December 2018 OIC received the application for external review of the Department’s internal review decision. 4 January 2019 OIC requested procedural documents from the Department. 8 January 2019 OIC received the requested procedural documents from the Department. 22 January 2019 The applicant requested OIC provide an update on the status of his application. 31 January 2019 OIC notified the applicant and the Department that the external review had been accepted. OIC requested further information from the Department. 8 February 2019 The Department responded to OIC’s request for information. 22 February 2019 The applicant emailed OIC and requested OIC provide an update about the status of his application. 22 February 2019 OIC phoned the applicant about the status of the review, however he requested this be provided in writing and that all updates be via email in the first instance. 25 February 2019 OIC emailed the applicant and confirmed the update on the status of the application. 29 March 2019 OIC emailed the applicant and provided an update on the progress of the application. 11 April 2019 OIC conveyed a written preliminary view to the applicant. 2 May 2019 OIC received the applicant’s submission, responding to the preliminary view. 10 May 2019 Applicant requested acknowledgement of receipt of his submission. 14 May 2019 OIC confirmed receipt of applicant’s submission. 16 May 2019 OIC requested and received documents from the Department. 17 May 2019 OIC responded to the applicant’s submissions and confirmed OIC’s view. 13 June 2019 OIC received the applicant’s further submissions. 14 June 2019 OIC received the applicant’s further submissions. 18 June 2019 OIC confirmed receipt of the applicant’s submissions. 31 July 2019 OIC provided the applicant with an update on the status of the review. [1] Valid access application received 24 July 2018.[2] On 4 October 2018.[3] On 31 October 2018.[4] On 28 November 2018.[5] On 28 December 2018.[6] The applicant also contended that the Department did not identify all relevant information in its decisions. This issue was resolved informally on external review and is not considered in this decision. See footnote 12.[7] In submissions dated 10 May 2019 and 14 June 2019 the applicant advised OIC that he did not seek the private information of other individuals such as names and telephone numbers, however he continued to seek any information about himself. [8] Section 108 of the RTI Act.[9] Section 12 of the Information Privacy Act 2009 (Qld) (IP Act) defines ‘personal information’ as follows: ‘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’.[10] Reference to parents in this letter is taken to include reference to all student relatives / guardians / caregivers.[11] A departmental internal record keeping system to assist student education and behaviour management.[12] In the application for external review dated 28 December 2019, the applicant raised the issue of missing Departmental procedural documents regarding investigation of employees. OIC provided a preliminary view dated 11 April 2019 that access to the requested policy documents may be refused as they do not exist. The applicant did not raise this issue in his submission dated 2 May 2019, responding to OIC’s preliminary view. OIC confirmed in a second preliminary view dated 17 May 2019, that sufficiency of search concerns were no longer at issue in the review. Accordingly, the existence of this information will not be considered in these reasons for decision.[13] Applicant submissions of 2 May, 13 June and 14 June 2019.[14] Section 23 of the RTI Act.[15] Grounds for refusal of access are set out in section 47 of the RTI Act.[16] 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.[17] As set out in section 49 of the RTI Act. [18] Set out in schedule 4, part 1 of the RTI Act.[19] Section 44 of the RTI Act.[20] Section 47(2) of the RTI Act.[21] Schedule 4, part 2, item 1 of the RTI Act.[22] Schedule 4, part 2, item 11 of the RTI Act.[23] Schedule 4, part 2, item 5 of the RTI Act.[24] See paragraph 9.[25] Schedule 4, part 2, items 1 and 11 of the RTI Act.[26] Schedule 4, part 2, item 7 of the RTI Act.[27] In the section ‘Factors favouring nondisclosure’.[28] Applicant submissions dated 2 May 2019 and in the application for external review dated 28 December 2018.[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] Submissions dated 2 May 2019.[32] Applicant submissions dated 2 May, 13 June and 14 June 2019.[33] Schedule 4, part 2, items 10 and 16.[34] Submission dated 2 May 2019 and 13 June 2019.[35] Schedule 4, part 4, section 6 of the RTI Act.[36] Schedule 4, part 3, item 3 and the RTI Act.[37] Schedule 4, part 3, item 13 of the RTI Act.[38] The concept of ‘privacy’ is not defined in the IP Act or RTI Act. It can, however, be viewed as the right of an individual to preserve their personal sphere free from interference from others. See Matthews and Gold Coast City Council (Unreported, Queensland Information Commissioner, 23 June 2011) at [22] 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, available: https://www.alrc.gov.au/publications/report-108.[39] Submission dated 13 June 2019, similarly raised in submission dated 2 May 2019 and reference to anonymised incident reports and witness statements in the application for external review dated 28 December 2018.[40] Schedule 4, part 3, item 13 of the RTI Act.[41] Applicant submission dated 2 May 2019.[42] Submission dated 14 June 2019.[43] F60XCX and Department of Natural Resources and Mines [2017] QICmr 19 (9 June 2017), at [92].[44] Schedule 4, part 3, item 3 and schedule 4, part 4, item 6 of the RTI Act.[45] Schedule 4, part 3, item 19 of the RTI Act.[46] Noting, for the sake of completeness, that having carefully considered both the list of factors favouring disclosure in schedule 4, part 2 of the RTI Act and the applicant’s submissions, I can identify no other public interest factors or considerations that might arise to favour disclosure of the Information in Issue.[47] Including the factor relating to whether disclosure could assist or allow enquiry into possible deficiency in the conduct or administration of the department.[48] Additionally, and in any event, even if I were wrong in the findings expressed – and one or more of the factors which I have not attributed any weight to could be said to apply and carry low weight in this case – I am nevertheless of the view the factors favouring nondisclosure are of sufficient gravity to tip the balance of the public interest in favour of nondisclosure.[49] Section 47(3)(b) and 49 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Capewell and Department of Communities, Child Safety and Disability Services [2014] QICmr 9 (18 March 2014)

Capewell and Department of Communities, Child Safety and Disability Services [2014] QICmr 9 (18 March 2014) Last Updated: 7 August 2014 Decision and Reasons for Decision Citation: Capewell and Department of Communities, Child Safety and Disability Services [2014] QICmr 9 (18 March 2014) Application Number: 311842 Applicant: Capewell Respondent: Department of Communities, Child Safety and Disability Services Decision Date: 18 March 2014 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION -DISCLOSURE PROHIBITED BY ACT - information about applicant obtained in connection with applicant’s grandchild - whether disclosure prohibited by section 186 or section 187 of the Child Protection Act 1999 (Qld) - whether exempt - section 47(3)(a) and section 48 and schedule 3, section 12 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Department of Communities, Child Safety and Disability Services (Department) for access under the Information Privacy Act 2009 (Qld) (IP Act) to all documents about herself in a specific time period. The Department gave the applicant access to some information and refused access to the remaining information on the basis that it comprised exempt information as its disclosure is prohibited by sections 186-188 of the Child Protection Act 1999 (Qld) (Child Protection Act).[1] The applicant applied to the Office of the Information Commissioner (OIC) for external review of the decision. For the reasons given below, I affirm the Department’s decision. Background The applicant seeks access to information in order to apply to the Department under the IP Act for amendment of any false information it may hold arising from custody proceedings in the Federal Magistrates Court of Australia concerning the applicant’s grandchild. On external review, the applicant asked that the Department be required to conduct searches for documents relating to an alleged incident in September 2013. However the Right to Information Commissioner decided not to further deal with that part of the external review application on the ground that it lacked substance.[2] Reviewable decision The decision under review is the Department’s decision dated 15 November 2013. 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 comprises 15 part and 35 full pages (Information in Issue).[3] 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.[4] However, this right is subject to other provisions of the IP Act and the RTI Act, including the grounds on which an agency may refuse access to documents.[5] Relevantly, an agency may refuse access to a document to the extent the document comprises exempt information.[6] Schedule 3 of the RTI Act sets out twelve categories of information which Parliament has decided are exempt from release. Schedule 3 section 12 of the RTI Act provides that information is exempt if its disclosure is prohibited by sections 186-188 of the Child Protection Act. In summary, disclosure of information is prohibited under these sections of the Child Protection Act if the information: identifies a person making a notification of a suspicion that a child has been or is likely to be harmed;[7] or is about the affairs of another person and was acquired by a person performing particular functions under the Child Protection Act.[8] The prohibition on disclosure is subject to the exceptions set out in schedule 3, section 12(2) of the RTI Act and sections 187 and 188 of the Child Protection Act. Findings Turning first to the applicant’s submissions. Essentially, the applicant contends[9] that: OIC failed to consider her submissions as an ‘individual case’ false allegations were made to the Department, which if uncorrected may lead to decisions which place the grandchild in danger; and in relying on provisions of the Child Protection Act to refuse access to requested information, the Department is protecting itself from scrutiny regarding its improper behaviour in accepting stolen documents and the improper conduct of a Departmental officer associated with a family member of the grandchild. These submissions raise issues relative to public interest factors that may favour disclosure of the Information in Issue in the context of assessing under the RTI Act whether or not disclosure would, on balance, be contrary to the public interest. I am not required to perform a public interest balancing test[10] to determine if, on balance, it would be contrary to the public interest to disclose the Information in Issue if the legal requirements of the exemption provision set out above are met. Where information falls into one of the twelve categories of information which Parliament has decided are exempt from release, set out in schedule 3 of the RTI Act, public interest factors favouring disclosure cannot be taken into account. The Information in Issue comprises: a report of suspected harm or risk of harm (Suspected Harm Information); and portions of Departmental reports, correspondence and file notes; and statements and affidavits (File Information). (i) Does the Suspected Harm Information identify a notifier? Yes, for the reasons set out below. I have carefully examined the Suspected Harm Information. It identifies a person who made a notification under the Child Protection Act that a child has been or is likely to be harmed. I therefore find that the Suspected Harm Information is: subject to the prohibition on disclosure in section 186(2) of the Child Protection Act; and falls within the exemption in schedule 3, section 12(1) of the RTI Act. (ii) Is the File Information about a person’s affairs and received under the Child Protection Act? Yes, for the reasons set out below. The term ‘person’s affairs’ is not defined in the Child Protection Act or the Acts Interpretation Act 1954 (Qld). The relevant dictionary definitions for ‘affair/s’ are ‘matters of interest or concern’ and ‘a private or personal concern’.[11] I have carefully examined the File Information. I am satisfied that it is about matters of personal interest/concern to other persons, including the applicant’s grandchild, the grandchild’s family members, and other individuals. The File Information is information received or obtained by Departmental officers (public servants) under the Child Protection Act. The Child Protection Act lists a public service employee[12] as a person to whom section 187 applies. I am therefore satisfied that the File Information is: about other persons’ affairs and has been given to or received by a person performing functions under or relating to the administration of the Child Protection Act subject to the prohibition on disclosure in section 187(2) of the Child Protection Act; and subject to the exemption in schedule 3, section 12(1) of the RTI Act. (iii) Do any of the exceptions apply? The exemption in schedule 3, section 12(1) of the RTI Act will not apply if the relevant information comprises only the applicant’s personal information.[13] Section 187 and 188 of the Child Protection Act contain a number of exceptions where information given or received under the Child Protection Act may be disclosed. In this case, section 187(4)(a) is relevant. It provides that access may be given to another person if the information is about that other person. The Information in Issue is about the grandchild, the grandchild’s family members and other individuals. In some instances the Information in Issue is about the applicant but that information is intertwined with the information of others. After careful assessment, I find that it is never about the applicant solely.[14] I am satisfied that: the Information in Issue is about other persons’ affairs and concerns other individuals’ personal information; and the exceptions in schedule 3, section 12(2) of the RTI Act and section 187(4)(a) of the Child Protection Act do not apply to the Information in Issue because it is not only about the applicant. Is the Information in Issue exempt information? As no exceptions to the exemption apply and the other requirements of sections 186 and 187 of the Child Protection Act are met, I find that the Information in Issue is exempt information under section 67(1) of the IP Act and sections 47(3)(a) and 48 and schedule 3, section 12 of the RTI Act. As the legal test for exemption that I am required to apply is satisfied, I am unable to consider the submissions raised by the applicant summarised in paragraph 14 above and I have not taken them into account in forming my decision. DECISION For the reasons set out above, I affirm the Department’s decision to refuse access to the Information in Issue on the basis that it comprises exempt information under section 67(1) of the IP Act and sections 47(3)(a) and 48 and schedule 3, section 12 of the RTI Act, the disclosure of which is prohibited by sections 186 and 187 of the Child Protection Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the Information Privacy Act 2009 (Qld). ________________________ L Lynch Assistant Information Commissioner Date: 18 March 2014 APPENDIX Significant procedural steps Date Event 22 October 2013 The Department received the applicant’s access application under the IP Act. 15 November 2013 The Department issued its initial decision to the applicant. 6 December 2013 OIC received the external review application. 12 December 2013 The applicant narrowed the scope of documents in issue, by not seeking access to documents to which other access was available. 12 December 2013 OIC advised the applicant and the Department it had accepted the external review application and asked the Department to provide copies of relevant documents. 13 December 2013 The Department provided OIC with the requested documents. 20 January 2014 The applicant narrowed the scope of documents in issue, by not seeking to access copies of documents in issue. 31 January 2014 The Department identified additional documents falling within the scope of the access application. 7 February 2014 OIC confirmed to the applicant the documents in issue in the review and conveyed a preliminary view to the applicant and invited her to provide submissions supporting her case by 21 February 2014 if she did not accept the preliminary view. 11 February 2014 OIC decided not to further deal with part of the applicant’s external review application relating to ‘sufficiency of search’ concerns raised by the applicant. 20 February 2014 OIC received correspondence from the applicant, including the applicant’s submissions in response to the preliminary view. [1] Under section 47(3)(a) and section 48 and schedule 3 section 12 of the Right to Information Act 2009 (Qld) (RTI Act), in conjunction with section 67(1) of the IP Act. Section 67 of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent the agency could refuse access to the document under section 47 of the RTI Act. [2] Under section 107(1)(a) of the IP Act. [3] Concessions by the applicant and the Department during the external review resulted in the following documents remaining in issue: full pages 22, 23, 25-28, 35, 37, 41-46, 57, 78, 82, 84, and 86-89 in File 1 and 11, 12, 16, 17, 23-26, 28, 29 and 32-34 in File 2; and part pages 24, 36, 38-40, 47, 48, 79, 81, 83 and 85 in File 1 and 2, 19, 21 and 27 in File 2. [4] Section 40 of the IP Act.[5] Section 67(1) of the IP Act and section 47 of the RTI Act. [6] Sections 47(3)(a) and 48 of the RTI Act. [7] Section 186 of the Child Protection Act. [8] Section 187 of the Child Protection Act.[9] In written submissions dated 17 February 2014 and in submissions attached to the applicant’s external review application received by OIC on 6 December 2013.[10] As set out in sections 47(3)(b) and 49 of the RTI Act.[11] 7CLV4M and Department of Communities (Unreported, Queensland Information Commissioner, 21 December 2011) at paragraph 30.[12] Section 187(1)(a) of the Child Protection Act.[13] Schedule 3, section 12(2) of the RTI Act. ‘Personal information’ comprises ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’: schedule 6 of the RTI Act, and section 12 of the IP Act.[14] In Hughes and Department of Communities, Child Safety and Disability Services (Unreported, Queensland Information Commissioner, 17 July 2012), Assistant Information Commissioner Corby considered whether the exception in section 187(4)(a) applies to shared information about the applicant and other persons. She observed at paragraph 26: “The CP Act exception only applies where the information is solely about the applicant. Thus where information is simultaneously about the applicant and others, the CP Act exception will not apply.”

queensland

court_judgement

Queensland Information Commissioner 1993-

Barker and World Firefighters Games, Brisbane, 2002 [2001] QICmr 8 (27 September 2001)

Barker and World Firefighters Games, Brisbane, 2002 [2001] QICmr 8 (27 September 2001) Last Updated: 18 January 2006 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 08/2001 Application S 307/00 Participants: SHANE BARKER Applicant WORLD FIREFIGHTERS GAMES, BRISBANE, 2002 Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - jurisdiction of Information Commissioner - whether the respondent is an agency subject to the application of the Freedom of Information Act 1992 Qld - whether the respondent is "a body...that is established by government for a public purpose under an enactment" within the terms of s.9(1)(a)(ii) of the Freedom of Information Act 1992 Qld. Freedom of Information Act 1992 Qld s.4, s.7, s.8(1), s.9(1)(a)(i), s.9(1)(a)(ii), s.11(1), s.11(1)(n), s.11(1)(q), s.21, s.25, s.27(2), s.75 Freedom of Information Regulation 1992 Qld s.5(1)(d), s.5(1)(e) Associations Incorporation Act 1981 Qld Financial Administration and Audit Act 1977 Qld s.44 Attorney-General v Estcourt and The Wilderness Society Inc [1995] TASSC 65; (1995) 4 Tas R 355 Christie and Queensland Industry Development Corporation, Re [1993] QICmr 1; (1993) 1 QAR 1 English and Queensland Law Society Inc, Re [1995] QICmr 22; (1995) 2 QAR 714 The Local Government Association of Queensland v Information Commissioner & Anor [2001] QSC 52, 1 March 2001 McPhillimy and Gold Coast Motor Events Co, Re [1996] QICmr 18; (1996) 3 QAR 376 Price and The Local Government Association of Queensland, Re (Information Commissioner, Qld, Decision No. 04/2000, 8 December 2000, unreported) Queensland Law Society Inc v Albietz and Anor (1996) 2 Qd R 580 Searle Australia Pty Ltd v Public Interest Advocacy Centre and Anor [1992] FCA 241; (1992) 36 FCR 111 Victorian Public Service Board v Wright [1986] HCA 16; (1986) 160 CLR 145 DECISION I decide that - (a) the respondent is a body that is established by government for a public purpose under an enactment, within the meaning of s.9(1)(a)(ii) of the Freedom of Information Act 1992 Qld, and hence, by virtue of s.8(1), is an agency for the purposes of the Freedom of Information Act 1992 Qld. (b) I have jurisdiction under Part 5 of the Freedom of Information Act 1992 Qld to deal with the applicant's application for review of the respondent's refusal of access to documents requested under the Freedom of Information Act 1992 Qld. Date of decision: 27 September 2001 ......................................................... D J BEVAN INFORMATION COMMISSIONER OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 08/2001 Application S 307/00 Participants: SHANE BARKER Applicant WORLD FIREFIGHTERS GAMES, BRISBANE, 2002 Respondent REASONS FOR DECISION Background 1. This application requires determination of a jurisdictional issue as to whether or not World Firefighters Games, Brisbane, 2002 ("WFG") is an agency subject to the application of the Freedom of Information Act 1992 Qld (the FOI Act). WFG is an Australian public company limited by guarantee which was established to organise and stage the World Firefighters Games that were planned to be held in Brisbane in 2002. 2. By letter dated 30 October 2000, the applicant applied to WFG for access, under the FOI Act, to a wide range of documents. Having received no acknowledgement of his FOI access application, the applicant reiterated the terms of his application in a letter to WFG dated 15 November 2000. By letter dated 24 November 2000, Mr Gavin Gabrielson, General Manager of WFG, replied stating: "I am advised that as World Firefighters Games Brisbane 2002 is a private company, it is not subject to the FOI legislation. Accordingly, your request under the legislation is denied." By letter dated 5 December 2000, the applicant applied to this Office for review, under Part 5 of the FOI Act, of WFG's decision to refuse him access to documents under the FOI Act. Jurisdiction of the Information Commissioner 3. The former Information Commissioner, Mr F N Albietz, considered the nature and extent of the powers and functions of the Information Commissioner in relation to jurisdictional issues of this kind in a number of cases, including Re Christie and Queensland Industry Development Corporation [1993] QICmr 1; (1993) 1 QAR 1 at pp.4-6, and Re English and Queensland Law Society Inc [1995] QICmr 22; (1995) 2 QAR 714 at pp.719-720. I adopt the reasons given by Commissioner Albietz in those cases. I consider that the Information Commissioner has both the power, and a duty, to consider and determine issues relating to the limits of his jurisdiction, when they are raised as an issue in an application for review lodged under Part 5 of the FOI Act.(See also the comments on the obligation of a tribunal to decide a dispute over the limits 2 of its jurisdiction, contained in the judgment of Wright J of the Supreme Court of Tasmania in Attorney-General v Estcourt and The Wilderness Society Inc [1995] TASSC 65; (1995) 4 Tas R 355 at pp.365- 367.) 4. By letter dated 11 December 2000, the Deputy Information Commissioner advised WFG that, consistently with the approach adopted in Re English (a case which dealt with the issue of whether or not the Queensland Law Society Inc was an agency subject to the application of the FOI Act), he proposed to undertake preliminary inquiries, in accordance with s.75 of the FOI Act, for the purpose of determining whether the Information Commissioner has power to review the matter to which the applicant's external review application relates, i.e., whether WFG is an "agency" for the purposes of the FOI Act. The Deputy Information Commissioner invited WFG to lodge written submissions and/or evidence explaining precisely how, and pursuant to what legal authority, it is constituted/established, and setting out all facts, matters and circumstances, and any legal arguments, on which WFG wished to rely in support of its contention that it is not an agency subject to the application of the FOI Act. 5. The solicitors for WFG (Gadens Lawyers) responded by letter dated 22 December 2000, in which they made a number of submissions in support of their client's case (and which also forwarded a copy of WFG's Constitution which details the objects for which WFG was established). 6. The submissions on behalf of WFG were provided to the applicant, who lodged submissions in response dated 31 January 2001. On 25 July 2001, Commissioner Albietz wrote to WFG's solicitors to advise them that, after reviewing all relevant material then before him, he had formed the preliminary view that WFG is an agency subject to the FOI Act. In the event that WFG did not accept his preliminary view, Commissioner Albietz invited its solicitors to lodge submissions and/or evidence in support of WFG's case. Such submissions were provided by WFG's solicitors under cover of a letter dated 9 August 2001. 7. In making my decision on the jurisdictional issue, I have taken into account the submissions made by WFG's solicitors, as well as the relevant provisions of the FOI Act and documents relating to the establishment of WFG provided to me as attachments to the application for external review, and as attachments to the applicant's written submission dated 30 January 2001.I will discuss those submissions/documents in detail below. 8. I note that, during the course of this review, it was decided to cancel the World Firefighter's Games which had been planned to be staged in Brisbane in 2002. As I stated above, WFG was established to organise and stage the Games. Upon the cancellation of the Games, there were discussions with the applicant and the respondent regarding whether or not WFG was likely to be wound up prior to my giving a decision in this review. However, solicitors acting for WFG's Board advised that, given the variety of outstanding matters involving WFG, it was not anticipated that the company was likely to be wound up before the end of this year.Accordingly, it was agreed that I should proceed to give my decision regarding whether or not WFG is an agency subject to the application of the FOI Act. The relevant provisions of the FOI Act 9. The following provisions of the FOI Act are relevant to the determination of the issue of whether or not WFG is an agency subject to the application of the FOI Act: Preamble 3 An Act to require information concerning documents held by government to be made available to members of the community, to enable members of the community to obtain access to documents held by government and to enable members of the community to ensure that documents held by the government concerning their personal affairs are accurate, complete, up-to-date and not misleading, and for related purposes. ... Object of Act 4. 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. ... 7. In this Act-- "agency" has the meaning given by section 8; ... "enactment" means an Act or a statutory instrument; ... "public authority" has the meaning given by section 9; ... 8.(1) In this Act-- "agency" means a department, local authority or public authority. ... 9.(1) In this Act-- "public authority" means-- (a) a body (whether or not incorporated) that-- ... (ii) is established by government for a public purpose under an enactment. ... 21. Subject to this Act, a person has a legally enforceable right to be given access under this Act to-- (a) documents of an agency; ... 10. Section 21 of the FOI Act provides that, subject to the provisions of the FOI Act, a person has a legally enforceable right to be given access to documents of an agency. Section 8(1) defines "agency". Since WFG is neither a department nor a local authority within that definition, the issue is whether or not it is a "public authority" as defined in s.9(1)(a)(ii) of the FOI Act. If it is, then WFG is subject to the obligations imposed on agencies by the FOI 4 Act, and, pursuant to s.21, the applicant has a legally enforceable right (subject to the application of other provisions of the FOI Act, e.g., the exemption provisions contained in Part 3, Division 2, of the FOI Act) to be given access to documents held by WFG. If, however, WFG is not a "public authority" within the terms of s.9(1)(a)(ii) of the FOI Act, it is not subject to the application of the FOI Act, and I have no jurisdiction to deal further with the application for review. Discussion of WFG's submissions 11. At the commencement of this external review, the Deputy Information Commissioner informed WFG that he considered it was arguable that WFG is a public authority within the terms of s.9(1)(a)(ii) of the FOI Act, i.e., that it is a body established by government under an enactment (the Corporations Law). The Deputy Information Commissioner expressed the view that the public purpose would be the expenditure of public funds to stimulate or subsidise desirable economic activity (cf. Re McPhillimy and Gold Coast Motor Events Co [1996] QICmr 18; (1996) 3 QAR 376 at paragraphs 22-23). 12. The central argument which WFG's solicitors raised in response in their letter dated 22 December 2000 was that, on its proper construction, s.9(1)(a)(ii) of the FOI Act requires that the public purpose, for which the body in question was established, be specified in the relevant enactment. The solicitors for WFG submitted that there is no enactment which directly provides for, or effects, the establishment of WFG to carry out any particular public purpose in accordance with that enactment. The purposes for which WFG was established are set out in its Constitution, and are not provided for in any enactment. 13. In response, by letter dated 25 July 2001, Commissioner Albietz forwarded to WFG's solicitors a copy of his decision in Re Price and The Local Government Association of Queensland (Information Commissioner, Qld, Decision No. 04/2000, 8 December 2000, unreported) in which he had examined in detail the wording used in s.9(1)(a)(i) of the FOI Act. At paragraph 19, he said: The issue turns on the proper construction of the words "a body ... that is established for a public purpose by an enactment". Giving the words their natural and ordinary meaning, I consider that they specify two qualifications on the word "established", i.e., that the body is established by an enactment, and that the body is established for a public purpose. I do not consider that the words convey a requirement that the public purpose be specified in the enactment which establishes the body. 14. Commissioner Albietz's decision in that regard was upheld, on judicial review, by Atkinson J of the Queensland Supreme Court in The Local Government Association of Queensland v Information Commissioner & Anor [2001] QSC 52, 1 March 2001. 15. Applying to s.9(1)(a)(ii) of the FOI Act the interpretive approach that he considered had been endorsed by the Supreme Court in the above-noted decision, Commissioner Albietz informed WFG's solicitors that it was his preliminary view that the wording of s.9(1)(a)(ii) requires, firstly, that the body in question be established by government for a public purpose, and secondly, that the body be established under an enactment. Commissioner Albietz said that he did not consider that s.9(1)(a)(ii) requires that the public purpose for which the body is established be specified in the enactment. Indeed, he said that he considered that the argument in that regard in respect of s.9(1)(a)(ii) was even weaker than the corresponding 5 argument put by the Local Government Association of Queensland in respect of s.9(1)(a)(i), and rejected by Supreme Court, because the enactments under which the government would most commonly be expected to establish a body (i.e., other than a body established by an enactment - which is the situation covered in s.9(1)(a)(i) of the FOI Act) are the Corporations Law, and the Associations Incorporation Act 1981 Qld, which are statutes of general application, containing no provision that specifies public purposes for bodies established under them. 16. In response, WFG's solicitors argued that Commissioner Albietz's decision involving the Local Government Association of Queensland (and Atkinson J's subsequent judicial review decision in the Supreme Court) dealt only with the correct interpretation to be applied to the words used in s.9(1)(a)(i) of the FOI Act and were not authoritative decisions regarding the correct interpretation to be given to the particular wording used in s.9(1)(a)(ii). WFG's solicitors maintained their argument that the wording of s.9(1)(a)(ii) requires that the public purpose of the body in question be a public purpose established by, or set out under, the specific enactment which creates, or allows for the creation of, that body for those purposes. 17. Secondly, WFG's solicitors argued that the approach endorsed by Commissioner Albietz in his letter dated 25 July 2001 was too broad: Such an approach, if correct, would be likely to subject private and philanthropic institutions set up for charitable purposes, or by bodies such as the Tourism Council of Australia or other similar bodies, to the legislation.These could include private bodies which promote tourism in Queensland and the economy of Queensland such as the Noosa Triathlon or the Gold Coast Marathon or the Maleny Folk Festival to be subject to the FOI Act.With respect, this is and was clearly not intended by the Act. Public purposes and public benefit (particularly in economic terms) is a very broad and far-reaching yardstick. The way in which Parliament has limited the application of that yardstick (so far as the FOI Act is concerned) is by the requirement to associate the public purposes directly with government by requiring that the body must be a body established by Parliament or the executive arm of government or its agencies under a specific enactment which sets out the public purposes of that body in that enactment . [solicitors' underlining] 18. As regards the first of the issues raised by WFG's solicitors, I acknowledge that the decisions of Commissioner Albietz and of Atkinson J concerning the status of the Local Government Association of Queensland involved only the interpretation of s.9(1)(a)(i) of the FOI Act.Nevertheless, I consider that the reasoning which was applied in those cases regarding the correct approach to the interpretation of s.9(1)(a)(i) is equally relevant and applicable to the interpretation of the words used in s.9(1)(a)(ii). Giving the words of s.9(1)(a)(ii) their natural and ordinary meaning, I consider that they specify three qualifications on the word "established", i.e., that the body in question is established by government, that it is established for a public purpose, and that it is established under an enactment. I do not consider that the words convey a requirement that the public purpose be specified in the enactment under which the body is established. 19. If there be any ambiguity in that regard, I consider that established principles for the construction of beneficial, remedial legislation, such as the FOI Act, favour the construction 6 I regard as correct. I note that it has been accepted by both the High Court of Australia, and a Full Court of the Federal Court of Australia, that, in the context of freedom of information legislation, it is proper to resolve a genuine ambiguity in the words of the legislation in favour of an interpretation which would further, rather than hinder, access to information: see, respectively, Victorian Public Service Board v Wright [1986] HCA 16; (1986) 160 CLR 145 at p.153, and Searle Australia Pty Ltd v Public Interest Advocacy Centre and Anor [1992] FCA 241; (1992) 36 FCR 111 at p.115. Derrington J espoused a similar view in Queensland Law Society Inc v Albietz and Anor (1996) 2 Qd R 580 at p.585: This conclusion is consistent with what might be discerned to be the policy of the Freedom of Information legislation in respect of relevant matters. Its remedial nature is directed towards opening to public scrutiny the information relating to public affairs held by agencies of the government .This militates against a restrictive reading of the kind posited by the Society. 20. These principles were also endorsed and applied (to the interpretation of s.9(1)(a)(i) of the FOI Act) by Atkinson J in The Local Government Association of Queensland Inc v Information Commissioner & Anor at paragraphs 6-8. 21. It is consistent with the objects of the FOI Act that a body established by government under an enactment, which performs functions for the benefit of the public or a substantial segment of the public (i.e., for public purposes), should be subject to the application of the FOI Act, irrespective of whether the public purpose is or is not specified in the enactment under which the body was established. 22. If a body is caught by the definition of "public authority" in s.9 of the FOI Act, and, as a matter of policy, the Parliament does not want that body to be subject to the application of the FOI Act, a mechanism has been provided for exclusion: either the FOI Act could be amended to specify the body in a paragraph of s.11(1) of the FOI Act, or the body could be specified in a regulation made under s.11(1)(q) of the FOI Act. 23. I cannot accept that Parliament intended that a body established by government, for a public purpose, under the Corporations Law or the Associations Incorporation Act 1981, would be excluded from the application of the FOI Act because it was established under an enactment that does not set out the public purposes for which the body is established. Indeed, the FOI Act and the Freedom of Information Regulation 1992 Qld partially exempt from the application of the FOI Act certain bodies established by government for a public purpose, and established by way of incorporation under the Corporations Law. This necessarily implies that they would otherwise be caught by s.9(1)(a)(ii) of the FOI Act. For example, s.11(1)(n) of the FOI Act provides Treasury Holdings Pty Ltd, and its wholly owned subsidiaries within the meaning of the Corporations Law, with a partial exclusion from the application of the FOI Act in respect of documents concerning their commercially competitive activities. They are bodies established by government for a public purpose andestablished under the Corporations Law, rather than under an enactment that sets out their public purpose. Similarly, Queensland Events Corporation Pty Ltd and Gold Coast Events Co Pty Ltd are given a partial exclusion from the application of the FOI Act by s.5(1)(d), and s.5(1)(e), respectively, of the Freedom of Information Regulation 1992. They are also bodies established by government, under the Corporations Law, for public purposes. 7 24. I reject the submission by WFG's solicitors that the interpretation of s.9(1)(a)(ii) explained in paragraph 18 above is too broad, and would result in private or charitable bodies being caught by the terms of that provision. I have examined the position of the bodies cited by the applicant's solicitors in their submission, as quoted at paragraph 17 above. The Tourism Council of Australia ceased operating at the end of 2000. The Queensland branch of that body has now been replaced by an organisation known as the Queensland Tourism Industry Corporation (QTIC). Its members comprise various tourism industry representatives and its aim is to represent the interests of the tourism industry and to lobby the government in relation to achieving those interests. There is nothing in the material I have examined regarding the establishment and membership of the QTIC to suggest that it would fall within the terms of s.9(1)(a)(ii) of the FOI Act. 25. The Gold Coast Marathon is a registered business name of Gold Coast Events Management Ltd, a wholly owned subsidiary of Queensland Events Corporation Pty Ltd, which is a government-owned company that falls within the ministerial responsibilities of the Premier of Queensland. Queensland Events Corporation and its wholly owned subsidiaries are clearly agencies subject to the application of the FOI Act: that is recognised in the fact that they have been conferred with a partial exclusion from the application of the FOI Act in respect of documents relating to their competitive commercial activities (see s.5(1)(d) of the Freedom of Information Regulation 1992 Qld, read in conjunction with s.11(1)(q) of the FOI Act). Documents in the possession or control of Queensland Events Corporation or its wholly owned subsidiaries are subject to the application of the FOI Act, unless it can be demonstrated that they relate to their competitive commercial activities. The Noosa Triathlon is a sporting and social event coordinated by United Sports Marketing in conjunction with the Noosa Triathlon Association and the Noosa Heads Lions Club. While the event receives some government funding, I am unaware of any statutory basis for its existence, or of any government involvement in its establishment, such that it could be considered to be a body that is established by government for a public purpose under an enactment, in accordance with s.9(1)(a)(ii) of the FOI Act. 26. The Maleny Folk Festival also receives financial and other support from government agencies (as well as from festival partners, community organisations, et cetera) but is organised by the Queensland Folk Federation Incorporated, a community-based non-profit organisation whose object is to foster folk culture. There is nothing in the model rules of the Queensland Folk Federation to suggest that the Federation would satisfy the definition of a body that is established by government for a public purpose under an enactment, within the meaning of s.9(1)(a)(ii) of the FOI Act. 27. In response to the contention by WFG's solicitors that the interpretation of s.9(1)(a)(ii) of the FOI Act explained in paragraph 18 above would lead to private charitable institutions being caught by s.9(1)(a)(ii), I have been unable to find an example of such a case and WFG's solicitors have not referred me to any. It must be remembered that the words of s.9(1)(a)(ii) of the FOI Act require that the body in question be established by government. This eliminates, from the scope of the provision, privately established bodies. Summary of Findings 28. In summary, I find that, on its correct interpretation, s.9(1)(a)(ii) of the FOI Act requires that the body in question be established by government, that it be established for a public purpose, and that it be established under an enactment. Applying that interpretation to WFG, I find that WFG is a body that was established under an enactment, i.e., the Corporations Law. I also find that it was established by government, i.e., by the Queensland Fire and 8 Rescue Authority (QFRA) and/or the Department of Emergency Services. (I note that, under the definition in s.7 of the FOI Act, "government" includes an agency, and both the QFRA and the Department of Emergency Services are clearly agencies.) The material before me includes copies of the constitution of WFG, the Underwriting and Financial Support Agreement between WFG and the QFRA, a service agreement between WFG and the QFRA, legal advice obtained by the QFRA on the most suitable structure for the QFRA to develop, organise and implement the games, and a letter dated 11 November 1998 from the Minister for Emergency Services seeking the approval of the Treasurer, in accordance with s.44 of the Financial Administration and Audit Act 1997 Qld for a department to form, or participate in the formation of, a company. It is clear from that material that WFG was established by the QFRA and/or the Department of Emergency Services, which appointed their respective chief executive officers as directors of WFG. 29. The purpose for which WFG was established, as set out in its Constitution, was the purpose of securing, organising and staging the World Firefighters' Games in Brisbane in 2002.I consider that that is properly to be characterised as a public purpose, within the terms of s.9(1)(a)(ii) of the FOI Act. One purpose of the Games was to promote the skills of firefighters to aid the tasks they perform on behalf of the public. That was to be done in the format of a sports competition, with television and radio coverage, and with associated functions, seminars, trade exhibitions and marketing opportunities, which had the aim of benefiting Queensland and its economy, as host of the Games. I refer to the following extract from Hansard (16 November 2000) when, in response to a question about the Games, the Minister for Emergency Services said: ... The World Firefighter Games in 2002 is going to be a wonderful event for Queensland. ... we are expecting at least 6,000 firefighters from throughout the world to gather in Brisbane in 2002. That is a wonderful event for tourism in Queensland and it is a wonderful event for the economy of Queensland. ... 30. In an article appearing in The Courier Mail on 5 January 2001, the Minister was quoted as saying that the Games would generate between $12-15 million direct economic benefit to Queensland, and attract up to 10,000 competitors and their families. As Commissioner Albietz observed in Re McPhillimy and Gold Coast Motor Events Co (at paragraphs 22-23), a body established for a purpose of expending public funds to stimulate or subsidise desirable private sector economic activity is a body established for a public purpose. 31. I also note that another purpose for staging the Games was to raise money for the Royal Children's Hospital burns unit (provision in that regard was made in WFG's Constitution), which again is clearly a public purpose. 32. As I stated above, the Games have now been cancelled. However, their cancellation does not affect my analysis of the purposes for which WFG was established. 33. I am satisfied that WFG is a public authority within the terms of s.9(1)(a)(ii) of the FOI Act because it is established by government, it is established for a public purpose, and it is established under an enactment. Conclusion 34. For the foregoing reasons, I decide that: 9 (a) WFG is an agency subject to the application of the FOI Act, because it is a body that is established by government for a public purpose under an enactment, within the terms of s.9(1)(a)(ii) of the FOI Act; (b) in his letter dated 30 October 2000, the applicant made a valid application for access to documents under s.25 of the FOI Act; (c) WFG thereby came under a legal obligation, imposed by s.27(2) of the FOI Act, to consider the application, and to make one or more of the decisions referred to in s.27(2); (d) having been refused access to documents sought in his FOI access application, the applicant was entitled to make an application for external review under Part 5 of the FOI Act, and, as Information Commissioner, I have jurisdiction to investigate and review WFG's refusal of access. 35. I will write to WFG separately, giving directions for the further conduct of this review, specifically in regard to any documents covered by the terms of the applicant's FOI access application in respect of which WFG claims to be entitled, under the exemption provisions contained in the FOI Act, to refuse the applicant access. .............................................................. D J BEVAN INFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Seven Network Operations Limited and Safe Food Production Queensland; Food business (Third Party) [2012] QICmr 6 (10 February 2012)

Seven Network Operations Limited and Safe Food Production Queensland; Food business (Third Party) [2012] QICmr 6 (10 February 2012) Last Updated: 28 May 2013 Decision and Reasons for Decision Application Number: 310277 Applicant: Seven Network (Operations) Limited Respondent: Safe Food Production Queensland Third Party: Food business Decision Date: 10 February 2012 Catchwords: RIGHT TO INFORMATION – REFUSAL OF ACCESS – applicant sought information about failed food safety audits of a food business held by Safe Food Queensland – third party objects to disclosure – whether the information comprises exempt information – section 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) – whether disclosure of the information would, on balance be contrary to the public interest – section 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) Contents REASONS FOR DECISION Summary The applicant applied to Safe Food Production Queensland (SFPQ) for documents about failed health and safety audits in relation to a food business.[1] After consulting with the food business as an interested third party, SFPQ refused access to the documents on the grounds that the documents were exempt from release; or alternatively that their release 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 SFPQ’s decision. On external review, OIC issued a preliminary view to SFPQ and the food business[3] that the documents were not exempt and that disclosure of the documents was not, on balance, contrary to the public interest.[4] SFPQ replied that it did not propose to be involved further in the external review process and therefore neither consented to, nor opposed the preliminary view.[5] On 24 October 2011, the food business applied to participate in the external review,[6] and provided submissions in response to OIC’s preliminary view. In summary the food business contends that the prejudice to its business and privacy outweigh any other factors favouring disclosure in the public interest and access to the information should therefore be refused. For the reasons set out below, I set aside SFPQ’s decision refusing access to the information in issue, substituting a decision that the information in issue is to be released. Significant procedural steps Significant procedural steps relating to the application and external review are set out in the Appendix. Reviewable decision The decision under review is SFPQ’s decision dated 11 June 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). What is the scope of this application? The terms of the access application are: Specifically I am seeking access to documents produced in the last 3 years showing information about [food business]. I am seeking copies of all failed food, health and or safety issues audits in relation to the shops at [locations] Queensland.[7] SFPQ identified 48 folios (comprising an audit report and an accompanying corrective action request) as responsive to the access application. The food business submits[8] that none of the documents the subject of this external review fall within the scope of the access application because none of the information relates to ‘failed’ food health and or safety audits, rather they relate to reports and action requests on levels of compliance. The food business raised this argument in the matters Food business and Gold Coast, and Seven and Redlands. I did not accept it in those cases and I do not accept it here for the same reasons. As the Assistant Information Commissioner said in Food business and Gold Coast,[9] an access applicant is not required to frame an application using the specific technical terminology contained in particular legislation or as used by government agencies. An applicant is merely required to provide enough information to allow an agency to identify requested documents.[10] The food business submits the words of the access application are not sufficient to identify the documents and only those that fall strictly within the terms of the application should be considered.[11] Interpreting an access application is not an exercise equivalent to construing a statute or other legal document; the object is to ascertain the applicant’s intention,[12] and generally an application should be interpreted broadly.[13] I am satisfied in this case that the applicant, in using the word ‘failed’, was seeking to access information such as the information in issue. The application provided sufficient information to allow SFPQ to identify the information, and it falls within the scope of the access application. Information in Issue The information in issue in this review is the 48 folios of documents described at paragraph 12. It does not include the names of the auditors because the applicant does not wish to pursue access to this personal information. Relevant law Onus on external review Section 87(1) of the RTI Act provides that on external review, the agency or Minister who made the decision has the onus of establishing that the decision was justified. Right to access information Under section 23 of the RTI Act, a person has a right to be given access to documents of an agency. However, this right is subject to a number of exclusions and limitations, including grounds for refusal of access. These grounds are contained in section 47 of the RTI Act. Sections 47(3)(a) and 48 of the RTI Act provide that access may be refused to a document to the extent that it comprises ‘exempt information’. Schedule 3 sets out the types of information which the Parliament has considered to be ‘exempt information’ as its disclosure would, on balance, be contrary to the public interest. Sections 47(3)(b) and 49 of the RTI Act provide a ground for refusal of access where disclosure of information would, on balance, be contrary to the public interest. In determining whether disclosure of the information sought 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. In making this decision I have considered whether the information in issue: is exempt information disclosure of which could: found an action for breach of confidence[15] reasonably be expected to endanger a person’s life or physical safety[16] 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[17] reasonably be expected to prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety;[18] and reasonably be expected to prejudice a system or procedure for the protection of persons;[19] or is information whose disclosure would, on balance, be contrary to the public interest.[20] Exempt information Breach of confidence Information will be exempt if its disclosure would found an action for breach of confidence in equity. The following elements must be established to give rise to an equitable obligation of confidence: information must be capable of being specifically identifiable as information that is secret, rather than generally available information must have the necessary quality of confidence circumstances of the communication must create an equitable obligation of confidence disclosure to the applicant for access must constitute an unauthorised use of the confidential information; and disclosure must cause detriment to the plaintiff.[21] I am satisfied that disclosure of the information in issue would not found an action for breach of an equitable obligation of confidence because the information has not been communicated in circumstances which import an equitable obligation of confidence. (c) circumstances of communication All the relevant circumstances in which information was received must be considered to determine whether the party who received the information is bound by an obligation of confidence. The Information Commissioner has previously indicated[22] that the relevant circumstances to consider include, but are not limited to the: nature of the relationship between the parties nature and sensitivity of the information purpose/s for which the information was communicated nature and extent of any detriment to the interests of the information-supplier that would follow from an unauthorised disclosure of the information; and circumstances relating to the communication. The information in issue is information obtained by SFPQ auditors upon entering the food business and carrying out their statutory functions. SFPQ submits that auditors conducting audits on its behalf are under an obligation to keep information obtained during audits confidential because of the confidentiality requirements of SFPQ’s Approved Auditor’s Code of Conduct 2008 (Auditor’s Code of Conduct). The Auditor’s Code of Conduct states that: Confidential information received by an auditor in the course of the exercise of their duties remains the property of the auditee and SFPQ. It is improper to disclose that information or allow it to be disclosed, unless that disclosure has been authorised by SFPQ, and the persons from whom the information is provided, or is required by law.[23] Outside of the recognised audit reporting process, an auditor shall not disclose official or commercial information to any person or agency unless: an auditor is authorised to release the information under a statute, regulation or code under the Public Sector Ethics Act 1994 (e.g. information approved for release under the Freedom of Information Act 1992)[24] This confidentiality requirement does not prohibit disclosure under the RTI Act, rather, it makes it clear that unauthorised disclosure is improper and indicates that an auditor is generally expected to keep such information confidential. I do not consider that this, by itself, is sufficient to create an equitable obligation of confidence. The requirement in the Code of Conduct is aimed at ensuring that auditors do not release information through improper processes. The RTI process is a proper process and is a release required by law; something specifically contemplated by the Code of Conduct. SFPQ also submits:[25] In every audit, SFPQ relies heavily on the essential cooperation of the accreditation holder in allowing access to premises, staff and records, taking the auditor to all relevant parts of the premises and its equipment....cooperation by accreditation holders is critical to ensuring that audits are effective. I do not accept SFPQ’s submission that it needs to rely on the cooperation of accreditation holders (such as the food business) to ensure the success of audits. SFPQ auditors have powers mandating the cooperation of accreditation holders under the Food Production (Safety) Act 2000 Qld (Food Safety Act). Accreditation holders are obliged to cooperate with auditors or face a penalty.[26] There is a statutory obligation to assist, irrespective of the views of SFPQ or accreditation holders.[27] SFPQ goes on to submit:[28] This cooperation is largely achieved through a shared understanding between the accreditation holder and the auditor that information and business practices observed during the audits is commercial in confidence and remains only between the auditor, the client and SFPQ. As stated above, auditors are charged with enforcing the obligations set out in the Food Safety Act and the food business is obliged to cooperate with the auditors in order to maintain its certification. SFPQ’s submission that auditor’s and food businesses have an understanding of confidentiality between them is not reasonable in the context of the operative statutory framework. How, for example, would the understanding of confidence operate if a food business were to be prosecuted for an offence under the Food Safety Act. SFPQ is a government entity charged with enforcing the Food Safety Act. This obligation does not extend to maintaining a commercial in confidence relationship with the entities that it is responsible for regulating. I consider such a relationship to be incompatible with that obligation. I am therefore satisfied that the requirement of an obligation of confidence is not established and consequently disclosure of the information in issue would not found an action in equity for breach of confidence. As I am satisfied that the requirement is not met, it is not necessary for me to consider the application of the other elements comprising an equitable obligation of confidence. Remaining exemption claims SFPQ has also claimed that the information in issue is exempt because its disclosure could reasonably be expected to: endanger a person’s life or physical safety prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety; and prejudice a system or procedure for the protection of persons. SFPQ has simply listed these exemption provisions without providing any supporting argument or evidence. SFPQ has not discharged its statutory onus[29] of demonstrating that its decision to refuse access to information was justified. There is nothing in SFPQ’s decision or the information before me to suggest that any of the harms anticipated by these provisions could reasonably be expected[30] to occur were the information to be disclosed. SFPQ has not provided any submissions in response to OIC’s preliminary view in which this was stated. Instead SFPQ stated that it does not propose to be involved further in the external review process and therefore that it neither consents to, nor opposes the preliminary view.[31] SFPQ’s claim that disclosure could reasonably be expected to endanger a person’s life or physical safety appears to be misconceived. To establish this exemption SFPQ must identify a target or targets of endangerment, a source of danger, and provide credible evidence of a risk that disclosure of the audit reports would endanger the target’s life or physical safety. This has not occurred. As for the balance of the exemptions summarised above, it may be that SFPQ is arguing that disclosure of the information in issue would damage the cooperative relationship it asserts that it enjoys with accreditation holders, therefore preventing SFPQ from carrying out its regulatory duties and resulting in the various harms the provisions cited above seek to avoid. For example, Safe Food submits at page 24 of its decision: The release of the documents in the schedule would cause the cooperation by the industry and other industries to be adversely affected to such as extent as to imperil the effectiveness of audits conducted by SFPQ. If this access and cooperation were lost, then there is an unacceptable risk that public health and safety would be at risk and the public no longer protected. SFPQ has provided no evidence to support its assertion that disclosure of audit reports would adversely affect ‘cooperation’ with industry participants. In any case, the submission appears to misconceive the nature of the regulatory regime prescribed in the Food Safety Act. SFPQ is a regulatory agency charged with enforcing mandatory obligations imposed by that Act. It would appear that the only way in which the prejudice anticipated in the various exemption provisions cited could reasonably be expected to occur would be if SFPQ was to abandon its statutory responsibilities and regulatory duties. Accordingly, even if SFPQ could demonstrate that disclosure would affect its relationships with industry participants as asserted, there is nothing before me to suggest that this would in turn imperil the mandatory protective regime prescribed in the Food Safety Act, such as by allowing industry participants to subvert the audit process. I therefore do not consider that disclosure of the information in issue could reasonably be expected to have any of the adverse consequences envisaged in the relevant exemptions relied upon by SFPQ. Where does the balance of the public interest lie in this matter? I am satisfied that release of the information in issue would not, on balance, be contrary to the public interest for the reasons that follow. I have examined the irrelevant factors in schedule 4 of the RTI Act and do not consider that any irrelevant factors arise here. As noted earlier in this decision, the food business in this review is the same entity which participated as a third party in the external review the subject of the recent decisions Seven and Redlands and Gold Coast City Council. The food business has made substantially the same submissions on the public interest in this review as in the two previous reviews; so much of the reasoning in the two previous cases applies in this case.[32] Factors raised which do not apply SFPQ and the food business have raised a number of public interest factors favouring nondisclosure which are either misconceived or no longer relevant. I discuss each briefly below. Prejudice the competitive commercial activities of an agency. The information in issue concerns statutory functions - not competitive commercial activities - carried out by SFPQ, a regulatory agency. This factor does not arise for consideration. Prejudice the conduct of investigations, audits or reviews by the Ombudsman or Auditor-General. The information concerns audits carried out by SFPQ. SFPQ is not the Ombudsman or Auditor-General. This factor cannot arise. Prejudice an individuals’ right to privacy/disclose personal information of a person. As noted above, the applicant is not pursuing access to personal information. This factor does not, therefore, arise for consideration. Factors which presuppose a cooperative relationship SFPQ has raised various nondisclosure factors[33] which are based on the same reasoning discussed above in the context of SFPQ’s exemption claims, i.e. that disclosure will prejudice a cooperative relationship SFPQ asserts it has with industry participants, and thus lead to various adverse outcomes. Again, I note that SFPQ has provided no evidence to suggest that disclosure would lead to such prejudice. In any event, as discussed above, the information in issue is not confidential communications obtained through a relationship of trust or mutual cooperation (with either accreditation holders or third parties), but consists of independent audit records derived through the exercise of coercive statutory powers by official auditors. There is nothing before me to suggest that disclosure of these documents could reasonably be expected to cause the prejudicial outcomes claimed. Therefore, these various factors do not arise for consideration in this case. As regards SFPQ’s claim that disclosure would prejudice its audit function, I note that the decision contains the following statement: If an audited entity knows how an auditor reaches conclusions, then the audit function is prejudiced by disclosure of the audit methodology. While in broad terms the nature of audit methods may be obvious, or even widely known, or publicly available, it is important that details of the audit method, including, for example, the specific files that the auditor intends to examine, are kept from the entity subject to a possible future audit before an audit commences. Continued non-disclosure prevents prospective audited entities from subverting the audit process necessary for the auditor to make an independent assessment. Naturally such disclosures will prejudice subsequent audits if the same method is to be utilised. I do not accept that knowledge of an audit method would allow an entity to subvert an audit process. It is obvious, for example, that SFPQ’s audit methods will include site inspection and observation – these are both statutorily mandated and readily witnessed by subject businesses. More specifically, there is nothing in the particular information in issue that would allow an audited entity to anticipate when future audits may occur, or identify the ‘files’ that might be targeted. In any case, the information in issue has, on my understanding, already been disclosed by SFPQ to the food business in order to ensure compliance with the issues raised in each report. Thus, even if the information could be said to contain some sensitive or secret audit methodology, such information has already been revealed by SFPQ to the very entity it claims would be in a position to subvert future audit processes. In this context, I cannot see how further disclosure to the applicant would in any way prejudice the audit functions in the manner claimed. These factors therefore do not arise for consideration in the circumstances of this review. Factors favouring disclosure On the information before me, I am satisfied that disclosure of the information in issue could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability[34] contribute to positive and informed debate on important issues or matters of serious interest[35] reveal environmental or health risks or measures relating to public health and safety;[36] and contribute to safe, informed and competitive markets. Factors favouring nondisclosure On the information before me, I am satisfied that disclosure of the information in issue could reasonably be expected to prejudice the business, professional, commercial or financial affairs of the food business.[37] Balancing factors favouring disclosure and nondisclosure in the public interest The information in issue comprises audit reports and corrective action requests created by auditors employed by SFPQ to enforce the Food Safety Act. Disclosure of the information in issue could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability by showing members of the public the way in which SFPQ fulfils its audit role. Equally, disclosure could reasonably be expected to contribute to positive and informed debate about food safety issues by publicising the important role that SFPQ plays in ensuring that entities such as the food business maintain appropriate standards in accordance with the Food Safety Act. The food business has submitted that as the information in issue is from 2007, its disclosure cannot reveal health risks. As I said in Seven and Redlands[38] and Food Business and Gold Coast,[39] that submission does not go to whether the factor arises, but rather the weight to be attributed to it. I accept, however, that the information is relatively old and also that that the issues raised in the information in issue have since been addressed by the food business. Given disclosure of the information would not, therefore, reveal an immediate or ongoing environmental or health risk, I consider the weight to be attributed to this factor is low. As to the public interest in safe, informed and competitive marketplaces, as stated in Seven and Redlands[40] and Food Business and Gold Coast,[41] there is a strong public interest in consumers being informed about the markets in which they operate. I recognised a public interest in disclosing information where that disclosure could reasonably be expected to inform consumers about the marketplace – including particular participants in a specific market – so as to empower consumers to make more informed decisions about such participants, their products and their services.[42] In this case, disclosure of the information in issue would inform consumers about how the food business fulfils its obligations under the Food Safety Act. It will also show the industry and the food business that information of this sort may be published. This may contribute to a safer food environment for consumers. Also, this will advance the public interest in safe, informed and competitive marketplaces and I consider it should be given significant weight. The food business and SFPQ have argued that disclosure of the information in issue will cause damage to the food business’ reputation. I accept this submission. As to the extent of the prejudice, as in Seven and Redlands and Food Business and Gold Coast, the age of the information and the fact that the food business has addressed the issues raised in the audits means that any prejudice would be moderate. I therefore give this factor moderate weight. On balance and taking into account all of the matters set out above, I am satisfied that: the public interest factors favouring disclosure of the information in issue outweigh the public interest factor favouring nondisclosure; and disclosure of the information in issue would not, on balance, be contrary to the public interest. DECISION I set aside SFPQ’s decision to refuse access to the information in issue and find that the information in issue: 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). ________________________ Acting Assistant Information Commissioner Lynch Date: 10 February 2012 APPENDIX Significant procedural steps Date[43] Event 14 April 2010 The applicant applied to Safe Food Production Queensland (SFPQ) under the RTI Act for documents about failed health and safety audits in relation to a food business. 20 May 2010 SFPQ consulted with relevant third parties, including the food business (third party) regarding the release of the information requested by the applicant. 27 May 2010 Solicitors for the third party responded objecting to release of the information requested by the applicant. 11 June 2010 SFPQ issued its decision (access decision). 30 June 2010 The applicant applied to OIC for external review of the access decision. 22 July 2010 SFPQ provided OIC with submissions. 10 October 2011 OIC conveyed a written preliminary view to SFPQ, and the third parties and invited them to provide submissions in support of their respective cases if they did not accept the preliminary view. 24 October 2011 OIC received submissions from the solicitors for the food business seeking to be added as a third party in the review and providing submissions. 24 October 2011 OIC received submissions from SFPQ in response to the preliminary view. [1] As the name of the food business forms part of the information in issue, I cannot reveal it in this decision. See section 108(3) of the Right to Information Act 2009 (Qld) (RTI Act). [2] SFPQ’s decision dated 11 June 2010. [3] OIC also consulted with two other auditors who did not object to the preliminary view. [4] The food business in this review is the same entity which participated as a third party in the external review the subject of the recent decision Channel Seven and Redland City Council (Unreported, Queensland Information Commissioner, 30 June 2011) (Seven and Redlands) and Food Business and Gold Coast City Council; third party Channel Sevel (Unreported, Queensland Information Commissioner, 14 September 2011) (Food business and Gold Coast). The food business has made identical submissions on the public interest in this review as in Seven and Redlands and Food business and Gold Coast. It also made identical submissions on scope in Food business and Gold Coast. Therefore, much of my reasoning in those two previous cases is applicable in this case, and is referred to as relevant throughout these reasons. [5] The OIC took that to mean that SFPQ does not intend to make further submissions in this review and did not seek any further submissions from SFPQ. Nonetheless, SFPQ is a party to the review. Section 74 of the Right to Information Act 2009 (Qld) (RTI Act) provides that the participants in an external review are the applicant and the agency or Minister concerned. In this case, SFPQ is the agency concerned. OIC confirmed this to SFPQ in a letter dated 8 November 2011. [6] Under section 89 of the RTI Act. [7] Access application dated 14 April 2010. [8] In a submission to OIC dated 24 October 2011. [9] At paragraph 15.[10] Section 24(2)(b) of the RTI Act.[11] Food business’ submission to OIC dated 24 October 2011. [12] For the principles applicable to the interpretation of access applications see Cannon v Australia Quality Egg Farms Ltd [1994] QICmr 9; (1994) 1 QAR 491 at paragraph 10. [13] See Wenzel and Secretary, Department of Defence [2005] AATA 1174 at paragraph 9. [14] Section 49(3) of the RTI Act.[15] Schedule 3, section 8 of the RTI Act. [16] Schedule 3, section 10(1)(c) of the RTI Act [17] Schedule 3, section 10(1)(f) of the RTI Act. [18] Schedule 3, section 10(1)(g) of the RTI Act. [19] Schedule 3, section 10(1)(i) of the RTI Act. [20] Section 47(3)(b) and 49 of the RTI Act. [21] The Queensland Information Commissioner identified these requirements in B and Brisbane North Regional Health Authority [1994] QICmr 1 (B and BNRHA) in applying the equivalent exemption under the repealed Freedom of Information Act 1992 (Qld). See also Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) and Another [1987] FCA 266; (1987) 14 FCR 434 (Corrs Pavey) at 437 per Gummow J. The recent decision of TS008G and Queensland Health (Unreported, Queensland Information Commissioner, 13 December 2011) confirmed the requirement of detriment in RTI cases. [22] B and BNRHA at paragraph 84.[23] Guiding principles - at page 4 of the Auditor’s Code of Conduct. [24] At page 8 of the Auditor’s Code of Conduct. [25] SFPQ’s decision dated 11 June 2010. [26] Generally see Part 8 of the Food Safety Act – Enforcement, investigation and offences. SFPQ also pointed this out at paragraph 42 of its decision. [27] See the comment in note 15 in Food business and Gold Coast City Council which states ‘Businesses must cooperate with Council investigators or face a penalty. In these circumstances, there can be no expectation of confidentiality nor prejudice to the future supply of like information to Council.’[28] SFPQ’s decision dated 11 June 2010. [29] Under section 87(1) of the RTI Act. [30] Noting that the phrase ‘could reasonably be expected to’ requires an expectation that is reasonably based, ie. neither absurd, irrational or ridiculous.[31] The OIC took that to mean that SFPQ does not intend to make further submissions in this review and did not seek any further submissions from SFPQ. Nonetheless, SFPQ is a party to the review. Section 74 of the RTI Act provides that the participants in an external review are the applicant and the agency or Minister concerned. In this case, SFPQ is the agency concerned. OIC confirmed this to SFPQ in a letter dated 8 November 2011. [32] This external review considers a different Act than Seven and Redlands and Food business and Gold Coast City Council – the Food Safety Act – however, the Acts considered in the published decisions are sufficiently analogous to the Food Safety Act for the reasoning to apply to this external review. [33] The relevant factors are: • disclose information of a confidential nature that was communicated in confidence and disclosure of that information could reasonably be expected to prejudice the future supply of information of this type • prejudice an agencies ability to obtain confidential information • prejudice the effectiveness of testing or auditing procedures • prejudice the flow of information to a regulatory agency; and • affect particular operations of agencies.[34] Schedule 4, part 2, item 1 of the RTI Act.[35] Schedule 4, part 2, item 2 of the RTI Act.[36] Schedule 4, part 2, item 14 of the RTI Act. [37] Schedule 4, part 3, item 2. [38] At paragraph 31. [39] At paragraph 32. [40] At paragraphs 33 to 45. [41] At paragraphs 35 to 40. [42] Seven and Redlands at paragraph 33. [43] Of correspondence or relevant communication unless otherwise stated.

queensland

court_judgement

Queensland Information Commissioner 1993-

E1O4YO and Queensland Fire and Emergency Services [2018] QICmr 42 (16 October 2018)

E1O4YO and Queensland Fire and Emergency Services [2018] QICmr 42 (16 October 2018) Last Updated: 25 October 2018 Decision and Reasons for Decision Citation: E1O4YO and Queensland Fire and Emergency Services [2018] QICmr 42 (16 October 2018) Application Number: 313665 Applicant: E1O4YO Respondent: Queensland Fire and Emergency Services Decision Date: 16 October 2018 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - CONTRARY TO THE PUBLIC INTEREST - information provided by complainant and witnesses in a workplace investigation - accountability and transparency - procedural fairness - personal information and privacy - prejudice to management function - whether disclosure would, on balance, be contrary to the public interest - whether access to information may be refused under section 47(3)(b) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to Queensland Fire and Emergency Services (QFES) under the Right to Information Act 2009 (Qld) (RTI Act) for access to a report concerning allegations that had been made against the applicant in the workplace (Investigation Report). QFES engaged an external investigator to conduct the investigation and prepare the Investigation Report. The investigator found the allegations to be unsubstantiated. QFES decided[2] to refuse access to parts of the Investigation Report[3] that would identify the complainant and witnesses, and reveal the information those individuals provided in their statement and interviews, on the basis that disclosure would, on balance, be contrary to the public interest.[4] The applicant applied to the Office of the Information Commissioner (OIC) for external review of QFES’ refusal of access decision.[5] The applicant considers that he has a right to know what people have said about him during the investigation, and submits that witnesses are afforded too much protection in an investigation process, and under the RTI Act. For the reasons set out below, I affirm the decision to refuse access to parts of the Investigation Report, and relevant attachments, 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 QFES’ decision dated 21 November 2017. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix). Information in issue The Investigation Report comprises the report prepared by the investigator and various attachments.[6] The information which remains in issue comprises the following (Information in issue): parts of the report prepared by the investigator[7] transcripts of interviews of the complainant and two witnesses (Transcripts);[8] and a typed statement of the complainant (Statement).[9] Issues for determination The issue for determination is whether access to the Information in issue 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. Relevant law The RTI Act gives people a right to access information held by government agencies[10] and is to be administered with a pro-disclosure bias.[11] There are however, limitations on this right, including grounds for refusal of access. Relevantly, access to information may be refused if its disclosure would, on balance be contrary to the public interest.[12] The RTI Act identifies various factors that may be relevant to deciding the balance of the public interest.[13] It also explains the steps that a decision-maker must take in deciding the public interest.[14] The term ‘public interest’ is not defined in the RTI Act, 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 its 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. Findings For the reasons that follow, I am satisfied that access to the Information in issue may be refused, on the basis that disclosure would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act. Factors favouring disclosure Disclosing the entire Investigation Report would, to some extent, enhance QFES’ transparency in terms of how it handles workplace complaints[15] and disclosing the Transcripts and Statement would reveal background and contextual information to decisions made by QFES in relation to complaints against the applicant.[16] However, taking into account that the substance of the allegations was put to the applicant during the investigation, the significant portion of the Investigation Report which has been released to the applicant and the limited nature of the information that remains redacted from the Investigation Report, I am satisfied that these disclosure factors have been largely discharged and therefore, carry only low weight in favour of disclosure. The applicant is named in the Information in issue and there are references to his actions and behaviour, as expressed by other individuals. I am satisfied that this information comprises the applicant’s personal information[17] giving rise to a factor favouring disclosure.[18] I acknowledge the public interest in providing individuals with access to their personal information held by government, however, the applicant’s personal information appears in such a way that it cannot be separated from the personal information of others (as discussed below). Therefore, to release it would also result in disclosure of the personal information of those other individuals. I find that this limits the weight of this factor, and therefore, afford it moderate weight. The applicant is concerned about false allegations and statements about him appearing in the Information in issue.[19] The RTI Act recognises that where disclosure could reasonably be expected to reveal that the information is incorrect, out of date, misleading, gratuitous, unfairly subjective, or irrelevant, this will give rise to a factor favouring disclosure.[20] In a comparable workplace investigation context, the Information Commissioner previously found that information provided by witnesses and complainants: ... is, by its very nature, the particular opinions and versions of events expressed by the relevant individuals who provided statements in the investigation... 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.[21] Statements appearing in the Information in issue are the subjective recollection of events by other individuals, however, I am not satisfied that this subjectivity means this information is incorrect or unfairly subjective.[22] Disclosure of the statements made by others would, at best, reveal that the other individuals may have described or recalled events differently to the applicant. Objectively, this does not show that information provided by witnesses or the complainant is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant, and I am therefore, satisfied that this factor does not apply in this case. The applicant submits that he was not given all the precise details of information gathered against him, and believes he was not afforded natural justice or procedural fairness during prior investigations.[23] I acknowledge that disclosure of information about allegations, in an investigation context, may contribute to procedural fairness, thereby giving rise to a factor favouring disclosure.[24] However, it is clear from the content of the Investigation Report and the information already in the applicant’s possession[25] that the external investigator put the substance of the allegations to him, he was given a reasonable opportunity to respond to these complaints, and ultimately, the external investigator cleared the applicant of any wrongdoing. While it appears that the applicant considers there to have been deficiencies in the processes involved in prior investigations, the information available to OIC demonstrates that he was afforded procedural fairness in the context of this particular investigation. Accordingly, I am satisfied that disclosure of the Transcripts, Statement and information redacted from the Investigation Report would advance the public interest in procedural fairness only to a limited extent and afford that factor low weight. Factors favouring nondisclosure The Information in issue comprises the names of the complainant and witnesses involved in the investigation, and their recollection of events as set out in the Statement and Transcripts. I am satisfied that this comprises the personal information of those individuals as they can be identified and the information is about them.[26] The investigation occurred in a public sector workplace. The Information Commissioner has previously recognised that the routine work information of public sector employees may generally be released under the RTI Act, given the limited privacy and higher accountability in disclosure.[27] However, the Information in issue here does not fall into the routine category, nor does it relate to the day to day duties of a public service officer.[28] I consider that a public servant’s involvement in a workplace complaint process, as complainant, subject, or witness does not form part of their routine duties. Therefore, the public interest nondisclosure factors relating to personal information and privacy arise for consideration.[29] The concept of ‘privacy’ is not defined in the RTI Act, however, it can be viewed as the right of an individual to preserve their personal sphere free from the interference of others.[30] The applicant submits that witness statements should be considered less sensitive than that of a complainant.[31] Having considered the Information in issue, I find that disclosure of both complainant and witness statements would intrude on those individuals’ privacy as it would reveal their personal views and opinions provided in a sensitive workplace context. I afford this factor high weight in favour of nondisclosure. In assessing the weight of the public interest harm factor concerned with disclosure of personal information, I accept that the applicant is likely to be aware of the identities of the other individuals who were involved in the investigation process, given the complaint arose within a workplace context. Therefore, those individuals’ names may not necessarily be subject to the harm factor. However, disclosure of the words those individuals used and the feelings they expressed in their Statement and Transcripts, and where that information is quoted or paraphrased in the Investigation Report, would reveal the sensitive personal information of those individuals. I find that disclosure of such information would cause a moderate public interest harm as it could result in employees being less forthcoming in workplace investigations, prejudice the efficacy of those processes and generally reduce employee confidence/morale. Accordingly, I afford the harm factor moderate weight. The RTI Act also recognises that a factor favouring nondisclosure will arise where disclosure of the information could reasonably be expected to prejudice an agency’s management function.[32] I am satisfied that disclosure of this type of information under the RTI Act, where there is no restriction on its use, dissemination or re-publication, could reasonably be expected to result in witnesses and complainants being deterred from providing fulsome accounts to investigators in workplace investigations. It is also reasonable to expect that if witness statements were disclosed under the RTI Act, public servants may choose not to raise grievances, or refuse to participate in investigation processes. In turn, this could reasonably be expected to adversely affect QFES’ ability to manage workplace complaints and investigations, thereby significantly prejudicing QFES’ management function. I afford this factor significant weight in favour of nondisclosure. Balancing the public interest There is some weight, though low, to be afforded to the public interest in enhancing QFES’ transparency in handling workplace complaints, and providing background and contextual information that was presented to the investigator retained by QFES to conduct the investigation. I have also afforded only low weight to the public interest in procedural fairness, in the circumstances of this case. I am however, satisfied that the public interest in the applicant having access to his personal information carries moderate weight in favour of disclosure. On the other hand, the public interest in ensuring the privacy of the complainant and witnesses carries high weight, and I have found there is moderate public interest harm in disclosing the personal information of other individuals. Lastly, the public interest in ensuring workplace grievance processes are not prejudiced through disclosure of complainant and witness statement information is particularly significant in this case. I am satisfied that the public interest nondisclosure factors outweigh the disclosure factors in this case. I find that, on balance, disclosure of the Information in issue would be contrary to the public interest and therefore, access to it may be refused under section 47(3)(b) of the RTI Act. DECISION I affirm the decision under review to refuse access to the Information in issue under section 47(3)(b) of 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 ActK ShepherdAssistant Information Commissioner Date: 16 October 2018 APPENDIX Significant procedural steps Date Event 8 December 2017 OIC received the external review application. 15 December 2017 OIC notified QFES and the applicant that that the external review application had been received and requested relevant procedural information from QFES. 19 December 2017 OIC received the procedural information from QFES. 12 January 2018 OIC notified the applicant and QFES that the application for external review had been accepted. OIC asked QFES to provide the documents located in response to the access application, information about the searches conducted on the application and a copy of any correspondence with consulted third parties. 16 January 2018 QFES provided OIC with the requested documents. 1 March 2018 OIC orally conveyed a preliminary view to the applicant that disclosure of the Information in issue, would, on balance, be contrary to the public interest. 8 May 2018 OIC confirmed its preliminary view to the applicant, in writing. 21 May 2018 The applicant provided oral submissions in response to OIC’s preliminary view. 7 and 18 June 2018 OIC spoke to QFES to obtain further information about its decision and the Information in issue. 21 June 2018 In a telephone conversation with OIC, the applicant provided details about the information he was seeking and the reasons he was seeking access to this information. The applicant also provided oral submissions to support his entitlement to access information. 22 June 2018 OIC emailed the applicant to confirm the oral submissions he had provided to OIC on 21 June 2018, and that he did not seek a copy of his own witness statement. 10 July 2018 OIC wrote to the applicant confirming the preliminary view that access to the Information in issue could be refused on the basis that its disclosure would, on balance, be contrary to the public interest. 8 August 2018 The applicant advised OIC, by telephone, that he did not accept the preliminary view and requested the review be finalised by formal decision. 7 September 2018 OIC requested copies of attachments to the Investigation Report from QFES. 28 September 2018 OIC received the requested information from QFES. [1] Access application dated 8 October 2017.[2] Decision dated 21 November 2017. [3] Including attachments.[4] Sections 47(3)(b) and 49 of the RTI Act. [5] External review application dated 8 December 2017.[6] During the external review, the applicant confirmed to OIC that he wanted to obtain access to the statements made and information provided by other individuals. On this basis, some of the attachments to the Investigation Report not comprising that type of information was not considered by OIC, e.g. the applicant’s own transcript of interview and documents he provided to the investigator. [7] Parts of 43 pages.[8] Attachments no. 4, 5 and 6 to the Investigation Report, in their entirety.[9] Attachment no. 9 to the Investigation Report, in its entirety.[10] Section 23 of the RTI Act.[11] Section 44 of the RTI Act.[12] Section 47(3)(b) and 49 of the RTI Act. [13] These are listed in schedule 4 of the RTI Act, though this list of factors is not exhaustive; in other words, additional factors that are not listed may also be relevant.[14] Section 49(3) of the RTI Act sets out that in order to decide where the balance of public interest lies, a decision-maker must (i) identify any irrelevant factors and disregard them, (ii) identify any 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.[15] Schedule 4, part 2, item 1 of the RTI Act. [16] Schedule 4, part 2, item 11 of the RTI Act.[17] As defined in section 12 of the Information Privacy Act 2009 (Qld) (IP Act).[18] Schedule 4, part 2, item 7 of the RTI Act. [19] Telephone conversation with OIC on 21 June 2018.[20] Schedule 4, part 2, item 12 of the RTI Act.[21] F60XCX and Department of Natural Resources and Mines [2017] QICmr 19 (9 June 2017) at [52].[22] Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [15][20].[23] Telephone conversation with OIC on 21 June 2018.[24] Schedule 4, part 2, item 16 of the RTI Act. [25] For example, his own transcript of interview.[26] Section 12 of the IP Act. [27] Mewburn and Department of Natural Resources and Mines [2016] QICmr 31 (19 August 2016) at [43]-[47]. [28] See, for example, Castley-Wright and Mareeba Shire Council [2018] QICmr 25 (22 May 2018) at [22] and Gapsa and Department of Transport and Main Roads (Unreported, Queensland Information Commissioner, 12 April 2013) at [71]. [29] Schedule 4, part 3, item 3 and schedule 4, part 4, section 6 of the RTI Act. [30] 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 [1.56].[31] Telephone conversation with OIC on 21 June 2018.[32] Schedule 4, part 3, item 19 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Rees and Queensland Generation Corporation [1996] QICmr 10; (1996) 3 QAR 277 (14 June 1996)

Rees and Queensland Generation Corporation [1996] QICmr 10; (1996) 3 QAR 277 (14 June 1996) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 96010Application S 70/95 Participants: BERNARD REES Applicant QUEENSLAND GENERATION CORPORATION trading as AUSTA ELECTRIC Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - documents in issue concern the negotiation, and terms, of the settlement of proceedings commenced by a third party against the respondent in the Human Rights and Equal Opportunity Commission under the Racial Discrimination Act 1975 Cth - whether documents in issue contain information concerning the personal affairs of the third party - whether disclosure of the documents in issue would, on balance, be in the public interest - application of s.44(1) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.25, s.43(1), s.44(1), s.52Racial Discrimination Act 1975 CthBleicher v Australian Capital Territory Health Authority (1990) 20 ALD 625Commissioner of Police v The District Court of New South Wales and Perrin (1993) 31 NSWLR 606Department of Social Security v Dyrenfurth [1988] FCA 148; (1988) 80 ALR 533Fotheringham and Queensland Health, Re (Information Commissioner Qld, Decision No. 95024, 19 October 1995, unreported)Pope and Queensland Health, Re [1994] QICmr 16; (1994) 1 QAR 616Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227Uksi and Redcliffe City Council, Re (Information Commissioner Qld, Decision No. 95018, 16 June 1995, unreported) DECISION I affirm the decision under review (being the decision made on behalf of the respondent by Mr W R Fraser on 10 February 1995).Date of decision: 14 June 1996............................................................F N ALBIETZINFORMATION COMMISSIONER OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 96010 Application S 70/95 Participants: BERNARD REES Applicant QUEENSLAND GENERATION CORPORATION trading as AUSTA ELECTRIC Respondent REASONS FOR DECISION Background1. The applicant seeks review of the respondent's decision to refuse him access to documents relating to the negotiation, and terms, of the settlement of proceedings commenced by another person (referred to in these reasons for decision as the third party) against the respondent in the Human Rights and Equal Opportunity Commission (the Commission) under the Racial Discrimination Act 1975 Cth.2. In an application dated 26 October 1994, made under s.25 of the Freedom of Information Act 1992 Qld (the FOI Act), the applicant sought access from the Queensland Electricity Commission (QEC), to "documents regarding out of court settlement between QEC and [the third party] regarding charges of racism against QEC brought by [the third party] under the Racial Discrimination Act. Court hearing was held on the 14th and 15th (am) of February 1994".3. By letter dated 16 December 1994, Mr R M Blackburn, Senior Administration Officer for the QEC (the predecessor of the respondent corporation) informed the applicant of the QEC's decision in response to his FOI access application. Mr Blackburn decided to grant access to two documents (a transcript of proceedings before Commissioner W Carter QC of the Commission on 15 February 1994, and a letter which the applicant had written to the Minister for Minerals and Energy), but refused access to a further 18 documents on the grounds that they were exempt under s.43(1) (legal professional privilege) and/or s.44(1) (matter concerning personal affairs) of the FOI Act.4. By letter dated 12 January 1995, the applicant requested, in accordance with s.52 of the FOI Act, an internal review of the decision to refuse access to those 18 documents. The internal review was undertaken by Mr W R Fraser, Manager - Finance and Strategic Processes, of the respondent corporation. Mr Fraser informed the applicant, by letter dated 10 February 1995, that he had varied Mr Blackburn's initial decision by granting access in part to a further folio (folio 47(b)), but that in all other respects he affirmed Mr Blackburn's initial decision.5. By letter dated 3 March 1995, the applicant applied for review by the Information Commissioner, under Part 5 of the FOI Act, of Mr Fraser's decision, saying:The information relates to the outcome of the inquiry in which [the third party] brought charges against the Queensland Electricity Commission (now AUSTA Electric) under the Racial Discrimination Act.In bringing these charges against the QEC, [the third party] made very serious accusations against me personally, as an individual.The case was settled out of court on the second day of the hearing by QEC, without my involvement, thus depriving me of the right to prove my innocence and by implication, admitted guilt on my behalf. The claims made by [the third party], including charges against me were neither withdrawn NOR admitted on settlement.I feel very betrayed that not only did QEC not defend the charges made against me as an individual, which has been confirmed by the QEC, but settled the case hastily and without considering my health and feelings, thus denying me the right to see that justice is done.Because the charges made against me are still standing and the whole affair was shrouded in secrecy, for reasons best known to the QEC, I have tried in vain, various channels to seek answers to many questions I have pertaining to the case... .External review process6. The documents to which the applicant was refused access have been obtained from the respondent and examined. By letter to the applicant dated 17 January 1996, the Deputy Information Commissioner conveyed to the applicant his preliminary views on the application of s.43(1) and s.44(1) of the FOI Act to the documents to which the applicant had been refused access, which were categorised as follows:1. Notes of meetings and conversations, made by the QEC's legal officer (Documents 7, 8, 46, 53, 57 and 60)2. Memoranda from the QEC's legal officer to other officers of the QEC (Documents 27 and 37)3. Letters from the QEC's solicitors (Minter Ellison Morris Fletcher) to the QEC (Documents 34 and 38)4. Letters from the QEC to the third party or his solicitors (Documents 11 and 40)5. Letters from Minter Ellison Morris Fletcher to the solicitors for the third party (Documents 32, 50 and the last 2 pages of document 52)6. Letters from the solicitors for the third party to Minter Ellison Morris Fletcher (Documents 33, 59 and the first 3 pages of document 52)7. Draft of a letter to the applicant from the then Minister for Minerals and Energy (Document 47(b), for which a partial exemption is claimed).7. The documents in categories 1, 2 and 3, and the matter deleted from the document in category 7, are claimed by the respondent to be exempt under s.43(1) of the FOI Act.8. The documents in categories 4, 5 and 6, and certain documents in categories 1, 2 and 3, are claimed by the respondent to be exempt under s.44(1) of the FOI Act.9. In a letter to me dated 25 January 1996, the applicant said:I should point out that I only want access to documents relating to the final out of court settlement details. I am not interested in any documents that were communicated between different persons or records of telephone conversations before or during the hearing, which only lasted one day.10. A member of my staff sought clarification from Mr Rees of the documents to which he wished to pursue access. In a telephone conversation on 1 February 1996, Mr Rees confirmed that he was not seeking access to the documents subject to the claim of legal professional privilege (categories 1, 2 and 3) or to the balance of the draft version of the Minister's letter to him (category 7). Mr Rees stated that he was only interested in the details of the final settlement with the third party. Those details appear in documents in categories 4, 5 and 6 above. Mr Rees also confirmed that his letter dated 25 January 1996 should be treated as his submission in respect of the documents in issue.11. Therefore the documents remaining in issue in this review are the documents in categories 4, 5 and 6 above, which had been numbered by the respondent, for identification purposes, as documents 11, 32, 33, 40, 50, 52 and 59. They are described more precisely below: document 11 copy, "Without Prejudice" letter dated 30 December 1993 from the QEC to Crowley & Greenhalgh (the solicitors for the third party) document 32 letter dated 15 February 1994 from Minter Ellison Morris Fletcher (solicitors for QEC) to Crowley & Greenhalgh document 33 letter dated 15 February 1994 from Crowley & Greenhalgh to Minter Ellison Morris Fletcher document 40 letter dated 18 February 1994 from the QEC to the third party document 50 copy, letter dated 4 March 1994 from Minter Ellison Morris Fletcher to Crowley & Greenhalgh document 52 letter dated 9 March 1994 from Crowley & Greenhalgh to Minter Ellison Morris Fletcher and letter dated 18 March 1994 from Minter Ellison Morris Fletcher to Crowley & Greenhalgh document 59 letter dated 22 April 1994 from Crowley & Greenhalgh to Minter Ellison Morris Fletcher. 12. These documents contain the terms of settlement arrived at between the QEC and the third party in order to settle the inquiry and hearing under the Racial Discrimination Act 1975 Cth commenced by the third party against the QEC, and correspondence relating to the negotiation of, and compliance with, the terms of settlement.13. The submissions which the applicant has addressed to me in support of his case in this external review are reproduced below:I told the solicitors representing QEC only days before the commencement of the hearing that I did not want a settlement under any circumstances as I wanted the right to prove my innocence. I was assured that there would be no settlement. In bringing the charges against QEC, [the third party] made very serious accusations against me personally as an individual. On the second morning of the hearing, QEC unilaterally settled the case out of court without my knowledge and by implication admitted guilt on my behalf, thus depriving me of the right to prove my innocence. I have been told by a QEC appointed psychologist that in settling out of court QEC took all the anguish and stress off [the third party] and dumped it squarely on me.In regard to the settlement, the court transcript shows that the matter was resolved without admission of liability by any party and in regard to costs, it was agreed that [the third party] would not be "disadvantaged". I have been told by my MLA Mr T Sullivan that the money paid to [the third party] was approximately $30,000. A more accurate figure is a common knowledge within Austa Electric. In addition to financial compensation, [the third party] was promoted to a higher grade.I realise that the term "personal affairs" could be applied to "anything", but I am looking for some relief or exoneration in order to bring this unpleasant and upsetting saga to a close.Application of s.44(1)14. Section 44(1) and s.44(2) of the FOI Act provide: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. (2) Matter is not exempt under subsection (1) merely because it relates to information concerning the personal affairs of the person by whom, or on whose behalf, an application for access to a document containing the matter is being made.Does the information in issue concern a person's personal affairs?15. In my reasons for decision in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227,I identified the various provisions of the FOI Act which employ the term "personal affairs" and discussed in detail the meaning of the phrase "personal affairs of a person", and relevant variations thereof, in the FOI Act (see pp.256-267, paragraphs 79-114, of Re Stewart).In particular, I said that information concerns the "personal affairs of a person" if it relates to the private aspects of a person’s life, and that, while there may be a substantial grey area within the ambit of the phrase "personal affairs", that phrase has a well accepted core meaning which includes: affairs relating to family and marital relationships; health or ill-health; relationships with and emotional ties with other people; and domestic responsibilities or financial obligations.Whether or not matter contained in a document comprises information concerning an individual's personal affairs is essentially a question of fact, to be determined according to the proper characterisation of the information in question.16. I have previously expressed the view that information which merely concerns the performance by an employee of a government Department or agency 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: see Re Pope and Queensland Health [1994] QICmr 16; (1994) 1 QAR 616 at p.660 (paragraph 116). This is because the affairs are ordinarily not those of the employee but those of the government Department or agency on behalf of which the employee performs his or her duties of employment (cf. the passage from the judgment of Kirby P in Commissioner of Police v The District Court of New South Wales and Perrin (1993) 31 NSWLR 606 at p.625, which is quoted in Re Stewart at p.259, paragraph 84). I have used the word "ordinarily" in the preceding two sentences because information which, in a broad sense, concerns the performance by an employee of his or her employment duties is capable of straying into the realm of information concerning the personal affairs of the employee as an individual, as has been recognised by the Federal Court of Australia in Department of Social Security v Dyrenfurth [1988] FCA 148; (1988) 80 ALR 533 and Bleicher v Australian Capital Territory Health Authority (1990) 20 ALD 625: see in particular the extracts from these cases set out in Re Stewart at pp.240-263, paragraphs 33-36. Moreover, in Re Stewart, I said (at pp.261-262, paragraphs 92 and 94):92. ...There are also a number of cases...which deal with matters incidental to the relationship of employee and employer and which could properly be said to concern the employee's "personal affairs". Without resiling from the principles I have endorsed above, I consider that there is a relevant distinction to be drawn in respect of matters that relate to an employee as an individual, rather than an employee as agent or representative of the employer, and some matters in the former category may fall within the meaning of the phrase "personal affairs", as it has been explained above....94. I also endorse the principle stated by Smith J (President) of the Victorian AAT in Re Perton and Attorney-General's Department (1992) 5 VAR 302 at 319.In our view, material which discloses a complaint or allegations made to the Commissioner for Equal Opportunity pursuant to the Racial Discrimination Act, and the Sex Discrimination Act, as is the case here, will in many circumstances be regarded as 'personal affairs'. This is notwithstanding that the complaint and allegations concern incidents that arose in the work place in the context of a person's employment. Whether or not such material relates to a person's personal affairs is ultimately a question of fact depending on the documents in issue and the context in which they were created.17. In the present case, the third party's complaints of racial discrimination related to workplace incidents arising from his employment with the QEC. However, the documents in issue do not address the detail or merits of the substantive dispute between the third party and the QEC. (They do not, for instance, refer to the applicant, or workplace incidents involving he applicant, in any way). A settlement proposal had been put forward at a conciliation conference in the Commission. The documents in issue concern subsequent negotiations in respect of that proposal, culminating in agreed terms of settlement, and subsequent exchanges concerning the interpretation and implementation of the agreed terms of settlement.18. I consider that the commencement, and conduct, by the third party of his proceedings in the Commission against the QEC must properly to be characterised as a personal affair of the third party. In the commencement and conduct of those proceedings, I consider that the third party acted in a purely personal capacity, certainly not as an agent or representative of his employer. He was pursuing a legal remedy enabling the redress of detriment suffered as an individual, notwithstanding that it might have occurred in an employment context. The manner in which he conducted the proceedings was a matter for himself (in consultation with the legal advisers he engaged to represent his interests).19. I do not mean to convey that any involvement by an individual in litigation, or the pursuit of a legal remedy, is necessarily a personal affair of the individual. I consider, for example, that the commencement and conduct of legal action, by an individual who carries on a trade, business or profession, to recover money owed in respect of goods or services provided, should properly be characterised as the individual's business or professional affairs. On the other hand, I would regard the commencement and conduct of an action for damages for personal injuries, by an employee injured at work, as a personal affair of the injured employee, notwithstanding that it occurred in the course of the performance of the employee's duties of employment.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).22. Before leaving the characterisation issue, I should note that, even though it may properly be characterised as a personal affair of an individual, the pursuit of a legal remedy through litigation in courts or tribunals, or by other prescribed means, frequently involves information relevant to the pursuit of the legal remedy becoming a matter of public record. It is arguable that any information which becomes a matter of public record ceases to be information which concerns the private aspects of a person's life, and hence should be ineligible for exemption under s.44(1) of the FOI Act (cf. Re Stewart at pp.251-252, paragraphs 60-62).Alternatively, if it remains information which concerns a person's personal affairs, the fact that the information is accessible from public records would significantly diminish the weight to be accorded to the public interest in protecting that personal affairs information from disclosure under the FOI Act, when that public interest is to be weighed against identifiable public interest considerations which favour disclosure of the information: see Re Uksi and Redcliffe City Council (Information Commissioner Qld, Decision No. 95018, 16 June 1995, unreported) at paragraph 48; Re Fotheringham and Queensland Health (Information Commissioner Qld, Decision No. 95024, 19 October 1995, unreported) at paragraphs 26-29.23. In the present case, the settlement of the third party's proceedings against the QEC was reached by negotiation outside the Commission, with agreement that the terms of settlement remain confidential to the parties. The terms of settlement have not become a matter of public record: they are not recorded in any public document available through the Commission.Application of the public interest balancing test24. The applicant's submissions appear to place reliance on a public interest consideration of a kind I have accepted in previous decisions, that is, the public interest in the fair treatment of an individual, in this instance the applicant himself. However, it is clear from my examination of the documents in issue that they contain no information which, if disclosed, would be capable of answering any of the concerns raised in the applicant's submission, apart from his expressed desire to know the actual terms of settlement. Disclosure of the documents in issue would not further the applicant's understanding of the details of the third party's complaints against the applicant, or of any views that might have been held by the QEC or the Commission in respect of them.25. The allegations made by the third party concerning the workplace conduct of Mr Rees comprised only a small element of a complex series of allegations made against the QEC and several of its officers. Mr Rees was not a party to the proceedings in the Commission, and though he may have been required as a witness in support of the QEC's case in any formal hearing, he was not in a position to direct the QEC's conduct of the proceedings, or insist upon an opportunity to prove his innocence. The transcript of proceedings in the Commission before Commissioner W Carter QC on 15 February 1994 records that the parties had resolved the matter without any admission of liability by any party. The QEC did not admit any breach of the Racial Discrimination Act by it or its employees, and no breach was proved by the third party in proceedings before the Commission. The basis of settlement could not give rise to any implication in law that the applicant was guilty of breaches of the Racial Discrimination Act.26. A party's assessment of its prospects of success in litigation is not always the dominant factor in prompting it to seek a negotiated settlement of a dispute. Moreover, the QEC's assessment of its prospects of successfully defending the specific allegations involving Mr Rees would necessarily have been a minor factor in determining its strategy for the conduct of a much broader and more complex dispute. I note the following comments made by Commissioner Carter after the parties had announced that a settlement had been reached:And might I commend actually both sides for coming to some measure of unanimity in this respect, and I trust that the workplace relationship will be fruitful and worthwhile, and I am sure it will be. I think there is a measure of goodwill on both sides. These matters of concern arise from time to time and are genuinely felt, and indeed are genuinely resisted. The legislation is designed to provide the resolution of any disputes which might arise in that respect, but I can commend both sides.It has been a very difficult case, a very difficult case from my point of view, and I am sure an enormously difficult case from [the third party's] point of view and from the [QEC's] point of view, and I have sympathy for each of you. And that is why I feel that you have both acted very responsibly in this respect. I think untold damage can be done through litigation and I think now is the time for people to look forward with some measure of equanimity towards seeking to achieve a rapprochement, if that is the right word, in your future relationship as employer and employee.27. Apart from the concerns raised by the applicant, there is a general public interest in the accountability of government agencies for the conduct of their operations and the expenditure of their funds. However, I consider that the public interest in the accountability of the QEC, for its conduct and settlement of the proceedings brought by the third party in the Commission, is counterbalanced in this instance by the public interest in assisting to secure a lasting settlement of a sensitive dispute (in circumstances where settlement involves a continuation of the employer-employee relationship between the previous disputants) by respecting the agreement of the parties that the terms of settlement remain confidential.28. I am not satisfied that the public interest considerations favouring disclosure of the documents in issue are of sufficient weight to justify a finding that their disclosure would, on balance, be in the public interest.29. I therefore find that documents 11, 32, 33, 40, 50, 52 and 59 comprise exempt matter under s.44(1) of the FOI Act.Decision30. I affirm the decision under review...........................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

J64 and Metro North Hospital and Health Service [2020] QICmr 16 (20 March 2020)

J64 and Metro North Hospital and Health Service [2020] QICmr 16 (20 March 2020) Last Updated: 17 June 2020 Decision and Reasons for Decision Citation: J64 and Metro North Hospital and Health Service [2020] QICmr 16 (20 March 2020) Application Number: 314794 Applicant: J64 Respondent: Metro North Hospital and Health Service Decision Date: 20 March 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - AMENDMENT OF PERSONAL INFORMATION - information appearing in a discharge summary in the applicant’s medical records - whether information is inaccurate, incomplete, out of date or misleading - whether agency entitled to exercise discretion to refuse amendment - section 72 of the Information Privacy Act 2009 (Qld). REASONS FOR DECISION Summary The applicant applied[1] to Metro North Hospital and Health Service (Health Service), under the Information Privacy Act 2009 (Qld) (IP Act), for amendment of a discharge summary appearing in his medical records.[2] The Health Service decided to refuse the requested amendments on the basis that the information was not incorrect, out of date or misleading.[3] The applicant applied for external review of the Health Service’s decision.[4] I affirm the Health Service’s decision and find that it was entitled to refuse the requested amendments under section 72 of the IP Act. Reviewable decision The reviewable decision is the Health Service’s decision dated 30 July 2019. Background The applicant made previous applications for amendment of the discharge summary[5] and the Health Service granted certain requested amendments. In this external review, I am considering the applicant’s application for amendment of version 3 of the discharge summary (Discharge Summary). Evidence considered The evidence, submissions, legislation and other material I have considered in reaching my decision are as disclosed in these reasons (including in footnotes and Appendix). I have also had regard to the Human Rights Act 2019 (Qld),[6] particularly the right to seek, receive and impart 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, in accordance with section 58(1) of the HR Act.[9] Issue/s for determination The issue for determination is whether the Health Service is entitled to refuse the requested amendments under section 72 of the IP Act. The applicant provided several detailed submissions to OIC.[10] I have carefully considered these submissions and taken these into account to the extent they are relevant to the issue for determination. The applicant has been advised that this review will not include providing answers to his questions, particularly those he asks about different versions of the discharge summary and the contents of those versions.[11] Relevant law The IP Act confers on an individual the right to amend documents of an agency containing the individual’s personal information, where the personal information is inaccurate, incomplete, out of date or misleading.[12] A decision maker may refuse to amend a document if they are not satisfied that the personal information is inaccurate, incomplete, out of date or misleading.[13] These words are not defined in the IP Act, and therefore, should be given their ordinary meaning. For information to be considered ‘inaccurate’, the Information Commissioner has previously found that an applicant must establish not only that the information inaccurately represents the underlying events or issues, but that the authoring individual had not actually held and accurately entered into the official record their particular understanding of those events.[14] The term ‘misleading’ is not defined in the IP Act. The ordinary dictionary definition of ‘mislead’, as set out below, is therefore relevant: 1. to lead or guide wrongly; lead astray. 2. to lead into error of conduct, thought or judgement.[15] In considering whether information is misleading, the Information Commissioner has previously observed that amendment provisions are aimed at: ...ensuring that personal information concerning an applicant and read by third persons, does not unfairly harm the applicant or misrepresent personal facts about the applicant. The wording of section 72 of the IP Act provides that the decision maker is not limited to the specific grounds for refusing amendment set out in that section. Consequently, the decision maker retains a discretion to refuse to amend a relevant document.[16] A decision maker may also take into account the fact that it is not the purpose of the amendment provisions to: re-write history,[17] as this destroys the integrity of the record-keeping process determine disputed questions of opinion (including expert opinion), when that opinion was actually held and accurately entered in the official record[18] re-write a document in words other than the author’s[19] review the merits or validity of official action;[20] or correct any perceived deficiencies in the work undertaken by agencies or re-investigate matters.[21] Applicant submissions On external review, the applicant provided extensive written and oral submissions explaining the reasons he believes the Discharge Summary is incomplete, out of date, incorrect or misleading.[22] I have summarised these as follows: the telephone number recorded as the applicant’s contact number in two places should be removed as it was not his telephone number at the date of the Discharge Summary the author of the three versions of the Discharge Summary should be recorded on the current version in order to make them accountable for what they have written the note recording the applicant’s history of particular issues under active problems should be moved to previous medical history certain notes to be removed entirely no medications on admission should be listed as the applicant’s admission records including property list do not record that he had any medications on his person at admission the medication at discharge notation should be removed as it was not on the original discharge summary the reasons certain medications were started, stopped or unchanged should be recorded an entry in the clinical history of a pancreas report should record ‘past history’ rather than ‘history’ the referring doctor’s details have been deleted, but should be re-instated a complete record of the applicant’s wounds should be included the cause of the injuries to his feet requires clarifying; and certain information should be removed or replaced in the clinical history recorded in the MR head report. The applicant also explained that this Discharge Summary was provided to another health facility upon his transfer and he requires these amendments in order to amend the records of that other health facility. The applicant submits that the injuries he sustained were not the result of misadventure, as has been recorded throughout his medical records, rather he was the victim of a crime which has been covered up by the Health Service and the police have failed to properly investigate. Findings I acknowledge the applicant’s submissions that the Discharge Summary contains information that is incorrect, incomplete, out of date and misleading and I also note the extensive documentary evidence he has provided to support his contention. Weighing against this, I note that the Health Service’s decision indicates that the information included in the Discharge Summary was obtained from the applicant’s treating health professionals and reflects the information gathered during the applicant’s admission. In the case of the applicant’s telephone number and current treating doctor, the Health Service explained that the system generating the Discharge Summary automatically fills certain fields based on the current information available. I note that the applicant has made previous applications for amendment of the Discharge Summary and the Discharge Summary is no longer the record that was initially created at the time of the applicant’s discharge.[23] In some instances, the applicant is dissatisfied with the way the document was amended. I also accept that the applicant has highlighted certain instances where the Discharge Summary is inconsistent with records he has obtained from other agencies relating to the same timeframe and events.[24] The applicant is concerned that a crime against him has been covered up and he believes that amending these records will assist him to have that matter reviewed and enable him to amend documents held by another health facility. I consider that to do so would amount to an attempt to re-write the Discharge Summary in the applicant’s preferred words, determine questions of medical opinion disputed by the applicant, or to correct what the applicant perceives to be deficiencies in his treatment by a number of agencies and individuals, including the Health Service. I am satisfied that this is not the proper purpose or intent of the amendment provisions. Having carefully considered the Discharge Summary, the applicant’s submissions and supporting evidence and the Health Service’s decision, I am satisfied that the Health Service was entitled to refuse to amend the discharge summary. As noted previously, it is not the purpose of the amendment provisions to enable an applicant to re-write a document in words other than the author’s,[25] review the merits or validity of official action,[26] or correct any perceived deficiencies in the work undertaken by agencies.[27] In this case, the applicant is seeking to rewrite a hospital Discharge Summary according to his recollection of events some years after the relevant document was written and communicated to another Health Service. I am satisfied that in these circumstances, the Health Service was entitled to refuse the amendments requested by the applicant.DECISION I affirm the Health Service’s decision to refuse the requested amendments of the Discharge Summary under section 72 of the IP Act. I have made this decision under section 123 of the IP Act as a delegate of the Information Commissioner, under section 139 of the IP Act.S MartinAssistant Information Commissioner Date: 20 March 2020 APPENDIX Significant procedural steps Date Event 26 August 2019 OIC received the application for external review. 28 August 2019 OIC requested procedural documents from the Health Service. 29 August 2019 OIC received the requested procedural documents from the Health Service. 24 September 2019 OIC advised the applicant and the Health Service that the external review had been accepted. 14 and 21 October 2019 The applicant provided submissions and evidence in support of his application in person. 4 December 2019 The applicant provided submissions by telephone. 23 January 2020 OIC conveyed a preliminary view to the applicant. 5 and 6 February 2020 The applicant provided submissions by telephone. 7 February 2020 The Health Service advised OIC that only the most recent version of the discharge summary is retained. 13 February 2020 The applicant provided submissions by telephone. 14 February 2020 The applicant provided documents in support of his submissions. 19 and 27 February 2020 The applicant provided submissions by telephone. [1] Application dated 28 June 2019.[2] Version 3 of a discharge summary dated 20 May 2014. [3] Decision dated 30 July 2019.[4] External review application received 26 August 2019. [5] Dated 20 May 2014.[6] Referred to in these reasons as the HR Act, and which came into force on 1 January 2020.[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 [11].[9] 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.’[10] Applicant‘s submissions in person on 14 and 21 October 2019 and telephone submissions on 4 December 20219and 5, 6, 13, 19 and 27 February 2020.[11] In my letter to the applicant dated 23 January 2020. [12] Section 41 of the IP Act.[13] Section 72(1)(a)(i) of the IP Act.[14] A4STL6K and Queensland Health (Unreported, Queensland Information Commissioner, 6 September 2013) at [27].[15] Macquarie Dictionary (7th ed, 2017) ‘mislead’ (def 1 and 2).[16] 3DT2GH and Department of Housing and Public Works (Unreported, Queensland Information Commissioner, 26 November 2012) (3DT2GH) at [11].[17] DenHollander and Department of Defence [2002] AATA 866 at [96].[18] Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 (Crewdson) at [34].[19] Re Traynor and Melbourne and Metropolitan Board of Works (1987) 2 VAR 186 (Traynor) at 190, cited 3DT2GH at [18]. Traynor considered the requirements of the Freedom of Information Act 1982 (Cth), the terms of which are substantially similar to the amendment provisions in the IP Act.[20] Crewdson at [24].[21] Shaw and Medical Board of Queensland (Unreported, Queensland Information Commissioner, 3 July 2008) (Shaw) at [57].[22] Applicant’s submissions in person on 14 and 21 October 2019, documents delivered to OIC on 14 February 2020 and telephone submissions on 4 December 2019 and 5, 6, 13, 19 and 27 February 2020. [23] In a telephone discussion with the Health Service on 7 February 2020, we were advised that Version 3 is the only version of the Discharge Summary available in their records.[24] For example, the applicant notes that the Discharge Summary records that he was found on the ‘floor’ whereas a report from another agency records ‘thick grass in park’. [25] Traynor at 190.[26] Crewdson at [24].[27] Shaw at [57].

queensland

court_judgement

Queensland Information Commissioner 1993-

Bayliss and Queensland Health [1997] QICmr 7; (1997) 4 QAR 1 (28 April 1997)

Bayliss and Queensland Health [1997] QICmr 7; (1997) 4 QAR 1 (28 April 1997) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 97007Application S 176/95 Participants: PETER JOHN BAYLISS Applicant QUEENSLAND HEALTH Respondent ANOTHER Third Party DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - matter in issue would identify a source of information given to the Minister for Health about alleged unsatisfactory standards in the provision of medical services - whether disclosure of the matter in issue would identify a confidential source of information in relation to the enforcement or administration of the law - application of s.42(1)(b) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.26, s.42(1)(b), s.78, s.89Health Rights Commission Act 1991 Qld s.33(1), s.59(1)(c), s.59(1)(d)Health Services Act 1991 QldMedical Act 1939 QldAttorney-General's Department and Australian Iron & Steel Pty Ltd v Cockcroft (1986) 64 ALR 97"B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279Department of Health v Jephcott [1985] FCA 370; (1985) 62 ALR 421McEniery and the Medical Board of Queensland, Re [1994] QICmr 2; (1994) 1 QAR 349Richardson and Commissioner for Corporate Affairs, Re (1987) 2 VAR 51 DECISION 1. I affirm that part of the decision under review (being the decision made on behalf of the respondent on 22 September 1995 by Ms K Liddicoat) by which it was decided to refuse the applicant access to certain matter in folio 216 on the basis that it was exempt matter under s.42(1)(b) of the Freedom of Information Act 1992 Qld.2. I also vary the decision under review by finding that those parts of the documents described in subparagraphs 19(a) and (c) of my accompanying reasons for decision, to which the applicant has been denied access, comprise exempt matter under s.42(1)(b) of the Freedom of Information Act 1992 Qld.Date of decision: 28 April 1997.........................................................F N ALBIETZINFORMATION COMMISSIONER OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 97007Application S 176/95 Participants: PETER JOHN BAYLISS Applicant QUEENSLAND HEALTH Respondent ANOTHER Third Party REASONS FOR DECISION Background1. The applicant seeks review of the respondent's decision refusing him access, under the Freedom of Information Act 1992 Qld (the FOI Act), to matter which relates to a complaint made by a person (referred to in these reasons for decision as the "third party") to the Minister for Health, concerning the conduct by the applicant of a medical service in Brisbane.2. By letter dated 27 June 1995, the applicant's solicitor applied to the Minister for Health for access, under the FOI Act, to:... all written and printed correspondence, memoranda, minutes, diary notes, electronic mail and all other documents ... relating to all correspondence and communication:-1. between the Minister for Health and the Department of Justice and Attorney-General (including the Minister for Justice and Attorney-General, and the Crown Law Division and the Office of the Solicitor General) subsequent to 1st January 1990 concerning:-(a) termination of pregnancies in Queensland; and(b) Dr Peter John Bayliss; and2. between the Minister for Health and Dr Diana Lange (in her capacity asthe chief health officer of Queensland Health) subsequent to 1st January 1994 concerning:-(a) the practice of termination of pregnancies in Queensland; and(b) Dr Peter John Bayliss.3. By letter dated 21 August 1995, Ms S Garvey of Queensland Health advised the applicant's solicitor that the FOI access application had, on 7 July 1995, been transferred to Queensland Health for processing (see s.26 of the FOI Act). Ms Garvey also indicated that, on 11 July 1995, part of the FOI access application had been transferred by Queensland Health to the Department of Justice and Attorney-General, for processing in respect of requested documents held by that Department. Ms Garvey then informed the applicant's solicitor of Queensland Health's decision in response to the remaining portion of the FOI access application. Ms Garvey stated that she had identified a file consisting of 319 pages, only two of which fell within the terms of the applicant's FOI access application. On behalf of Queensland Health, Ms Garvey stated that she had decided to grant the applicant full access to one page (folio 215), and to grant him partial access to the other page (folio 216), subject to the deletion of certain matter which she determined was exempt matter under s.42(1)(b) of the FOI Act.4. Ms Garvey's statement that full access was given to folio 215 was not precisely accurate.Ms Garvey went on to explain that she had deleted, from both folios 215 and 216, certain matter which did not fall within the terms of the applicant's FOI access application. I note that the applicant's solicitor has made no complaint or challenge in respect of this aspect of Ms Garvey's decision. I have examined folios 215 and 216, which comprise a two page briefing note, dated 20 February 1995, to the then Minister for Health. I am satisfied that, apart from the information deleted as exempt matter under s.42(1)(b) of the FOI Act, the other matter deleted from folios 215 and 216 has no connection to the applicant. I will therefore treat it as matter which is not in issue in this review.5. By letter dated 24 August 1995, the applicant applied for internal review of Ms Garvey's decision, stating that he was aggrieved by her decision not to grant access to folios 1-214, 216 and 217-319 of the file identified in Ms Garvey's decision. By letter dated 22 September 1995, Ms K Liddicoat, as the internal review officer appointed by the respondent, affirmed Ms Garvey's decision in respect of the matter which was deleted from folio 216 as exempt matter under s.42(1)(b) of the FOI Act. Ms Liddicoat also affirmed Ms Garvey's decision that folios 1-214 and 217-319 did not fall within the terms of the applicant's FOI access application. Ms Liddicoat informed the applicant that those folios dealt with a broad range of matters connected with the subject of termination of pregnancies, but did not relate specifically to the applicant. Hence, they fell outside the terms of the relevant FOI access application which had sought documents concerning termination of pregnancies and the applicant.6. After some further correspondence with the respondent, the applicant, by letter dated 17 October 1995, applied to me for review, under Part 5 of the FOI Act, of Ms Liddicoat's decision.External review process7. In a telephone conversation on 13 February 1996 between one of my investigative officers and the applicant's solicitor, the applicant's solicitor agreed to a proposal that my investigative officer inspect folios 1-214 and 217-319 on the relevant Queensland Health file, in order to determine whether any of those folios fell within the terms of the applicant's FOI access application. On 23 February 1996, the investigative officer attended at Queensland Health's central office and inspected the relevant file, including some additional folios placed on the file since the making of the decision under review. As a result of that inspection, the applicant's solicitor was given a written assurance that folios 1-214 and 217-319 (as well as the additional folios placed on the file subsequent to the decision under review) fell outside the terms of the applicant's FOI access application. That assurance was accepted, and the applicant does not seek to pursue access to folios 1-214 and 217-319 in this review.8. After examining folio 216, I wrote to the respondent on 26 February 1996, inviting it to lodge evidence and written submissions in support of its case that the third party (identifying references to whom had been deleted from folio 216, as exempt matter under s.42(1)(b) of the FOI Act) was a confidential source of information in relation to the enforcement or administration of the law, within the terms of s.42(1)(b) of the FOI Act.9. The respondent lodged a written submission dated 7 May 1996. It identified three considerations pointing to the existence of an implied understanding between the third party and the respondent that the identity of the third party would be treated in confidence (one of the three considerations, as well as other identifying references, had to be deleted from the copy of the submission provided to the applicant, as disclosure of that material would have identified the third party). The respondent further submitted:In order for this Department to effectively administer [the Health Services Act 1991 Qld], confidential sources of information are relied upon to assist the Department in ensuring the provision of high quality health services. Information about the quality of health services (including the conduct of medical practitioners) is provided by health service consumers, health service providers and other members of the community on the understanding that their identity or the information they are providing or both, will remain confidential.10. The respondent's submission also stated (at p.3) that the respondent held no written record of information provided to it by the third party. I endeavoured to explore further with the respondent the nature of the information supplied by the third party, since, in Re McEniery and Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349, I had said (at p.361, paragraph 26): ... If one is assessing the circumstances surrounding the imparting of information in order to determine whether there was an implicit mutual understanding that the identity of the person who supplied the information would remain confidential, a relevant (and frequently crucial) issue will be whether the provider and recipient of the information could reasonably have expected that the provider's identity would remain confidential given the procedures that must be undertaken if appropriate action is to be taken by the recipient, in respect of the information, for the purposes of the enforcement and administration of the law.(In respect of this issue, see, generally, pp.361-364 of Re McEniery).11. By letter dated 17 May 1996, I requested that the respondent furnish details of the information provided by the third party, and address the issue identified in the passage from Re McEniery quoted above. The respondent replied by letter dated 20 June 1996, recommending that I consult the third party.12. I had written to the third party on 24 May 1996, seeking to ascertain whether the third party had any objection to the disclosure to the applicant of the matter in issue in folio 216, and drawing the third party's attention to s.78 of the FOI Act, which allowed the third party to apply to be a participant in the review. The third party replied, by letter dated 17 June 1996, strenuously objecting to disclosure of the matter in issue in folio 216, but did not, at that stage, apply to be a participant in the review.13. On 24 June 1996, the Deputy Information Commissioner wrote to the respondent conveying the third party's position, and again requesting a response to my letter to the respondent dated 17 May 1996.14. By letter dated 8 August 1996, Dr Lange, Chief Health Officer, informed me that the respondent no longer wished to claim exemption under s.42(1)(b) in relation to folio 216.However, she stated that the respondent did not generally resile from the arguments it presented in its submission dated 7 May 1996, and referred in particular to that which is quoted at paragraph 9 above. The respondent's decision to withdraw its claim for exemption surprised me. The respondent may have perceived difficulty in establishing exemption because of the inability of Dr Lange, or any other relevant officer of the respondent, to recall, or give evidence about, information provided to the Minister and the respondent by the third party. (I note that the respondent had been unable, at that stage, to locate the third party's letter dated 31 January 1995 to the Minister for Health. It was located by the respondent in September 1996 following further searches undertaken at my request, after the third party had indicated an intention to rely on it to support the third party's case for exemption: see paragraph 18 below).15. Having been informed of the respondent's altered position, the third party applied, under s.78 of the FOI Act, to become a participant in this review. That application was granted. The third party's solicitor lodged a written submission dated 18 October 1996, together with an affidavit sworn by the third party on 17 October 1996. Copies of those documents, with matter which might identify the third party deleted, were provided to the applicant for comment. The applicant's solicitor responded by letter dated 21 January 1997, contesting the claim for exemption under s.42(1)(b). 16. The applicant was also provided with edited copies of the respondent's submission dated 7 May 1996 and letter dated 8 August 1996, in response to which, the applicant's solicitor lodged a supplementary submission dated 25 February 1997. 17. The applicant's solicitor contended that, in the interests of natural justice, the applicant should have been provided with unedited copies of submissions. However, the requirements of procedural fairness are to be assessed according to what is fair and practical in the circumstances of a particular case. The only matter deleted from the copies provided to the applicant's solicitors, of material lodged by other participants in this review, comprised information which, if disclosed, would have revealed the identity of the third party. Whether or not the applicant has a right to obtain access to that information, under the FOI Act, is the very issue in dispute in this review. To have disclosed to the applicant unedited copies of the evidence and submissions lodged by other participants would have made the review redundant, before I had an opportunity to make a decision in accordance with s.89 of the FOI Act. I consider that the applicant has been sufficiently apprised of the substance of the case made by other participants, through the provision of edited copies of submissions and evidence.18. Annexures A and C to the third party's affidavit sworn 17 October 1996 are, respectively, true copies of the third party's letter to the Minister for Health dated 31 January 1995, and the Minister's reply dated 20 February 1995. At the time of the respondent's initial processing of the applicant's FOI access application, those documents were not identified as documents falling within the terms of the applicant's FOI access application, perhaps because they do not refer by name to the applicant. However, when those documents are read in conjunction with folio 216, it becomes apparent that those documents fall within the terms of the applicant's FOI access application. Both the respondent and the third party indicated that they were prepared to accept this, and that they had no objection to my dealing with the two documents as documents in issue in this review. The third party was prepared to consent to the disclosure to the applicant of the two documents, subject to the deletion of matter which the third party asserted would, if disclosed, identify the third party, and which is claimed by the third party to be exempt matter under s.42(1)(b) of the FOI Act. Copies of the two documents, edited to remove the matter claimed by the third party to be exempt matter under s.42(1)(b) of the FOI Act, have been disclosed to the applicant.19. In summary then, the documents containing the matter in issue are:(a) a letter dated 31 January 1995 from the third party to the Minister for Health requesting a meeting to raise concerns about the provision of therapeutic pregnancy termination services in Queensland;(b) the first page (folio 216) of a briefing note dated 20 February 1995 to the Minister for Health, containing a recommended response to document (a); and(c) a letter dated 20 February 1995 from the Minister for Health to the third party, indicating that the Minister was unable to meet with the third party, but that the third party's letter had been passed on to the Chief Health Officer for attention and necessary action. (I note that, according to the respondent's submission dated 7 May 1996, the Chief Health Officer referred the third party's letter to the Medical Board of Queensland).20. The applicant has had access to parts of each of the above documents. The matter in issue comprises the parts of the above documents which have thus far been withheld from the applicant, being matter which the third party contends would, if disclosed, identify the third party and destroy the protection to which the third party is entitled as a confidential source of information in relation to the enforcement or administration of the law.Application of 42(1)(b) of the FOI Act21. Section 42(1)(b) of the FOI Act provides:42.(1) Matter is exempt matter if its disclosure could reasonably be expected to--...(b) enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained; ... .22. I considered the proper interpretation and application of s.42(1)(b) at some length in Re McEniery, where I noted (at pp.356-357, paragraph 16) that:16. Matter will be eligible for exemption under s.42(1)(b) of the FOI Act if the following requirements are satisfied:(a) there exists a confidential source of information;(b) the information which the confidential source has supplied (or is intended to supply) is in relation to the enforcement or administration of the law; and(c) disclosure of the matter in issue could reasonably be expected to - (i) enable the existence of the confidential source of information to be ascertained; or (ii) enable the identity of the confidential source of information to be ascertained.Confidential source of information23. At p.358 (paragraphs 21-22) of Re McEniery, I adopted the statement of Keely J, sitting as a member of a Full Court of the Federal Court of Australia in Department of Health v Jephcott [1985] FCA 370; (1985) 62 ALR 421 (at p.426), in finding that the phrase "a confidential source of information" in s.42(1)(b) of the FOI Act means a person who has supplied information on the understanding, express or implied, that his or her identity will remain confidential.24. There is no evidence before me of an express assurance or understanding between the respondent and the third party that the identity of the third party would remain confidential. It is therefore necessary to assess the circumstances surrounding the communication of information from the third party to the respondent, in order to determine whether there was an implicit mutual understanding that the identity of the third party would remain confidential. I discussed the factors relevant to an assessment of this kind in Re McEniery at pp.359-364 (paragraphs 24-34), and also at p.371 (paragraph 50) where I said:50. The determination of whether the relevant information was supplied by the informant and received by the respondent on the implicit understanding that the informant's identity would remain confidential (and hence whether the informant qualifies as a confidential source of information for the purposes of s.42(1)(b)) requires a careful evaluation of all the relevant circumstances including, inter alia, the nature of the information conveyed, the relationship of the informant to the person informed upon, whether the informant stands in a position analogous to that of an informer (cf. paragraph 25 above), whether it could reasonably have been understood by the informant and recipient that appropriate action could be taken in respect of the information conveyed while still preserving the confidentiality of its source, whether there is any real (as opposed to fanciful) risk that the informant may be subjected to harassment or other retributive action or could otherwise sufferdetriment if the informant's identity were to be disclosed, and any indications of a desire on the part of the informant to keep his or her identity confidential (e.g. a failure or refusal to supply a name and/or address, cf. Re Sinclair, McKenzie's case, cited in paragraph 36 above).25. In the third party's affidavit sworn 17 October 1996, the third party deposed to having met with the Health Rights Commissioner on 25 January 1995, on what the third party understood was a confidential basis. As a consequence of that meeting, the third party wrote on 31 January 1995, in identical terms, to the Minister for Health, the Premier and the Medical Board of Queensland (the letter to the Minister for Health being annexure A to the third party's affidavit). In reply, the Premier indicated that the third party's letter had been forwarded to the Minister for Health, and the Minister for Health indicated that he had passed the third party's letter on to the Chief Health Officer for attention and necessary action. The Medical Board of Queensland subsequently sought details of the matters the third party wished to raise, and these were given to the Board by letter from the third party dated 8 March 1995 (which is annexure B to the third party's affidavit).26. In so far as the question of confidentiality of identity is concerned, the third party's affidavit states:4. As a medical practitioner ... I was acutely aware of the necessity to maintain anonymity and confidentiality in relation to complaints regarding other medical practitioners. It was my belief that complaints made by medical practitioners to the Queensland Medical Board were always held in strict confidence and the identity of the complainant would not be revealed unless information sought by the Medical Board could not be obtained from other bodies, organizations or non-confidential sources of information.5. I believe that as a medical practitioner I have an ethical duty to raise genuine concerns with the appropriate authorities and that had I been of the view that my identity would be revealed then I would have been extremely reluctant to volunteer this information. Further I would have felt extremely inhibited to volunteer such information regarding another medical practitioner's possible infringement of professional standards affecting the medical care and treatment of patients.6. The type of information I wished to discuss with the Medical Board, the Minister for Health and the Premier, I believed would not have led to my identity having to be disclosed if an investigation was to be conducted. The type of information concerned the procedures and practices adopted by a particular medical practitioner and this type of information would have been available from other sources....8. ...I understood that my identity would remain confidential and that the information provided in the above correspondence [including the letter to the Minister] could be obtained from alternate sources other than myself.27. I consider that there are sufficient indications, on the face of the third party's letter dated 31 January 1995 to the Minister for Health, of a desire on the part of the third party to keep his or her identity confidential, and that these indications must, or ought to, have been apparent to the Minister, and those in the Minister's office and in Queensland Health, who read the letter. I note, in particular, thatC(a) the letter is clearly marked "IN CONFIDENCE";(b) the third party was not prepared to disclose in the letter the information that the third party wished to convey (even though describing it as serious and urgent) but sought a meeting for that purpose; and(c) the third party wished to inform against another medical practitioner in respect of medical and professional conduct that allegedly presented a serious threat to the health of women in Queensland, but the third party was not prepared to name the other medical practitioner in the letter.28. Having regard to all the relevant circumstances, I consider that the third party's desire for confidential treatment of his or her identity as a source of information would have been understood and accepted by the Minister for Health and the respondent. In my opinion, the following considerations (in addition to those referred to in paragraph 27 above) warrant a finding that there was and remains an implicit mutual understanding between the third party and the respondent that the third party's identity would remain confidential:(a) the serious and sensitive nature of the information which the third party had indicated he or she wished to convey to the proper authorities;(b) the fact that the third party stood in a position analogous to that of an informer; i.e., the third party had indicated that he or she wished to disclose information attributing responsibility to another medical practitioner for conduct which allegedly presented a serious threat to the health of women in Queensland;(c) it was reasonable for the third party to understand and expect that appropriate action could be taken in respect of the information which the third party wished to convey to the proper authorities (and which ultimately was conveyed to the Medical Board of Queensland, as the appropriate authority to conduct an investigation, rather than the Minister or the respondent), while still preserving the confidentiality of its source. The third party was not a source of information whose identity would necessarily have to be disclosed as a person against whom a wrong was alleged to have been committed, and the information which the third party wished to supply was such that a proper authority could seek to investigate and independently verify it; i.e., it would not have been dependent on the direct observation and testimony of the third party (cf. paragraphs 27 and 32 of Re McEniery).29. The factors referred to in (c) above would not have been apparent to the Minister and the respondent at the time of receipt of the letter dated 31 January 1995 (though they should have been apparent to Dr Lange, who was also, at that time, the President of the Medical Board of Queensland, after the third party supplied information to the Medical Board of Queensland in March 1995). Nevertheless, the Minister and the respondent would have understood the need to protect the identity of an informer (unless and until disclosure was required by due legal process) in the interests of ensuring the continued flow of information that might assist medical regulatory authorities, like the Medical Board of Queensland and the Health Rights Commission, to more effectively perform their investigative/regulatory functions in the wider public interest. The Minister for Health, as the Minister with portfolioresponsibility for those bodies, and for the effective functioning generally of systems for the provision of health care in Queensland, was, in my opinion, an appropriate point of contact for the concerns which the third party wished to raise. Although the third party should probably have expected that the Minister would refer the third party's information to the relevant investigative/regulatory authority, the third party may have believed that if the Minister became convinced of the seriousness and urgency of the third party's concerns, he may have been prepared to use his authority and influence, as the responsible Minister, to ensure that appropriate action was taken.30. The applicant's submissions raise a number of points for my consideration. The applicant contends, correctly in my view, that evidence given in paragraph two of the third party's affidavit about an understanding of confidentiality with the Health Rights Commissioner, cannot logically extend to the letter dated 31 January 1995 to the Minister for Health. I have not treated that segment of evidence from the third party as relevant to the finding I have made.31. The applicant submits that disclosure by the third party to the Medical Board, the Health Rights Commission, the Premier and the Minister for Health (and the applicant also asserts that Dr Lange provided the information to the Queensland Police Service) amounts to "substantial dissemination" of the third party's views, which negates any claim to confidentiality. I noted at p.306, paragraph 71(b) and (c), of my reasons for decision in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279, that publication of confidential information to a limited number of persons on a confidential basis will not necessarily destroy the confidential nature of the information: see also Attorney-General's Department and Australian Iron & Steel Pty Ltd v Cockcroft (1986) 64 ALR 97 at p.108, and Re McEniery at p.364, paragraph 34. I consider that the disclosure, to those authorities, of the third party's identity as a source of confidential information did not destroy its confidential nature. In my view, each of the authorities the third party wrote to was an appropriate avenue for complaint given their investigative/regulatory or supervisory responsibilities. In each case, the third party clearly indicated a desire that the communication be treated "in confidence". I do not consider that this limited disclosure has resulted in the identity of the third party losing the element of secrecy necessary to maintain a claim for exemption under s.42(1)(b) of the FOI Act.32. In addition, the applicant asserts that he is aware of the identity of the third party. In Re McEniery at p.357 (paragraphs 17 and 18), I accepted that s.42(1)(b) of the FOI Act cannot apply where the identity of an informer is known, or can be easily ascertained independently of the document in issue. However, I consider that, in asserting that he knows the name of the third party, the applicant is merely engaging in guesswork and has made an assumption that the third party is a person known by the applicant to have followed similar steps in making complaints about the applicant on a prior occasion. For reasons which would be apparent to any independent arbiter permitted to examine the matter in issue, but which I cannot satisfactorily explain without disclosing information that would tend to identify the third party, I am satisfied that the applicant has no confirmed knowledge of the identity of the third party. Nor could the identity of the third party be easily ascertained independently of the matter in issue.33. The applicant also submits that the person he asserts to be the informer has communicated with the various authorities for no other reason than to cause a mischief. He submits that a claim for confidentiality cannot be upheld if this was the sole reason for communicating the information. At p.375, paragraph 64 of my decision in Re McEniery, I referred with approval to the decision of the Victorian Administrative Appeals Tribunal in Re Richardson and Commissioner for Corporate Affairs (1987) 2 VAR 51. In Re Richardson, the applicant sought access to a file note which recorded information that had been provided by a confidential source in relation to the applicant's activities as a director of a company in liquidation. The applicant argued that the substance of the matter contained in the file note was libellous and that he proposed seeking legal redress. The applicant's argument was in the following terms:...it could not be in the public interest to protect a source of false information but rather it is in the public interest to protect persons like himself from having false accusations made against him.The Tribunal made the following comment in response to the applicant's submission:This argument may appear attractive when one only considers those who maliciously supply false information which they know to be untrue. However, when consideration is given to the case of a person who, in good faith, supplies information which is subsequently found on investigation to be inaccurate or mistaken, the difficulties inherent in such a construction become apparent. The legislation is clearly designed to protect the identity of informers and does not differentiate between the good, the bad or the indifferent. 34. I do not consider that the application of s.42(1)(b) of the FOI Act was intended to involve an examination of the motives of the putative confidential source of information. A source may provide accurate information, which is useful to regulatory authorities, with the clear intention of causing harm to the subject of the information. The motive of the source would not alter the value to a regulatory authority of accurate information, which was relevant to its regulatory functions. The reliability of information provided by confidential sources would, in any event, ordinarily be tested in the course of the investigative process. I note that s.42(1)(b) of the FOI Act does not contain a public interest balancing test. Thus, in the application of s.42(1)(b), no account is to be taken of public interest considerations which might favour disclosure of information which otherwise satisfies the test for exemption under s.42(1)(b). In any event, there is no material before me which tends to show that information was communicated by the third party for the purpose of causing a mischief.35. The applicant asserts that the information provided by the third party was already, to the knowledge of the third party, under investigation by the Medical Board. I am not satisfied, on the material before me, that that assertion is correct with respect to a substantial part of the information which the third party was seeking to provide to appropriate authorities, and ultimately did provide to the Medical Board of Queensland. Even if the applicant's assertion were correct, I do not consider that it would make any difference to the application of s.42(1)(b) of the FOI Act. That provision is clearly designed to ensure that citizens are not discouraged from co-operating with law enforcement and regulatory agencies, by providing information which might assist such agencies to more effectively perform their functions.That purpose would not be served if the protection of s.42(1)(b) were to be denied to a person volunteering to inform in respect of a particular matter (and who otherwise qualified as a confidential source of information within the terms of s.42(1)(b) of the FOI Act) merely because the particular matter was already under investigation.36. In a supplementary submission dated 25 February 1997, the applicant commented on issues raised in material lodged by the respondent. I do not think it is necessary to separately address the comments made in the applicant's supplementary submission. Some of them correspond, in substance, to arguments made in the applicant's primary submission. To the extent that I consider the points made in the applicant's supplementary submission to have any substance or relevance, most of them (i.e., points 2, 3, 5, 6 and 7), have, in my opinion, been satisfactorily dealt with above (in, respectively, paragraphs 29, 29 and 31, 33-35, 31, and 17). One of them (point 4) may be correct, but refers to a consideration (raised in the respondent's submission dated 7 May 1996) which I have not treated as relevant to, or supportive of, my findings.37. I find that the third party is a confidential source of information within the meaning of s.42(1)(b) of the FOI Act.Relates to enforcement or administration of the law38. Applying the principles discussed in Re McEniery at pp.365-370 (paragraphs 36-43), I am satisfied that such information as was provided in the third party's letter to the Minister dated 31 January 1995, and the information which the third party intended to provide as foreshadowed in that letter (and which was later supplied to the Medical Board of Queensland), was information which related to the enforcement or administration of the law.The information was clearly pertinent to the administrative and law enforcement responsibilities of the Medical Board of Queensland under the Medical Act 1939 Qld (as I have indicated above, the Minister for Health was, and remains, the Minister responsible for the administration of that Act), and probably also could have been the subject of a valid complaint to the Health Rights Commissioner under s.33(1) or s.59(1)(c) (if the Minister for Health had been prepared to refer the complaint), or s.59(1)(d), of the Health Rights Commission Act 1991 Qld.39. I note that in the decision under review, and in its submission dated 7 May 1996, the respondent identified the Health Services Act 1991 Qld as the relevant law for the purposes of the application of s.42(1)(b) of the FOI Act. However, I think the respondent was mistaken in that regard. The Health Services Act 1991 concerns the organisation and delivery of public sector health services in Queensland. It does not appear to contain any provisions concerned with regulation of the standards of medical services provided by a private sector health care service, such as that operated by the applicant.Identification of the confidential source40. My observations in Re McEniery at p.370 (paragraphs 44-45) in respect of the third requirement (see paragraph 22 above) to establish exemption under s.42(1)(b), are relevant here. I am satisfied that disclosure of the matter remaining in issue in the three documents identified in paragraph 19 above could reasonably be expected to enable the identity of the third party as a confidential source of information to be ascertained. The name and position of the third party appears in several places. The third party's signature appears once. There are also a number of passages containing information relating to the third party which, I am satisfied, would, if disclosed, enable the identification of the third party.41. I find that the matter remaining in issue satisfies the requirements for exemption under s.42(1)(b) of the FOI Act. I also find that none of the exceptions set out in s.42(2) of the FOI Act is applicable to the matter in issue.Conclusion42. I therefore affirm the decision of Ms Liddicoat to delete matter from folio 216 on the basis that it is exempt matter under s.42(1)(b) of the FOI Act. However, it is also necessary that I vary Ms Liddicoat's decision in order to take account of the two letters between the third party and the Minister for Health (identified in paragraph 19 above) which were not dealt with in the decision under review. The applicant has been given partial access to those letters. I vary the decision under review by finding that those parts of the documents described in subparagraphs 19(a) and (c) of my reasons for decision, to which the applicant has been denied access, comprise exempt matter under s.42(1)(b) of the FOI Act.................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Van Veenendaal and Queensland Police Service [2018] QICmr 44 (30 October 2018)

Van Veenendaal and Queensland Police Service [2018] QICmr 44 (30 October 2018) Last Updated: 29 November 2018 Decision and Reasons for Decision Citation: Van Veenendaal and Queensland Police Service [2018] QICmr 44 (30 October 2018) Application Number: 313581 Applicant: Van Veenendaal Respondent: Queensland Police Service Decision Date: 30 October 2018 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO DEAL WITH APPLICATION - PREVIOUS APPLICATION FOR SAME DOCUMENTS - request for the same documents previously sought from the same agency - previous application had been the subject of a completed external review - whether the later application discloses any reasonable basis for again seeking access to the documents - whether section 43 of the Right to Information Act 2009 (Qld) applies ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - request for information concerning interactions with police - personal information and privacy of third parties - whether disclosure would, on balance, be contrary to the public interest - whether access to information may be refused under section 47(3)(b) of the Right to Information Act 2009 (Qld) ADMINISTRATION LAW - RIGHT TO INFORMATION - NONEXISTENT AND UNLOCATABLE DOCUMENTS - applicant believes further documents should exist in relation to interactions with police - whether agency has taken all reasonable steps to locate relevant documents - whether access to any further documents may be refused on the basis they do not exist - sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - IRRELEVANT INFORMATION - information pertaining to matters unrelated to the terms of the access application - whether information may be deleted under section 73 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) for a range of documents, including recordings and officer notes, in connection with interactions and complaints involving himself, his wife and a privately operated medical centre.[1] The applicant and his family members have a history of grievances with the medical centre, and some of its practitioners. QPS located relevant recordings, officer notebooks and documents in QPRIME.[2] QPS decided to refuse access to some of the located information on the basis that its disclosure would, on balance, be contrary to the public interest, primarily because it comprised the personal information of other individuals.[3] QPS also decided to neither confirm nor deny the existence of some requested documents, and removed some information on the basis that it was irrelevant to the terms of the access application. The applicant applied to the Office of the Information Commissioner (OIC) for external review, contesting all aspects of QPS’ decision, and questioning the sufficiency of QPS’ searches, particularly for the requested recordings. During the review, QPS agreed to release some further information to the applicant. However, the applicant did not accept that further information in resolution of the review, and maintains his position that QPS has failed to locate all relevant documents. For the reasons set out below, I vary QPS’ decision, and in summary, find that: section 43 of the RTI Act applies to items 4 and 5 of the application on the basis that there has been a previous application for the same documents access to information about other individuals may be refused under section 47(3)(b) of the RTI Act as its disclosure would, on balance, be contrary to the public interest access to any further documents responding to the application may be refused under section 47(3)(e) of the RTI Act on the basis that they do not exist; and information pertaining to subject matter that is unrelated to the terms of the access application may be deleted under section 73 of the RTI Act on the basis of irrelevance. Background Significant procedural steps taken by OIC in conducting the external review are set out in the Appendix. The decision under review is the QPS decision dated 9 October 2017. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix). The applicant provided extensive written submissions to OIC.[4] I have reviewed all of the applicant’s submissions and to the extent they are relevant to the issues in this review, I have taken them into account in reaching my decision. Parts of the applicant’s submissions concern issues on which the Information Commissioner has no jurisdiction, e.g. complaints about actions (or alleged omissions) of QPS officers, concerns about QPS’ officers compliance with record-keeping policies and allegations about misconduct of private sector medical practitioners. It is apparent from the applicant’s submissions that ventilating these issues is extremely important to him. However, where the submissions concern issues beyond the Information Commissioner’s external review jurisdiction, I cannot, and have not, taken them into account in making this decision. Information in issue Certain information that concerns other individuals has been redacted from the following documents and remains in issue (Third Party Information): intelligence log summary dated 18 January 2017 (Intelligence Summary) list of items seized by QPS (Seized Items List) list of items seized by QPS, with handwritten notations (Notated Items List) signed search warrant dated 10 April 2015 (Search Warrant) unsigned/draft application for search warrant dated 10 April 2015 (Warrant Application); and QPRIME Report (QP1500419888) (QPRIME Report). Also, information concerning subject matter that is unrelated to the terms of the access application has been removed from the following pages (Irrelevant Information): activity log dated 18 January 2017 (Activity Log) QPS notebook entries from 2015 (Notebooks) occurrence enquiry log report regarding an occurrence on 10 September 2015 (Occurrence Report) occurrence sheet regarding Noosa Station on 5 September 2016 (Occurrence Sheet); and the QPRIME Report. Issues for determination The following issues remain for determination: (i) whether items 4 and 5 of the access application are subject to section 43 of the RTI Act on the basis that they constitute a previous application for the same documents (ii) whether access to the Third Party Information 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 (iii) whether access to any further information may be refused under section 47(3)(e) of the RTI Act on the basis that it does not exist; and (iv) whether section 73 of the RTI Act applies to the Irrelevant Information. In the later stages of the review process, the applicant sought to request metadata ‘for each and all document’.[5] As the request for metadata was not included in the access application, and taking into account the operation of section 28 of the RTI Act,[6] I consider metadata falls outside the scope of the external review and therefore, the issue of access to metadata does not arise for determination. Findings (i) Previous application for same documents Under the RTI Act, an individual has a right to be given access to documents of an agency.[7] This right of access is however, subject to some exclusions and limitations. Where an applicant applies for access to information under the RTI Act and then later applies to the same agency seeking access to one or more of the same documents under the RTI Act, section 43 of the RTI Act enables the agency to refuse to deal with the later application if: the agency’s decision on the first application has been the subject of a completed review;[8] and the later application does not on its face disclose a reasonable basis for seeking access to those same documents.[9] In a previous access application to QPS dated 22 May 2017, the applicant sought documents regarding complaints involving a particular named individual. That application became the subject of an external review by the Information Commissioner, which was finalised by a formal decision earlier this year.[10] In the access application which is the subject of this decision, the applicant requested access to the same complaint information about the same named individual, within the same date range.[11] I am satisfied that the later application does not on its face disclose any reasonable basis for the applicant again seeking access to the requested documents. The Information Commissioner’s finding on the earlier application was to neither confirm nor deny the existence of the requested documents. Given the intent of the neither confirm nor deny provision[12], it is unlikely to be set aside with the passage of time or a change in circumstances, so as to establish a reasonable basis for reapplying. While QPS decided to apply section 55 of the RTI Act to items 4 and 5 of the later access application, I consider that the preferable decision[13] is to apply section 43 of the RTI Act because the applicant has previously applied to access the same documents, the earlier application has been the subject of a completed review by the Information Commissioner, and there appears to be no reasonable basis to reapply. On the basis of the above, I find that section 43 of the RTI Act applies to items 4 and 5 of the access application and I refuse to deal with those parts of the application. (ii) Contrary to public interest The RTI Act operates with a ‘pro-disclosure bias’[14] meaning that it is Parliament’s intention for access to be granted to information, unless the public interest, on balance, favours nondisclosure.[15] Various factors may be relevant to deciding where the balance of the public interest lies[16] and a decision-maker is required to take specific steps in reaching a decision on disclosure.[17] No irrelevant factors arise in the circumstances of this case and I have not taken any into account in making my decision. Broadly, the applicant submits that the public interest would be served by full disclosure of all documents[18] and refusing him access to the Third Party Information on the basis that it is contrary to the public interest ‘is absurd when the opposite provides justice by the disclosure of the illegal conduct by certain police’.[19] The applicant further alleges that various QPS officers have acted with bias towards the applicant and his family, and have engaged in dishonest or illegal acts. The applicant also raises allegations about acts of violence and threats made by other individuals involved in the matrix of complaints and incidents in connection with the applicant and his family.[20] Factors favouring disclosure I am satisfied that disclosure of the Third Party Information would provide the applicant with a more comprehensive record of the property search, seizure and warrant process[21] and information that was prepared by QPS in connection with the applicant’s wife’s complaint to Coolum Police Station.[22] I find that disclosure could reasonably be expected to enhance QPS’ accountability for its actions surrounding the search warrant process and recording of the applicant’s wife’s complaint[23] and reveal background or contextual information that informed decisions made by QPS in relation to the these matters.[24] The Third Party Information however, is solely limited to the personal information of other individuals and therefore, I do not consider disclosure would provide the applicant with any further understanding of the procedures followed by QPS, or the reasons for QPS’ actions in relation to the search warrant process or the complaint. I also consider QPS’ actions and processes have already been made apparent to the applicant by virtue of the information that has already been disclosed to him. As noted above, all documents located by QPS have been either fully or partially disclosed to the applicant, subject only to minimal redactions of the personal information of other individuals. For these reasons, I consider the weight of these disclosure factors is low.[25] The applicant alleges QPS officers have engaged in ‘illegal, unethical conduct’,[26] thereby raising the following public interest disclosure factors for consideration: allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official;[27] and/or reveal or substantiate that an agency has engaged in misconduct or negligent, improper or unlawful conduct.[28] Again, the Third Party Information is limited to the personal details of other individuals and does not record anything about QPS’ actions, processes, deliberations or decisions, in relation to matters involving the applicant. For these reasons, I find that disclosure could not reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of QPS. In the circumstances, I consider there is even less likelihood that disclosure would reveal evidence of misconduct. Accordingly, I find that the factors at paragraph 24 do[29]ot apply.29 Factors favouring nondisclosure The RTI Act recognises that disclosure of another individual’s ‘personal information’[30] is a factor favouring nondisclosure which could reasonably be expected to lead to a public interest harm (Harm Factor).[31] I am satisfied that the Third Party Information comprises the personal information of other individuals as it contains their names and personal details from which their identity is apparent. The applicant submits that ‘there are no relevant harm factors’ as he is already aware of the identity of certain individuals and their personal information.[32] Whilst the applicant may be aware of some information given his involvement in the complaints and dealings with QPS, there is no evidence to indicate that the applicant is aware of the full extent of the Third Party Information, nor the particular context in which it appears. Accordingly, I consider releasing the information would constitute a ‘disclosure’[33] and therefore, the Harm Factor applies. The context in which the Third Party Information appears is sensitive in that it connects other individuals to QPS inquiries, complaints and/or investigations. In some instances, the individuals have no direct involvement with the QPS investigation, but their personal details appear incidentally. For example, names of third parties appear on the Seized Items List. I consider that the level of harm which would result from disclosure of such information is high and therefore, I afford the Harm Factor significant weight. I also find that the sensitive context in which the Third Party Information appears raises a further factor favouring nondisclosure regarding the protection of the other individuals’ right to privacy.[34] 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.[35] Given the nature of the Third Party Information and its connection with QPS inquiries, complaints and/or investigations, I am satisfied that disclosure would intrude into other individuals’ personal spheres. I am however, cognisant to the fact that given the applicant’s involvement, he is likely to be aware of the identities of at least some of the other individuals. I consider this slightly reduces the weight of this factor and afford it moderate weight in favour of nondisclosure. Balancing the relevant factors I am satisfied that the public interest in safeguarding the personal information of other individuals and protecting their right to privacy carries higher weight than the public interest in promoting access to government-held information and enhancing QPS’ accountability and transparency. On balance, I find that disclosure would be contrary to the public interest and therefore, access to the Third Party Information may be refused under section 47(3)(b) of the RTI Act. (iii) Nonexistent documents The applicant believes that more documents should have been located by QPS and submits that, ‘Some of the requested material, statutory declarations, complaints, items as described in the terms of the application are missing, not identified or disclosed’.[36] The applicant asserts ‘the failure by the QPS Unit to properly investigate the availability of documents as nominated by the Applicant, now mysteriously no longer in existence or available, should be determined as inadequate processing of the application...’[37] Where an applicant contends that an agency has failed to locate documents, there is a practical onus on the applicant to provide reasonable grounds to believe that the document exists, and to warrant further searches within the agency.[38] Access may be refused to documents that are nonexistent or unlocatable.[39] A document is nonexistent if there are reasonable grounds to be satisfied it does not exist.[40] 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 agency’s information management approaches, practices and procedures.[41] By considering the key factors relevant in the particular case, an agency may ascertain that a document was not created because, for example, the agency’s processes do not involve creating that specific document.[42] In such a case, it will be sufficient that the relevant circumstances to account for the nonexistent document are adequately explained by the agency.[43] An agency may also rely on searches to satisfy itself that a document does not exist and in such cases, all reasonable steps must be taken to locate the documents.[44] Such steps may include inquiries and searches of all relevant locations, taking into account the above-listed key factors. Analysis The applicant submits that the two recordings provided by QPS were incomplete and considers further recorded interactions exist between his wife and a Detective Senior Sergeant from 5 September 2016.[45] QPS submits that the recording released to the applicant is the entirety of the recording of the 5 September 2016 interaction. The Detective Senior Sergeant specifically recalls that when the applicant’s wife attended the Noosa Police Station on 5 September 2016 he recorded her and ‘thought that when he went away from her to look or check something he may have then terminated the recording and when he returned to her did not reactivate it as believed there was nothing further to discuss’ or ‘alternatively the recorders battery stopped’.[46] The Detective Senior Sergeant who made the recording on 5 September 2016 also provided OIC with written certification that he has searched all areas where he considers it reasonable to expect any further recordings to be located and was unable to locate any further recordings. I am satisfied this corresponds with the above explanation. The applicant submits that the Detective Senior Sergeant ‘deliberately and unlawfully edited’ the recordings ‘to remove incriminating evidence against him and his unlawful conduct’.[47] He has also provided OIC with an email authored by the Detective Senior Sergeant which he considers shows his bias towards the applicant and his family and ‘also confirms his absolute refusal to provide all documents pursuant to RTI application’.[48] I have considered the applicant’s submissions, however, I am not satisfied that there is any evidence, other than the applicant’s assertions, to establish a reasonable belief that any further recordings exist, nor to warrant additional searches. QPS has also provided OIC with a record of the searches it conducted in response to the application. Having considered the terms of the application and the nature of the documents located, I am satisfied QPS conducted comprehensive searches in the appropriate locations, including tapes audio and video records and conducted targeted enquiries with relevant QPS officers at Sunshine Coast and Coolum Police Stations. Conclusion Taking into account the explanation provided by the Detective Senior Sergeant and the searches QPS has conducted, I am satisfied that QPS has taken all reasonable steps to locate any further parts of the recording. On the basis of the evidence available to OIC, I consider any further parts of the recording of the conversation between the applicant’s wife and the Detective Senior Sergeant on 5 September 2016 do not exist. I find that QPS has taken all reasonable steps to locate documents in response to the terms of the access application and that access to any further documents, including recordings, may be refused under section 47(3)(e) of the RTI Act, on the basis that they are non-existent, in accordance with section 52(1)(a) of the RTI Act. (iv) Irrelevant Information Section 73 of the RTI Act provides that an agency may give access to a document subject to the deletion of information it reasonably considers is not relevant to the access application. This is not a ground for refusal of access, but a mechanism to allow irrelevant information to be deleted from documents which are identified for release to an applicant. 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 access application.[49] QPS removed some information from the Activity Log on the basis of irrelevance. While this document is connected to the counter complaint the applicant’s wife made at the Coolum Police Station, I am satisfied the deleted information relates to separate QPS matters which have no apparent connection to the terms of the access application. Similarly, I am satisfied that the information removed from the Occurrence Report does not pertain to the terms of the access application. Part of an entry in a QPS notebook dated 11 September 2015 was redacted on the basis of irrelevance. Having examined the information and the surrounding notebook entries on 10 and 12 September 2015,[50] I am satisfied that the removed information pertains to internal QPS processes, and other matters outside the parameters of the application. Similarly, I am satisfied the information removed on the Occurrence Sheet relates to internal QPS processes not connected to the terms of the application and other QPS investigations on unrelated QPS matters. QPS also located a 43 page QPRIME Report, of which seven pages were identified as containing information relevant to the search warrant process. While the entire report is connected to the search warrant process, I am satisfied the deleted information, and remaining pages relate to the broader QPS investigation of offences, and concern complaints/investigations involving other individuals, not the search warrant process. On the basis of the above, I am satisfied that the Irrelevant Information all pertains to subject matter unrelated to the terms of the access application and therefore, can be deleted under section 73 of the RTI Act.DECISION For the reasons above, I vary the decision under review, and find that: (i) items 4 and 5 of the access application are subject section 43 of the RTI Act as they constitute a previous application for the same documents (ii) access to the Third Party 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 (iii) QPS has taken all reasonable steps to locate documents responding to the application and access to any further documents, including recordings, may be refused under section 47(3)(e) of the RTI Act on the basis they do not exist; and (iv) the Irrelevant Information may be deleted under section 73 of 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.K ShepherdAssistant Information Commissioner Date: 30 October 2018 APPENDIX Significant procedural steps Date Event 30 October 2017 OIC received the external review application and supporting submissions from the applicant. 31 October 2017 OIC asked QPS to provide the relevant procedural documents and notified the applicant and QPS that the application had been received. 14 November 2017 OIC received the requested procedural documents from QPS. 21 November 2017 OIC notified QPS and the applicant that the external review application had been accepted and confirmed the issues under review. OIC asked QPS to provide copies of the documents located in response to the application and records of searches conducted by QPS. 21 December 2017 OIC received part of the requested documents from QPS. 22 December 2017 OIC requested the remaining documents from QPS. 16 January 2018 OIC provided the applicant with an update on the status of the review. 23 January 2018 OIC spoke with QPS and requested the remaining documents. 2 March 2018 OIC requested the remaining documents from QPS. OIC provided the applicant with an update on the status of the review. 14 March 2018 OIC received written submissions from the applicant. 16 March 2018 OIC spoke with QPS and requested the remaining documents. 18 March 2018 QPS notified OIC that, due to staff deployment to the Commonwealth Games, it could not provide the remaining requested documents, at that stage. 21 March 2018 The Right to Information Commissioner placed the review on suspension until 30 April 2018, given that QPS was unavailable to progress the review. 11 May 2018 QPS provided the requested documents to OIC. 30 May 2018 OIC asked QPS to provide some additional information regarding the review. 4 July 2018 QPS provided some of the additional information to OIC. 7 August 2018 OIC conveyed a written preliminary view on some of the issues to the applicant and invited him to provide submissions supporting his case. 14 August 2018 QPS provided the remaining additional information to OIC. 17 August 2018 QPS agreed to the disclosure of a small amount of additional information. 21 August 2018 OIC received submissions from the applicant. 31 August 2018 OIC conveyed a written preliminary view on the remaining issues to the applicant and invited him to provide submissions supporting his case. OIC provided the additional information to the applicant, on behalf of QPS. 9 September 2018 OIC received submissions from the applicant and a request for an extension of time to provide additional submissions. 11 September 2018 OIC granted the applicant’s extension of time request. 4 October 2018 OIC received submissions from the applicant. 15 October 2018 The applicant requested, and was granted by OIC, a further extension of time. 17 October 2018 OIC received final submissions from the applicant. [1] Access application dated 7 August 2017. The application sets out the various requested documents as items 1-6. [2] QPRIME, the Queensland Police Records and Information Management Exchange, is the database used by QPS to capture and maintain records for all police incidents, intelligence and activities in Queensland. [3] Decision dated 9 October 2017.[4] Including his external review application 30 October 2017 and submissions dated 14 March, 21 August, 9 September, 4 and 16 October 2018.[5] Submissions dated 9 September 2018, and 4 and 16 October 2018. [6] Section 28(1) of the RTI Act provides that an access application for a document is not taken to include an application for access to metadata about the document, unless the access application expressly states that it does. See Gapsa and Department of Transport and Main Roads (Unreported, Queensland Information Commissioner, 12 April 2013) at [31]. [7] Section 23 of the RTI Act.[8] Section 43(3)(d)(ii) of the RTI Act.[9] Section 43(1)(b) of the RTI Act. [10] See Van Veenendaal and Queensland Police Service [2018] QICmr 28 (12 June 2018) at [37] - [42].[11] Items 4 and 5 of the access application.[12] See EST and Department of Family Services and Aboriginal Affairs [1995] QICmr 20; (1995) 2 QAR 645 at [11] (citing the 1979 Report by the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978 at p.121, point 9.27), cited in Tolone v Department of Police (Unreported Queensland Information Commissioner, 9 October 2009) at [25].[13] An external review by the Information Commissioner is merits review. 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 RTI Act. [14] Section 44 of the RTI Act. [15] 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. [16] 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. [17] 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. [18] Submissions dated 16 October 2018, p. 2. [19] Submissions attached to external review application dated 30 October 2017, p. 5. [20] Including his external review application 30 October 2017 and submissions dated 21 August 2018, 4 and 16 October 2018.[21] Appearing in the Warrant Application, Search Warrant, Seized Items List, Notated Items List and QPRIME Report. [22] For example Intelligence Summary. [23] Schedule 4, part 2, item 1 of the RTI Act. [24] Schedule 4, part 2, item 11 of the RTI Act. [25] See CSX and Department of Child Safety (Unreported, Queensland Information Commissioner, 21 December 2007) at [44] where the Information Commissioner explained that the public interest in disclosure will be reduced where information pertains to a private individual rather than being information held by government about government. [26] Submissions attached to external review application, eg. p. 4. [27] Schedule 4, part 2, item 5 of the RTI Act. [28] Schedule 4, part 2, item 6 of the RTI Act. [29] I have had regard to all 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 refused information. [30] See schedule 5 of the RTI Act which adopts the following definition in section 12 of the Information Privacy Act 2009 (Qld) (IP Act): ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’[31] Schedule 4, part 4, section 6 of the RTI Act. [32] External review application submissions dated 30 October 2017 at pp. 6-7 and submissions dated 16 October 2018 at p.2.[33] 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 out. This accords with the ordinary dictionary definition of ‘disclose’: relevantly, to ‘make known; reveal’: Macquarie Dictionary Online www.macquariedictionary.com.au/ (accessed 22 October 2018). [34] Schedule 4, part 3, item 3 of the RTI Act. [35] 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. [36] Submissions attached to external review application, p. 2.[37] Submissions attached to external review application, p. 5-6. [38] Mewburn and Department of Local Government, Community Recovery & Resilience [2014] QICmr 43 (31 October 2014) at [13]. [39] Section 47(3)(e) of the RTI Act. [40] Section 52(1)(a) of the RTI Act. [41] The administrative arrangements of government; agency structure, functions and responsibilities, and other factors such as the nature and age of the requested documents may also be relevant. See 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 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 remain relevant.[42] See Isles and Queensland Police Service [2018] QICmr 27 (7 June 2018) (Isles). [43] Isles at [16] - [24].[44] As set out in PDE at [49].[45] Submissions attached to external review application, pp. 2-3.[46] Submissions from QPS received by OIC on 14 August 2018. [47] Submissions dated 21 August 2018, p. 2.[48] Submissions dated 16 October 2018, p. 2.[49] O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) at [52]. See also James and Queensland Police Service [2018] QICmr 8 (22 February 2018) at [28]-[29]. [50] Provided to OIC by QPS.

queensland

court_judgement

Queensland Information Commissioner 1993-

Minogue and Department of Health [2009] QICmr 35 (24 June 2009)

Minogue and Department of Health [2009] QICmr 35 (24 June 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210700 Applicant: Mr P Minogue Respondent: Department of Health Decision Date: 24 June 2009 Catchwords: ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – QUEENSLAND – REFUSAL OF ACCESS – EXEMPT MATTER – MATTER AFFECTING PERSONAL AFFAIRS – applicant sought access to parts of response to a grievance - whether disclosure of the matter in issue would disclose information concerning personal affairs – whether disclosure of the matter in issue would, on balance, be in the public interest – whether matter exempt under section 44(1) of the Freedom of Information Act 1992 (Qld) ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – QUEENSLAND – REFUSAL OF ACCESS – EXEMPT MATTER – MATTER CONCERNING CERTAIN OPERATIONS OF AGENCIES – applicant sought access to a file note of a conversation about performance appraisal – whether disclosure of the matter in issue would have a substantial adverse effect on the management or assessment of the Department of Health of its personnel – whether matter exempt under section 40(c) of the Freedom of Information Act 1992 (Qld) ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – QUEENSLAND – REFUSAL OF ACCESS – DOCUMENT NONEXISTENT OR UNLOCATABLE – applicant contends further emails and computer files exist – whether Department of Health has reasonable grounds to be satisfied that documents do not exist or cannot be located – whether documents can be refused under section 28A(2) of the Freedom of Information Act 1992 (Qld) Contents REASONS FOR DECISION Summary 1. I am satisfied that: • the matter remaining in issue in this review is exempt from disclosure under section 44(1) or 40(c) of the Freedom of Information Act (1992) (Qld) (FOI Act) • QH is entitled to refuse access to relevant documents under section 28A(2) of the FOI Act on the basis that all reasonable steps have been taken to find the documents but the documents cannot be located. Background 2. By application dated 18 July 2008 the applicant applied to the Department of Health, also known as Queensland Health, (QH) for access to: Personnel files, Human Resource files, Department held files Payroll number [.......]. 3. On 5 December 2008, Ms Reinberger, Senior Health Information Manager, decided to: • release 84 folios • refuse access to some information contained in file notes under section 27(3) of the FOI Act on the basis that it was not relevant to the applicant’s application • refuse access to one document (5 folios) under sections 44(1) and 40(c) of the FOI Act (Original Decision). 4. By letter dated 15 December 2009, the applicant: • applied for internal review of QH’s decision • made submissions regarding the exemptions relied on by QH • questioned the matter deleted from file notes as irrelevant • requested further searches for documents the applicant believed should have been located (Internal Review Application). 5. By letter dated 18 December 2008, Ms Bonner, Internal Review Officer, advised that she had decided to affirm the Original Decision (Internal Review Decision).[1] 6. By application forms dated 29 December 2009, the applicant applied under Part 5 of the FOI Act for external review of the Internal Review Decision and provided submissions in support of his case (External Review Application). Although the applicant made two separate applications, all relevant issues are considered in this one external review. Decision under review 7. The decision under review is the Internal Review Decision referred to in paragraph 5 above. Steps taken in the external review process 8. QH provided the matter which is claimed to be exempt on 12 January 2009, and by letters dated 14 January 2009 I advised both the applicant and QH that the External Review Application had been accepted. 9. QH provided further information about the matter claimed to be exempt and the searches it performed to locate documents responding to the FOI Application to a staff member of the Office in: • telephone conversations on 16 and 19 January 2009 and 1 April 2009 • two emails dated 29 January 2009. 10. By letter dated 2 February 2009, the applicant made submissions regarding the further documents he contends should exist. On 5 February 2009 a staff member of this Office confirmed by telephone that the issues raised by the applicant would be dealt with on external review. 11. By letter dated 8 April 2009, I advised QH of the preliminary view that: • parts of the documents in issue were exempt from disclosure under section 44(1) of the FOI Act but the remainder of the documents were not exempt from disclosure • parts of the matter deleted as irrelevant under section 27(3) of the FOI Act are relevant to the applicant’s application • QH was entitled to refuse access to documents under section 28A(2) of the FOI Act on the basis that all reasonable steps to find further relevant documents had been undertaken and the documents could not be located. 12. By letter dated 5 May 2009, QH advised that it: • accepted the preliminary view • was prepared to release most of the matter it had previously deleted as irrelevant • claimed that one file note deleted as irrelevant was exempt from disclosure under section 40(c) of the FOI Act. 13. By letter dated 13 May 2009, I advised the applicant of the preliminary view that: • the matter remaining in issue qualified for exemption from disclosure under sections 44(1) and 40(c) of the FOI Act • QH was entitled to refuse access to relevant documents under section 28A(2) of the FOI Act on the basis that all reasonable steps had been taken to find those documents and the documents could not be located. 14. By letter dated 25 May 2009, the applicant responded to the preliminary view and provided submissions and further documentation in support of his case. 15. In a telephone conversation on 16 June 2009, QH made further submissions in respect of further documents which the applicant claimed should exist. 16. In making this decision, I have taken the following into account: • the FOI Application, Internal Review Application and External Review Application • the Original Decision and Internal Review Decision • the response provided by Ms Reinberger dated 18 December 2009 • file notes of telephone conversations between QH and a staff member of the Office on 16 and 19 January 2009 and 1 April 2009 • two emails from QH dated 29 January 2009 • QH’s letter dated 5 May 2009 • the applicant’s letters dated 2 February 2009 and 25 May 2009 • file note of telephone conversation between the applicant and a staff member of the Office on 28 May 2009 and 22 June 2009 • relevant provisions of the FOI Act as referred to in this decision • relevant decisions of this Office as referred to in this decision. Matter in issue 17. The matter remaining in issue in this review comprises: • parts of a document (5 folios) authored by Ms E Bain, which comprise a response to a grievance lodged by the applicant (Response Matter) which is claimed to be exempt under section 44(1) of the FOI Act • a file note of a conversation which occurred on 5 July 2008 (File Note) which is claimed to be exempt under section 40(c) of the FOI Act. 18. The other issue for determination in this review is whether access to documents can be refused under section 28A(2) of the FOI Act on the basis that QH has performed all reasonable searches for documents the applicant says should exist, but the documents cannot be found. Findings Section 44(1) of the FOI Act – Response Matter 19. 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. 20. There are two elements to the test for whether particular information is exempt under section 44(1) of the FOI Act. The two elements are: • whether the information in issue concerns the “personal affairs of a person;” and if it does • whether disclosure of that information would, on balance, be in the public interest. This involves weighing the strengths of identified public interest considerations favouring disclosure against the strengths of identified public interest considerations favouring non-disclosure. 21. I will consider each element of the test below. Does the Response Matter concern personal affairs? 22. Information concerns the "personal affairs of a person" if it concerns the private aspects of a person's life and while there may be a substantial grey area within the ambit of the phrase "personal affairs",[2] 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. 23. However, in Stewart, the Information Commissioner also decided that ordinarily, information which concerns an individual’s work performance, or other work related matters does not concern a person’s personal affairs.[3] 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 that information. 24. The Response Matter forms part of a letter authored by Ms Bain, a Human Resources Manager, in response to a grievance lodged by the applicant which concerned Ms Bain. Apart from the Response Matter, the remainder of the response has been provided to the applicant. 25. The Response Matter comprises personal comments made by Ms Bain regarding: • how the grievance affected her • her feelings about the way in which the grievance was lodged. 26. While this information forms part of Ms Bain’s response to the relevant grievance, I am satisfied that it: • concerns neither the applicant’s nor Ms Bain’s performance of work duties • purely records Ms Bain’s emotional responses and feelings. 27. The applicant does not contend that the Response Matter does not concern Ms Bain’s personal affairs and I am satisfied that the Response Matter is properly characterised as concerning Ms Bain’s personal affairs. Public Interest Test 28. 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. This means that it is only where disclosure of the information is, on balance, in the public interest that the information will not be exempt from disclosure under section 44(1) of the FOI Act. Applicant’s submissions 29. The applicant submits[4] that: • procedural fairness requires that the whole of Ms Bain’s response be provided to him as part of the grievance process • Ms Bain would have been aware that her full response should be disclosed to the applicant • the full response was offered to him at a meeting on 10 July 2008, but that offer was subsequently retracted • as the Response Matter consists purely of Ms Bain’s feelings, QH will suffer no detriment to its integrity if the Response Matter is released. Analysis 30. After careful consideration of these submissions, I find that the following public interest considerations favouring disclosure are relevant in the circumstances:[5] • improved transparency and understanding of how QH dealt with the grievance • allowing a government employee to access adverse comments made about them at work (procedural fairness). 31. However, after extensive consideration of these issues, it is my view that disclosure of the Response Matter will not further these public interest considerations as: • release will not lead to greater understanding of any government decision making or disciplinary process in respect of the grievance, as the content of the Response Matter is limited to Ms Bain’s emotional responses and feelings related to the lodging of the grievance • Ms Bain’s comments which comprise the Response Matter do not relate to the applicant’s work performance • denying access to Ms Bain’s comments about her emotional responses and feelings does not amount to a denial of procedural fairness to the applicant given that the remainder of Ms Bain’s response to the grievance has been released to the applicant. 32. On the basis of the matters set out above, I consider that the two public interest considerations indentified above should be afforded little or no weight in the circumstances. 33. Against the public interest considerations favouring disclosure, I must balance the weight of privacy interests attaching to the relevant information (that is, any public interest considerations which favour non-disclosure of the Response Matter). 34. The applicant submits that releasing the Response Matter will not cause any detriment to QH as it only records Ms Bain’s feelings about the grievance. 35. In this respect, I note that the FOI Act specifically recognises[6] the public interest in protecting an individual’s private affairs. 36. As the Response Matter records personal emotional responses and on the basis of the matters set out above, I consider that the strength of the privacy interest in this information is significant in the circumstances. 37. Given my view that release of the Response Matter will not lead to greater understanding of QH process and the strength of the relevant privacy interest, on balance, I am satisfied that: • the public interest considerations favouring disclosure do not outweigh the public interest considerations favouring non-disclosure of the Response Matter • the Response Matter is exempt from disclosure under section 44(1) of the FOI Act. Section 40(c) of the FOI Act – File Note 38. Section 40(c) of the FOI Act provides that: 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; ... unless its disclosure would, on balance, be in the public interest. 39. For the File Note to qualify for exemption under section 40(c) of the FOI Act, QH must establish that disclosure of the File Note could reasonably be expected to have a substantial adverse effect on QH’s personnel management. If this is established, the File Note is prima-facie exempt from disclosure unless disclosure is, on balance, in the public interest. 40. I will consider each of the elements to the test for exemption below. Is the File Note part of QH’s management or assessment of its personnel? 41. The File Note is titled ‘PA&D Conversation with [a third party]’. QH advises that ‘PA&D’ stands for Performance Appraisal and Development. Applicant’s submissions 42. The applicant contends[7] that that the File Note: • is not part of the third party’s performance appraisal as claimed by QH • was created (by Ms Whelan, the Nurse Unit Manager) after the third party’s performance appraisal and is relation to him • forms part of his professional file. Analysis 43. I have carefully considered the content of the File Note which details a conversation which occurred between Ms Whelan and a third party in relation to an assessment of the third party’s work performance. 44. I am satisfied that the File Note clearly concerns an assessment and appraisal of the third party’s work performance and forms part of a performance appraisal process. Accordingly, I am satisfied that the File Note is a record of a performance appraisal interview between Ms Whelan and a third party employee and accordingly, forms part of QH’s management or assessment of its personnel. Can disclosure of the File Note reasonably be expected to have an adverse effect on QH’s management of its personnel? 45. The phrase ‘could reasonably be expected to’ requires the decision maker applying section 40(c) of the FOI Act to discriminate between: • unreasonable expectations and reasonable expectations • what is merely possible and expectations which are reasonably based[8]. Applicant’s submissions 46. The applicant contends[9] that: • under the rules of procedural fairness, the applicant should be given access to anything which is adverse to him • Ms Whelan should have advised the third party that she was making a file note of the relevant conversation and that the applicant would have a right to respond • QH used the information in the file notes against him and he should be able to view their entire contents to assess his options • Ms Whelan has breached privacy principles, including by seeking other employees for comment which may be detrimental or adverse to the applicant, without affording him a right to reply. Analysis 47. In its letter dated 5 May 2009, QH submits that: • performance appraisal is an aspect of an individual’s employment relationship that is treated as highly confidential and accessible only by a strictly limited group • to release performance appraisal information to a third party (such as the applicant) would seriously erode the relationship of trust between employee and employer. 48. I note that the Information Commissioner has previously considered whether release of information regarding performance reviews and appraisals would have the kind of substantial adverse effect contemplated in section 40(c) of the FOI Act. 49. In Pemberton and The University of Queensland,[10] the Information Commissioner decided that disclosure of information relating to performance reports or appraisals other than to the subject of the report or appraisal, could reasonably be expected to have a substantial adverse effect on the management or assessment by the University of its personnel. 50. The Information Commissioner also recognised the importance of performance reviews to agencies’ management and assessment of their personnel, as well as the importance of keeping confidential matters discussed in performance reviews. 51. In the circumstances, I am satisfied that releasing a record of an interview between a staff member and their supervisor about their performance, in the context of a performance appraisal process, could reasonably be expected to have the following adverse effects: • management problems caused by a perceived breach of confidence and the potential for prejudice to future supply of like information that is needed for the purposes of management processes[11] • serious disruption to working relationships.[12] 52. I am also satisfied that the lessened effectiveness of performance reviews, as well as disruption to working relationships, which I consider could reasonably be expected to result from disclosure of the File Note, constitute a substantial adverse effect. 53. Accordingly, on the information before me, I am satisfied that: • the File Note forms part of the management of QH of its personnel • release of the File Note could reasonably be expected to have a substantial adverse effect on the management of QH’s personnel. 54. Next I must consider whether there are sufficient public interest considerations which favour release of the File Note to outweigh the public interest considerations which favour non-disclosure. Public interest balancing test 55. The applicant submits that the rules of procedural fairness require that he be given an opportunity to respond to anything which may be adverse to him. I note that the applicant is at a necessary disadvantage of not knowing what the File Note contains, and I am precluded by section 87(3)[13] of the FOI Act from revealing matter claimed to be exempt. However, as set out above, the File Note records an interview with a third party about that person’s work performance and I do not consider that procedural fairness requires the content of the File Note to be disclosed to the applicant. 56. I have also considered the public interest in scrutinising the job performance of QH employees. However, given the importance of QH’s responsibilities and objectives, I find that there is a public interest in QH operating as efficiently and effectively as possible which is in part dependent upon on its ability to manage its staff effectively. 57. I also note the applicant’s submission that actions of other QH employees amount to breaches of the applicant’s privacy. After carefully considering the content of the File Note, I do not consider that it evidences any breach of privacy relevant to this consideration of public interest factors favouring disclosure of the File Note.[14] 58. Accordingly, on the basis of the matters set out above, I am satisfied that: • the public interest is best served by QH retaining the ability to conduct frank, candid and confidential appraisals of the performance of its staff in a performance review context • in the circumstances, the detrimental effect on the ability of QH to manage its staff which disclosure of the File Note (which relates to the performance appraisal of a third party) could reasonably be expected to have, outweighs any public interest in scrutinising the performance of that third party • release of the File Note could reasonably be expected to have a substantial adverse effect on the management of QH staff • public interest considerations favouring disclosure of the File Note are insufficient to outweigh the public interest considerations which favour non-disclosure of the File Note • the File Note is exempt from disclosure under section 40(c) of the FOI Act. Section 28A of the FOI Act – Further documents 59. Section 28A of the FOI Act provides: 28A Refusal of access—documents nonexistent or unlocatable (1) An agency or Minister may refuse access to a document if the agency or Minister is satisfied the document does not exist. Example— documents that have not been created (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 cannot be found. Examples- • documents that have been lost • documents that have been disposed of under an authority given by the State Archivist. 60. In PDE and the University of Queensland[15] (PDE) the Acting Information Commissioner indicates that:[16] Sections 28A(1) and (2) of the FOI Act address two different scenarios faced by agencies and Ministers from time to time in dealing with FOI applications: circumstances where the document sought does not exist and circumstances where a document sought exists (to the extent it has been or should be in the agency’s possession) but cannot be located. In the former circumstance, an agency or Minister is required to satisfy itself that the document does not exist. If so satisfied, the agency or Minister is not required by the FOI Act to carry out all reasonable steps to find the document. In the latter circumstance an agency or Minister is required to satisfy itself that the document sought exists (to the extent that it has been or should be in the agency’s possession) and carry out all reasonable steps to find the document before refusing access. ‘Satisfied’ 61. In PDE the Acting Information Commissioner also considered how an agency is to satisfy itself as to the non-existence of documents sought by an applicant and indicated that to be satisfied that a document does not exist, it is necessary for the agency to rely upon its particular knowledge and experience with respect to various key factors including: • the administrative arrangements of government • the agency structure • the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) • the agency’s practices and procedures (including but not exclusive to its information management approach) • other factors reasonably inferred from information supplied by the applicant including: ○ the nature and age of the requested document/s ○ the nature of the government activity the request relates to. 62. To be satisfied under section 28A(2) of the FOI Act that a document can not be found an agency must take all reasonable steps to locate a document. Section 28A(1) is silent on the issue of how an agency is to satisfy itself that a document does not exist. When proper consideration is given to the key factors discussed in the above paragraph and a conclusion reached that the document sought does not exist, it may be unnecessary for the agency to conduct searches. However, where searches are used to substantiate a conclusion that the document does not exist, the agency must take all reasonable steps to locate the documents sought.[17] 63. Therefore, in the context of applying section 28A(2) of the FOI Act it is relevant to ask whether QH has taken all reasonable steps to locate the requested documents, and the documents cannot be found. 64. The applicant contends that two categories of further documents exist which have not been provided to him: • emails between three QH employees • computer files used by Ms Whelan. Emails 65. The applicant submits[18] that further emails concerning him exist and were sent between three particular QH employees. 66. QH makes the following submissions[19] in relation to the searches it performed for relevant emails sent between the three employees: • when the applicant’s FOI Application was received, searches were performed for all documents relating to the application • when the Internal Review Application was received, two of the QH employees named by the applicant were requested to perform further searches of their email accounts and each advised that they held no further emails responding to the applicant’s request • the third employee named by the applicant[20] no longer works at QH and another appropriate staff member was requested to search for emails held by the former employee, however no further emails were located. 67. In respect of the above, QH has provided this Office with copies of the search requests sent to relevant areas of the Townsville District Hospital, as well as copies of emails sent to individuals requesting searches. 68. Accordingly, on the basis of the matters set out above and the general searches performed by QH when the FOI Application was received, I am satisfied that: • each of the employees named by the applicant[21] were requested to perform further searches for emails responding to the applicant’s request • each relevant person responded that they had been unable to locate any emails further to those which had already been released. Computer files 69. In the applicant’s letters to this Office dated 2 February 2009 and 25 May 2009, he submits • that further information responding to his request could be held on the computer used by Ms Whelan • he has been informed that a pass-worded computer file existed on the computer used by Ms Whelan when she was the Nurse Unit Manager of the Endoscopy Unit. 70. QH submits[22] the following in relation to any further files which may be held on computers used by Ms Whelan: • the only places where files created or used by Ms Whelan would be is on either the network drive or on a personal hard drive allocated to Ms Whelan • when the Internal Review Application was received, QH performed a search of the network drive, along with administrative files and folders, and no further documents responding to the applicant’s request were located • the search of the network drive was performed using the applicant’s name • as a result of the District’s upgrade process, all computers which would have been used by Ms Whelan have been replaced, and the hard drives from the old computers have been removed and wiped of data • in any event, it is unusual for staff to use personal hard drives as they cannot be password protected. 71. As evidence of the searches conducted, QH has provided a screen dump of the network drive search which yielded no results. 72. The applicant also noted[23] his dissatisfaction with QH’s upgrading of its computers while the search for documents requested in his FOI Application was ongoing. On this point, QH submits that the upgrade process occurred well before the applicant made his FOI Application. 73. On the basis of the matters set out above, I am satisfied that: • any documents responding to the applicant’s request would be stored on either the network drive or Ms Whelan’s personal hard drive • the network drive has been thoroughly searched and no documents have been located • any computers which would have housed Ms Whelan’s personal hard drive have been replaced, and the hard drives have been removed and wiped of data • QH has taken all reasonable steps to locate the requested documents and the documents cannot be found • QH is entitled to refuse access to the requested documents under section 28A(2) of the FOI Act. DECISION 74. I vary the decision under review by deciding that: • the Response Matter is exempt from disclosure under section 44(1) of the FOI Act • the File Note is exempt from disclosure under section 40(c) of the FOI Act; and • QH is entitled to refuse access to documents under section 28A(2) of the FOI Act on the basis that all reasonable steps to locate relevant documents have been undertaken and the documents cannot be found. 75. I have made this decision as a delegate of the Information Commissioner, under section 90 of the FOI Act. ________________________ Assistant Commissioner Henry Date: 24 June 2009[1] On 18 December 2008, Ms Reinberger also provided the applicant with a response to his request for further searches and a review of matter deleted as irrelevant. As an internal review cannot be conducted by the Original Decision maker (see Section 60(4) of the FOI Act), technically, no internal review decision was made in respect of these issues. Accordingly, QH is deemed to have refused the applicant’s application for internal review of these matters and the issues are dealt with in this external review on that basis. [2] Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 (Stewart).[3] Stewart at paragraphs 91-102.[4] In his letter dated 25 May 2009.[5] These considerations are generally regarded as favouring disclosure.[6] In section 4 of the FOI Act.[7] In his letter dated 25 May 2005.[8] B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at paragraph 73.[9] In his letter dated 25 May 2009 and a telephone conversation with a staff member of the Office on 22 June 2009.[10] (1994) 2 QAR 293 at paragraph 145.[11] See for example ALE & RBA and Central Queensland University; W (Third Party) (S9/95; A10/95, 20 January 1997, unreported).[12] See for example HIC and Department of Police (Unreported, Information Commissioner Qld, 7 December 1998).[13] Commissioner to ensure non-disclosure of particular matter.[14] I note that the applicant has raised his concerns regarding breaches of the Privacy Principles governing QH with QH itself.[15] (Unreported, Office of the Information Commissioner, 9 February 2009).[16] At paragraph 34.[17] See PDE. [18] In the Internal Review Application, External Review Application, and in letters dated 4 February 2009 and 25 May 2009.[19] In the Original Decision and a telephone conversation with a staff member of the Office on 1 April 2009.[20] Ms Whelan[21] Apart from Ms Whelan who had left the employ of QH and a search for relevant emails was performed by another person.[22] In an email dated 29 January 2009 and a telephone conversation with a staff member of the Office on 16 June 2009.[23] In a telephone conversation with a member of staff of the Office on 22 June 2009.

queensland

court_judgement

Queensland Information Commissioner 1993-

Byers and Department of Justice and Attorney -General [2014] QICmr 34 (12 August 2014)

Byers and Department of Justice and Attorney -General [2014] QICmr 34 (12 August 2014) Last Updated: 21 January 2015 Decision and Reasons for Decision Citation: Byers and Department of Justice and Attorney-General [2014] QICmr 34 (12 August 2014) Application Number: 312026 Applicant: Byers Respondent: Department of Justice and Attorney-General Decision Date: 12 August 2014 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL TO DEAL WITH APPLICATION – EXEMPT CLASS OF DOCUMENTS – applicant seeking all witness statements relevant to a disciplinary action – whether access application expressed to relate to a stated subject matter – whether all documents to which the application relates appear to comprise exempt information – whether agency may refuse to deal with the application – section 40 and schedule 3 section 10(1)(a) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Department of Justice and Attorney-General (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to any or all witness statements in relation to disciplinary action undertaken against the applicant by the Department. The Department refused to deal with the application under section 40 of the RTI Act, on the basis that the access application was expressed to relate to all documents that contain information of a stated kind or related to a stated subject matter and it appeared that all of the requested documents comprised exempt information under schedule 3, section 10(1)(a) of the RTI Act; that is, that the relevant disciplinary action was ongoing and disclosure of the documents would prejudice the investigation of a contravention or possible contravention of law under schedule 3, section 10(1)(a) of the RTI Act. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision. For the reasons set out below, I affirm the Department’s decision. Background The applicant is an employee of the Department and the subject of misconduct allegations under the Public Service Act 2008 (Qld) (Public Service Act). An investigation into the allegations is ongoing and the applicant is yet to be interviewed in relation to the allegations.[1] Significant procedural steps relating to the application and external review are set out in the Appendix to these reasons. Reviewable decision The decision under review is the Department’s decision dated 24 April 2014. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decisions are disclosed in these reasons (including footnotes and Appendix). Relevant law Section 39 of the RTI Act provides that where an access application is made, an agency should deal with the application unless this would, on balance, be contrary to the public interest. Section 40 of the RTI Act sets out one set of circumstances in which Parliament has considered it would, on balance, be contrary to the public interest to deal with an access application. Section 40 of the RTI Act allows an agency to refuse to deal with an application if: the application requests all documents, or all documents of a particular class, that contain information of a stated kind or relate to a stated subject matter; and it appears to the agency that all of the documents to which the application relates are comprised of ‘exempt information’, as defined in section 48 of the RTI Act and described in schedule 3 of the RTI Act. If an agency relies on section 40 of the RTI Act, it is not required to identify any or all of the documents.[2] The agency is, however, required under section 54(2)(f) of the RTI Act to set out: the provision of schedule 3 of the RTI Act under which it is said the information in the documents sought would comprise exempt information; and why the documents sought would comprise exempt information under such provision. Schedule 3 sets out categories of information the disclosure of which Parliament has deemed to be contrary to the public interest, and therefore exempt from disclosure.[3] Schedule 3, section 10(1)(a) of the RTI Act provides that information is exempt if its disclosure could reasonably be expected to prejudice the investigation of a contravention or possible contravention of the law in a particular case. Accordingly, if disclosure of all documents sought by the applicant could reasonably be expected to prejudice the investigation of a contravention or possible contravention of the law in a particular case then, the Department may refuse to deal with the access application under section 40 of the RTI Act. Findings Is the access application expressed to relate to all documents that contain information of a stated kind or relate to a stated subject matter? Yes. The applicant’s access application requests all documents relating to a stated subject matter, being any and all witness statements relating to the disciplinary action being undertaken against him by the Department. Does it appear that all of the requested documents would comprise exempt information? Yes. For the reasons set out below, it appears that all of the requested documents would comprise exempt information under schedule 3, section 10(1)(a) of the RTI Act. For schedule 3, section 10(1)(a) to apply, the following requirements must be satisfied: an investigation of a contravention, or possible contravention of the law must be on foot or have occurred disclosure could reasonably prejudice the investigation in the particular case; and none of the exceptions to the exemption, contained in schedule 3, section 10(2) must apply. Is an investigation of a contravention, or possible contravention of law on foot or has occurred? On the evidence before me[4], I am satisfied that the Department is conducting an investigation into allegations of workplace misconduct by the applicant that if substantiated may render the applicant liable to disciplinary action under the Public Service Act. Schedule 3, section 10(9) of the RTI Act provides that the term ‘law’ includes law of the Commonwealth, a State or a foreign country. Also, the Information Commissioner has previously interpreted the phrase ‘contravention or possible contravention of the law’ broadly[5] and has found that the phrase: is not limited to contraventions of the criminal law; and extends to any law that imposes an enforceable legal duty to do or refrain from doing something. I am satisfied that the Public Service Act imposes enforceable legal duties upon public sector employees regarding workplace conduct and that a breach of these duties is encompassed within the broad range of activity covered by the phrase ‘contravention or possible contravention of the law’. Regulation of workplace conduct under the Public Service Act is enforced by measures provided for in the Act itself rather than by separate criminal penalty. Could disclosure reasonably be expected to prejudice the investigation in the particular case? The investigation of the allegations against the applicant is ongoing. The applicant has received written advice of the substance of the allegations made against him and is yet to be interviewed in relation to those allegations. Submissions raised by the applicant[6] raise ‘public interest’ arguments that may favour disclosure of the witness statements if I was required to undertake a public interest balancing test under the RTI Act.[7] However, where information falls into one of the categories listed in schedule 3 of the RTI Act and is exempt from disclosure, I am unable to take any public interest factors favouring disclosure into account. The applicant submits[8] that in not doing so, I have given ‘insufficient weight ... to the ramifications ... [my] decision has in denying [the applicant] this right ... fundamental to all person living in a democracy “the Right of Natural Justice” ‘. I address these concerns below. The applicant submits[9] that the ‘summaries of the statements’ he received from the Department are inadequate[10] for the purposes of enabling him to properly respond to the allegations raised against him. He questions whether the allegations as put to him truly reflect information provided by witnesses. These concerns about the integrity of the investigation process itself are an issue for the applicant to raise with the Department. They are not relevant to the question I must determine about whether disclosure of the witness statements could reasonably be expected to prejudice the investigation underway. The applicant contends[11] that by not having received the complete witness statements he has been denied procedural fairness and natural justice. The essence of his submission, as I understand, it is that the fullest information possible should be supplied to the applicant in order for him to be given a fair opportunity to rebut the allegations being investigated, otherwise the rule of law is thwarted. [12] I agree with the applicant’s submission that he must be afforded procedural fairness in the course of the investigation underway. The Department’s obligation in this regard will be fulfilled if he is provided with the substance of the allegations under investigation. As the applicant himself noted in his submission dated 22 July 2014 when quoting Lord Mustill in the Doody case, he is entitled to be ‘informed of the gist of the case which he has to answer’. On the information before me, that has occurred, but as stated in paragraph 21 above, it is not relevant to determining the question of whether the investigation is reasonably likely to be prejudiced if disclosure occurs. Turning to the question of prejudice. If witness statements were disclosed now midway through the investigation and to the subject of the investigation, I consider it reasonably likely that those relevant witnesses may be reluctant to cooperate further with the investigation in an open and frank manner should investigators approach them for further information or clarification after receipt of information from other sources including the applicant. I also consider it reasonably likely that if fresh witnesses are identified at a later stage of the investigation as holding pertinent information, they may be reluctant to cooperate and be interviewed or provide a statement, if they consider that all the information they provide may be disclosed to the subject of the investigation. The applicant contends that the possibility of compromising the further cooperation of witnesses is disingenuous as they would be aware that the substance of their statements would be provided to the applicant. While I accept that witnesses are likely aware, although it has not been confirmed to OIC, that allegations based on information they provided would be put to the applicant, I do not accept that the colour of their expression or language employed to describe relevant events would be put to the applicant ‘word for word’. In my view if this were to occur, a witness may be reluctant to participate or further participate in an investigation process. Allegations in relation to workplace misconduct may be drawn from a source or multiple sources of information and individuals. I consider that a witness or complainant would ordinarily expect allegations to be relayed to the subject of the investigation in a way that is clear, factual, unemotional and where necessary protects the identity of the underpinning source or sources of information. Any lack of candour on the part of witnesses can only act as a detriment to an investigation process. I consider it vital that the investigator maintain an ability to freely inquire of all potential witnesses and the subject of the investigation until the conclusion of the investigation, if the investigation is to be thorough and rigorous. An investigator may not know, until after conducting all planned interviews, if additional information or inquiries are required in order to assess the veracity or accuracy of information provided. The applicant contends[13] that there is no evidence that the ability to conduct this investigation is likely to be prejudiced. I consider this submission to be misconceived. I must consider whether disclosure of the witness statements could reasonably be expected to prejudice the relevant investigation. I do not have to determine whether the prejudice would definitively occur. The meaning of the phrase ‘could reasonably be expected to’ has been considered previously by the Information Commissioner[14] and in essence the expectation of prejudice must be based in reason as distinct from something that is irrational, absurd or ridiculous. In relation to the relevant investigation, I consider that disclosure of the witness statements could inhibit or hamper further inquiries of investigators and this detriment is not irrational, absurd or ridiculous but objectively based on the reasons set out above. Accordingly, I find that disclosure of the witness statements could reasonably be expected to prejudice the particular investigation. Do any of the exceptions to the exemption, contained in schedule 3, section 10(2) apply? No. Based on the information before me, none of the circumstances in schedule 3 section 10(2)(a) to (e) which give rise to an exception to schedule 3, section 10(1)(a) of the RTI Act arise. Therefore, I find that none of the exceptions apply. Conclusion The requirements of schedule 3, section 10(1)(a) of the RTI Act are met and I am satisfied the documents sought by the applicant would comprise exempt information. As the application is expressed to relate to all documents of a stated subject matter, being any and all witness statements relating to the disciplinary action being undertaken against him by the Department, and it appears that such documents would comprise exempt information, the Department is entitled to refuse to deal with the application under section 40 of the RTI Act. DECISION I affirm the decision under review and find that the Department may refuse to deal with the application under section 40 of the RTI Act on the basis that the access application is expressed to relate to all documents that relate to a stated subject matter, and that all of the documents, where such documents exist, would comprise exempt information under schedule 3, section 10 (1)(a) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ L Lynch Assistant Information Commissioner Date: 12 August 2014 APPENDIX Significant procedural steps Date Event 26 February 2014 The applicant applied to the Department for access to the witness statements in relation to disciplinary action against him. 24 April 2014 The Department issued a notice of decision to the applicant. 23 May 2014 The applicant applied to OIC for external review of the Department’s decision. 26 May 2014 OIC requested the Department provide procedural documents to assist OIC in assessing jurisdiction. 28 May 2014 The Department provided OIC with the procedural documents. 6 June 2014 OIC informed the applicant and the Department that the applicant’s external review application had been accepted. OIC asked the Department to inform OIC of the status of the investigation. 10 June 2014 The Department informed OIC that the investigation was ongoing and the applicant had not yet been interviewed. 19 June 2014 OIC conveyed a preliminary view to the applicant and invited him to provide submissions if he did not accept the preliminary view. 3 July 2014 OIC received submissions from the applicant. 8 July 2014 OIC reiterated its preliminary view to the applicant, addressing issues raised in the applicant’s submission and invited him to provide submissions supporting his case by 22 July 2014 if he did not accept the preliminary view. OIC informed the applicant that the next step would comprise a formal decision. 22 July 2014 OIC received further submissions from the applicant. 11 August 2014 An OIC officer confirmed with the Department that the investigation was ongoing and the applicant had not yet been interviewed. [1] Confirmed by the Department on 10 June 2014 and 11 August 2014.[2] Section 40(2) of the RTI Act.[3] Section 48(2) of the RTI Act.[4] Including the decision under review and undated correspondence from the Department to the applicant attached to the applicant’s application for external review.[5] T and Department of Health [1994] QICmr 4; (1994) 1 QAR 386 at paragraph 16. This case examined the application of the former section 42(1)(a) of the repealed Freedom of Information Act 1992 (Qld) which employed the same language as that now found in section schedule 3, section 10(1)(a) of the RTI Act and therefore remains relevant. [6] In submissions dated 23 May, 3 and 22 July 2014.[7] Sections 47(3)(b) and 49 of the RTI Act.[8] In submissions dated 22 July 2014.[9]In submissions dated 23 May, 3 and 22 July 2014.[10] Because the summaries represent subjective summaries of witness statements from which pertinent information may have been omitted such as references to actual conversations and the summaries do not indicate when the statements were made and therefore it is impossible to ascertain if statements were made when information was ‘fresh’ in the witness’ memory. [11] In his application for external review and submissions dated 3 and 22 July 2014.[12] Submissions dated 22 July 2014 reference several English decisions (R v Secretary of State for the Home Department ex parte Doody [1993] UKHL 8; [1994] 1 AC 531 (Doody case), Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, Surinder Singh Kanda v Government of the Federation of Malaya [1962] UKPC 2; [1962] AC 322, Secretary of State for the Home Department v AF [2009] UKHL 28 and R v Northumberland Compensation Appeal Tribunal, ex parte Shaw [1951] EWCA Civ 1; [1952] 1 KB 338) as well as Article 6(1) of the European Convention on Human Rights and Fundamental Freedom.[13] Submission dated 3 July 2014.[14] VHL and Department of Health (Unreported, Information Commissioner of Queensland, 20 February 2009) accepting the interpretation offered in Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97 (Cockcroft). This interpretation was also adopted by the High Court of Australia in K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4 (K-Generation). Although in the context of different legislation, the interpretation of ‘could reasonably be expected to’ given by the courts in K-Generation and Cockroft are relevant to the application of the phrase as it appears in schedule 3, section 10(1)(a) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Star News Group Pty Ltd and Southern Downs Regional Council [2019] QICmr 39 (12 September 2019)

Star News Group Pty Ltd and Southern Downs Regional Council [2019] QICmr 39 (12 September 2019) Last Updated: 26 September 2019 Decision and Reasons for Decision Citation: Star News Group Pty Ltd and Southern Downs Regional Council [2019] QICmr 39 (12 September 2019) Application Number: 314211 Applicant: Star News Group Pty Ltd ACN 005 848 108 Respondent: Southern Downs Regional Council Decision Date: 12 September 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO DEAL WITH APPLICATION - EXEMPT CLASS OF DOCUMENTS - information concerning workforce surveys - whether application expressed to relate to all documents containing information of a stated kind or subject matter - whether all documents to which application relates appear to comprise exempt information - whether agency may refuse to deal with application - section 40 and schedule 3, section 8 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST INFORMATION - information concerning workforce surveys - accountability and transparency - informed debate on important issues - prejudice to future supply of information to Council - prejudice to management function - 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 Southern Downs Regional Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to documents generally relating to surveys conducted of Council’s employees.[2] Council decided[3] to refuse to deal with the application under section 40 of the RTI Act, on the ground it appeared to Council that all of the requested documents comprised exempt information. The applicant applied for internal review of that decision. On internal review, Council affirmed[4] that section 40 of the RTI Act applied to the application and also decided that disclosure of requested documents would likely cause a public interest harm. The applicant then applied to the Office of the Information Commissioner (OIC) for external review of Council’s internal review decision.[5] During the review, the applicant agreed to narrow the scope of the application to ‘any report on the survey process and outcomes to Council management (Labour Force Strategy Report) and documents relating to the communication of the outcomes of the survey process by Council management to Council staff’’ (narrowed application). Council located two documents responding to the narrowed application. The applicant also did not contest my view that access may be refused[6] to certain personal and business affairs information within those documents.[7] Council maintains that section 40 of the RTI Act applies to the narrowed application and objects to disclosure of the remaining information in the two documents. For the reasons set out below, I set aside Council’s decision and find that disclosure of the information remaining in issue would not, on balance, be contrary to the public interest. Background The decision under review is Council’s internal review decision dated 24 September 2018. Significant procedural steps relating to the external review are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and the Appendix). Information in issue The information remaining in issue (Information in Issue) comprises two documents, excluding portions of personal and business affairs information which the applicant has agreed not to pursue. While I am constrained in level of detail I can provide about the Information in Issue,[8] it appears in a report authored by a consultant retained by Council to undertake a review (Report) and in a document created by Council which was used to present the review outcomes to Council staff (Presentation). Issues for determination In the decision under review, Council stated that it had obtained the disclosure views of Council staff and the ‘overwhelming response’ was that the information was provided to Council’s consultant in confidence and it should not be disclosed. However, Council confirmed to that it did not conduct individual third party consultation to obtain these disclosure views because it considered such consultation impractical.[9] The Information in Issue does not identify Council employees who participated in the review and does not attribute any information to specific Council employees—that is, it does not identify particular information which was provided by individual Council employees to Council’s consultants. In these circumstances, I did not consult with any third parties on external review as I did not consider it necessary. I have instead addressed Council’s submission that its employees considered the information they provided to Council’s consultant would be kept confidential and not disclosed outside of Council. As noted in paragraph 3 above, Council made the following determinations in the decision under review: ... I have decided that the documents being sought are exempt documents under Schedule 3 of the Act. Further to this decision and acknowledging that Council has the right under the Act to still deal with the application, I further decide that, following a Public Interest Test, the release of the requested documentation would likely cause a Public Interest Harm. Council submissions during the external review confirm that it seeks to refuse to deal with the narrowed application under section 40 of the RTI Act and to refuse access to the Information in Issue on the basis disclosure would, on balance, be contrary to the public interest. For this reason, the issues to be determined in this review are whether: Council is entitled to refuse to deal with the application under section 40 of the RTI Act; and disclosure of the Information in Issue would, on balance, be contrary to the public interest. Relevant law The RTI Act is to be administered with a pro-disclosure bias.[10] An individual has a right to access documents of an agency under the RTI Act,[11] however, this right of access is subject to certain limitations, including grounds for refusal of access.[12] If an access application is made to an agency under the RTI Act, the agency is required to deal with the application unless this would, on balance, be contrary to the public interest.[13] One of the few circumstances where it is not in the public interest to deal with an access application is set out in section 40 of the RTI Act, which provides: 40 Exempt information (1) This section applies if— (a) an access application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and (b) it appears to the agency or Minister that all of the documents to which the application relates are comprised of exempt information. (2) The agency or Minister may refuse to deal with the application without having identified any or all of the documents. Exempt information is defined[14] as meaning the information that is exempt information under schedule 3 of the RTI Act.[15] Relevantly, information will qualify as exempt information if its disclosure would found an action for breach of confidence (Breach of Confidence Exemption).[16] Access to information may be refused where its disclosure would, on balance, be contrary to the public interest.[17] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest and explains that a decision maker must take the following steps in deciding the public interest: identify any irrelevant factors and disregard them identify any 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.[18] In this external review, Council has the onus of establishing that its decision refusing to deal with the application, or refusing access to information, was justified.[19] Findings – refusal to deal Is the narrowed application expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter? Yes, for the reasons that follow. The narrowed application is framed as a request for a report and an internal Council communication related to a workforce survey process and its outcomes. I am satisfied that the narrowed application is designed to capture documents that contain information of a stated kind or relate to a stated subject matter (that is, information reporting on, or communicating about, workplace survey processes and outcomes). Accordingly, I find that the first limb of section 40 of the RTI Act is satisfied. Do all the documents to which the application relates appear to be comprised of exempt information? No, for the reasons that follow. As noted in paragraph 11, the Report and Presentation were located as relevant to the narrowed application. Council submits[20] that these documents contain exempt information and section 40 of the RTI Act does not require the documents, in their ‘entirety’, to be exempt information. When 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.[21] The primary object 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.[22] Section 39(2) of the RTI Act also confirms that sections 40, 41 and 43 state the only circumstances in which the Parliament considers it would, on balance, be contrary to the public interest to deal with an access application. Consistent with a plain reading of section 40 and the purpose of the RTI Act, for the second limb of section 40 of the RTI Act to be met, I must be satisfied that the Report and Presentation comprise exempt information. Council submits that the Breach of Confidence Exemption applies to the Information in Issue because disclosure ‘would prove to be very much a breach of confidence’.[23] Information will comprise exempt information under the Breach of Confidence Exemption where its disclosure would give rise to a cause of action for breach of a contractual obligation of confidence or an equitable obligation of confidence.[24] Council contends that staff who participated in the review staff ‘received multiple undertakings that this process was confidential in nature’,[25] however, Council did not provide any details about those undertakings. I have carefully considered the consultant’s terms of engagement, which Council provided during the review. Those terms specifically confirmed that the consultant would deliver a report, but not the consultant’s records of its interviews and meetings with Council’s employees. While the engagement included an obligation for the consultant not to disclose certain information to any third party, it contained no similar confidentiality obligation binding Council and did not reference any confidentiality undertakings given in favour of the review participants by either the consultant or Council. There is also nothing within the Information in Issue itself which identifies, or refers to, any confidentiality undertakings given to Council employees in respect of the review process. On this basis, I am not satisfied that disclosure of the Information in Issue would give rise to a cause of action for breach of a contractual obligation of confidence. There are four elements to a claim for breach of confidence in equity:[26] (a) the information in question must be identified with specificity (b) it must have the necessary quality of confidence (c) it must have been received in circumstances importing an obligation of confidence; and (d) there must be an actual or threatened misuse of the information. In this case, and for the reasons outlined below, I do not consider that elements (b), (c) and (d) are met in relation to the Information in Issue and therefore, I am not satisfied that disclosure of the Information in Issue would give rise to an equitable action for breach of confidence. Element (b) – quality of confidence Information which is available in the public domain will no longer have the necessary quality of confidence. The Information in Issue includes information about Council’s organisational structure and operations. While Council acknowledges[27] that information of this nature is available in various documents on Council’s website, it continues to maintain that information of this type within the Information in Issue is subject to an obligation of confidence. As I have previously noted, under the terms of the consultant’s engagement, the consultant’s records of interviews or meetings with Council employees during the review process were not provided to Council. Further, the Information in Issue does not identify any individual Council employees who participated in the review and does not attribute any information to specific Council employees. In these circumstances, I am not satisfied that all of the Information in Issue possesses the necessary quality of confidence to satisfy element (b). Element (c) – circumstances of the communication To establish element (c), I must be satisfied that the information was communicated and received on the basis of a mutual understanding of confidence which existed at the time of the communication. The Information Commissioner has previously indicated that the relevant circumstances to consider in determining element (c) include, but are not limited to, the: nature of the relationship between the parties nature and sensitivity of the information purpose/s for which the information was communicated nature and extent of any detriment to the interests of the information-supplier that would follow from an unauthorised disclosure of the information; and circumstances relating to the communication.[28] Council submits[29] that: staff do not want the Report disclosed outside of Council disclosure ‘there had been an ongoing assurance of confidence in the process’; and ‘information that was collected to produce the report and ultimately the presentation was collected on the basis that the information would remain confidential’. The Report was delivered to Council in accordance with the consultant’s terms of engagement, which do not obligate either Council or the consultant to keep the Report confidential, nor do they impose any restrictions upon Council’s use or dissemination of the Report. I also note that neither the Report nor the Presentation are, on their face, marked as being confidential. Council correctly submits[30] that ‘the lack of such a marking does not of itself remove any such confidence obligation’. However, the fact that neither document was identified as confidential, at the time of its communication, is relevant when considering the circumstances of the communication. Apart from general confidentiality submissions, Council has not provided any evidence to me which indicates that the Report was provided to Council in circumstances which required it to be kept confidential or that the Presentation was communicated to Council’s staff on the basis that its contents would be kept confidential by both Council and its staff.[31] On the information before me, I am not satisfied that the Information in Issue was communicated on the basis of a mutual understanding of confidence. Requirement (d) Council has not placed any information before me which reasonably indicates that disclosure of the Information in Issue under the RTI Act constitutes an actual or threatened misuse of the Information in Issue. Accordingly, I am not satisfied that this element is met. Conclusion Noting that Council bears the onus in this review, I am not satisfied that all the information to which the narrowed application relates comprises exempt information under the Breach of Confidence Exemption. Accordingly, I find that the second limb of section 40 of the RTI Act has not been satisfied and therefore, Council is not entitled to refuse to deal with the narrowed application on that basis. Findings – contrary to the public interest information Irrelevant factors No irrelevant factors arise in the circumstances of this case and I have not taken any into account in making my decision.[32] Factors favouring disclosure In the decision under review, Council decided that only two factors favouring disclosure of the requested information applied to the Information in Issue, namely where disclosure 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;[33] and allow or assist enquiry possible deficiencies in the conduct or administration of an agency or official.[34] I agree these factors are relevant, however, I consider that a number of additional public interest factors apply to the Information in Issue, on the basis disclosure could reasonably be expected to: promote open discussion of public affairs and enhance Council’s accountability[35] ensure effective oversight of Council funds;[36] and reveal the reasons for a government decision and any background or contextual information that informed the decision.[37] Council is a public body set up to provide services to the local community and receives funding from ratepayers. As such, it is reasonable to expect that Council conducts itself in an open, accountable and transparent way. While the Information in Issue confirms that Council informed its staff about the review outcomes and the actions it had decided to take to address matters identified in the review, Council is also accountable to its local community for the actions that it has taken and whether, or not, Council’s actions have been successful in dealing with the organisational issues identified in the review. Council submits[38] that the minutes of its meeting on 27 February 2019[39] confirm that Council resolved to adopt a changed organisational structure and these minutes ‘clearly demonstrate Council’s openness’. However, this matter was considered in a closed Council section of the meeting on 27 February 2019 and Council has disclosed limited details about why the restructure was required, what the restructure entails and how it would impact, if at all, the delivery of services to the community. In these circumstances, I consider it is reasonable to expect that there is community interest surrounding the review and Council’s subsequent resolution to implement structural changes to its organisation. Given the nature of the Information in Issue, I am satisfied its disclosure could reasonably be expected to enhance Council’s accountability and transparency by demonstrating that Council: sought expert advice to improve its organisational capacity and capability to discharge its community service obligations; and involved its staff in the review process and informed them of the review outcomes. Council argues[40] that disclosure would not promote open discussion of public affairs, because it does not include all the details Council considers are required for discussions in a public forum, however, Council characterised the Report as being background and contextual information which would reveal ‘a consideration in the decision making process’. I consider that disclosure of this information will provide the community with an opportunity to scrutinise details of the actions Council decided to take following the review it initiated in 2018. Further, taking into account the lack of information available to the community about the structural changes that Council has resolved to implement, I also consider that disclosure of the Information in Issue may provide relevant background and contextual information to those changes. Council also contends[41] that, given the contents of the Information in Issue, disclosure would not provide effective oversight of Council’s expenditure.[42] However, a review in the nature of that which was conducted by Council’s consultant, required significant resources, both in terms of staff participation and consultant costs. On this basis, I consider disclosure of the Information in Issue could reasonably be expected to ensure effective oversight of expenditure of public funds. In the circumstances, and given Council’s confirmation that the Information in Issue includes information considered in Council’s decision making processes, I am satisfied that the public interest factors listed in paragraphs 42 and 43 deserve significant weight in favour of disclosure. Factors favouring nondisclosure A factor favouring nondisclosure will arise if disclosure of the information could reasonably be expected to prejudice the protection of an individual’s right to privacy.[43] The RTI Act also recognises that disclosing personal information[44] of a person could reasonably be expected to cause a public interest harm.[45] The identities of staff who participated in the review process are not apparent, and cannot be reasonably ascertained, from the Information in Issue.[46] On this basis, I do not consider that the nondisclosure factors relating to personal information and privacy apply. Flow of information Under the RTI Act, the public interest will also favour nondisclosure if: disclosure of information could reasonably be expected to prejudice an agency’s ability to obtain confidential information (Confidential Prejudice Factor);[47] and the information is 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 (Confidential Harm Factor).[48] In the decision under review, Council determined that the provision of information from staff to management was ‘critical in the ongoing operations of Council’ and because staff who participated in the review process were advised that the ‘communications were in confidence, breaching this trust would likely cause irreparable damage to the relationship and put in jeopardy the supply of similar openness into the future’. On this basis, Council determined these factors applied and deserved high weight. I note that this determination was made in respect of the wider range of information responding to the original application scope. On external review, Council submits[49] that staff received multiple undertakings that the review process was confidential in nature, they participated in the review process on the basis that information they provided would be kept confidential and this was reinforced by feedback Council obtained from its employees about the access application. As I have previously noted, some information in the Information in Issue is factual information about Council’s organisational structure and operations, which is not confidential in nature, and Council has not provided any evidence to support the claimed confidentiality undertaking owed to review participants. The Information in Issue does not attribute any particular information provided during the review process to any specific individuals. On this basis, I am not satisfied that disclosure of the Information in Issue would disclose confidential information provided by review participants, as Council has asserted. However, even if some of the Information in Issue could be characterised as confidential information, for these factors favouring nondisclosure to apply, I must also be satisfied that disclosure could reasonably be expected to prejudice Council’s ability to obtain confidential information or the future supply of this type of information. Apart from Council’s general assertions referenced in paragraph 54, Council has not detailed the nature of the claimed adverse impacts and how those impacts would arise from disclosing the Information in Issue. Taking into account that the Information in Issue does not attribute any particular information provided during the review process to any specific individuals, I am not satisfied that disclosure of the Information in Issue would significantly impact either the ability of Council to obtain confidential information or the future supply of information in future workforce reviews. On this basis, I afford these factors favouring nondisclosure moderate weight. Management function The RTI Act also recognises: that a factor favouring disclosure will also arise where disclosure of information could reasonably be expected to prejudice the management function of an agency or the conduct of industrial relations by an agency (management prejudice factor);[50] and disclosing information could reasonably be expected to cause a public interest harm where disclosure could (a) prejudice the effectiveness of a method or procedure for the conduct of tests, examinations or audits by an agency; (b) prejudice achieving the objects of a test, examination or audit conducted by an agency; (c) have a substantial adverse effect on the management or assessment by an agency of the agency’s staff; or (d) have a substantial adverse effect on the conduct of industrial relations by an agency (management harm factor).[51] In the decision under review, Council afforded these factors favouring nondisclosure high weight because disclosure of the requested information would ‘severely damage the relationship between management and staff’ and a ‘[l]oss of trust between staff and management and would likely lead to future requests to open communications between both parties to be extremely hard to achieve’, resulting in staff being less likely to provide honest feedback in the future. Again, I note that this determination was made in respect of the wider range of information responding to the original application scope, whereas this review is in relation to more limited information. Council chose not to provide revised submissions to particularise how it considers disclosure of information falling within the narrowed scope could still lead to such prejudice. On the material before me, there is nothing which reasonably suggests that disclosing the Information in Issue could be expected to cause any prejudice to the effectiveness or objects of a Council test, examination or assessment. Accordingly, I do not consider that these aspects of the management harm factor apply. Council submits[52] that if the Information in Issue is disclosed ‘the consequential loss of trust from staff in the organisation would significantly impact on the management function as without the staff trust all aspects of service delivery would be adversely impacted’. As the party bearing the onus in this review, Council is required to detail the nature of these claimed impacts and how they could reasonably be expected to arise from disclosing the Information in Issue. A mere assertion that disclosure will result in these adverse impacts is insufficient.[53] I accept that Council employees may have expressed a concern about disclosure of information responding to the original scope of the application, however, the Information in Issue does not attribute any particular information provided during the review process to any specific individuals. In these circumstances, while disclosure of the Information in Issue may have some impact on Council’s employment relationships, on the material before me, I am not satisfied that any such impacts would be significant or that they would, in turn, adversely impact Council’s service delivery. On this basis, while I consider these factors may apply to the Information in Issue, they deserve only low weight. Other factors favouring nondisclosure Having carefully considered all factors listed in schedule 4, parts 3 and 4 of the RTI Act, I can identify no other public interest considerations telling in favour of nondisclosure of the Information in Issue.[54] Taking into consideration the nature of this information, I cannot see how disclosing the Information in Issue could, for example, impede the administration of justice, generally or for a person,[55] or prejudice a deliberative process of government.[56] I also note that Council bears the onus in this review of establishing that disclosing the Information in Issue would, as it contends, be contrary to the public interest. Balancing the public interest For the reasons set out above, it is my view that the factors favouring disclosure of the Information in Issue are deserving of significant weight. Disclosure of this information would serve to demonstrate Council’s accountability and transparency and would provide the public with an opportunity to assess the extent of the review commissioned by Council and the actions that Council decided to take to address matters identified in the review. It may also provide background and contextual information to the Council’s 2019 decision to adopt an organisational restructure, which arose from an agenda item considered in a closed section of Council’s meeting. The Information in Issue does not attribute feedback to specific individuals. In these circumstances, I am satisfied that disclosure of the Information in Issue is not likely to impact Council’s future ability to obtain confidential information in any significant way and, on this basis, I afford moderate weight to the nondisclosure factors relating to confidential information. I also afford low weight to the factors concerning prejudice and harm to Council’s management functions. On balance, I find that the factors favouring disclosure outweigh the factors favouring nondisclosure. Accordingly, I find that disclosure of the Information in Issue would not, on balance, be contrary to the public interest. DECISION I set aside Council’s decision and find that access to the Information in Issue may be granted, as its 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 ShepherdAssistant Information Commissioner Date: 12 September 2019 APPENDIX Significant procedural steps Date Event 10 October 2018 OIC received the application for external review 12 November 2018 OIC notified the applicant and Council that it had accepted the external review application and asked Council to provide information. 22 November 2018 OIC received the requested information from Council. 19 December 2018 OIC wrote to the applicant to confirm the scope of the narrowed application. OIC asked Council to provide information. 2 January 2019 OIC received requested information from Council. 11 April 2019 OIC received further information from Council. 9 May 2019 OIC conveyed a preliminary view to Council and invited Council to provide submissions if it did not accept the preliminary view. 3 June 2019 OIC received Council’s submissions. 6 June 2019 OIC conveyed a preliminary view to the applicant and Council and invited them to provide submissions if they did not accept the preliminary view. 12 June 2019 OIC spoke with the applicant and confirmed that the applicant accepted OIC’s preliminary view. 19 June 2019 OIC received Council’s further submissions. [1] The access application is dated 27 July 2018 and was made by the applicant’s regional media outlet, the Southern Free Times. [2] The application specifically sought access to completed surveys, reports to Council on the survey process and outcomes, documents relating to a labour force strategy and documents relating to the communication of the survey outcomes by Council management to Council staff. [3] On 24 August 2018. [4] On 24 September 2018. [5] External review application dated 5 October 2018. [6] Under sections 47(3)(b) and 49 of the RTI Act, as set out in OIC’s letter to the applicant dated 6 June 2019. [7] As a result, this information does not form part of the information being considered in these reasons for decision. [8] Under section 108(3) of the RTI Act, the Information Commissioner must not, in a decision, or in reasons for a decision, include information that is claimed to be exempt information or contrary to the public interest information. For this reason, I am unable to provide a more detailed description of these documents in my reasons for decision. [9] On 11 October 2018, Council provided information to OIC which confirmed that the referenced consultation was conducted via Council’s CEO sending an email to all Council employees identifying the information sought by the applicant and seeking feedback ‘to inform the decision making process around the request’ made by the applicant. By letter dated 18 September 2018, Council also described this process to the applicant as ‘an anonymous and confidential process that allowed staff to provide feedback on whether the information should be released’. [10] Section 44 of the RTI Act. [11] Section 23 of the RTI Act. [12] Grounds for refusal of access are set out in section 47 of the RTI Act. [13] Section 39(1) of the RTI Act.[14] In section 48(4) and schedule 5 of the RTI Act. [15] Schedule 3 sets out the types of information which will comprise exempt information. [16] Schedule 3, section 8(1) of the RTI Act. I note that schedule 3, section 8(2) contains an exception to the Breach of Confidence Exemption, however, that exception does not arise in the circumstances of this matter and therefore, is not addressed in these reasons for decision. [17] 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.[18] As set out in section 49 of the RTI Act. [19] Under section 87(1) of the RTI Act. In SJN v Office of the Information Commissioner & Anor [2019] QCATA 115 (SJN) at [72]-[75], Daubney J gave consideration to the identical agency onus under the Information Privacy Act 2009 (Qld) (IP Act). [20] Submissions dated 3 June 2019. [21] Section 14A(1) of the Acts Interpretation Act 1954 (Qld). [22] Section 3(1) of the RTI Act. Section 3(2) requires that the Act must be applied and interpreted to further the primary object. [23] Submissions dated 3 June 2019. [24] Ramsay Health Care Ltd v Information Commissioner & Anor [2019] QCATA 66 (Ramsay), per Daubney J at [66]. [25] Submissions dated 19 June 2019. [26] Per Daubney J in Ramsay at [94]. [27] Submissions dated 3 June 2019. [28] B and Brisbane North Regional Health Authority [1994] QICmr 1 (B and BNRHA), a decision of the Information Commissioner analysing the equivalent exemption in the repealed Freedom of Information Act 1992 (Qld) at [84]. [29] Submissions dated 3 June 2019. [30] Submissions dated 3 June 2019[31] As noted by Daubney J in SJN at [74]-[75], broad brush and general submissions by a participant who bears the onus of establishing information comprises exempt information will not be sufficient to discharge that onus. [32] Set out in schedule 4, part 1 of the RTI Act. [33] Schedule 4, part 2, item 3 of the RTI Act. [34] Schedule 4, part 2, item 5 of the RTI Act. [35] Schedule 4, part 2, item 1 of the RTI Act. [36] Schedule 4, part 2, item 4 of the RTI Act.[37] Schedule 4, part 2, item 11 of the RTI Act.[38] Submissions dated 3 and 19 June 2019. [39] These minutes can be accessed via Council’s website at: <https://southerndowns.infocouncil.biz/Open/2019/02/CO_27022019_MIN_421.PDF>. Accessed on 9 September 2019. [40] Submissions dated 3 and 19 June 2019. [41] Submissions dated 3 and 19 June 2019. [42] I am unable to provide further details of Council’s submissions in this regard—section 108(3) of the RTI Act. [43] Schedule 4, part 3, item 3 of the RTI Act.[44] ‘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’.[45] Schedule 4, part 4, section 6(1) of the RTI Act.[46] Any instances of individual names, or information which could identify particular individuals, has been excluded on the basis of the applicant’s agreement not to pursue access to it. [47] Schedule 4, part 3, item 16 of the RTI Act.[48] Schedule 4, part 4, section 8 of the RTI Act.[49] Submissions dated 3 and 19 June 2019. [50] Schedule 4, part 3, item 19 of the RTI Act. [51] Schedule 4, part 4, section 3 of the RTI Act. [52] Submissions dated 3 and 19 June 2019. [53] Queensland Newspapers Pty Ltd and Queensland Police Service; Third Parties [2014] QICmr 27 (12 June 2014) at [111]. Refer also to SJN at [74]-[75] where Daubney J found that the identical onus in the IP Act has not been discharged where the agency did not link its concerns about ‘a range of potential deleterious outcomes’ to the particular information sought by the particular applicant in that case. [54] 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 numerous public interest factors that favour the disclosure of the Information in Issue.[55] Schedule 4, part 3, items 8 and 9 of the RTI Act. [56] Schedule 4, part 3, item 20 and schedule 4, part 4, section 4 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Endeavour Foundation and Department of Communities, Child Safety and Disability Services [2017] QICmr 62; 32SGRU (Third Party) [2017] QICmr 37 (31 August 2017)

Endeavour Foundation and Department of Communities, Child Safety and Disability Services [2017] QICmr 62; 32SGRU (Third Party) [2017] QICmr 37 (31 August 2017) Last Updated: 21 December 2017 Decision and Reasons for Decision Citation: Endeavour Foundation and Department of Communities, Child Safety and Disability Services; 32SGRU (Third Party) [2017] QICmr 37 (31 August 2017) Application Number: 313039 Applicant: Endeavour Foundation Respondent: Department of Communities, Child Safety and Disability Services Third Party: 32SGRU Decision Date: 31 August 2017 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - INFORMATION PRIVACY ACT - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - application for information about a child while under Department’s care - whether disclosing non-government sector employee information would, on balance, be contrary to the public interest - enhancing transparency, accountability and oversight of expenditure of public funds - contributing to informed debate on important issues - informing the community about Department operations - personal information and privacy - 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 By application dated 5 May 2014,[1] an access applicant (the third party in this external review) applied, on behalf of his son, to the Department of Communities, Child Safety and Disability Services (Department) under the Information Privacy Act 2009 (Qld) (IP Act) for access to a range of information related to care provided to his son by a non-government not-for-profit entity. The Department located 1782 pages of information responsive to the application. The Department consulted with the entity (the applicant in this external review) under section 56 of the IP Act in respect of the Department’s proposed release of information contained in 420 pages. The Department sought the applicant’s views about disclosure of the information to the third party. The applicant objected to the Department’s proposed disclosure of information in the 420 pages. The Department decided to release information to the third party, including information in respect of which the applicant had objected to disclosure. The Department issued a decision to that effect to the third party on 21 August 2014.[2] Information which was not subject to the applicant’s objections was released to the third party in accordance with the Department’s decision. The third party did not seek external review of the Department’s decision to refuse him access to some information. Due to an administrative error, the Department overlooked its obligation to also issue a decision to the applicant to advise it that the Department had, contrary to the applicant’s objections, decided to release some information to the third party. On identifying this, the Department issued a decision to the applicant on 19 May 2016. The applicant then sought internal review of the Department’s decision on 15 July 2016. The Department issued its internal review decision to the applicant and to the third party on 15 August 2016. It decided to refuse access to small portions of additional information, but otherwise confirmed its initial decision. The applicant then applied to the Office of the Information Commissioner (OIC) for external review of the Department’s internal review decision to release certain information to the third party.[3] The third party did not seek external review of the Department’s decision to refuse access to the additional portions of information. During the course of the review, the third party confirmed that he continued to pursue access to the information in respect of which the applicant objected to disclosure. The third party was therefore joined as a participant to the review.[4] During the review, each of the participants made concessions regarding this information. For the reasons set out below, I decide to vary the Department’s decision and find that disclosure of the information remaining in issue in this review would, on balance, be contrary to the public interest. Access to that information may therefore be refused under the IP Act. Background Significant procedural steps relating to the external review are set out in the Appendix. When the access application was lodged with the Department, the third party’s son was a child, as that term is defined in the IP Act.[5] However, when the applicant applied to OIC for external review, the third party’s son was no longer a child. Reviewable decision The decision under review is the Department’s internal review decision to the applicant dated 15 August 2016. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and the Appendix). Information in issue The Department’s internal review decision under review is a disclosure decision[6]—namely, a decision to disclose certain information to the third party.[7] During the review, each of the participants made concessions regarding the information that the Department’s internal review decision had considered should be disclosed. The Department accepted that a small amount of the information should not be disclosed; however, the third party confirmed that he wished to access this particular information, so it remains in issue. Also, the third party agreed not seek some of the information and the applicant agreed that some of it could be released. These concessions had the effect of reducing the information in issue. Accordingly, the information to be addressed in this decision is information which identifies certain individuals—specifically, the names, initials and signatures of non-government staff,[8] medical practitioners and teachers that appear on 386 pages[9] (Information in Issue). Onus As the decision under review is a disclosure decision, the applicant bears the onus of establishing that a decision not to disclose the Information in Issue is justified or that the Information Commissioner should give a decision adverse to the third party (as the access applicant).[10] Issue to be determined The issue to be determined is whether disclosure of the Information in Issue would, on balance, be contrary to the public interest. Relevant law An individual has a right to be given access, under the IP Act, to documents of an agency to the extent the documents contain the individual’s personal information.[11] The IP Act is to be administered with a pro-disclosure bias;[12] however, the right of access is subject to a number of exclusions and limitations. 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). Relevantly, one such ground is that access to information may be refused where its disclosure would, on balance, be contrary to the public interest.[13] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[14] and explains the steps that a decision-maker must take[15] 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 The applicant raised concerns that, given the third party has previously posted information about his son’s care on social media sites and criticised the applicant regarding the care it provided to his son, it is likely that the third party will ‘recklessly disclose’ the Information in Issue on social media sites, and may use the Information in Issue to attempt to damage the applicant’s reputation and the reputation of the individuals in question. While I acknowledge that there may be a basis for the applicant’s concerns, the RTI Act specifically precludes a decision-maker from taking into account any ‘mischievous conduct by the applicant’[16] in deciding the public interest. The third party has provided copies of documents released by agencies in response to previous access applications which contain names of non-government staff involved in the care of his son in support of his position that Information in Issue should be disclosed.[17] However, the fact that the Department or other agencies may have released information of a similar nature to the applicant in response to other access applications does not impact on the present circumstances. There is nothing in the IP Act to prevent an agency from reconsidering its position on the disclosure of a particular type of 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 available evidence at the time of making my decision. I have not taken into account the above irrelevant factors, or any other irrelevant factor, in this review. Factors favouring disclosure Government accountability and transparency The RTI Act gives rise to factors favouring disclosure in circumstances where disclosing information could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability[18] contribute to positive and informed debate on important issues[19] inform the community of the Government’s operations, including, in particular, the policies, guidelines and codes of conduct followed by the Government in its dealings with members of the community[20] ensure effective oversight of public funds;[21] and reveal the reason for a government decision and any background or contextual information that informed the decision.[22] The Information in Issue appears in placement progress reports and progress notes which the applicant, a non-government not-for-profit service-provider, provided to the Department about a child under the Department’s care. Most of the information in those reports and notes is to be released to the applicant (Care Information). As the Care Information contains substantial detail about the care provided to the third party’s son, I consider that its disclosure significantly advances the public interest factors favouring disclosure that relate to accountability, transparency, oversight of public expenditure and providing information about the Department’s operations. However, as regards the Information in Issue, I consider that disclosure of information that identifies individuals of non-government organisations who were involved in the care of the third party’s son would advance, to only a very limited extent, those same public interest factors. Accordingly, I afford low weight to these factors favouring disclosure of the Information in Issue.[23] Administration of justice and fair treatment The third party submits[24] that he seeks access to the Information in Issue because he may not be happy with the care which the individuals in question provided to his son. I have therefore considered whether disclosing the Information in Issue could reasonably be expected to: advance the fair treatment of individuals in accordance with the law in their dealings with agencies;[25] and contribute to the administration of justice generally, including procedural fairness;[26] contribute to the administration of justice for a person.[27] I accept that disclosing the Information in Issue would inform the third party about the identity of particular individuals who were involved in providing his son’s care. However, I do not consider that disclosing the Information in Issue would advance the public interest factors identified above. On the information before me, I understand that the third party’s son was discharged from the Department’s care in September 2014 and he has been in his family’s care since that date. Taking into account the content of the Care Information, I consider that, should the third party consider the care provided for his son was inadequate, he is able, on the basis of the Care Information, to take any action he considers appropriate against the entities in question.[28] I further note that, should the third party decide to commence legal proceedings, it is reasonable to expect that relevant court disclosure processes will be available to him. In these circumstances, I consider that the Information Commissioner’s comments in Phyland and Department of Police[29] 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, including refusal of access where ... disclosure would disclose personal information or infringe upon an individual’s right to privacy. In light of these considerations, I am unable to determine how disclosure of the Information in Issue would advance the fair treatment of the third party or his son in their dealings with the Department, or contribute to the administration of justice either generally, or for the third party or his son. Accordingly, I find that the public interest factors identified at paragraph 26 above do not apply in the circumstances of this review. 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, they nonetheless warrant low to no weight in favour of disclosing the Information in Issue. Deficiencies in conduct Given the third party stated to OIC that he had concerns about his son’s care,[30] I have also considered whether disclosing the Information in Issue could reasonably be expected to: allow or assist inquiry into the possible deficiencies in conduct or administration of any agency or official[31] or any other person;[32] or reveal or substantiate that misconduct or negligent, improper or unlawful conduct has been engaged in by an agency or official[33] or any other person.[34] Having carefully reviewed the Information in Issue and surrounding Care Information, I am unable to identify how disclosure of the Information in Issue could reasonably be expected to advance these public interest factors. Consequently, I am satisfied that these public interest factors do not apply in the circumstances of this review. 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, they nonetheless warrant no weight in favour of disclosing the Information in Issue. Other factors I have carefully considered all public interest factors favouring disclosure listed in schedule 4, part 2 of the RTI Act, and can identify no other factors that weigh in favour of disclosure of the Information in Issue.[35] Factors favouring nondisclosure Personal information and privacy of other individuals 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;[36] 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.[37] The Information in Issue is the personal information of persons other than the third party and his son. This automatically gives rise to the application of these factors favouring nondisclosure. I am satisfied that the information is not publicly available information. It identifies individuals who were involved in the care of the third party’s son, including his individual carers, medical practitioners who treated him, and his teachers. While I consider it likely that the third party would be aware generally of the individuals who were, in 2012 and 2013, involved in providing his son’s care, he would not know which individuals recorded the observations and opinions which appear in the Care Information. Disclosure of the Information in Issue would enable the applicant to identify the individuals who recorded each of those observations and opinions. The individuals in question are not public sector employees.[38] They are non-government sector employees who, through the course of their work, may encounter challenging and emotionally difficult situations, particularly where there are instances of conflict with young people under their care and/or with family members regarding the care provided. I consider that this necessitates a degree of privacy regarding their dealings in the workplace, and that disclosure of the Information in Issue could reasonably be expected to prejudice those privacy interests. I acknowledge that some of the individuals referred to in the Information in Issue were caring for the third party’s son on behalf of the Department and a level of accountability attaches to the discharge of their duties in that regard. However, as discussed above, I am not satisfied that disclosure of the names of individuals would advance, to any significant degree, the accountability of the non-government entity involved in caring for the third party’s son, such as to displace the public interest in protecting the privacy interests of individual employees. Given these considerations, I afford moderate weight to the public interest in protecting the personal information and privacy interests of the individuals whose names, initials and signatures comprise the Information in Issue. Other factors The applicant has raised concerns that, given the third party’s public criticism of the applicant, disclosure of the Information in Issue may result in the individuals referred to in the Information in Issue being subjected to harassment and intimidation.[39] Schedule 3, section 10(1)(e) of 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. During the course of the review, the applicant accepted my preliminary view that the grounds for this exemption were not made out. I have also given consideration to whether the applicant’s submissions could give rise to a related public interest factor favouring nondisclosure—that is, whether disclosure could reasonably be expected to result in a person being subjected to lower level (that is, less than the ‘serious’ level required by the exemption provision) harassment or intimidation. However, on consideration of the material before me, including the content of the Care Information and the nature of the Information in Issue itself, I am unable to determine a reasonable nexus or connection between disclosure of the Information in Issue and an occurrence, or re-occurrence, of the conduct which the applicant considers to amount to harassment and intimidation. As a result, I am not satisfied that the conduct anticipated by the applicant could reasonably be expected to occur, or re-occur, as a result of disclosure of the Information in Issue. In those circumstances, I do not consider that a factor of this nature applies to the Information in Issue. Balancing the public interest For the reasons explained above, I afford low weight to the public interest factors that I have identified above as weighing in favour of disclosure of the Information in Issue, and moderate weight to those I have identified as favouring nondisclosure of the Information in Issue. In these circumstances, I find that disclosure of the Information in Issue would, on balance, be contrary to the public interest and that access may be refused on this basis. Conclusion I am satisfied that the applicant has discharged the onus, imposed by section 100(2) of the IP Act, of establishing that the Information in Issue comprises contrary to the public interest information. Accordingly, I am satisfied that access to the Information in Issue may be refused under the IP Act on the ground that its disclosure would, on balance, be contrary to the public interest.DECISION I vary the Department’s decision and 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.[40] I have made this decision 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 in the external review Date Event 8 September 2016 The applicant submitted an application for external review with OIC.[41] 18 November 2016 OIC notified the applicant and the Department that it had accepted the external review application and asked the Department to provide background information. 7 December 2016 OIC received the requested information from the Department. 20 December 2016 OIC provided the applicant with an update on the status of the review. 10 February 2017 The third party advised OIC that he did not seek access to contact details contained in the deferred documents, but that he did continue to seek access to the names and initials of individuals contained in the deferred documents. 21 April 2017 OIC conveyed a preliminary view to the applicant and to the third party and invited each to provide submissions if they did not accept the preliminary view. 4 May 2017 OIC received the third party’s submissions. 8 May 2017 OIC conveyed a further preliminary view to the third party. 22 May 2017 OIC received the third party’s further submissions. 12 July 2017 OIC wrote to the applicant confirming the applicant’s acceptance of OIC’s preliminary view. OIC conveyed a preliminary view to the Department and invited the Department to provide submissions if it did not accept the preliminary view. 24 July 2017 The Department confirmed to OIC that it accepted OIC’s preliminary view. 17 August 2017 OIC wrote to the third party advising that the other participants accept OIC’s preliminary view. 20 August 2017 OIC received a response from the third party expressing concern about the progress of the review. 22 August 2017 OIC wrote to the applicant responding to his concerns. [1] Received by the Department on 9 May 2014. [2] The Department had initially issued a decision to the third party on 19 August 2014 but then issued an amended decision on 21 August 2014. [3] The application for external review was dated 8 September 2016. This application was lodged utilising OIC’s online service; however, due to technical issues, the application was not received by OIC until 27 October 2016. [4] Under section 102(2) of the IP Act. [5] Section 45(2) of the IP Act. [6] ‘Disclosure decision’ is defined in section 100(3) of the IP Act as ‘a decision to disclose a document or information contrary to the views of a relevant third party obtained under section 56’ of the IP Act. [7] As the third party did not seek review of the Department’s original decision to refuse access to some information, or the Department’s internal review decision to refuse access to some small portions of additional information, this information is not in issue in this review. [8] Including staff of the applicant. [9] Being pages 119, 121, 140, 142 and 170-171 in File 09, pages 51-52, 220 and 222 in File 10, pages 2-4, 7-12, 17-19, 22-24, 30-33, 43-45, 84-91, 93-107, 110-115, 311-372, 374-379, 387-394, 396-439, 441-451, 453-455 and 460 in File 13, pages 2-3, 30-31, 34-37, 155-158, 162-163, 171-172, 205-209, 228-231, 233-238, 246-249, 257-265, 267-270, 278-279, 283-287, 290-292, 294-295, 299-302, 305-307, 310-313, 321-325, 328-330, 332-344, 346-348, 357-358, 360-367 and 369-372 in File 15, pages 9-10 and 34-35 in File 16 and pages 146-152, 296-314, 317-333, 338, 343-344, 346-352, 356, 359-362, 363, 364-368, 370 and 372-383 in File 17. [10] Section 100(2) of the IP Act.[11] Section 40(1)(a) of the IP Act. [12] Section 64(1) of the IP Act. [13] Under section 47(3)(b) 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. [14] 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. [15] Section 49(3) of the RTI Act. [16] Schedule 4, part 1, item 3 of the RTI Act. [17] Submissions dated 4 May 2017. [18] Schedule 4, part 2, item 1 of the RTI Act. [19] Schedule 4, part 2, item 2 of the RTI Act.[20] Schedule 4, part 2, item 3 of the RTI Act. [21] Schedule 4, part 2, item 4 of the RTI Act. [22] Schedule 4, part 2, item 11 of the RTI Act. [23] Schedule 4, part 2, items 1, 2, 3, 4 and 11 of the RTI Act. [24] In a telephone conversation with an OIC officer on 10 February 2017. [25] Schedule 4, part 2, item 10 of the RTI Act. [26] Schedule 4, part 2, item 16 of the RTI Act. [27] Schedule 4, part 2, item 17 of the RTI Act.[28] Refer to Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368. [29] (Unreported, Queensland Information Commissioner, 31 August 2011) at [24]. [30] In his conversation with an OIC officer on 10 February 2017. [31] Schedule 4, part 2, item 5 of the RTI Act.[32] The public interest factors listed in schedule 4 of the RTI Act are non-exhaustive—see section 49(3)(a), (b) and (c) of the RTI Act. Accordingly, I have considered other persons, as well as agencies and their officers.[33] Schedule 4, part 2, item 6 of the RTI Act.[34] See footnote 33.[35] For example, I do not consider that the Information in Issue can be regarded as the personal information of the applicant (schedule 4, part 2, item 7 of the RTI Act) or the personal information of a child, the disclosure of which could reasonably be considered to be in the child’s best interests (schedule 4, part 2, item 8 of the RTI Act), nor do I consider that disclosing the Information in Issue could reasonably be expected to reveal that the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant (schedule 4, part 2, item 12 of the RTI Act). [36] Schedule 4, part 3, item 3 of the RTI Act.[37] Schedule 4, part 4, section 6(1) of the RTI Act.[38] For a discussion of the personal information of private sector employees, as well as a discussion of routine and non-routine personal work information of public sector employees, see Kiepe and The University of Queensland (Information Commissioner of Queensland, 1 August 2012) at [18] to [21].[39] External review application. [40] Under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act. [41] This application was lodged utilising OIC’s online service. Due to technical issues, the application was not received by OIC until 27 October 2016.

queensland

court_judgement

Queensland Information Commissioner 1993-

Queensland Newspapers Pty Ltd and Department of Justice and Attorney-General [2018] QICmr 52 (18 December 2018)

Queensland Newspapers Pty Ltd and Department of Justice and Attorney-General [2018] QICmr 52 (18 December 2018) Last Updated: 31 January 2019 Decision and Reasons for Decision Citation: Queensland Newspapers Pty Ltd and Department of Justice and Attorney-General [2018] QICmr 52 (18 December 2018) Application Number: 313895 Applicant: Queensland Newspapers Pty Ltd (ACN 009 661 778) Respondent: Department of Justice and Attorney-General Decision Date: 18 December 2018 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - audio recordings made by police in connection with a missing person/murder investigation - whether disclosure would, on balance, be contrary to the public interest - section 47(3)(b) and section 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] under the Right to Information Act 2009 (Qld) (RTI Act) for access to a copy of ‘police audio/video and/or recordings of interviews and/or interactions and/or conversations relating to Gerard BADEN-CLAY and QLD Police Service between 20.04.2012 – 14.06.2012’. The Department of Justice and Attorney-General (DJAG) located 50 audio recordings in response to the applicant’s request. It decided[2] to refuse access to all recordings on the ground that their 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 DJAG’s decision. For the reasons set out below, I affirm DJAG’s decision to refuse access to the audio recordings on the ground that disclosure would, on balance, be contrary to the public interest. Background On 20 April 2012, Mrs Allison Baden-Clay was reported missing by her husband, Mr Gerard Baden-Clay. Her body was found 10 days later. The police investigation, and the subsequent trial of Mr Baden-Clay for his wife’s murder, were some of the most high-profile and widely publicised events in Queensland’s recent criminal history. Mr Baden-Clay was convicted of murder and given a life sentence. He successfully appealed the murder conviction to the Queensland Court of Appeal, which downgraded the conviction to manslaughter. However, following an appeal by the Director of Public Prosecutions (DPP), the High Court reinstated the murder conviction. All appeal processes have now concluded and Mr Baden-Clay is presently serving a custodial sentence for murder. As part of the intensive police investigation into Mrs Baden-Clay’s disappearance and death, officers of the Queensland Police Service audio recorded interviews and conversations between police and a number of persons, as well as the execution of search warrants at various locations. Significant procedural steps relating to this external review are set out in the appendix to these reasons. Reviewable decision The decision under review is DJAG’s decision dated 26 March 2018. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and the appendix). Information in issue The information in issue comprises 50 audio recordings, of varying lengths, of police interviews and conversations with a number of persons in connection with the investigation into the disappearance and death of Mrs Baden-Clay, including audio recordings of the execution of search warrants (Information in Issue). Issue for determination The issue for determination is whether disclosure of the Information in Issue would, on balance, be contrary to the public interest. Relevant law – public interest balancing test A ground for refusing access is where disclosure would, on balance, be contrary to the public interest.[4] The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.[5] The RTI Act lists factors which may be relevant to deciding the balance of the public interest[6] and sets out the following steps[7] to decide where the public interest lies in relation to disclosure of information: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure would, on balance, be contrary to the public interest. No irrelevant factors, including those in schedule 4, part 1 of the RTI Act, arise for consideration in this case and I have taken none into account.Factors favouring disclosure In its decision, DJAG recognised the following factor favouring disclosure of the Information in Issue: disclosure would allow greater access to government-held information and enhance the government’s accountability. In the submissions that accompanied its application for external review,[8] the applicant identified the following factors as favouring disclosure: disclosure could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability[9] disclosure could reasonably be expected to contribute to positive and informed debate on important issues or matters of serious interest;[10] and disclosure could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official.[11]Factors favouring disclosure The central public interest factors favouring nondisclosure are: disclosure could reasonably be expected to prejudice the protection of a person’s right to privacy;[12] and disclosure could reasonably be expected to cause a public interest harm by disclosing personal information of individuals.[13] The definition of ‘personal information’ in the RTI Act[14] refers to the definition in the Information Privacy Act 2009 (Qld) (IP Act), which provides that:[15] Personal information is information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. The RTI Act recognises that disclosure would cause a public interest harm if it would disclose personal information of a person, whether living or dead. Discussion The applicant submitted[16] that the Baden-Clay case was one of the most high-profile murder investigations in recent Australian history and that it would use the Information in Issue to ‘further open discussion about the criminal justice system, and the role of police and the judiciary, to enhance government accountability’. It also submitted that the murder trial and subsequent appeals garnered significant public interest and that thousands attended a rally to protest at the Court of Appeal’s decision to downgrade the murder conviction. The applicant argued that allowing it access to the Information in Issue would allow further positive and informed debate on the matter. In respect of factors favouring nondisclosure, the applicant submitted that there would be no prejudice to the protection of any person’s right to privacy because the majority of the Information in Issue would likely already be in the public domain via the criminal trial, where a number of taped interviews had been played to the jury. Further, any recordings that were not tendered as exhibits in the criminal proceedings, ‘likely touched on the same topics’. The applicant also referred to the information contained in the detailed summing up given to the jury by The Honourable Justice Byrne. The applicant argued that where Information in Issue has already been aired in public, release under the RTI Act will not constitute a ‘disclosure’ and it cannot reasonably be expected that release will prejudice the protection of an individual’s right to privacy.[17] In response, I expressed the preliminary view to the applicant that any public interest in disclosure was outweighed by the strong public interest in protecting the personal information and the right to privacy of those persons concerned with the Information in Issue.[18] I acknowledged the high-profile nature of the Baden-Clay case, and the intense publicity that surrounded it. I also noted the wealth of information already in the public domain about the investigation and subsequent trial of Mr Baden-Clay, as well as the fact that all court processes had concluded and that Mr Baden-Clay was currently serving a custodial sentence for murder. The Information in Issue records police interactions with numerous persons. I accept that much of the information was presented in evidence by the DPP at Mr Baden-Clay’s trial and is on the public record. A number of the audio recordings were played to the jury during the trial. This information has been discussed and analysed in detail not only in the context of the trial itself, where the media reported daily on the evidence that was presented, but also in the extensive media coverage and expert analysis and opinion that surrounded and followed the trial. I expressed to the applicant that disclosure of such information under the RTI Act would not advance the public interest in any way. It would not enhance the accountability of the police for the manner in which they conducted the investigation, nor the accountability of the DPP for the manner in which that office conducted the prosecution. From their point of view at least, the criminal trial of Mr Baden-Clay was successful and resulted in a conviction for murder. Furthermore, I noted that the Information in Issue was not relevant, and would not lead, to an enhanced understanding of the Court of Appeal’s decision to downgrade the conviction to manslaughter. That decision was based solely on the evidence presented at the criminal trial and which is contained in publicly-available transcripts. The same is true of the High Court’s decision to overturn the Court of Appeal’s decision. As I was unable to identify anything in the Information in Issue that would give rise to any suggestion of deficiencies in the conduct or administration of an agency or official in connection with the police investigation or subsequent trial, I advised the applicant that I did not consider that disclosure could reasonably be expected to allow or assist inquiry into any such deficiency. In terms of the information contained in the recordings that was not already in the public domain via the trial process, I expressed the view that such information was assessed by the police and DPP as being irrelevant to the prosecution of Mr Baden-Clay and was therefore not relied upon at trial. Given that the audio recordings run for the entire duration of, for example, a visit to a witness’s home to discuss unfolding events, the recordings capture a great deal of ancillary information, including personal information of police officers and personal information of witnesses and other persons, that was wholly unrelated to the investigation. Lastly, I explained to the applicant that I was unable to identify any information that was not already in the public domain where I considered that its disclosure could reasonably be expected to enhance the accountability of the police or the DPP for the manner in which they conducted the investigation and trial. Nor did I consider that disclosure of such information under the RTI Act could reasonably be expected to contribute to positive or informed debate on important matters or matters of serious interest, or that it would enhance the public’s understanding of the events surrounding the investigation and trial. I noted that the justice system had run its course and the court process was open and transparent at all times. All information upon which the trial and subsequent appeals were based was already in the public domain. I accepted that disclosure of the Information in Issue might possibly enhance the public’s understanding of the manner in which police conduct an investigation, including the taking of statements and the execution of search warrants. However, while I acknowledged that there is a public interest in understanding and scrutinising the way in which a government agency conducts its publicly-funded operations, I advised the applicant that I would afford this public interest factor only low weight in the public interest balancing test, given that the methodologies used by the police appeared to have been standard policing techniques, and taking account of the information that was already publicly available about the manner in which the police investigation was conducted. As to the public interest factors favouring nondisclosure, I expressed the view that the bulk of the Information in Issue was highly sensitive and highly personal information about a wide variety of persons who, given the nature of the information, as well as the information that was already in the public domain, were either identifiable or whose identities could reasonably be ascertained. The information therefore comprised their personal information and a public interest harm automatically arose from disclosure. As noted above, the applicant submitted that the public interest in protecting an individual’s right to privacy should be reduced because of the amount of information already in the public domain. However, while that may be true of a certain amount of information in the audio recordings, such information is sometimes inextricably intertwined with highly sensitive personal information that is not in the public domain. In addition, I noted that there were a number of recordings of interviews or conversations with persons who were not called to give evidence at trial and whose statements were not tendered in evidence. Regardless of whether or not that information ‘touched on the same topics’ as those interviews that had been aired at the trial, I expressed the preliminary view that there was a significant public interest in protecting the right to privacy of those persons. I also stated that, while I accepted that the privacy interests of a person may be reduced where the relevant information is already in the public domain, that interest is reduced rather than destroyed.[19] There exists a residual privacy interest that must be recognised. In this case, it is necessary to take account of the highly personal and extremely sensitive nature of the information in question and the significant detrimental impact that re-publication of this information could reasonably be expected to have on the residual privacy interests of the many persons involved in the investigation, including Mr and Mrs Baden-Clay’s children, parents and siblings. Given that the court processes concluded nearly two and a half years ago, with the matter now largely out of the public eye, my view was that the public interest in protecting the right to privacy of the persons involved, and referred to, in the recordings, even in respect of information that was disclosed at trial, remained significant. The applicant did not accept my preliminary views and made the following additional submissions in support of its case for disclosure of the Information in Issue:[20] the fact that the court and appeal processes have concluded and that much of the Information in Issue was presented at trial and is already in the public domain is irrelevant to the applicant’s application the factors favouring disclosure identified by the applicant are not limited to the circumstances referred to above, but are broad and include disclosures that could reasonably be expected to promote open discussion of public affairs and that could reasonably be expected to contribute to positive and informed debate on important issues or matters of serious interest the Information in Issue undeniably falls into the above categories that there has already been positive and informed debate on these issues does not diminish the significance of this factor: rather, it points to the seriousness and importance of the Information in Issue while some parts of the Information in Issue were not led in evidence at trial, this does not necessarily mean that that information was assessed as irrelevant: it may have been inadmissible, or the police and the DPP may have made strategic decisions about what evidence they would and would not rely upon even if some of the Information in Issue was irrelevant to the prosecution of Mr Baden-Clay, that does not mean it should not be disclosed under the RTI Act the applicant’s reporting of the Information in Issue will contribute to positive and informed debate on important issues as it will lead to a greater understanding of criminal proceedings and police investigations; and if information has been published before, it is no longer private and there are no residual privacy interests to be protected. The applicant also submitted that it was aware that a similar RTI application had been made by another media organisation to Queensland Police Service which resulted in the applicant being granted access to audio recordings produced in the course of the investigation into the death of a foster child, and the subsequent criminal prosecution of her foster family, the Thorburns. The applicant submitted that the same decision should be made in this case, in terms of balancing privacy interests against the public interest in disclosure. Lastly, the applicant argued that, even if disclosure of some of the Information in Issue was decided to be contrary to the public interest, DJAG should consider whether deletion of that information would be practicable under section 75 of the RTI Act. The applicant stated that it would be prepared to assist in redacting, or cutting the audio recordings, if OIC or DJAG were to identify which parts of the recordings ought not to be released. Having given careful consideration to the applicant’s further submissions, I am not persuaded to alter the preliminary view I had formed in this matter,[21] namely, that disclosure of the Information in Issue would, on balance, be contrary to the public interest. Given the wealth of information already in the public domain concerning the Baden-Clay case, I do not consider that disclosure of the Information in Issue would advance the public interest in open discussion of public affairs. Nor am I able to identify an important issue or matter of serious interest about which disclosure of the Information in Issue could reasonably be expected to contribute to a positive and informed debate. I acknowledge that disclosure of the Information in Issue could possibly contribute to an enhanced understanding of the way in which police investigations are conducted. However, I maintain that that factor should only be afforded low weight in the public interest balancing test given that standard policing techniques were used (interviews and search warrants) and taking account of the information that is already publicly available about the manner in which the police investigation was conducted. In terms of information that is already in the public domain, I find that it is sometimes inextricably intertwined with highly sensitive personal information that is not in the public domain, the disclosure of which would be contrary to the public interest. Furthermore, the task of identifying precise information that is not in the public domain and redacting it from the tapes is not practicable under section 75 of the RTI Act given the number of recordings and the length of many of them. The applicant’s proposal that all of the tapes be released to it to allow it to undertake their editing is not permissible under the RTI Act. The Information Commissioner has no discretion to release information that is contrary to the public interest information.[22] In any event, even in respect of information that has already been released publicly, I maintain the view that the re-publication of this information in all the circumstances of this extremely high-profile and well-known case could reasonably be expected to cause a significant prejudice to the protection of the relevant persons’ residual right to privacy. I am unable to comment on the Thorburn case that the applicant contends raises similar issues. This matter was not the subject of external review before the Information Commissioner and I am not aware of the details of the access application, the specific information in issue, or the basis upon which the relevant agency may have made its decision. Each case must be considered on an individual basis in any event, and regard given to the particular circumstances of each. While, as I have said, I am not aware of the specifics of the Thorburn matter, I would simply observe that it may have been a relevant consideration in that case, in terms of privacy considerations, that all four members of the Thorburn family were charged with, and found guilty of, the commission of various criminal offences.[23] In the Baden-Clay case, only Mr Baden-Clay was charged with and convicted of an offence. The bulk of the audio recordings in issue are with persons not involved in the commission of a crime and I find that the public interest in protecting their personal information and their right to privacy is significant. Balancing the public interest As noted above, ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. It is important to bear in mind what the courts have said the public interest is not, namely, ‘that which gratifies curiosity or merely provides information or amusement... . Similarly it is necessary to distinguish between what is in the public interest and what is of interest to know’.[24] Having carefully reviewed the Information in Issue, I am satisfied that the information which is not already in the public domain and which was not disclosed at trial can fairly be characterised as information of the above kind. That is, while it may be interesting to know, it is not in the public interest in the sense of affecting the good order and functioning of the community and government affairs for the well-being of citizens. I do not consider that its disclosure would serve to advance, in any material way, the public interest in the accountability of government agencies or of public officers for their handling of the Baden-Clay case, or enhance scrutiny of the justice system generally. Nor do I consider its disclosure could reasonably be expected to contribute to positive and informed debate on important issues or matters of serious interest. Sufficient information already exists in the public domain to allow scrutiny of the investigation and trial. To the extent that disclosure of the Information in Issue may enhance the public’s understanding of police actions and methodologies in conducting a major investigation, I afford this factor low weight, for the reasons explained above. While I recognise the pro-disclosure bias contained in the RTI Act, I am not satisfied that the release of information under the RTI Act that is already in the public domain would advance the public interest. Moreover, even though some of the Information in Issue might already be publicly available information, the public interest in protecting the residual privacy interests of the multiple persons involved, and referred to, in the Information in Issue remains significant. This is because of the information’s highly personal and highly sensitive nature, and the likely prejudicial effect on the privacy interests of many persons that its fresh disclosure would have, nearly two and a half years after the conclusion of the judicial process. Finding I afford significant weight to the following two public interest factors favouring nondisclosure: disclosure could reasonably be expected to prejudice the protection of a person’s right to privacy; and disclosure could reasonably be expected to cause a public interest harm by disclosing personal information of individuals. I afford low weight to the public interest in enhancing the public’s understanding of the Baden-Clay police investigation. I am not satisfied that any of other public interest factors favouring disclosure relied upon by the applicant apply to the Information in Issue. I therefore find that disclosure of the Information in Issue would, on balance, be contrary to the public interest. DECISION I affirm the decision under review. I decide that access to the Information in Issue may be refused under section 47(3)(b) of the RTI Act. I have made this decision under section 110 of the RTI Act as a delegate of the Information Commissioner, under section 145 of the RTI Act. -----------------------------------------------Louisa Lynch Right to Information CommissionerDate: 18 December 2018 Appendix Significant procedural steps Date Event 26 April 2018 Office of the Information Commissioner (OIC) received the applicant’s application for external review and accompanying submissions. 15 May 2018 OIC wrote to the applicant and to the Department of Justice and Attorney-General (DJAG) advising that the application for external review had been accepted. 17 May 2018 OIC received the Information in Issue from DJAG. 8 August 2018 OIC completed a review of the Information in Issue and communicated a preliminary view to the applicant. 24 August 2018 OIC received written submissions from the applicant. 5 September 2018 OIC communicated a further preliminary view to the applicant and advised that, if a written decision was required to finalise the review, it may take up to four months to issue, given the large number of external reviews currently on hand. 10 September 2018 OIC received a letter from the applicant advising that it did not agree to informal resolution of the review and requesting a formal decision. [1] Application dated 19 February 2018.[2] Decision dated 26 March 2018.[3] Application dated 26 April 2018.[4] Sections 47(3)(b) and 49 of the RTI Act. [5] For example, where disclosure of the information could reasonably be expected to contribute to the administration of justice for a person (schedule 4, part 2, item 17 of the RTI Act). [6] In schedule 4 of the RTI Act. However, this list is not exhaustive and factors not listed may be relevant in a particular case. [7] In section 49(3) of the RTI Act.[8] Dated 26 April 2018. [9] Schedule 4, part 2, item1 of the RTI Act.[10] Schedule 4, part 2, item 2 of the RTI Act.[11] Schedule 4, part 2, item 5 of the RTI Act.[12] Schedule 4, part 3, item 3 of the RTI Act.[13] Schedule 4, part 4, section 6 of the RTI Act. [14] Section 10 and schedule 5 of the RTI Act.[15] Section 12 of the IP Act.[16] Submissions dated 26 April 2018.[17] The applicant relied upon OIC’s decision in Queensland Newspapers and Department of Justice and Attorney-General: Carmody (Third Party) [2016] QICmr 23 (27 June 2016) (Carmody decision) wherein the then RTI Commissioner observed at [191]: ‘If the public is already aware of information, by whatever means, the public interest in protecting a person’s privacy regarding that information is necessarily lessened’. [18] Letter to the applicant dated 8 August 2018. [19] This is consistent with the views expressed in the Carmody decision – see footnote 17. [20] Letter dated 24 August 2018.[21] As expressed in my letter to the applicant dated 5 September 2018.[22] Section 105(2) of the RTI Act. [23]See, for example, https://www.queenslandjudgments.com.au/case/id/301227 and https://www.queenslandjudgments.com.au/case/id/306924 (accessed 12 December 2018).[24] DPP v Smith [1991] VicRp 6; [1991] VR 63 at 73.

queensland

court_judgement

Queensland Information Commissioner 1993-

N54 and Queensland Building and Construction Commission [2023] QICmr 26 (8 June 2023)

N54 and Queensland Building and Construction Commission [2023] QICmr 26 (8 June 2023) Last Updated: 21 September 2023 Decision and Reasons for Decision Citation: N54 and Queensland Building and Construction Commission [2023] QICmr 26 (8 June 2023) Application Number: 317067 Applicant: N54 Respondent: Queensland Building and Construction Commission Decision Date: 8 June 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - LEGAL PROFESSIONAL PRIVILEGE - documents containing legal advice - whether exempt information - 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 - DISCLOSURE PROHIBITED BY ACT - workplace investigation reports resulting from a public interest disclosure - whether exempt information - sections 47(3)(a) and 48 and schedule 3, section 12 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST INFORMATION - workplace investigation report - personal information and privacy - management function of an agency - 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 - REFUSAL OF ACCESS - DOCUMENTS NONEXISTENT OR UNLOCATABLE - applicant submits agency did not locate all relevant documents - whether agency has conducted all reasonable searches - whether access to further documents may be refused on the basis they are nonexistent or unlocatable - sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Queensland Building and Construction Commission (QBCC) under the Right to Information Act 2009 (Qld) (RTI Act) for access to certain documents relating to a successful job application that had been submitted to QBCC by an internal candidate (hereinafter referred to as ‘AB’). After conducting preliminary inquiries in order to estimate the number of responsive documents, QBCC decided[2] to refuse to deal with the application under section 41 of the RTI Act on the grounds that the work involved in dealing with the application would substantially and unreasonably divert QBCC’s resources.[3] The applicant applied for internal review of QBCC’s decision.[4] On internal review, QBCC affirmed its decision to refuse to deal with the application under section 41.[5] The applicant then applied[6] to the Office of the Information Commissioner (OIC) for external review of QBCC’s decision.[7] As a result of negotiations conducted by OIC during the course of that external review, the applicant agreed to narrow the terms of the access application in certain respects, and QBCC agreed to withdraw its ‘refusal to deal’ decision and to resume processing the application on the basis of those narrowed terms.[8] On 8 July 2022, the application, in the terms set out below, was therefore returned to QBCC to resume processing:[9] With reference to [AB’s] "SASC [Statement Addressing Selection Criteria] ..." (attached): any and all information informing or relating to actions/investigations/outcomes by [AB] described in specific statements: a) identifying inconsistencies between QBCC's defects policy and SS 71J and 72 of the QBCC act, particularly in light of the amendment to S71J(4) in November 2017, leading the commissioner to request a new commissioner's directive be drafted to resolve the inconsistencies. b) identifying problems and risks in QBCCs ad hoc practice of changing direction to rectify decisions outside the formal review process set in QBCC Act, leading the commissioner to request a new commissioner's directive be drafted to resolve inconsistencies. identifying serious procedural fairness issues in IRUs decision-making processes, addressed through my [i.e., AB’s] participation in the IRU working group and resulting policy and process changes. d) identifying lack of rigorous processes for procurement of technical services in some regional offices, and taking appropriate steps to formally record and control this risk collaboratively with the senior risk advisor and the then acting Director Regional Services. e) identifying problems in QBCC’s policy and practice around 'early dispute resolution’ EDR including inconsistency with the QBCC Act, and addressing these through collaborating with BAS in the drafting of new EDR procedural guidelines. *Limited to communications between [AB] and other persons concerning EDR policy and procedure only (and not any underlying files) f) the three high quality staff misconduct investigation reports produced by my [i.e., AB’s] team between August and December 2018. *Limited to the ‘three ... misconduct investigation reports’ referred to in this part only. g) the significant number of advices I [i.e. AB] have provided since joining QBCC, to human resource staff and line managers concerning the assessment and management of staff performance issues, ensuring that these are managed appropriately and proportionately to their seriousness (eg without unnecessary escalation of performance issues into misconduct concerns) h) the advice and support I [i.e. AB] have provided to the Director of Licensing and Assistant Commissioner concerning the conflict of interest issues within the Complex Licensing Panel. Type of documents: Including but not limited to policies/procedures/guidelines/directives, audits, reports, internal/external correspondence, letters, emails, interviews, recordings, meetings, minutes, memorandums, case notes, HR files, complaints/investigations, metadata Time period/date range: 14 May 2018 - Present + contemporary (does not exclude documents dealt with by [AB] that pre-date 14 May 2018) The applicant attached to his access application, a copy of a Statement Addressing Selection Criteria (SASC) to which he had obtained access in response to a previous RTI application he had made to QBCC. The SASC had been prepared and submitted to QBCC as part of AB’s successful application for a position at QBCC. As the terms of the access application set out above indicate, the SASC contained statements by AB made in support of his job application and that described some of the work he had performed at QBCC. The applicant sought access to documents held by QBCC that related to the descriptions of AB’s work contained in the SASC. By decision dated 4 October 2022, QBCC decided to grant the applicant full access to 121 pages, partial access to 61 pages, and to refuse access to 120 pages. Access to information was refused either on the basis that it was exempt information, or because its disclosure would, on balance, be contrary to the public interest. In an 18 page submission, the applicant applied for internal review of QBCC’s decision on 4 November 2022. In addition to disputing QBCC’s interpretation of the terms/timeframe of his access application, the applicant disputed QBCC’s findings concerning exempt information and contrary to the public interest information. He also raised numerous sufficiency of search issues. On internal review, QBCC conducted further searches and inquiries in response to the applicant’s sufficiency of search concerns, and located some additional responsive information. In its internal review decision,[10] QBCC varied the initial decision and gave the applicant access to additional information.[11] On 3 January 2023, the applicant applied to OIC for external review of QBCC’s decision. For the reasons set out below, I decide to affirm QBCC’s internal review decision. 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 December 2022. Evidence considered Evidence, submissions,[12] legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and appendix). 14. 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.[13] 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,[14] 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.’[15] Information in issue The information in issue is identified in Attachment B to QBCC’s internal review decision dated 2 December 2022 (Information in Issue) except for any references to identifying/personal information for individuals, including mobile phone numbers and case numbers and other references that would identify particular matters/individuals. The applicant has indicated that he does not seek access to information of this type. During the review, he also indicated that he does not pursue access to information that QBCC had decided was irrelevant to the terms of the application. Issues for determination The issues for determination are: whether access to information may be refused on the grounds that it is exempt information whether access to information may be refused on the grounds that its disclosure would, on balance, be contrary to the public interest; and whether the searches and inquiries that QBCC has conducted in an effort to locate all responsive documents have been reasonable in all the circumstances. Relevant law - exempt information The RTI Act’s primary object is to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access.[16] The Act must be applied and interpreted to further this primary object,[17] and is to be administered with a pro-disclosure bias.[18] Section 23 of the RTI Act gives effect to the Act’s primary object by conferring a right to be given access to documents. This right is subject to other provisions of the RTI Act,[19] including grounds on which access may be refused.[20] These grounds are to be interpreted narrowly.[21] One of these grounds permits an agency to refuse access to information to the extent that it is exempt information under sections 47(3)(a) and 48, and schedule 3, of the RTI Act. Application of schedule 3, section 7 of the RTI Act - legal professional privilege An agency may refuse access to information where it would be privileged from production in a legal proceeding on the ground of legal professional privilege (LPP). Broadly, for information to be subject to LPP it must be a confidential communication made: in the course of a lawyer/client relationship for the dominant purpose of seeking or providing legal advice (advice privilege); or for the dominant purpose of use in existing or reasonably anticipated legal proceedings (litigation privilege). If these elements are satisfied, the agency must still consider if: the privilege has been waived; or the circumstances give rise to the improper purpose exception. Discussion In a letter dated 21 March 2023, I communicated to the applicant a preliminary view that QBCC’s claim of LPP over the relevant communications identified in its internal review decision was correct and should be affirmed on external review. In his submission in response dated 26 April 2023, the applicant simply requested that OIC ‘formalise the Preliminary View’. Finding Having reviewed the relevant communications identified in Attachment B to QBCC’s internal review decision, I am satisfied that they comprise confidential communications between QBCC, and staff employed as legal officers in QBCC’s legal unit, made for the dominant purpose of seeking or providing legal advice. There is no evidence before me to suggest that privilege in these communications has been waived, or that any circumstances exist that would give rise to the improper purpose exception. I therefore find that access to the communications may be refused under section 48 and schedule 3, section 7 of the RTI Act. Application of schedule 3, section 12(1) of the RTI Act - information the disclosure of which is prohibited by an Act QBCC decided that two workplace investigation reports[22] were exempt information under schedule 3, section 12(1) of the RTI Act because their disclosure is prohibited by section 65(1) of the Public Interest Disclosure Act 2010 (Qld) (PID Act). Section 65(1) of the PID Act provides that if a person gains confidential information because of the person’s involvement in the administration of the PID Act, the persons must not make a record of the information, or intentionally or recklessly disclose the information to anyone, except in specified circumstances. Section 65(7) defines ‘confidential information’ as including information about the person who made the public interest disclosure (PID), or against whom the PID was made, as well as information disclosed by the PID. Discussion During the course of the review, I advised the applicant that it was clear on the face of the two reports that the complaints were recorded as PIDs. I expressed the preliminary view that QBCC’s reasoning contained in its internal review decision was correct, and that the reports qualified for exemption under schedule 3, section 12(1) of the RTI Act. In his submission dated 26 April 2023, the applicant complained that, during the negotiations about the scope of his application, QBCC did not disclose to him that two of three workplace reports to which he limited his request for access would attract the PID exemption. He submitted that QBCC had engaged in bad faith negotiations and that ‘QBCC’s conduct must be considered through the lens of the conduct of offences under the RTI Act, particularly ss42 and 177’. Under section 42 of the RTI Act, an agency is simply required to assist an applicant to make their application in a form that would remove the ground for refusal under section 41. It is not required to indicate to an applicant whether or not access to requested documents will be given in the event that the application is re-made in a form that removes the ground for refusal. As regards section 177 of the RTI Act, there is no evidence before me to support an allegation that any person has given information to OIC that the person knows is false or misleading in a material particular. The applicant further submitted that he disagreed with the PID exemption claim by QBCC unless QBCC was able to demonstrate the two investigations ‘were in fact commenced because of a Public Interest Disclosure, were later complained about in or folded into a subsequent Public Interest Disclosure, or were decided under the Public Interest Disclosure Act 2010 with an actual underlying Public Interest Disclosure’. As the applicant was advised during the course of the review, the two investigation reports in question indicate that the complaints under investigation were treated as PIDs. As such, I am satisfied that the reports comprise confidential information for the purposes of section 65(7) of the PID Act, and their disclosure is therefore prohibited under section 65(1) of the PID Act. Finding Having reviewed the two reports in question, I am satisfied that they comprise exempt information under schedule 3, section 12(1) of the RTI Act on the grounds that their disclosure is prohibited by the operation of section 65(1) of the PID Act. Relevant law - contrary to the public interest information The RTI Act also permits an agency to refuse access to a document to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest.[23] The steps to be followed in determining whether disclosure of information would, on balance, be contrary to the public interest,[24] are prescribed in section 49 of the RTI Act. In summary, a decision-maker must: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. Schedule 4 of the RTI Act contains non-exhaustive lists of factors that may be relevant in determining where the balance of the public interest lies in a particular case. DiscussionInvestigation report QBCC decided that disclosure of the third workplace investigation report, which did not arise from a PID, would, on balance, be contrary to the public interest. In my letter to the applicant dated 21 March 2023, I expressed the preliminary view that QBCC’s analysis of the application of the public interest balancing test to the report was correct: While I acknowledge the public interest in the accountability and transparency[25] of QBCC regarding its employment decisions, I do not consider that disclosure of the report would enhance these public interest factors in any significant way concerning the decision to appoint [AB]. Given the nature of the information contained in the report, I consider that any public interest factors favouring disclosure are significantly outweighed by the public interest in protecting the personal information[26] and right to privacy[27] of the various persons referred to in the report; and in preventing prejudice to QBCC’s management function concerning its staff.[28] The report deals with personal and highly sensitive issues affecting a number of officers. There is a strong public interest in protecting the personal information and privacy interests of the persons concerned, given that disclosure under the RTI Act is to be regarded as disclosure to the world at large.[29] Given the volume of identifying and highly sensitive information contained throughout the report, and the nature of the issues discussed, I am satisfied that it is not practicable to redact identifying information from the report. In his submission in response,[30] the applicant argued as follows: It is noted from the outset that the staff misconduct report in question relates to multiple QBCC Officers, rather than an isolated Officer or small group. The nature of the investigation and report suggests there exists a serious and systemic issue at the QBCC, and the Public Interest is significantly enhanced by the release of information relating to allegations of a large cohort of QBCC Officers engaging in misconduct. The Preliminary View to refuse access to the staff misconduct report is also infected the misinterpretation that the scope of the Request relates to [AB]’s employment application (and appointment), rather than the particular workplace and industry issues [AB] had dealt with, or was dealing with (which is the actual nature of the Request). Since the Preliminary View does acknowledge “the public interest in the accountability and transparency of QBCC regarding its employment decisions”, which is but one of a number of reasons enhancing the public interest, removal of the misinterpretation of the scope of the Request tips the public interest balancing exercise in favour of release. The Public Interest factors purportedly outweighing release are diluted, eroded, and otherwise should be rejected, in circumstances where the report relates to multiple QBCC Officers, rather than an isolated Officer or small group. The nature of the investigation and report suggests there exists a serious and systemic issue at the QBCC, and the Public Interest is significantly enhanced by the release of information relating to allegations of a large cohort of QBCC Officers engaging in misconduct. The applicant’s contention regarding the misinterpretation of the terms of his access application will be discussed further below, in the context of sufficiency of search issues he has raised. The applicant’s contention that the report concerns instances of misconduct by multiple QBCC officers and that this somehow suggests that there exists ‘a serious and systemic issue’ at QBCC is misconceived. The report relates to the conduct of one QBCC officer. Other officers are referred to in the report in the context of their involvement as the complainant, or as persons who were present at the time the actions complained about took place. I reject the applicant’s submission that the report evidences systemic issues concerning widespread staff misconduct at QBCC and that this therefore gives rise to a stronger public interest in disclosure of the report beyond the general accountability of the QBCC for the conduct of investigations and management of its workforce. As I noted in my preliminary view, the report contains highly sensitive information about a number of persons that was provided in the context of an investigation of a complaint about the conduct of a QBCC officer. I afford significant weight to the public interest in protecting the personal information and right to privacy of all persons referred to in the report. I also afford significant weight to the public interest in protecting the ability of QBCC to manage its staff effectively. I am satisfied that QBCC’s ability to investigate and deal with staff conduct issues efficiently and effectively would suffer significant prejudice if investigation reports of the kind in issue were to be released under the RTI Act where there are no restrictions on further disclosure. I acknowledge that QBCC is accountable for the manner in which it manages its staff and investigates misconduct allegations. However, I am not satisfised that the public interest in QBCC’s accountability and transparency in that regard is sufficient to outweigh the strong public interest factors favouring nondisclosure of a sensitive workplace investigation report that I have identified in the preceding paragraph. Finding For the reasons given above, I find that the public interest in the accountability and transparency of QBCC regarding the investigation report is outweighed, to a significant degree, by the public interest in protecting the personal information and right to privacy of the persons referred to in the investigation report, as well as the public interest in protecting the ability of QBCC to effectively manage its staff. I therefore find that disclosure of the report would, on balance, be contrary to the public interest, and access under the RTI Act may refused on that basis. References to a business QBCC refused access to brief references on two pages to the name of a business in connection with a matter under investigation relating to that business. QBCC decided the disclosure of the business name could reasonably be expected to cause damage to the reputation of the business. In my preliminary view letter dated 21 March 2023, I expressed agreement with QBCC’s decision, stating that I was unable to identify public interest factors favouring disclosure of the identity of the company that would be sufficient to outweigh prejudice caused to the company’s business/commercial affairs through disclosure. In response, the applicant submitted as follow: The refusal to release documents concerning the business affairs of a company are only applicable if that same company, and the QBCC, have not engaged in any unlawful conduct. The Public Interest is enhanced by the release of information about a company if it has engaged in any unlawful activity, and likewise the QBCC if it has engaged in any unlawful activity in relation to or about the company. As I have no reference to the nature of the information contained in the documents, unfortunately I am unable to elaborate further on this point. With the exception of the name of the business, all other information has been released to the applicant. The applicant is therefore aware of the matter that was being discussed in connection with that business. There is nothing in that information that establishes that either the business or QBCC engaged in unlawful activity. Finding I am satisfied that disclosure of the name of the business could reasonably be expected to prejudice its business or commercial affairs. I afford that nondisclosure factor moderate weight in the public interest balancing test. I am unable to identify any factors favouring disclosure that would be of sufficient weight to outweigh the public interest in nondisclosure, particularly given the surrounding information that has been released to the applicant. I therefore find that disclosure would, on balance, be contrary to the public interest, and access under the RTI Act may be refused on that basis. Relevant law - sufficiency of search The RTI Act also permits an agency to refuse access to information where the requested information is nonexistent or unlocatable.[31] A document will be nonexistent if there are reasonable grounds to be satisfied it does not exist.[32] To be satisfied that a document does not exist, the Information Commissioner has previously had regard to various key factors including the agency’s record-keeping practices and procedures (including, but not limited to, its information management approaches).[33] By considering the relevant factors, the decision maker may conclude that a particular document was not created because, for example, the agency’s processes do not involve creating that specific document. In such instances, it is not necessary for the agency to search for the document. Rather, it is sufficient that the relevant circumstances to account for the nonexistent document are adequately explained by the agency. The Information Commissioner may also take into account the searches and inquiries conducted by an agency in determining whether a document is nonexistent. The key question then is whether those searches and inquiries amount to ‘all reasonable steps’.[34] What constitutes reasonable steps will vary from case to case, as the search and inquiry process an agency will be required to undertake will depend on which of the key factors are most relevant in the particular circumstances. Such steps may include inquiries and searches of all relevant locations identified after consideration of relevant key factors.[35] A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find it, but it cannot be found. In determining whether a document is unlocatable, it is necessary to consider the specific circumstances of each case,[36] and in particular whether: there are reasonable grounds for the agency to be satisfied that the requested documents have been or should be in the agency’s possession; and the agency has taken all reasonable steps to find the document.[37] The agency that made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[38] Where the issue of missing documents is raised on external review, the agency must demonstrate that reasonable steps have been taken to identify and locate relevant documents.[39] If the applicant maintains further documents exist, the applicant bears a practical onus of demonstrating that the agency has not discharged its obligation. Suspicion and mere assertion will not satisfy this onus.[40]Discussion Scope of the access application The applicant contends that the scope of his access application has been misinterpreted by QBCC and that if it were interpreted correctly, additional documents would fall within its terms. He argues that because the relevant timeframe covered by the access application was stated to be from ‘May 2018 to present+contemporary...’, his application should be interpreted as including documents post-dating AB’s SASC. In its initial decision, QBCC stated: I note that your application lists the timeframe as being from May 2018 to present. However, given that the application refers to the Statement Addressing Selection Criteria for a position, which was submitted at a particular time, the documents must – by necessity – predate that submission. I note that the position was advertised on the 7th of January 2019, and closed on the 20th of January 2019. On internal review, QBCC affirmed this position but stated in its decision that “ ...due to your allegations that maybe the candidate in question was deliberately misleading the QBCC selection panel or a QBCC selection panel allowed itself to be misled, I have included some additional information that has been sourced to demonstrate for transparency and in the public interest that the QBCC holds information in relation to the advices or work products listed in the attributes in question.’ In my preliminary view letter to the applicant dated 21 March 2023, I said as follows in respect of this issue: You contend that your access application should be interpreted as including documents post-dating [AB’s] Statement Addressing Selection Criteria (SASC) by virtue of the inclusion in your application of the relevant timeframe as May 2018 to present. I do not agree. The introductory words of your access application are as follows: With reference to "SASC OIC mark up QBCC August redacted S PDF" (attached): any and all information or relating to actions/investigations/outcomes by [AB] described in specific statements ... [listed below]:... [my emphasis] On a logical analysis of the wording you have used, the statements contained in [AB’s] SASC could only have been describing work he had performed up until the time he completed the SASC and lodged his application for the relevant position. Accordingly, regardless of the timeframe you stated in the application, I am satisfied that your request for information relating to the work described by [AB] in those statements is limited to the time period from May 2018 to 20 January 2019.[41] The applicant continued to dispute this interpretation of his application in his submission dated 26 April 2023: To the extent there arises any conflict under an access application concerning the search and release of any information that is not exempt or contrary to public interest, then the pro-disclosure bias applies and the scope of an application cannot be artificially limited in its interpretation to exclude information but rather, should be interpreted in such a way as to include information. In any event, there can be no mistaking the scope of the present access application (the Request). And even to the extent there is any misinterpretation or conflict; then Parliament’s intent, the Object of the RTI Act, and the pro-disclosure bias of the RTI Act, dictates that the giving of access to information must prevail. ... The fatal error in interpretation in this instance is derived from a misguided belief that the Request sought access only to any and all information about [AB’s] employment application process, rather than the workplace and industry issues [AB] had dealt with, or was dealing with. It is particularly concerning that [OIC] specifically seeks to exclude the explicitly stated timeframe of the Request in furtherance of this misinterpretation:... ... I do not dispute the Request stated “With reference to... ”. However, this is merely a universally generic expression to pre-empt and refer to some form of material evidence, in which to support a given contention. In this instance, the contention was that [AB] was engaged in particular workplace and industry issues, and had made particular work product statements disclosing their existence and his involvement. The purpose of the Request then was to contend that documents about those workplace and industry issues must exist, and they should be released under the RTI Act. ... The scope of the Request is otherwise capable of ready and reasonable interpretation. The focus of the Request is clearly seeking access to “any and all information or relating to actions/investigations/outcomes by [AB] described in specific statements” and not [AB’s] employment application. It cannot be emphasised enough that the timeframe section of the Request that followed sought access to information up to and including information that was “present” and “contemporary”. ... Finding I have considered the applicant’s submissions, but I maintain the view explained at paragraph 60 above. Giving the words used in the application (as set out at paragraph 4 above) their plain meaning, I am satisfied that the phrases ‘with reference to’ and ‘information relating to actions/investigations/outcomes by AB described in specific statements’ were reasonably interpreted by QBCC as confining the documents to which access was sought to those which AB was describing in his SASC, and thus must pre-date the SASC. To the extent that this is in conflict with the timeframe stated in the application, I find that the words used by the applicant in setting out the terms of his access request prevail. I acknowledge the RTI Act’s pro-disclosure bias (as referred to by the applicant on numerous occasions in his submission), however, it is not relevant to a consideration of the interpretation to be given to the words used in an access application. Rather, it serves to encourage agencies to adopt a pro-disclosure approach when considering the release of documents that fall within the scope of an access application. I also acknowledge that an agency should not take an overly technical approach when interpreting the terms of an application. However, I do not consider that QBCC’s interpretation can be regarded as such. QBCC was obliged to give the words used in the application their plain meaning and conduct its searches accordingly. I consider it did so. As the Information Commissioner has noted:[42] The terms in which an ... [RTI] access application is framed set the parameters for an agency's response under ... [the Right to Information Act 2009 (Qld) (RTI 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 ... [RTI] access request. The search for relevant documents is frequently difficult, and has to be conducted under tight time constraints. Applicants should assist the process by describing with precision the document or documents to which they seek access. Where, as here, there is a sophisticated applicant who has made many RTI access applications over many years, and who, in my view, has described in clear terms the documents to which they seek access, then they will be bound by the terms of their request.[43] I would also reiterate that QBCC’s initial decision was to refuse to deal with the access application on the grounds that its scope was burdensome and that dealing with it would substantially and unreasonably divert QBCC’s resources. In agreeing to re-commence processing the application on the basis of a narrowed scope, QBCC focused on responsive documents up to the date of the SASC (and the volume of work involved in dealing with them). Had the scope been interpreted as covering documents up to the date of the access application (September 2021), it is likely that QBCC would have maintained its reliance on section 41 of the RTI Act. I therefore find, as a matter of fact, that the access application covers documents between May 2018 and 20 January 2019 (being the closing date for the relevant job application and therefore the last day on which AB could have finalised his SASC and lodged his application for the relevant position) that match the descriptions of documents contained in the SASC. To the extent that the applicant raises sufficiency of search issues concerning documents that post-date 20 January 2019, I find that they do not fall within the scope of the access application. But in any event, as I have noted at paragraph 59 above, QBCC’s internal review decision-maker conducted searches for additional documents in an effort to satisfy the applicant’s concerns, and included information in the internal review decision explaining the results of those searches and inquiries. If the applicant considers there are documents that post-date the SASC to which he wishes to pursue access, it is open to him to make a fresh access application. Other sufficiency of search issues The applicant made lengthy sufficiency of search submissions in his application for internal review. As a result, the internal review decision-maker conducted further searches and inquiries in an effort to locate additional responsive documents and provided detailed information that discussed those searches and inquiries, and their results. However, the applicant continued to raise sufficiency of search issues in his external review application. On 21 March 2023, I provided the applicant with copies of QBCC’s search certifications collated by both the initial and internal review decision-makers which described in detail the various searches and inquiries that they had conducted. I expressed a preliminary view in the following terms: Based on the information provided by QBCC in both its initial and internal review decisions, and in its search certifications, it is my preliminary view that the searches and inquiries conducted by QBCC in an effort to locate documents responding to the terms of your access application have been reasonable in all the circumstances. I acknowledge that you contend that specific documents responding to your application have not yet been located. However, I am unable, on the information presently before me, to identify any additional searches or inquiries that it would be reasonable to ask QBCC to undertake in an effort to locate such documents. I consider that QBCC has undertaken appropriately targeted searches of relevant locations where it is reasonable to expect that responsive documents would be found, and has made inquiries of relevant staff who it is reasonable to expect may have knowledge of the relevant issues. The information contained in the search certification material is too detailed and voluminous to reproduce here. However, in summary, it identifies: all QBCC officers of whom inquiries were made (including AB) and the responses to those inquiries all QBCC officers who conducted searches for responsive documents (including AB) and the results of those searches all areas of QBCC that were searched, including databases (ECM, Sharepoint), registers, email accounts/Mimecast, and the search terms used; and the searches and inquiries that the initial and internal review decision-makers themselves conducted. The complaints/issues raised by the applicant in response in his submission dated 26 April 2023 may be summarised as follows: a) responses provided by AB were ‘vague, lacking recall or certainty’ and evidenced a failure to reasonably assist b) incomplete searches were performed on instruction by QBCC’s initial decision-maker c) later searches failed to be sought from the same QBCC officers who had in fact already located responsive documents but did not release them, particularly in respect to item g) of the access application d) there are no search certifications from the ‘original’ access application e) some search certifications are combined f) search certifications provided by the initial decision-maker are not dated and are made by the decision-maker and not the underlying staff: these must be rejected and searches must be conducted and certified by individual staff; and g) in an effort to locate documents responsive to item d) of the access application, inquiries should have been made with the Director of Regulatory Services. The applicant submitted that the initial decision-maker’s conduct and search certifications, and the ‘defence’ of this conduct by the internal review decision-maker, ‘must be considered through the lens of the conduct of offences under the RTI Act, particularly, sections 175 (instructing officers to perform limited searches) and 177 (providing false and misleading search certifications). In respect of the application of section 175 of the RTI Act, and the applicant’s allegation that the initial decision-maker instructed officers to perform limited searches, this relates to items b), c) and d) in paragraph 70 above. The applicant’s complaint appears to be that, when QBCC first received his application, it asked various officers to conduct preliminary searches for responsive documents so that it could obtain an estimate of the expected volume in the context of deciding whether to refuse to deal with the application on the grounds of a substantial and unreasonable diversion of resources. The applicant complains that there are no search certifications in relation to these preliminary searches; that the searches conducted were limited; and, that when QBCC agreed to resume processing the application, the officers who had provided the preliminary information or estimates of responsive documents were not asked to perform searches for responsive documents. I consider the applicant’s complaints to be without merit. When an agency conducts preliminary searches for documents in the context of considering whether or not to issue a notice under section 42 of the RTI Act, it is not obliged to conduct detailed searches and inquiries for all responsive documents, or to retrieve responsive documents, or to complete search certifications. Rather, it is required to obtain a reasonable estimate of the number of responsive documents for the purpose of considering the work involved in processing the application. To require detailed searching, the retrieval of documents, and the completion of search certifications to be conducted or completed at this preliminary stage (when it is not yet clear whether a compliant application will in fact be received) would defeat the purpose of section 41, which is to allow an agency to refuse to deal with an application where the work involved in dealing with it (which includes the work involved in identifying, locating and collating responsive documents) would substantially and unreasonably divert the agency’s resources. In response to the applicant’s complaint at item c) of paragraph 70 above – that once the application had been returned to QBCC to resume processing, the initial decision-maker failed to ask three officers who had provided preliminary information about possible responsive documents to now conduct full and complete searches – I consider that QBCC has adequately explained its position. It advised that one of the officers in question was on long leave at the relevant time. Inquiries were made of the second officer, but she had since changed positions and, given the elapse of time, was unable to recall the specifics of the preliminary information she had initially provided about documents that potentially responded to item g) of the access application.[44] However, I note that the internal review decision-maker conducted further searches for item g) documents, as did AB, who located and provided further documents, and who also provided further clarification concerning the existence of item g) documents.[45] The third officer (who had provided a preliminary response in respect of documents potentially responsive to item c) of the access application), had also left the relevant position in the intervening period. However, it appears that this officer had extracted, and provided to the RTI unit, copies of the documents she had located at preliminary stage in any event. AB subsequently located those same documents when he conducted searches, as well as locating additional relevant documents in his email inbox.[46] For these reasons, I do not consider the applicant’s complaints at items b), c) and d) of paragraph 70 have merit. As regards his allegation that QBCC’s decision-makers breached section 175(3) of the RTI Act, there is no evidence before me that establishes that either officer gave a direction to another officer to act contrary to the requirements of the RTI Act. I reject the allegation that the initial decision-maker improperly directed officers to conduct incomplete searches. In response to the applicant’s complaint at item a) of paragraph 70, I do not accept on the material before me that AB’s responses evidence a failure to provide reasonable assistance to QBCC’s RTI unit to locate responsive documents. The initial search certification records or summarises, in a brief and high-level manner, the responses or comments that AB provided at the preliminary stage regarding the possible locations of responsive documents.[47] As I have explained above, I do not consider that detailed responses or searches were required at this stage, when QBCC was simply gathering preliminary information in relation to considering issuing a section 42 notice. Once the application was returned to QBCC to process and make a decision on access, both the initial and internal review search certifications indicate that AB searched his email inbox for responsive documents and provided more detailed background or explanatory information about the various requests contained in the access application.[48] The applicant’s complaints at items e) and f) of paragraph 70 concern the form of the search certifications provided by QBCC. It should be noted at the outset that there are no formal requirements around the provision, or form, of search certifications by agencies. The RTI Act does not require agencies to complete search certifications. Section 52(1) of the RTI Act simply requires the agency to be satisfied that a document does not exist, or, if the document has been or should be in the agency’s possession, that all reasonable steps have been taken to find the document but it cannot be found. In order to assist agencies to discharge their obligations under section 52, OIC has developed search certification forms which it encourages agencies to use when searching for documents. These forms reflect what OIC regards as best practice. However, the fact that an agency provides search certifications in a different form, or that do not comply with the recommended steps contained in OIC’s suggested certification form, is not fatal. OIC’s obligation is to review the information provided by the agency to determine whether OIC is satisfied that the searches and inquiries conducted by the agency have been reasonable in all the circumstances. Having reviewed the search certifications provided by QBCC’s initial decision-maker, I acknowledge that they do not reflect what OIC regards as best practice. The dates on which searches are conducted should be recorded and each person who conducts a search for documents should complete their own search certification, rather than a summary being provided by the decision-maker. Nevertheless, the initial decision-maker has signed a statement attesting to the fact that he contacted the listed officers about the application and he sets out in detail in the certification, and in the initial decision, the results of the searches and any comments provided or reasons given by those officers as to why documents were not located. While it may have been preferable for individual officers to complete their own search certifications, I can see no reason to question the veracity of the information provided by the initial decision-maker, who is QBCC’s Principal RTI Officer and who, to my knowledge, has extensive experience in processing RTI applications and in managing searches for responsive documents. I also acknowledge the difficulties presented by the scope of the application. For these reasons, I reject the applicant’s allegation that the initial decision-maker breached section 177 of the RTI Act by providing provided false or misleading search certifications. There is no evidence before me to support this allegation. In response to the applicant’s complaint at item g) of paragraph 70, which relates to item d) of the access application, I note that AB’s preliminary response as regards the existence or whereabouts of responsive documents was that the relevant issue was identified during a misconduct investigation and ‘subsequent actions were primarily verbal’.[49] AB stated that the relevant Risk Register may have been updated at the time, and that the then Acting Director of Regional Services took the matter up and AB had no further involvement. Upon the application being returned to QBCC to continue processing, and as the officers holding the positions of Risk Officer, and Acting Director of Regional Services, no longer worked at QBCC,[50] the decision-maker made inquiries of three officers: the Director, Procurement; the Deputy Chief Financial officer; and the Acting Manager, Strategy Planning and Performance. These inquiries were focused on locating a relevant entry in a risk register, given AB’s advice that any subsequent actions by him were primarily verbal. Inquiries made with these officers were unsuccessful in locating a relevant risk register entry.[51] The initial decision-maker himself then conducted a keyword search of the Financial Services Risk Register and the Technical Services Risk Register, but was unable to locate any responsive information.[52] On internal review, the decision-maker searched ECM and Sharepoint using search terms including ‘procurement processes for technical services’, ‘technical services’ and ‘regional office’. While no responsive information was found on ECM, the internal review decision-maker contacted the Board Secretariat who located Minutes of the Finance Audit and Risk Committee meeting of 12 November 2018 containing responsive information that was released to the applicant. The internal review decision-maker also reviewed the Technical Services Risk Register and referred it to AB, who advised that it did not record the issue he had identified.[53] Having reviewed the searches and inquiries conducted by QBCC in an effort to locate documents responding to item d) of the access application, I am satisfied that the searches and inquiries were reasonable in all the circumstances and were successful in locating responsive information which has been released to the applicant. QBCC explained that the officers who held relevant positions at the time that preliminary inquiries were made no longer worked at QBCC, and so search requests and inquiries were directed to other relevant officers. Finding Having reviewed the searches and inquiries conducted by QBCC, as set out in its initial and internal review search certifications, as well as the detailed information provided in both the initial and internal review decisions about the searches and inquiries that were conducted, I am satisfied that QBCC has taken all reasonable steps to locate all responsive information. In its experience of its relevant record-keeping processes, I consider QBCC has undertaken appropriately targeted searches of the relevant locations where it is reasonable to expect that responsive information would be found and undertaken all reasonable inquiries of relevant officers. I am unable, on the information before me, to identify any other searches and inquiries that it would be reasonable to ask QBCC to undertake. There is nothing before me to suggest that these search efforts by QBCC were not made in good faith and in a genuine attempt to satisfy the terms of the access application. I reject the applicant’s assertion that QBCC acted in bad faith in dealing with his application or at any stage attempted to mislead either the applicant or OIC. There is no material before me that supports those allegations. DECISION I affirm QBCC’s internal review decision by finding that access to the Information in Issue may be refused on the grounds that: it is exempt information under section 48 and schedule 3, sections 7 or 12 of the RTI Act it is contrary to the public interest information under section 49 of the RTI Act; or it is information contained in a document that does not exist or is unlocatable under section 52 of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Rachel Moss Principal Review Officer Date: 8 June 2023 APPENDIX Significant procedural steps Date Event 3 January 2023 OIC received the application for external review 10 January 2023 OIC received preliminary documents from QBCC 3 February 2023 OIC advised the parties that the application for review had been accepted OIC requested copies of the information in issue and search certifications from QBCC 24 February 2023 QBCC provided the requested information 21 March 2023 OIC expressed a preliminary view to the applicant 14 April 2023 OIC received an extension of time request from the applicant 26 April 2023 OIC received a written submission from the applicant [1] Application dated 23 September 2021.[2] Decision dated 2 December 2021.[3] In making this decision, QBCC took account of the fact that it was dealing with a second large access application made by the applicant. It also refused to deal with that application under section 41 of the RTI Act (section 41 permits an agency to consider the work involved in processing all applications made by an applicant). [4] On 23 December 2023.[5] Decision dated 25 January 2022. [6] On 22 February 2022. [7] External review 316585. [8] External review 316585 was finalised and closed. [9] The information in bold and highlighted with an asterisk indicates where the applicant narrowed the scope of his request. [10] Dated 2 December 2022. [11] It gave full access to 242 pages, partial access to 61 pages, and refused access in full to 117 pages - as identified in Attachment B to the internal review decision. It also decided that any additional documents to which the applicant sought access were nonexistent or unlocatable under section 52 of the RTI Act. [12] Including the submissions made by the applicant in his internal and external review applications, and in his letter dated 26 April 2023. [13] As embodied in 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] XYZ, [573].[16] Section 3(1) of the RTI Act.[17] Section 3(2) of the RTI Act.[18] Section 44 of the RTI Act.[19] Section 23(1) of the RTI Act.[20] Section 47 of the RTI Act.[21] Section 47(2)(a) of the RTI Act.[22] See item f) of the access application at paragraph 4. [23] Sections 47(3)(b) and 49 of the RTI Act. [24] The concept refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests, although there are some recognised public interest considerations that may apply for the benefit of an individual: Chris Wheeler, ‘The Public Interest: We Know It's Important, But Do We Know What It Means’ [2006] AIAdminLawF 2; (2006) 48 AIAL Forum 12, 14.[25] Schedule 4, part 2, item 1 of the RTI Act. [26] Schedule 4, part 4, section 6 of the RTI Act. [27] Schedule 4, part 3, item 3 of the RTI Act. [28] Schedule 4, part 3, item 19 of the RTI Act. [29] Noting that ‘... there is no provision of that Act which contemplates any restriction or limitation on the use which that person can make of that information, including by way of further dissemination’ – see FLK v Information Commissioner [2021] QCATA 46 at [17] per McGill J. [30] Dated 26 April 2023. [31] Sections 47(3)(e) and 52(1) of the RTI Act.[32] Section 52(1)(a) of the RTI Act. For example, a document has never been created.[33] Isles and Queensland Police Service [2018] QICmr 27 (7 June 2018) at [15] which adopted the Information Commissioner’s comments in PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE) at [37]-[38]. PDE addresses the application of section 28A of the now repealed FOI Act. Section 52 of the RTI Act is drafted in substantially the same terms as the provision considered in PDE and, therefore, the Information Commissioner’s findings in PDE are relevant. [34] As set out in PDE at [49].[35] As set out in PDE at [38]. [36] Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [21]. See also, F60XCX and Office of the Queensland Parliamentary Counsel [2016] QICmr 42 (13 October 2016) at [84] and [87], and Underwood and Minister for Housing and Public Works [2015] QICmr 27 (29 September 2015) at [33]-[34] and [49].[37] Section 52(1)(b) of the RTI Act.[38] Section 87 of the RTI Act.[39] Section 130(2) of the RTI Act.[40] Dubois and Rockhampton Regional Council [2017] QICmr 49 (6 October 2017) at [36].[41] Being the closing date for the relevant job application and therefore the last date on which AB could have finalised his SASC and lodged his application for the position. [42] Cannon and Australian Quality Egg Farms Ltd [1994] QICmr 9; (1994) 1 QAR 491, [8]. [43] Robbins and Brisbane North Regional Health Authority [1994] QICmr 19; (1994) 2 QAR 30.[44] It is not clear whether the ’35 cases’ identified by this officer fell within the terms of the access application in any event, on the basis of the description contained in the search certification. [45] See page 10 of the initial search certification and page 2 of the internal review search certification. [46] See item c) on page 9 of the initial search certification. [47] See pages 4-5 of the initial search certification. [48] See pages 9-11 of the initial search certification and page 2 of the internal review search certification. [49] See page 4 of the initial search certification. [50] See page 3 of the internal review search certification. [51] See pages 13, 14 and 16-17 of the initial search certification. [52] See page 19 of the initial search certification. [53] See page 2 of the internal review search certification.

queensland

court_judgement

Queensland Information Commissioner 1993-

FutureBus Pty Ltd and Energy Queensland Limited; Ergon Energy Corporation Limited (Ergon Energy Network) and Ergon Energy Queensland Pty Ltd (Ergon Retail) [2023] QICmr 17 (31 March 2023)

FutureBus Pty Ltd and Energy Queensland Limited; Ergon Energy Corporation Limited (Ergon Energy Network) and Ergon Energy Queensland Pty Ltd (Ergon Retail) [2023] QICmr 17 (31 March 2023) Last Updated: 14 April 2023 Decision and Reasons for Decision Citation: FutureBus Pty Ltd and Energy Queensland Limited; Ergon Energy Corporation Limited (Ergon Energy Network) and Ergon Energy Queensland Pty Ltd (Ergon Retail) [2023] QICmr 17 (31 March 2023) Application Numbers: 316654, 316726, 316727 Applicant: FutureBus Pty Ltd ACN 638 354 873 First Respondent: Energy Queensland Limited ACN 612 535 583 Second Respondent: Ergon Energy Corporation Limited (Ergon Energy Network) ACN 087 646 062 Third Respondent: Ergon Energy Queensland Pty Ltd (Ergon Retail) ACN 121 177 802 Decision Date: 31 March 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - NONEXISTENT DOCUMENTS - application for financial and technical information relating to the Torres Strait Islands and Cape York electricity network - whether there are reasonable grounds to be satisfied the requested documents do not exist - section 47(3)(e) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant sought access to a range of financial and technical documents relating to the electricity network in the Torres Strait Islands and Cape York from Energy Queensland Limited, Ergon Energy Corporation Limited (Ergon Energy Network) and Ergon Energy Queensland Pty Ltd (Ergon Retail) (Respondent)[1] under the Right to Information Act 2009 (Qld) (RTI Act). The Respondent located and granted full access to its fixed asset register for the Torres Strait and Cape York. In relation to the remaining parts of the access application, the Respondent did not locate any documents because they were not created. The Respondent therefore refused access to this information under section 47(3)(e) of the RTI Act on the basis that the documents were nonexistent. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the decision. For the reasons set out below, I affirm the decision under review. I am satisfied that access to the requested information can be refused under section 47(3)(e) of the RTI Act as the documents are nonexistent. Reviewable decision The reviewable decision is the Respondent’s decision dated 30 March 2022. Evidence considered Significant procedural steps taken in these reviews are set out in the appendix. The evidence, submissions, legislation, and other material I have considered in reaching this decision are referred to in these reasons (including footnotes and the appendix).[2] Issue for determination The applicant requested: Historical information on capital expenditure, past expenditure, past revenue, current expenditure, current revenue, forecasts for future demand, forecasts for future expenditure, forecasts for future capital expenditure, forecasts for future revenue, for the Torres Strait Islands and Cape York's electricity network and retail. Type of documents - cashflow forecasts, forecast budgets, historical income and expense statements, asset registers, depreciation schedules, reports on forecast demand, forecasts of future expenditure, balance sheets. Time period: 2010-2030 [bold font is my emphasis] The Respondent located and granted full access to the fixed asset register for Torres Strait and Cape York. This document comprises approximately 33 pages. In relation to the remaining parts of the access application, the Respondent did not locate any documents and explained that extensive searches and enquiries with the relevant individuals were made, but it does not have the documents because they are not created. On external review, the Respondent provided submissions to OIC explaining the nature and extent of the searches and enquiries it had undertaken to locate the requested information and a detailed explanation as to why it did not create this information. In essence, the Respondent’s position is that the documents do not exist because they are not created—and they are not created because the Respondent does not report or record data for the specific Torres Strait and Cape York sites, rather it records this information for the Isolated Network as a whole.[3] The Respondent offered to assist the applicant before the commencement of this external review by identifying the terms of a fresh application under the RTI Act which may yield relevant information and/or arranging a meeting with its General Manager to discuss the applicant’s questions, concerns or request for information. The applicant did not pursue these options with the Respondent. After conveying the Respondent’s submissions to the applicant on external review together with the preliminary view that the requested information was nonexistent, OIC encouraged the applicant to consider pursuing these options with OIC’s assistance. The applicant did not wish to engage with these possible avenues of informal resolution on external review. Accordingly, the issue for determination is whether the Respondent was entitled to refuse access to the requested information under section 47(3)(e) of the RTI Act on the basis that it is nonexistent. Application of the RTI Act to the Respondent The applicant made one access application which sought access to documents covering the three entities identified as ‘Energy Queensland Limited and its subsidiaries Ergon Energy Corporation Limited trading as Ergon Energy Network and Ergon Energy Queensland Pty Ltd trading as Ergon Retail’. The decision-maker issued one decision covering all three entities. Energy Queensland Limited (EQL) is the parent company of a number of operating companies whose main business is the provision of regulated electricity distribution, retail services to customers and other unregulated business activities. These companies include Ergon Energy Corporation Limited (Ergon Energy Network) and Ergon Energy Queensland Pty Ltd (Ergon Retail). As the parent entity, EQL has the legal right to control documents in the physical possession of these entities.[4] EQL is a government owned corporation (GOC) and Ergon Energy Network is its subsidiary. I am satisfied that these entities meet the definition of ‘agency’ as defined in section 14(1) of the RTI Act and are subject to the application of the RTI Act. In terms of Ergon Retail: The RTI Act does not apply to the entities mentioned in schedule 2, part 2 in relation to the function mentioned in that part.[5] Schedule 2, part 2, item 14 of the RTI Act provides that the RTI Act does not apply to Ergon Energy Queensland Pty Ltd ACN 121 177 802 (i.e. Ergon Retail) in relation to its functions, except so far as they relate to community service obligations. Section 112(1)(a) of the Government Owned Corporations Act 1993 (Qld) (GOC Act) provides that the community service obligations of a GOC are obligations to perform activities that the GOC’s board establishes to the satisfaction of the shareholding Ministers are not in the commercial interests of the GOC to perform. This section applies to a statutory duty to perform activities that arise under an Act applying specifically to a GOC.[6] On this issue, the Respondent relevantly explained that:[7] The Queensland Government Budget Strategy and Outlook 2020-21 indicates that the government considers its community service obligations to include the provision of electricity in regional Queensland.[8] The Uniform Tariff Policy (UTP) provides for parity of pricing for all non-market electricity consumers, regardless of their geographic location in Queensland. For customers outside of the southeast corner, the cost of supplying electricity typically exceeds the price allowed for in regulated retail tariffs. The Queensland Government pays EQL to provide electricity in regional Queensland at prices based on the costs to supply in southeast Queensland, in accordance with the Government’s UTP. The access application concerns those community service obligations. I accept the Respondent’s submissions on this issue and am satisfied that Ergon Retail is covered by the RTI Act in this review as the access application relates to its community service obligations under the GOC Act. Whether there are reasonable grounds to be satisfied that the requested documents do not exist The information requested by the access applicant is set out at paragraph 7 above. Relevant law Access to a document may be refused if it is nonexistent or unlocatable.[9] A document is nonexistent if there are reasonable grounds to be satisfied it 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 it, but it cannot be found.[11] To be satisfied that a document does not exist, the Information Commissioner has previously recognised that an agency must rely on its particular knowledge and experience, having regard to various key factors including: [12] the administrative arrangements of government the agency’s structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and other legal obligations that fall to it) the agency’s practices and procedures (including, but not limited to, its information management approaches); and other factors reasonably inferred from information supplied by the applicant, including the nature and age of the requested documents, and the nature of the government activity to which the request relates. By considering the above factors, an agency may ascertain that a particular document was not created because, for example, the agency’s processes do not involve creating that specific document. In such instances, it is not necessary for the agency to search for the document. Rather, it is sufficient that the relevant circumstances to account for the nonexistent document are adequately explained by the agency. An agency may also rely on searches to satisfy itself that a document does not exist. In those cases, all reasonable steps must be taken to locate the documents.[13] Such steps may include inquiries and searches of all relevant locations identified after consideration of the key factors listed above.Respondent’s submissions The Respondent advised that: Ergon Energy Network builds and maintains the electricity distribution network for regional Queensland. It owns and operates 33 isolated power stations with stand-alone electricity networks that supply communities too remote to connect to the national grid. These stand-alone micro-grids form Ergon Energy Isolated Network and they supply a diverse range of 39 communities which are located throughout the Gulf of Carpentaria, Palm and Mornington Islands and Western Queensland, as well as in the Torres Strait and parts of Cape York (Isolated Network). Notably, however, much of the Cape York network is connected to the National Electricity Market, and therefore not isolated. Ergon Retail sells electricity and issues energy bills to approximately 700,000 retail customers throughout regional Queensland. The Respondent’s position is that the documents do not exist because its systems, practices and processes do not create the type of information the applicant has requested, which relates specifically to the Torres Strait Islands and Cape York. In reaching this position, the Respondent considered its corporate structure, business functions and responsibilities and undertook enquires and searches across all three companies, including its Engineering Division, Finance Division and Retail Division. The Respondent’s submissions in this regard are summarised below.[14] Engineering Division The Engineering Division is responsible for leading the group’s engineering and asset management strategies. This includes site analysis for capital and operation works, demand and load analysis and forecast, and outworking the Isolated Network Strategy 2030 to transition to renewable energy in the isolated communities. Searches were conducted by the Manager of Isolated Networks from EQL’s Renewables & Distributed Energy Business Unit. The Isolated Network Team, which is part of EQL’s Renewables & Distributed Energy Business Unit, is responsible for implementing the Isolated Network Strategy 2030 and asset management of the Isolated Network. The Isolated Network Team analyses load profile for key sites – but it does not create forecasts for future demand for the grouping of Torres Strait Islands and the grouping of sites that make up Cape York’s electricity network. The Manager of Isolated Networks searched specific folders in the share drives (as this is where raw load data and load data analysis for the Isolated Network is stored). There were no documents concerning forecasts for future demand for the grouping of sites that make up the Torres Strait Island and Cape York’s electricity network. The Respondent advised that this is because EQL does not analyse the load profiles for Torres Strait Islands and Cape York. Searches were also conducted by the Investment Portfolio Manager from EQL’s Grid Investment Business Unit. EQL’s Grid Investment Business Unit is responsible for the development of the five-year rolling grid investment forecast and a more detailed twelve-month Grid Investment Plan. The Grid Investment Plan refers to the Isolated Network in totality (that is, all 33 stand-alone micro-grids that support a diverse range of communities in Torres Strait, Gulf of Carpentaria, Cape York, Palm Island and Western Queensland). It does not reference the groupings of sites that make up the Cape York and Torres Strait Island networks. On this basis, the Respondent advised that it does not create or record forecasts for future expenditure or forecasts for capital expenditure for the Torres Strait Islands and Cape York as it focuses on the Isolated Network in its entirety. The Investment Portfolio Manager searched the relevant applications used for network investment planning and reporting (Copperleaf Asset Management Software and SAP S4 Business Objects Reporting) using the search term ‘Future Year’ and found no relevant documents. This is because the grid investment forecast and Grid Investment Plan focus on the Isolated Network in its entirety and not the Torres Strait Islands and Cape York electricity networks. Finance Division The Finance Division is responsible for preparing a budget, maintaining a balance sheet, preparing financial statements which include a consolidated statement of profit or loss and cash flows. EQL’s Budgeting and Commercial Operations Services Business Unit within the Finance Division manages past capital expenditure, past expenditure and revenue, current expenditure and revenue and forecasts for future expenditure and forecast budgets. Generally, the Respondent submitted that the Finance Division does not have the requested information because its financial systems, practice and processes do not create these documents for Cape York and the Torres Strait Islands. Searches were conducted by the Commercial Manager from EQL’s Budgeting and Commercial Operations Services Business Unit. EQL's Budgeting and Commercial Business Unit collates the forecasts for future revenue, forecasts for future expenditure, forecasts budgets based on the past capital expenditure, past expenditure and past revenue. The Commercial Manager searched the network drives and annual Isolated Reporting folder in Microsoft Explorer and confirmed that no documents exist. The relevant accounting system does not record or capture the capital, income or expenditure by power station, or by Torres Strait Islands and Cape York. The information is only available at an aggregate level. Further, searches were conducted by the Manager of External Reporting Policy and Taxation from EQL’s Financial Control Business Unit. The Financial Control Business Unit manages the depreciation schedules. The Manager of External Reporting Policy and Taxation searched the database where the financial information for the Isolated Network’s fixed assets is held (Ellipse Fixed Asset Module) using ‘Torres Strait Islands’ and ‘Cape York’ as search terms and did not locate the requested information. The Respondent submitted that information does not exist because the business does not track this information by Torres Strait Island and Cape York; the depreciation report does not contain asset location information; and the business would need to reconfigure the reporting solution as well as system configuration to be able to report at the requested level. Its financial reporting obligations are on a consolidated basis and do not require the Respondent to report on depreciation expense by asset location. Retail Division The Retail Division calculates the revenue from electricity sales to retail customers throughout regional Queensland which includes the isolated communities in the remote parts of regional Queensland. The Respondent submitted that Retail Division’s functions and responsibilities do not require the creation of the requested documents. The Retail Division does not maintain the electricity network, so does not manage the capital expenditure for the Isolated Network. It captures and reports the expenses and revenue as a total for the Isolated Network. It prepares forecasts for future revenue but does not prepare this information for Torres Strait Island and Cape York. The Manager of Retail Commercial Services searched in the budget and forecast folders, online billed sales and other folders, searching by the locations requested. No relevant documents were located because they are not created. Likewise, the Manager of Retail Billing searched the reporting database (ROCK) and billing system (Customer Care and Billing) searching by the locations requested. No relevant documents were located because they are not created. The retail billing area deals with customers on an individual basis and not based on the Torres Strait and Cape York regions. Also, many sites across these areas are pre-paid meters and are not within the billing function. Applicant’s submissions The applicant’s submissions to OIC can be summarised as follows:[15] It is simply unbelievable that the Respondent does not generate forecasts for future demand, expenditure, capital expenditure or revenue for the Torres Strait Islands and Cape York regions and Queensland electricity consumers should be frightened if that is the case. The applicant refers to a document by the Respondent published on the Queensland Government Tender Portal seeking expressions of interest from the market to identify suitably qualified suppliers able to deliver low carbon / renewable generation services in isolated networks including Thursday Island and Bamaga.[16] The applicant says that ‘the first questions respondents asked [in relation to this document] was, “how much energy to generate, in which Towns/Islands?”. Findings The Respondent has provided submissions to OIC which comprehensively address: its functions and responsibilities which provide relevant context for understanding its practices and procedures for the creation of documents the explanations provided by the relevant individuals about why the requested information does not exist; and the nature and extent of the search and enquiry process the decision-maker and other relevant individuals undertook within the various areas to locate the requested information. I accept the Respondent’s explanation that the relevant divisions (engineering, finance and retail) do not create the requested information for the grouping of sites that make up the Torres Strait Islands and Cape York, but rather deal with the Isolated Network in its entirety. This is a reasonable explanation as to why there are no documents specifically relating to the Torres Strait Island and Cape York network. I acknowledge the applicant’s concern with this explanation, but I also note that the applicant does not provide any evidence to demonstrate that this information is incorrect. The document on the Queensland Government Tender Portal (seeking expressions of interest from the market to identify suitably qualified suppliers able to deliver low carbon/renewable generation services in the Isolated Networks including Thursday Island and Bamaga) does not contain any information which contradicts the Respondent’s submissions. I also acknowledge that the various types of technical and financial documents sought by the applicant, but relating to the Isolated Network as a whole rather than the Torres Strait and Cape York micro-grids in particular, would draw – in part – on entries, line items and other information regarding the Torres Strait and Cape York micro-grids. However, I accept that such information is collated and aggregated along with similar information from other micro-grids, and consequently the conclusions and predictions reached in these technical and financial documents would only relate to the Isolated Network in its entirety, and could not be ‘unscrambled’ by the reader to reveal similar conclusions and predictions specific to the micro-grids of interest to the applicant. In the circumstances, I consider the applicant would have benefitted from make a fresh application framed with the assistance of the Respondent to target specific information which is created as part of the Respondent’s functions. As well as providing OIC with explanations regarding why the relevant units do not create the requested information, the Respondent also relied on searches to satisfy itself that the documents did not exist. In summary, those searches were performed by a number of individuals within the relevant areas and included network drives, folders and applications used for network investment planning and reporting, accounting, annual reporting, financial information and billing. OIC has a copy of the signed search certifications provided by those individuals where the specific searches that were performed and the results of those searches are detailed. Having carefully considered the Respondent’s submissions, I am satisfied that the Respondent has made appropriate searches to locate the requested information, including making enquiries of the relevant staff regarding the possible existence and location of the requested information; and ensuring that relevant staff have conducted comprehensive, appropriately targeted searches of the relevant document management systems. I consider that if the requested information did exist, it would have been located as a result of these searches and that the Respondent has taken all reasonable steps to locate the requested information.[17] In these circumstances, I find there are reasonable grounds to be satisfied that the requested documents do not exist as they are not created by the Respondent. Access to the requested information can be refused under sections 47(3)(e) and 52(1)(a) of the RTI Act as the documents are nonexistent. DECISION For the reasons set out above, I affirm the decision under review. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.A RickardAssistant Information Commissioner Date: 31 March 2023 APPENDIX Significant procedural steps Date Event 7 April 2022 OIC received the application for external review. OIC requested preliminary documents from the Respondent. 14 April 2022 OIC received preliminary documents from the Respondent. 27 May 2022 OIC advised the applicant and the Respondent that the application for external review had been accepted. OIC confirmed with the applicant and the Respondent that for OIC’s purposes, three decisions had been made and were under review. OIC requested submissions and search records from the Respondent. 6 June 2022 OIC requested further information from the Respondent and granted the Respondent further time to provide the requested information and submissions. 22 June 2022 The Respondent requested an extension of time to provide the requested information. 23 June 2022 OIC granted the Respondent an extension of time. 1 July 2022 The Respondent provided submissions and requested documents. 15 July 2022 OIC asked the Respondent if they were agreeable to providing their submissions dated 1 July 2022 to the applicant. 21 July 2022 The Respondent supplied OIC with a copy of their submissions with proposed redactions to provide to the applicant. 27 July 2022 OIC conveyed a preliminary view to the applicant and provided the applicant with the Respondent’s redacted submissions. 12 August 2022 The applicant provided submissions contesting OIC’s preliminary view. 25 November 2022 OIC requested further submissions from the Respondent. OIC provided the applicant with an update. 8 December 2022 The respondent requested an extension of time to provide OIC with further submissions, which OIC subsequently granted. 15 December 2022 The Respondent provided further submissions. 20 January 2023 OIC conveyed a final preliminary view to the applicant. 24 January 2023 The applicant requested a formal decision. [1] I have referred to Energy Queensland Limited, Ergon Energy Corporation Limited (Ergon Energy Network) and Ergon Energy Queensland Pty Ltd (Ergon Retail) collectively as the Respondent in this decision for ease of reference. The relevant background and jurisdictional issues are addressed under the heading ‘Application of the RTI Act to the Respondent’ below. [2] Including the Human Rights Act 2019 (Qld) (HR Act) to the extent necessary to do so. The participants in this review are not ‘individuals’, and only individuals have human rights under section 11 of the HR Act. To the extent then that it is necessary to observe relevant rights under section 58(1) of the HR Act, I am satisfied that I have done so. However, Kingham J in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 at [90] 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 to not act or make a decision that is not compatible with human rights. This is because in observing and applying the law prescribed in the RTI Act, as I have done in this case, an RTI decision-maker will be ‘respecting and acting compatibly with’ applicable human rights as stated in the HR Act (XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (‘XYZ’) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].) In this regard, I note Bell J’s observations at [573] of XYZ 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.’[3] Refer to the definition of Isolated Network in paragraph 23 below.[4] Respondent’s submissions to OIC on 1 July 2022. [5] Section 17(b) of the RTI Act.[6] Section 112(2)(h) of the GOC Act. [7] Respondent’s submissions to OIC on 1 July 2022. [8] https://s3.treasury.qld.gov.au/files/2020_21_Budget_Strategy_and_Outlook_2-2.pdf at page 140.[9] Sections 47(3)(e) and 52(1) of the RTI Act.[10] Section 52(1)(a) of the RTI Act.[11] Section 52(1)(b) of the RTI Act.[12] Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [19], which adopted the Information Commissioner’s comments in PDE and The University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE) at [37]- [38] (The decision in PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld), which was in substantially the same terms as section 52 of the RTI Act). Refer also to Van Veendendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017) and Y20 and Department of Education [2021] QICmr 20 (11 May 2020) at [45]. [13] As set out in PDE at [49]. [14] The summary of the Respondent’s submissions is taken from its decision letter dated 30 March 2022 and submissions to OIC on 1 July 2022 (which included search certifications) and 15 December 2022.[15] The summary of the applicant’s submissions is taken from his external review application on 7 April 2022 and submission dated 3 August 2022. [16] OIC obtained a copy of this document from the Respondent and considered it as part of this external review. [17] While 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 (section 130(2) of the RTI Act), the Queensland Civil and Administrative Tribunal confirmed in Webb v Information Commissioner [2021] QCATA 116 at [6] that the RTI Act ‘does not contemplate that [the Information Commissioner] will in some way check an agency’s records for relevant documents’ and that, ultimately, the Information Commissioner is dependent on the agency’s officers to do the actual searching for relevant documents.

queensland

court_judgement

Queensland Information Commissioner 1993-

Q53 and Queensland Building and Construction Commission [2021] QICmr 45 (2 September 2021)

Q53 and Queensland Building and Construction Commission [2021] QICmr 45 (2 September 2021) Last Updated: 24 January 2022 Decision and Reasons for Decision Citation: Q53 and Queensland Building and Construction Commission [2021] QICmr 45 (2 September 2021) Application Number: 315792 Applicant: Q53 Respondent: Queensland Building and Construction Commission Decision Date: 2 September 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST - personal information of other individuals - safeguarding personal information and the right to privacy of other individuals - 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 section 47(3)(b) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary 1. The applicant applied[1] to the Queensland Building and Construction Commission (QBCC) under the Information Privacy Act 2009 (Qld) (IP Act) for access to communications[2] between a Builder, QBCC, and an external building consultant acting as QBCC’s Claims Manager relating to a contract for construction works at the applicant’s residence covered by the Queensland Home Warranty Scheme.[3] 2. QBCC located ‘18 files containing 947 folios of documents’[4] responding to the application and decided[5] to refuse access to 74 entire folios and 71 part folios on the grounds that this information was exempt information or contrary to the public interest information. 3. The applicant applied[6] to the Office of the Information Commissioner (OIC) for external review of QBCC’s decision to refuse access to this information. 4. For the reasons set out below, I find that access to the information may be refused on the ground that its disclosure would, on balance, be contrary to the public interest. Reviewable decision 5. The decision under review is QBCC’s decision dated 26 November 2020. Evidence considered 6. 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). 7. 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.[7] Here, the right to seek and receive information[8] is particular apposite. I note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation[9]: ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[10] I also note that 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 Right to Information Act 2009 (Qld) (RTI Act).[11] I have, in accordance with section 58(1) of the HR Act, done so in making this decision. Information in issue 8. In response to the applicant’s application, QBCC located one voicemail, 14 video files and 932 pages of documents.[12] Of these, QBCC gave the applicant access to the voicemail, 801 pages and 71 part pages and decided to refuse access to: 14 video files, 60 pages[13] and 41 part pages[14] on the ground they are exempt information; and 31 part pages,[15] on the ground they are contrary to public interest information. 9. Accordingly, the Information in Issue considered in this review consists of 14 video files,[16] 60 pages[17] and 71 part pages.[18] It includes multiple duplicates,[19] as the applicant has not excluded duplicates from consideration. Issue for determination 10. On external review, OIC stands in the shoes of the decision maker and considers matters afresh. On 14 May 2021, I wrote to QBCC and advised that I did not consider that that there was sufficient evidence to meet the requirements to establish that 14 video files, 60 pages and 41 part pages were exempt information, as claimed by QBCC.[20] QBCC did not seek to maintain its reliance on this exemption. 11. Therefore, the issue for determination in this review is whether access to the Information in Issue can be refused on the ground that its disclosure would, on balance, be contrary to the public interest. Relevant law 12. Under the IP Act, an agency may refuse access to information in the same way and to the same extent the agency could refuse access to that information under the RTI Act.[21] One ground for refusing access to information under the RTI Act is where disclosure of the information would, on balance, be contrary to the public interest.[22] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[23] and explains the steps that the decision-maker must take[24] 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 Irrelevant factors 13. I am satisfied that no irrelevant factors arise in the circumstances of this case. Factors favouring disclosure 14. The Information in Issue consists of: names and signatures of individuals other than the applicant statements made by individuals other than the applicant; and comments and other information (including video footage) provided to QBCC by individuals other than the applicant. 15. Factors favouring disclosure will arise if disclosure could reasonably be expected to enhance the accountability and transparency of QBCC regarding its management of matters arising from the applicant’s contract for construction works – for example, by informing the community of the government’s operations or revealing background or contextual information to decisions.[25] 16. As noted at paragraph 14 above, the information at i) comprises the names and signatures of third parties. I do not consider that disclosure of this information would advance QBCC’s accountability and transparency in any way. Accordingly, I consider that these factors do not apply in relation to the information at i). 17. On the other hand, the information at ii) and iii) comprises information provided to QBCC by third parties about incidents arising in relation to the contract for construction works. I accept that disclosing this information would advance the public interest factors identified in paragraph 15 above. However, a significant amount of information about QBCC’s management of matters arising from the contract has been released to the applicant, and the information at ii) and iii) comprises third party information which does not contain any details about QBCC’s actions. Therefore, I consider that these public interest factors have already been advanced to a considerable degree by the information that has already been released. In terms of the information at ii) and iii), given the limited nature of this information, I consider that these factors warrant low to moderate weight. 18. During the external review, the applicant submitted:[26] Please explain this, as why am being denied documents that relate to my name, my address and contracts containing my name. 19. A factor favouring disclosure arises regarding information that is the applicant’s personal information.[27] Clearly, this factor cannot apply to the information at i). It does, however, apply to some of the information at ii) and iii) – namely, the parts of the information at ii) and iii) which constitute the applicant’s personal information[28] and relate to incidents arising in relation to construction works undertaken at the applicant’s home under the contract. I acknowledge that information about these construction works and the incidents in question are matters at the core of the applicant’s personal sphere. Accordingly, to the extent the information at ii) and iii) comprises the applicant’s personal information, I afford this factor favouring disclosure significant weight. However, I also note that the information at ii) and iii) which comprises the applicant’s personal information relates to incidents involving other parties, and therefore also gives rise to factors favouring nondisclosure regarding those parties’ personal information and privacy.[29] 20. In seeking an external review, the applicant submitted:[30] I strongly believe an external review from the office of information commissioner is warranted due to the belief that my rights to information have not been properly considered based on what has been received has raised questions on pursuant to any legal proceedings I wish to take. I have strong beliefs, from what I have read, the QBCC have allowed the involved parties to use potential defamation and criminality as an argument to deny myself and the public of my rights to information. 21. Given these submissions, I have considered whether disclosing the Information in Issue could reasonably be expected to contribute to the administration of justice for the applicant.[31] In some circumstances, information can be accessed under the RTI Act for litigation purposes,[32] but only if the administration of justice factor is sufficient to outweigh other considerations, such as privacy. This is generally limited to circumstances where disclosure of the information sought ‘would assist [the applicant] to pursue [a] remedy, or to evaluate whether a remedy is available, or worth pursuing’.[33] The applicant has indicated that she may consider pursuing legal proceedings. However, apart from brief mention of ‘potential defamation and criminality’, she has not provided any information regarding the nature of the legal proceedings she wishes to pursue, nor specified who those proceedings would be against. In these circumstances – having carefully considered the content of the Information in Issue, and also taking into account the amount and nature of the information which has already been released to the applicant – I am unable to identify how disclosing the Information in Issue could provide the applicant with any further assistance in terms of identifying and evaluating legal options, or commencing proceedings in pursuit of a remedy. Accordingly, based on the material before me, I do not consider that the factor favouring disclosure relating to the administration of justice for the applicant applies in these circumstances. 22. Noting the applicant’s brief mention of ‘criminality’, I have also considered whether disclosing the Information in Issue could reasonably be expected to contribute to the enforcement of the criminal law.[34] However, there is nothing before me (either in the Information in Issue or in the information already released to the applicant) which supports the applicant’s contention regarding criminality. Accordingly, I am satisfied that there is no basis on which this factor favouring disclosure could apply. 23. The applicant has also submitted:[35] Information that has been requested is for myself and to further benefit the public disclosure of the QBCC home warranty scheme colluding with [the Claims Manager] and [the Builder] in potentially defrauding the home warranty scheme. From the minimal documents received, it has been clear the QBCC home warranty scheme worked with [the Claims Manager] to assist [the Builder] in successfully terminating an independent building contract and avoiding a non completion claim ( this was read in a portion of the documents provided) ... In my view, I am being denied my human and legal rights to documents and information that have been denied to protect those whom could have perpetrated a lie. 24. To the extent these submissions raise the HR Act, I refer to paragraph 7 above. Otherwise, in light of these submissions, I have 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;[36] or reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.[37] 25. As noted at paragraph 17, a significant amount of information about the management of matters arising from the applicant’s contract for construction works has been released to the applicant. There is no evidence in the information before me (either in the Information in Issue or in the information already released to the applicant) which supports the applicant’s contention that QBCC officers or the Claims Manager have acted inappropriately in their management of matters arising from the applicant’s contract for construction works. Moreover, as most of the Information in Issue comprises information provided by third parties, I do not consider it is reasonable to expect that its disclosure could assist in revealing possible deficiencies in the conduct of an agency or official. Accordingly, I find these factors favouring disclosure do not apply in the circumstances of this review. 26. I have also considered whether disclosing the Information in Issue could reasonably be expected to contribute to procedural fairness[38] or advance the fair treatment of individuals in accordance with the law in their dealings with agencies.[39] Here, it is again relevant to note that most of the Information in Issue comprises information provided by third parties. I also note that the actions taken by QBCC and its Claims Manager, and incidents and issues considered by them prior to taking those actions, were matters which the applicant was generally appraised of and given the opportunity to address at the time. I further note that these matters are generally apparent in the information already released to the applicant. Consequently, I am satisfied that the factors favouring disclosure regarding contribution to procedural fairness and fair treatment do not apply in the circumstances of this review. 27. I have carefully considered all factors listed in schedule 4, part 2 of the RTI Act, and can identify no other public interest considerations telling in favour of disclosure of the Information in Issue. Factors favouring nondisclosure 28. The RTI Act recognises that disclosing an individual’s personal information to someone else can reasonably be expected to cause a public interest harm.[40] I am satisfied that the information at i), being names and signature of other individuals, comprises the personal information of those other individuals. While the information at ii) and iii) relates to incidents arising in relation to the contract for construction works, it cannot, in my view, be characterised as relating to any parties’ business affairs.[41] Rather, it comprises the personal information of third parties. Noting the relatively sensitive nature of the information and the circumstances of its provision, I afford this factor favouring nondisclosure significant weight. 29. A further factor favouring nondisclosure arises if disclosing information could reasonably be expected to prejudice the protection of an individual’s right to privacy.[42] 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.[43] For the reasons stated in paragraph 28 above, I am satisfied that disclosure of the Information in Issue would interfere with the personal sphere of the third parties. Accordingly, I afford this factor favouring nondisclosure significant weight. 30. I have also considered whether disclosure of the Information in Issue could prejudice the future supply of confidential information to an agency.[44] However, noting the requirement for builders to enter into contracts covered by the Queensland Home Warranty Scheme, and noting that it is in the interests of builders to engage with QBCC and its Claims Manager regarding any claims that arise in relation to that scheme, I am satisfied such factors do not apply. Balancing the public interest 31. I have considered the pro-disclosure bias in deciding access to information.[45] On balance, I consider the significant weight of the nondisclosure factors regarding personal information and privacy of third parties outweighs the low to moderate weight of the accountability and transparency disclosure factors in relation to the information at i). Despite the additional weight of the personal information disclosure factor, which arises regarding some of information at ii) and iii), I have reached the same conclusion, that is the privacy and personal information harm factors carry determinative weight, regarding the entirety of the information at ii) and iii). Accordingly, access to the Information in Issue may be refused on the basis that its disclosure would, on balance, be contrary to the public interest.DECISION 32. I vary QBCC’s decision by finding that 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 ground that its disclosure would, on balance, be contrary to the public interest. 33. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.A RickardAssistant Information Commissioner Date: 2 September 2021 APPENDIX Significant procedural steps Date Event 14 December 2020 OIC received the applicant’s application for external review. 17 December 2020 OIC advised QBCC and the applicant that the application for external review had been received and requested procedural documents from QBCC. 22 December 2020 OIC received the requested procedural documents from QBCC. 18 February 2021 OIC advised QBCC and the applicant that the application for external review had been accepted and requested a copy of the documents located in response to the access application from QBCC. 25 March 2021 OIC received a copy of the requested documents from QBCC. 14 May 2021 OIC conveyed a preliminary view to the applicant. 14 May 2021 OIC wrote to QBCC about the preliminary view. 16 May 2021 OIC received submissions from the applicant. [1] Access application dated 19 August 2020.[2] Occurring from 1 March 2020 to 17 August 2020.[3] A compulsory statutory insurance scheme for residential construction work carried out in Queensland.[4] Comprising written documents (including, for example, emails, contracts and reports) and audio and video files.[5] Decision dated 26 November 2020.[6] On 14 December 2020.[7] Section 58(1) of the HR Act. [8] Section 21(2) of the HR Act. [9] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [10] XYZ v Victoria Police (General) [2010] VCAT 255 (XYZ) at [573].[11] XYZ at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 at [111].[12] QBCC’s decision refers to the voicemail, each of the 14 video files and each page of the 932 pages as a folio – and therefore refers to 947 folios in total.[13] Collectively, the 14 video files and 60 pages are referred to as ’74 entire folios’ in QBCC’s decision.[14] Referred to as ‘41 part folios’ in QBCC’s decision.[15] Referred to as ‘31 part folios’ in QBCC’s decision.[16] Referred to in Attachment B to QBCC’s decision as 600078 Claims 16714798 Attach_09 (duplicated at 600078 Claims 16730046 Attach_008, 810066 Claims 17380845 Attach_003, 810066 Claims 17381256 Attach_003, 810066 Claims 17381260 Attach_002, 810066 Claims 17381263 Attach_003, 810066 Claims 17481738 Attach_003, and 810066 extra doc 18276577 Attach_003); and 810066 Claims 17380845 Attach_002 (duplicated at 810066 Claims 17381256 Attach_002, 810066 Claims 17381260 Attach_001, 810066 Claims 17381263 Attach_002, 810066 Claims 17481738 Attach_002 and 810066 extra doc 18276577 Attach_002).[17] Referred to in Attachment B to QBCC’s decision as pages 26-29, 31, 34-38, 44-47, 49, 52-56, 63-66, 68, 71-75, 84-87, 89, 92-96, 106-109, 111, 114-118, 155-158, 160, and 163-167 of file 810066 Claims ECM.[18] Referred to in Attachment B to QBCC’s decision as parts of pages 3, 5, 6, 65, 67, 128, 134, 139, 149, 232, 236, 322, 326, 329, 335, 341, 347, 356, 366, 376, 386, 399, 411, 426, 441, 458, 475, 494, 514, 535, 556, 580, 603, 626 and 630 of file 600078 Claims ECM; 2, 7, 11, 15, 19, 24, 30, 31, 37, 38, 64, 72, 89 and 112 of file 600078 Claims ECM Extra docs; and 24, 25, 43, 61, 62, 80, 82, 83, 103, 104, 123, 126, 129, 131, 134, 136, 138, 140, 141, 142, 144 and 154 of file 810066 Claims ECM. As noted at page 6 of Attachment B to QBCC’s decision, the total is 71 part pages, not 72 part pages, as QBCC found that one page contained portions of both exempt information and contrary to public interest information.[19] For example, as set out at footnote 16, there are 2 video recordings, but 7 duplicates of one recording and 5 duplicates of the other recording with different file names.[20] In the decision, QBCC had refused access to some information under section 47(3)(a) and schedule 3, section 10(1)(d) of the RTI Act.[21] Section 67(1) of the IP Act. [22] 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.[23] 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. [24] Section 49(3) of the RTI Act. [25] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act. [26] Email dated 16 May 2021.[27] Schedule 4, part 2, item 7 of the RTI Act.[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] This is addressed at paragraphs 28 and 29.[30] Submission to OIC dated 14 December 2020.[31] Schedule 4, part 2, item 17 of the RTI Act.[32] A public interest factor favoring disclosure arises where disclosure could contribute to the administration of justice for you (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]. [33] Willsford at [17](c).[34] Schedule 4, part 2, item 18 of the RTI Act.[35] Submission to OIC dated 16 May 2021.[36] Schedule 4, part 2, item 5 of the RTI Act.[37] Schedule 4, part 2, item 6 of the RTI Act.[38] Schedule 4, part 2, item 16 of the RTI Act.[39] Schedule 4, part 2, item 10 of the RTI Act.[40] Schedule 4, part 4, section 6(1) of the RTI Act. [41] Accordingly, I do not consider that any of the business affairs factors (at schedule 4, part 3, items 2 and 15 and part 4, section 7 of the RTI Act) apply in the circumstances of this review.[42] Schedule 4, part 3, item 3 of the RTI Act. [43] 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].[44] Schedule 4, part 3, item 16 and part 4, section 8(1) of the RTI Act.[45] Section 64 of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Miranda and Office of the Public Service Commissioner [2009] QICmr 49 (8 October 2009)

Miranda and Office of the Public Service Commissioner [2009] QICmr 49 (8 October 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210698 Applicant: Mr D Miranda Respondent: Public Service Commission Decision Date: 8 October 2009 Catchwords: ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – REFUSAL OF ACCESS – applicant sought access to documents relating to his former employment – some documents provided – whether there are reasonable grounds for the agency to be satisfied additional documents do not exist – whether agency has taken all reasonable steps to locate additional documents – whether agency can refuse access to the documents sought under section 28A(1) of the Freedom of Information Act 1992 (Qld) Contents REASONS FOR DECISION Summary 1. In this external review the applicant seeks access to documents which the Public Service Commission (PSC) contends do not exist. 2. Having considered the parties’ submissions and evidence, relevant legislation, and previous decisions of the Information Commissioner, I am satisfied that the PSC is entitled to refuse access to the documents sought by the applicant under section 28A(1) of the Freedom of Information Act 1992 (Qld) (FOI Act). Background 3. By letter dated 29 July 2008 (FOI Application) Carne Reidy Herd Lawyers made an FOI Application to the PSC on behalf of the applicant, seeking access to all documents within the possession of the PSC relating to the applicant and his employment with the Queensland Public Service, including specified types of documents. 4. By letter dated 30 September 2008 (Original Decision) Mr Brian Carroll, Executive Director, PSC, advised the applicant: • that the PSC had identified 12 folios responding to the FOI Application • of the PSC’s decision to release all 12 folios. 5. By letter dated 30 October 2008 (Internal Review Application) Carne Reidy Herd Lawyers sought internal review of the Original Decision on behalf of the applicant. 6. By letter dated 8 December 2008 Mr Gary Barnes, Executive Director, PSC sought to affirm the Original Decision, stating: My search indicates that these documents are not held by the Public Service Commission. 7. By email dated 4 January 2009 (External Review Application) the applicant sought external review by the Information Commissioner. Steps taken in the external review process 8. By letter dated 13 January 2009 I informed the applicant that the External Review Application had been accepted and asked the applicant to provide submissions in relation to each of the categories of documents he contended had not been provided to him by the PSC. 9. By letter dated 13 January 2009 I notified the PSC that the External Review Application had been accepted and asked the PSC to provide additional information about its decision and the searches undertaken to locate the requested documents. 10. On 16 January 2009 a staff member of the Office of the Information Commissioner (OIC) received a call from the applicant who indicated that he wanted to know the basis for the PSC’s refusal to grant him access to the documents and why the PSC did not hold the relevant documents. 11. By letter dated 19 January 2009 the PSC provided written submissions regarding its search processes and enquiries. 12. On 21 January 2009 a staff member of the OIC telephoned the applicant to discuss this and the applicant’s other external reviews. The applicant confirmed that his External Review Application concerned sufficiency of search matters and made submissions on why he believed further documents existed but had not been located by the PSC. 13. On 20 April 2009 a staff member of the OIC telephoned the applicant to communicate a preliminary view in relation to three of the applicant’s external review matters. However, the applicant indicated to the OIC staff member that he would need to make an appointment for the staff member to speak with him. The OIC staff member requested a meeting time. The applicant declined to make a time and indicated he would get back to the staff member at a later date. However, the applicant did not subsequently contact the staff member to make a time to discuss the reviews. 14. On 12 May 2009 the applicant telephoned to obtain an update on the progress on his external review applications. A staff member of the OIC discussed the reviews and their progress with the applicant. 15. Later on 12 May 2009 the applicant emailed the OIC to: express (his) concern at the inordinate amount of time that has been taken to progress (his) review applications. 16. On 15 May 2009 I provided the applicant with a written update on the progress of three external reviews concerning him and provided an opportunity for him to forward submissions in relation to two other external review applications received from the applicant. 17. In an email to the Information Commissioner dated 16 May 2009 the applicant indicated that he had not received an update on his applications for external review and expressed concern that he was “not being afforded access to a fair, objective, ad transparent review process”. 18. On 18 May 2009 I forwarded electronic copies of my letter of 15 May 2009 to the applicant. 19. Shortly after receiving my letter of 15 May 2009, the applicant emailed the Information Commissioner to make a complaint of maladministration in relation to my letter of 15 May 2009 and the handling of his external review applications by staff of the OIC. In particular, the applicant expressed concern that I had: not observed (the) ethical obligation not to supply protracted and onerous explanations in order to demonstrate a veneer of objectivity and fairness. 20. By email dated 19 May 2009 the Information Commissioner responded to the applicant’s complaint. 21. By email dated 21 May 2009 the applicant made further allegations of maladministration by staff of the OIC and disputed statements made by the Information Commissioner in the email above. The applicant asked the Information Commissioner to expedite his applications for external review and asked that he be provided with written preliminary views in relation to each of his applications. 22. On 24 August 2009 a staff member of the OIC called the PSC to clarify issues concerning its role and functions, and made further inquiries regarding meeting notes sought by the applicant. 23. In a telephone discussion on 25 August 2009 the PSC made further submissions regarding one of the documents sought by the applicant (Direction to Act). 24. By letter dated 25 August 2009 I conveyed my preliminary view on the issues in this review to the applicant. 25. By email dated 7 September 2009 the applicant indicated that he did not accept the preliminary view. 26. In making my decision in this review I have taken into account the following: • FOI application, Internal Review Application and External Review Application • Original Decision and letter dated 8 December 2008 from Mr Gary Barnes, Executive Director, PSC to the applicant • submissions made by the applicant during telephone discussions with staff of the OIC on 21 January 2009 • written submissions made by the PSC dated 19 January 2009 • submissions made by the PSC during telephone discussions with staff of the OIC dated 24 and 25 August 2009 • relevant provisions of the FOI Act as referred to in this decision • decisions of the Information Commissioner as referred to in this decision. Decision under review 27. Under section 52(6) of the FOI Act, if on internal review, an agency does not decide an application and notify the applicant of the decision within 28 days after receiving the application, the agency’s principal officer is taken to have made a decision at the end of the period affirming the original decision. 28. A decision on internal review was to be notified to the applicant on or around 28 November 2008.[1] Mr Barnes’ letter is dated 8 December 2008 and appears to have been sent to the applicant by post either on or after this date. 29. As the applicant was not notified of the internal review decision within the statutory time frame, the PSC’s principal officer is taken to have affirmed the Original Decision, and on this basis, the deemed affirmation of the Original Decision is the decision under review. However, I have treated Mr Barnes’ letter of 8 December 2008 as if it were submissions received from the PSC, for the purpose of this review. Issue in the review 30. The applicant contends that the PSC has not provided him with three categories of documents sought in his FOI Application. 31. The PSC contends that the documents in Category 1 and 2 do not exist because they were never created and documents in Category 3 were never received by the PSC. 32. The issue to be determined in this review is whether there are reasonable grounds for the PSC to be satisfied that the three categories of documents do not exist (as documents of the PSC) and accordingly, whether access can be refused under section 28A(1) of the FOI Act. Relevant law 33. The FOI Act was repealed by the Right to Information Act 2009 (RTI Act)[2] which commenced on 1 July 2009.[3] However, because the FOI Application was made under the FOI Act and has not yet been finalised, for the purposes of this decision, I am required to consider the application of the FOI Act (and not the RTI Act) to the matter in issue.[4] Section 28A of the FOI Act 34. Section 28A(1) of the FOI Act provides: 28A Refusal of access—documents nonexistent or unlocatable (1) An agency or Minister may refuse access to a document if the agency or Minister is satisfied the document does not exist. Example— documents that have not been created 35. In PDE and the University of Queensland[5] (PDE) the Information Commissioner indicates that:[6] 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. 36. Section 28A(1) is silent on the issue of how an agency is to satisfy itself that a document does not exist. In PDE the Information Commissioner also considered how an agency was to satisfy itself as to the non-existence of documents under section 28A(1) of the FOI Act and indicated that it is necessary for the agency to rely on its particular knowledge and experience with respect to various key factors including: • the administrative arrangements of government • the agency structure • the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) • the agency’s practices and procedures (including but not exclusive to its information management approach) • other factors reasonably inferred from information supplied by the applicant including: o the nature and age of the requested document/s o the nature of the government activity the request relates to. 37. When proper consideration is given to the key factors discussed above and a conclusion reached that the document sought does not exist, it may be unnecessary for the agency to conduct searches. However, where searches are used to substantiate a conclusion that the document does not exist, the agency must take all reasonable steps to locate the documents sought.[7] 38. In applying section 28A(1) of the FOI Act it is relevant to ask first whether there are reasonable grounds for the agency to be satisfied that the requested documents do not exist. Then, if the agency has used searches to satisfy itself that the additional documents sought do not exist, it is necessary to consider whether the agency has taken all reasonable steps to find the documents sought. The applicant’s submissions 39. In his Internal Review Application the applicant states that the following documents were missing from those provided to him: • “documents which indicate that Commissioner Purtill directed Brian Carroll to act on his behalf in responding to the applicant’s letter dated 24 October 2007” (Direction to Act) and “correspondence between Mr Purtill and Mr Carroll regarding the applicant” (Correspondence) • “records, including meeting notes of meetings held on 7 November 2007 between Ms J Hunter of the former Department of Employment and Industrial Relations (DEIR), Mr S Woods (DEIR), Ms J Saleh (PSC) and Ms C Fraser (PSC)” (Meeting Documents) • “any documents that detail the nature of organisational change within the Office of Workplace Health and Safety which resulted in the applicant’s substantive position being declared surplus to departmental requirements” (OWH&S Documents). 40. The applicant indicates generally in his External Review Application that the internal review decision fails to specify a basis for refusal under the FOI Act. 41. In a telephone discussion with an OIC staff member on 21 January 2009 the applicant submitted that the: • seemingly rushed nature of the internal review decision • fact that documents had been located by other agencies • inconsistencies between the decision making processes of different agencies founded his belief that further documents existed. The PSC’s submissions Direction to Act 42. By letter dated 19 January 2009, Mr Barnes stated that, in relation to the Direction to Act: Additional documents do not exist because they were never created. 43. In response to further enquiries from this Office Ms Michelle Hartog, RTI Officer, sought further information from Mr Carroll who indicated that: • the PSC administers the Public Service Act 2008 (Qld),[8] Public Sector Ethics Act 1994 (Qld) and the Whistleblowers Protection Act 1994 (Qld) • the applicant’s letter of 24 October 2007 addressed to Commissioner Purtill sought further information about his registration for deployment • as an Executive Director, Mr Carroll acted on a formal delegation to undertake duties of the Commissioner at his request • it was “common practice” to respond to correspondence of this nature on the Commissioner’s behalf, when the Commissioner asked him to do so • Mr Carroll recalls a discussion with the Commissioner in which he was asked to respond to the applicant’s letter of 24 October 2007, however there was no written instruction provided. Correspondence and Meeting Documents 44. In relation to this issue, the PSC submits[9] that additional documents do not exist because they were not created. Searches 45. By letter dated 19 January 2009 the PSC responded to enquiries from the OIC requesting submissions regarding the searches undertaken by the PSC to locate documents responding to the FOI Application. The PSC set out the searches undertaken to locate the relevant documents, including the Correspondence and Meeting Documents. The PSC submits that the initial search commenced 9 September 2008 and encompassed: Record systems Searches Concord Record System (CRS) CRS is the records management system used by the PSC to store hard copy files. The PSC undertook an electronic catalogue search to identify relevant files. Each of the files identified was subject to a manual search for documents responding to the FOI Application. “N” Drive This is the network drive on which agency documents are saved. The PSC performed an electronic search of the network drive for documents responding to the FOI Application. Appeals Registry database The Appeals Registry database holds information regarding appeals cases lodged. The PSC performed an electronic search of the database for documents responding to the FOI Application. Correspondence Tracking System (CTS) The CTS is a metadata system which records correspondence sent and received by the PSC. The PSC performed an electronic search of the CTS for documents responding to the FOI Application. 46. The PSC also submits that consultations were undertaken with the following staff to assist in locating relevant documents: • Jeff Loof, Director, Executive Management • Alan Simpson, Director, Information • Carolyn Fraser, Director, Merit Protection and Integrity • David Brennan, Director, Leadership Capability • David Douglas, Executive Director, Executive Management.. 47. On receiving the Internal Review Application, the PSC submits that it conducted fresh searches of all of the record systems identified at paragraph 45 above. No further documents were located. 48. The PSC submits that it also undertook a second round of consultation with officers of the PSC to assist in locating documents, including: • Bruce Wilson, Commission Chief Executive • Annette Bastaja, Executive Director, Corporate and Communication • Tony Hayes, Deputy Chief Executive • Jeff Loof, Director, Executive Management • Ben Dalton, Team Leader, Workforce Policy • Alan Simpson, Director, Information • Carolyn Fraser, Director, Merit Protection and Integrity • Kathy Corbiere, Team Leader, Leadership Capability • Melanie Widmer, Team Leader, Communication • Payul Sheehy, Team Leader, Strategic Directions • Kelly Weekley, Team Leader, Graduate Program • David Douglas, Executive Director, Executive Management • Brian Carroll, Executive Director. No further documents were located. Personal notebooks 49. The applicant identified two PSC officers, Ms Saleh and Ms Fraser, as attendees of the meeting on 7 November 2007. The PSC consulted with Ms Fraser both at the time of the initial search and the internal review search. The PSC indicated that Ms Saleh was not at the PSC at this time and was therefore unavailable for consultation. However, the PSC undertook a manual search of both officers’ personal notebooks for the relevant time period. 50. No relevant documents were located. OWH&S Documents 51. In relation to this issue, the PSC submits[10] that additional documents do not exist because they were never received. 52. The PSC indicates that its role is to assist and support Queensland government agencies to deliver high quality services to Queenslanders. In response to further enquiries from the OIC regarding the circumstances in which the PSC receives documents from other agencies, Ms Hartog, FOI Officer, PSC, contacted Ms Fraser, who, as I have previously indicated, attended the meeting of 7 November 2007. Responding to those enquiries, Ms Fraser indicated that: • the nature and quantity of information provided by agencies varies on a case by case basis • the PSC only retains copies of information it requires to support agencies and provide advice • the PSC would not require internal documents "describing the nature of organisational change" in order to provide advice • in relation to the meeting of 7 November 2007, Ms Fraser recalls that the DEIR did not provide any OWH&S Documents to the PSC. Findings and application of the law Direction to Act 53. Having regard to the PSC’s submissions at paragraphs 42 and 43 above, I am satisfied that: • it was ordinary practice for a PSC Executive Director to act on their formal delegation and undertake tasks as assigned by the Public Service Commissioner • in this instance, the Public Service Commissioner verbally assigned the task of responding to the applicant’s letter of 24 October 2008 to Mr Carroll • the Commissioner did not issue a written direction to the Executive Director to support his verbal instructions to respond to the applicant’s letter. 54. Accordingly, I am satisfied that there are reasonable grounds for the PSC to be satisfied that a Direction to Act does not exist, and the PSC is entitled to refuse access under section 28A(1) of the FOI Act. Correspondence and Meeting Documents 55. I acknowledge the applicant’s submissions that: • the Commissioner and his Executive Director might be likely to correspond in writing about matters being considered by the PSC • PSC officers might take notes at a meeting in which they provide advice to staff of another agency. 56. I note that 12 documents were identified in the Original Decision and provided to the applicant by the PSC. The documents included file notes of 28 October 2007 and 7 November 2007 (File Note). The File Note is a record of dialogue between the PSC and DEIR, including a notation about the “outcome of meeting” which stated: ... were advised that Registration for service wide deployment would not be considered practicable given Darin’s unresolved behavioural issues. The expectation is that DEIR would be required to manage these issues. 57. The notation above appears to bring finality to the dialogue between the PSC and DEIR. The PSC has also used searches to support its conclusion that the further Correspondence and Meeting Documents do not exist. In this instance, it is therefore also relevant to ask whether the agency has taken all reasonable steps to find the documents sought. Did the PSC take all reasonable steps to locate documents responding to the FOI Application? 58. I am satisfied that the answer to this question is yes. I accept the PSC’s submissions at paragraphs 45 to 50 regarding the search and inquiry process undertaken in response to the FOI Application and the Internal Review Application and am satisfied that: • the PSC identified the locations and systems from which relevant documents could be identified and/or retrieved and conducted appropriate searches • the PSC identified and consulted relevant personnel who would be expected to have knowledge of documents responding to the FOI Application • the PSC has taken all reasonable steps to find documents responding to the FOI Application, including the Correspondence and Meeting Documents. 59. Accordingly, I find that: • there are reasonable grounds for the PSC to be satisfied that the Correspondence and Meeting Documents do not exist • access to the Correspondence and Meeting Documents can be refused under section 28A(1) of the FOI Act. OWH&S Documents 60. I accept the PSC’s submissions at paragraph 52 above, noting in particular that: • the PSC only retains copies of information it requires to support agencies and provide advice • the PSC would not require internal documents of the type sought in order to provide advice • in relation to the meeting on 7 November 2007 Ms Fraser specifically recalls that the DEIR did not provide any OWH&S Documents to the PSC. 61. In view of the above, I am satisfied that there are reasonable grounds for the PSC to be satisfied that OWH&S Documents do not exist, and access to OWH&S Documents can be refused under section 28A(1) of the FOI Act. DECISION 62. I affirm the decision under review by finding that the PSC was entitled to refuse access to the documents sought in the FOI Application under section 28A(1) of the FOI Act on the basis that the documents sought do not exist. 63. I have made this decision as a delegate of the Information Commissioner, under section 90 of the Freedom of Information Act 1992 (Qld). ________________________ Suzette Jefferies Acting Assistant Commissioner Date: 8 October 2009 [1] Depending on the date on which the internal review application was received. [2] Section 194 of the RTI Act.[3] With the exception of sections 118 and 122 of the RTI Act.[4] Section 199 of the RTI Act.[5] (Unreported, Queensland Information Commissioner, 9 February 2009).[6] At paragraph 34.[7] See PDE. [8] Effective 1 July 2008, previously the Public Service Act 1996 (Qld) (PSA).[9] In the letter of 19 January 2009.[10] By letter dated 19 January 2009.

queensland

court_judgement

Queensland Information Commissioner 1993-

Frecklington, MP and Queensland Treasury [2020] QICmr 51 (18 September 2020)

Frecklington, MP and Queensland Treasury [2020] QICmr 51 (18 September 2020) Last Updated: 19 January 2021 Decision and Reasons for Decision Citation: Frecklington, MP and Queensland Treasury [2020] QICmr 51 (18 September 2020) Application Number: 315387 Applicant: Mrs Deborah Frecklington MP, Leader of the Opposition Respondent: Queensland Treasury Decision Date: 18 September 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - IRRELEVANT INFORMATION - application for communications ‘from’ entity - communications from persons other than nominated entity deleted as irrelevant - whether deleted information was irrelevant to the terms of the access application - section 73 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to Queensland Treasury (QT) under the Right to Information Act 2009 (Qld) (RTI Act) for access to communications ‘...from Together Union to...’ QT officers. QT located 14 pages of information, comprising emails from Together Union to QT, and emails sent by QT officers. QT released the former,[2] but deleted the latter (ie, emails sent by QT officers) on the basis they comprised irrelevant information under section 73(2) of the RTI Act. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision to delete information as irrelevant. I affirm QT’s decision. Information it has redacted as irrelevant may be deleted on that basis. Background Significant procedural steps in the review are set out in the Appendix. Reviewable decision The decision under review is QT’s decision dated 8 May 2020. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). 8. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act),[3] 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, 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 comprises portions of information deleted as irrelevant from 14 pages located by QT in response to the applicant’s access application. Issue for determination The issue for determination is whether information may be deleted under section 73(2) of the RTI Act. Relevant law Section 73 of the RTI Act relevantly provides: 73 Deletion of irrelevant information (1) This section applies if giving access to a document will disclose to the applicant information the agency or Minister reasonably considers is not relevant to the access application for the document. (2) The agency or Minister may delete the irrelevant information from a copy of the document and give access to the document by giving access to a copy of the document with the irrelevant information deleted. ... Section 73 is not a ground for refusal of access,[6] but a mechanism to allow irrelevant information to be deleted from documents which are otherwise identified for release to an applicant. In deciding whether information is irrelevant, it is necessary to consider whether the information is pertinent to the terms of the access application.[7] Discussion A general approach to situations of the kind arising in this review was canvassed by Information Commissioner Albietz in Robbins and Brisbane North Regional Health Authority[8] (Robbins). In that case, an applicant had specifically applied for access[9] to correspondence from certain individuals to an agency. On external review, the applicant contended that the access application also encompassed correspondence from a further party to the relevant agency. Commissioner Albietz rejected this argument: ...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. While not addressing a specific statutory basis for deleting irrelevant information, the above observations can be usefully applied to questions of relevance arising under section 73(2) of the RTI Act. In this case, as in Robbins, the terms of the applicant’s access application are not attended by any ambiguity: they clearly and explicitly request access to communications ‘from Together Union’. Information of this kind has been released to the applicant. The information in issue, however, is not ‘from’ Together Union, but from officers of QT. This information therefore: falls outside the terms of the access application; and is not pertinent – not relevant – to that access application. It was reasonable for QT to regard the information in issue as not relevant to the applicant’s access application. Accordingly, that information may therefore be deleted as irrelevant, under section 73(2) of the RTI Act.[10]DECISION I affirm the decision under review, insofar as it decided to delete information as irrelevant under section 73(2) of the RTI Act. I have made this decision under section 110(1)(a) of the RTI Act, as a delegate of the Information Commissioner, under section 145 of the RTI Act. Louisa LynchRight to Information CommissionerDate: 18 September 2020 APPENDIX Significant procedural steps Date Event 8 May 2020 OIC received the application for external review. 13 May 2020 OIC notified the applicant that the external review application had been received, and requested procedural documents from QT. 14 May 2020 QT provided the requested documents. 5 June 2020 OIC notified the applicant and QT that the external review application had been accepted, and requested further information from QT. 19 June 2020 QT provided the requested information. 6 August 2020 OIC wrote to the applicant conveying the preliminary view that QT’s deletion of the information in issue as irrelevant was reasonable. The applicant requested a formal decision. 20 August 2020 OIC wrote to the applicant, inviting submissions. 2 September 2020 OIC advised QT a decision was pending. [1] Application dated 11 March 2020.[2] Subject to redaction to a small amount of information, access to which was refused on the ground it comprises personal information disclosure of which would, on balance, be contrary to the public interest: section 47(3)(b) of the RTI Act. The application does not contest QT’s decision to refuse access to this information.[3] Which came into force on 1 January 2020.[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] All of which are stated in section 47 of the RTI Act.[7] O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) at [52].[8] [1994] QICmr 19; (1994) 2 QAR 30.[9] Under the repealed Freedom of Information Act 1992 (Qld).[10] OIC explained this conclusion to the applicant by letter dated 6 August 2020; the applicant made no submissions in reply, other than to request a formal decision (email dated 6 August 2020). OIC’s 20 August 2020 invitation to the applicant to make submissions was not taken up.

queensland

court_judgement

Queensland Information Commissioner 1993-

Malfliet and Department of Education, Training and Employment [2014] QICmr 31 (17 July 2014)

Malfliet and Department of Education, Training and Employment [2014] QICmr 31 (17 July 2014) Last Updated: 21 January 2015 Decision and Reasons for Decision Citation: Malfliet and Department of Education, Training and Employment [2014] QICmr 31 (17 July 2014) Application Number: 311871 Applicant: Malfliet Respondent: Department of Education, Training and Employment Decision Date: 17 July 2014 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - information relating to an investigation conducted by the agency and subsequent action taken by the agency - whether disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Department of Education, Training and Employment (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to a range of information generally relating to: an investigation by the Department into allegations that officers from a regional office failed to appropriately address complaints received from staff at a school findings, recommendations and action taken to address any shortcomings identified during that investigation; and a show cause process concerning a particular officer. The Department located 1156 pages relevant to the access application and refused access to 1089 pages on the basis that they comprised exempt information and 67 pages on the basis that their disclosure would on balance, be contrary to the public interest. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision to refuse access to the relevant information. For the reasons set out below, the Department’s decision is affirmed and access to the information in issue can be refused on the basis that its disclosure would, on balance, be contrary to the public interest. Background The applicant’s partner passed away in 2011. At the time of his death, the deceased was an employee of the Department. The death and a number of related issues have been the subject of investigations by the Department’s Ethical Standards Unit, Workplace Health and Safety Queensland, the former Crime and Misconduct Commission and the Queensland Coroner although the scope of each inquiry may have varied to some degree. The coronial inquiry considered a range of issues including the work conditions of the deceased as an employee of the Department. 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 Department’s decision dated 11 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). Information in issue The information in issue (Information in Issue)[1] comprises 60 pages and parts of 7 pages and can generally be described as internal briefing notes and correspondence sent to individuals who were the subject of the Department’s investigation and show cause process. The Information in Issue relates to the Department’s management of particular issues, some of which relate to the employment of the applicant’s partner. Relevant law Under the RTI Act, an individual has a right to be given access to documents of an agency subject to certain limitations, including grounds for refusal of access. An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[2] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[3] and explains the steps that a decision-maker must take[4] 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. I will address below the relevant factors favouring disclosure and nondisclosure of the Information in Issue. Accountability and transparency of the Department The RTI Act gives rise to factors favouring disclosure in circumstances where disclosing the Information in Issue could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability[5] contribute to positive and informed debate on important issues or matters of serious interest;[6] and reveal the reason for a government decision and any background or contextual information that informed the decision.[7] In relation to these factors, the Department explained that:[8] public sector management is a matter of serious public interest and there is a strong public interest in ensuring the Department and its officers are accountable for its management of staff and their handling of complaints management processes in this case, matters concerning the Department’s management of its officers arose and led to the suspension of a number of officers and considerable public criticism and concern from the media and parents the information reveals how the Department responded to managerial issues including the allegations made about officers and shows what was considered at the time the decision was made to suspend certain officers; and the investigation by the former Crime and Misconduct Commission and coronial inquiry are other accountability measures which have examined deficiencies in the administration by the Department and individual officers. The applicant relevantly submits that:[9] she participated in the relevant investigations and her concerns were investigated and ultimately substantiated she has had access to the coronial brief of evidence and very little information addressing the other investigation outcomes and, to her knowledge, no action was taken as a result of the investigations by the Department or Workplace Health and Safety Queensland as a result of the Department’s investigation, a number of officers were disciplined for what is a wider systemic problem but there is no evidence that the systemic issues have been thoroughly investigated, shortcomings identified and appropriate action taken to address workplace bullying authentically in the future; and if the Information in Issue does reveal that the matter has been investigated, shortcomings identified and appropriate action taken to address workplace bullying authentically, it would go a long way to restoring a degree of confidence in the Department's management of workplace bullying and increase disclosures which would lead to safer workplaces. The Information in Issue reveals how the Department responded to relevant managerial issues including allegations made about its officers. It includes information provided by witnesses, complainants and the subject officers. Disclosing the Information in Issue would identify: the scope of the Department’s inquiry and the nature of the issues it considered the information it took into account in reaching its decision with respect to whether the particular allegations were substantiated or unsubstantiated; and how the Department dealt with the investigation and show cause process. I agree with the Department’s comments that public sector management is a matter of serious public interest and importance. There is a strong public interest in ensuring that the Department and its officers are accountable for their conduct including conduct connected to the management of staff and handling of complaints management processes. I am satisfied that disclosing the Information in Issue would further accountability and transparency and would provide the applicant with a more detailed understanding of how the Department managed the relevant issues. As noted above, several related issues have been investigated by a number of entities, although the scope of each inquiry may have varied to some degree. The applicant was invited to participate and give evidence in some of the relevant investigations and had access to the coronial brief of evidence. As a result, information has been made available to her about the matters addressed. I consider the applicant has been informed of the relevant outcome in each case, even if she contends that some outcome information was limited, and this goes some way to addressing the issues of accountability and transparency. Although I have taken outcome information known to the applicant into account, I do not consider it reduces the weight of these public interest factors in the circumstances of this case. The Department’s handling of the issues (as reflected in the Information in Issue) is a matter of serious public interest affecting its functioning and the well-being of its staff and students. I am satisfied that these public interest considerations apply, not just for the benefit of the applicant, but also for the broader community. I afford each of them significant weight. Deficiencies in the conduct or administration of an agency of official The RTI Act gives rise to factors favouring disclosure 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;[10] and reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.[11] The Information in Issue directly relates to the Department’s investigation into the management of particular issues and allegations about Departmental officers engaging in misconduct or negligent, improper or unlawful conduct. Some of these allegations were substantiated. I consider these factors are relevant to the extent the Information in Issue relates to the allegations which were substantiated. I afford these factors significant weight in relation to that particular information. Advance the applicant’s fair treatment 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.[12] The Information Commissioner considered this factor in Pemberton and The University of Queensland[13] and relevantly explained that: This [public interest factor] was based on the recognition by the courts that: “The public interest necessarily comprehends an element of justice to the individual” ... 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... 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. This factor arises for consideration given the applicant’s involvement in the Department’s investigation and other accountability measures previously identified and also due to the fact that she raised allegations which were ultimately substantiated. The Department relevantly explained that:[14] the applicant was invited to participate in and give evidence in investigations undertaken by and for the Department during which she raised allegations of improper or inappropriate conduct by an officer of the Department these allegations were investigated and substantiated the applicant is aware of the investigation findings to which her concerns relate and disclosing the Information in Issue would not further her fair treatment in accordance with the law in any demonstrable way; and much of the Information in Issue relates to allegations made by other individuals. The applicant acknowledges that she participated in relevant investigations and her concerns were investigated and ultimately substantiated.[15] The Coroner identified a number of factors which contributed to the death of the applicant’s partner – some of these related to his employment with the Department. Given her relationship to the deceased, I consider the applicant has a particular interest in the action taken by the Department in response to the issues identified by the Coroner which relate to the deceased. However, as noted previously, only some of the Information in Issue relates to allegations made by the applicant and the deceased. The remainder of the Information in Issue relates to other individuals. I accept that this factor applies to the small part of the Information in Issue which relates to the applicant and the deceased. However I afford this factor only moderate weight because the applicant has participated in relevant investigations and was notified that her concerns were substantiated. I do not consider that the notion of fair treatment in this case entitles the applicant to all information about these allegations including the information provided by other witnesses and the subject officers or information about the nature of the disciplinary action that resulted. The applicant submits that she has an interest in the ‘wider systemic problem’ and that ‘there is no evidence that the systemic issues have been thoroughly investigated, shortcomings identified and appropriate action taken to address workplace bullying authentically in the future’.[16] This submission goes to the factors of accountability, transparency and deficiencies in conduct that I have addressed previously and to which I afforded significant weight. I do not consider that the public interest in advancing the applicant’s fair treatment applies to that part of the Information in Issue which does not directly relate to the applicant or the deceased. Accordingly, I afford this factor of fair treatment no weight in relation to that information. Personal information of the deceased and the applicant The RTI Act gives rise to factors favouring disclosure where the Information in Issue is: the applicant’s personal information;[17] and the personal information of a deceased person and the applicant is an eligible family member of the deceased.[18] 30. An ‘eligible family member’ of a deceased person includes a spouse of the deceased person. I am satisfied that the applicant is an eligible family member of the deceased for the purpose of this factor under the RTI Act. 31. A small part of the Information in Issue comprises the personal information of the applicant and the deceased. It specifically comprises information about the deceased in the context of allegations relating to an officer. The information was provided to the Department by the applicant, other witnesses and the subject officer in response to the allegations. The Department indicates that this information is known to the applicant[19] and I consider this reduces the weight of these factors to some degree. As a result, I afford minimal weight to these factors in relation to the small part of the Information in Issue which comprises the personal information of the applicant and the deceased. Personal information and privacy of other individuals 32. 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;[20] and disclosing the information could reasonably be expected to cause a public interest harm if it would disclose personal information of a person, whether living or dead.[21] The applicant submits that:[22] As acknowledged I have had the benefit of substantial information through the Coronial brief of evidence. There has been no complaints that I am aware of that I have breached anyone's privacy. I am motivated in an attempt to improve systemic processes to authentically address workplace bullying rather than attribute blame or violate an individual's privacy. On the contrary, I am concerned that two staff members may have been unfairly scapegoated to accept responsibility for what is a far more complex, cultural problem. Since I am more concerned about the recommendations to address shortcomings identified so that schools are safer work environments, I will accept redacted documents that remove staff identity to address any concerns regarding their privacy. I have considered the applicant’s submissions in relation to the weight to be afforded to these factors. I note that it is not possible to place restrictions on the use, dissemination or republication of information released under the RTI Act. In OKP and Department of Communities[23] 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. While I have taken into account the applicant’s submission at paragraph 33, I have not excluded the possibility that the Information in Issue could be disseminated further as permitted under the RTI Act. As noted above, a small part of the Information in Issue comprises the personal information of the applicant and the deceased in the context of allegations about an officer. The information was provided to the Department by the applicant, other witnesses and the subject officer in response to the allegations. Given the nature of this information and the context in which it appears, the personal information of the applicant and the deceased is intertwined with the personal information of other individuals and it cannot be excised from the documents. Also, having carefully reviewed the way in which the information is presented, it is not possible to de-identify the Information in Issue by deleting the names of the relevant individuals. This is due to publicly available information which could be used to easily ascertain the identity of the individuals referred to in the Information in Issue. Generally, information relating to the day-to-day work duties and responsibilities of a public service officer may be disclosed under the RTI 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.[24] Although the personal information here appears in a workplace context, it comprises serious allegations about the conduct of the subject officers (some of which were unsubstantiated) and information provided by witnesses and complainants. 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 RTI Act. I have taken into account the fact that a small part of the Information in Issue will be generally known to the applicant and accept that this reduces the weight of these factors to some degree. I afford these factors moderate weight in relation to that information. The remaining Information in Issue is sensitive and personal in nature. I consider its disclosure under the RTI Act would be a significant intrusion into the privacy of the subject officers, witnesses and complainants. Further, I find that the extent of the public interest harm that could be anticipated from disclosure is significant. In relation to the remaining information, I afford these factors significant weight. Prejudice 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] As noted above, some of the allegations which form part of the Information in Issue are unsubstantiated. I have considered the serious nature of the allegations and am satisfied they relate to misconduct or unlawful, negligent or improper conduct. I consider that disclosing information relating to these allegations, which are serious in nature and have not been substantiated, could reasonably be expected to adversely affect the reputations of the subject officers which in turn would prejudice their fair treatment. For these reasons, I afford significant weight to this factor in relation to the part of the Information in Issue which relates to unsubstantiated allegations. The applicant submits that:[26] This relates to the unfair inference of blame on a particular officer ... and the adverse impact on the person should [their] identity be revealed. I am concerned that any individual should not be scapegoated to accept responsibility for a cultural issue. Apart from the distressing impact of this action on the individual concerned, it limits the potential learning opportunity. Many levels of the Department were aware of [the officer’s] behaviour but still it continued. Considering the complexity of this example and finding sustainable solutions could potentially improve the workplace safety for all Queensland schools. Once workplace bullying is authentically addressed in schools, then I believe a bullying free future for students is possible. I have considered the applicant’s submission. It does not go directly to the application of this factor and raises issues which I am unable to address. To the extent the submission relates to factors favouring disclosure of the Information in Issue, I have addressed these above. Prejudice the flow of information to the Department I have considered whether disclosing the Information in Issue could reasonably be expected to: prejudice an agency’s ability to obtain confidential information[27] prejudice the management function of an agency;[28] and 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.[29] The Information in Issue reveals the identity of the subject officers, complainants and witnesses together with information they have provided in relation to the allegations. I consider these three nondisclosure factors are relevant for the reasons that follow. The Department relevantly explained that:[30] complaints are received by the Department on the understanding they will be treated confidentially except to the extent that procedural fairness or statutory disclosure provisions require otherwise in this matter, it was not necessary to disclose the Information in Issue to satisfy any requirements of procedural fairness or statutory provisions and, as a result, the information has not been disclosed and retains the necessary quality of confidence there is a continuing mutual understanding of confidence between the Department and the individuals who provided the information although it is reasonable to expect staff to cooperate with investigation processes in the course of their employment, disclosing confidential complaint information could reasonably be expected to prejudice the Department’s management function in relation to employee complaint processes as it would: discourage individuals from raising concerns about colleagues with management personnel and volunteering information about alleged wrongdoing by colleagues in future make staff reluctant to fully participate in workplace investigations as they would provide a less detailed account of their experience and observations compromise workplace relationships because many of the officers identified in the Information in Issue are still employed by the Department; and conflict with the confidentiality considerations placed on all participants in employee complaint processes and the requirement that employee complaints be managed in a manner that protects privacy. I accept the Department’s explanation that it receives complaints on the understanding that they will be treated confidentially (except to the extent that procedural fairness or statutory disclosure provisions require otherwise) and that the Information in Issue retains the necessary quality of confidence. I am satisfied that disclosing confidential information under the RTI Act in the context of a workplace investigation could reasonably be expected to prejudice the Department’s ability to obtain confidential information in future as individuals would be less likely to provide confidential information in subsequent investigations and I afford this nondisclosure factor significant weight. I also agree with the Departments’ view that disclosing the Information in Issue could reasonably be expected to prejudice its management function by compromising workplace relationships and by discouraging individuals from raising concerns or participating in workplace investigations in the future. While I consider it reasonable to expect officers of the Department to cooperate with an investigative process, I am satisfied that, in most cases, individuals supply information to workplace investigators on the understanding that it will only be used for the investigation or any subsequent disciplinary action. The applicant relevantly submits that:[31] ‘I strenuously disagree that releasing [the Information in Issue] would discourage individuals from raising concerns with the Department about serious issues and participating in workplace investigations in the future. I believe that the 'unseen' disciplinary action under the guise of confidentiality erodes confidence in the process. In my view, it is the fear of reprisals, impact on future career opportunities, lack of alternative employment locations available and concern for work colleagues that every day prevents disclosure rather than confidentiality concerns.’ ‘I believe that repeated regional office inaction despite staff complaints to Departmental staff at various levels has already adversely affected the Department's ability to fulfil its management function.’ ‘Essentially ignoring Ethical Standards Review recommendations to ensure the well-being of staff ... has damaged the Department's credibility. The best way to repair the damage already done is to acknowledge error and creatively problem solve for a better future. Rather than hiding behind confidentially, the Department should be providing leadership through clear guidelines to school communities on [workplace bullying].’ ‘I submit the Commissioner find that releasing the documents would not adversely prejudice the Department's management function more than past inaction has already. In fact it is likely to improve its complaints management ability in the future.’ I have considered the applicant’s submissions. However, these submissions deal with other issues which the applicant considers have had a detrimental impact on the Department’s complaint management process. The applicant also identifies the steps the Department should, in her view, take to ‘repair the damage already done’. It is not necessary nor appropriate for me to consider these other issues or comment on how the Department could improve any aspects of its management. The relevant question in relation to these factors is whether disclosing the Information in Issue could reasonably be expected to have the adverse effects identified in paragraph 43. To the extent the applicant’s submissions relate to factors favouring disclosure of the Information in Issue, I have addressed them above. I consider disclosing confidential information provided by individuals who participated in a workplace investigation to a third party under the RTI Act could reasonably be expected to erode confidence in the process and prejudice the flow of information from individuals who would otherwise provide relevant information. This is particularly so given that there is no requirement for the Department to disclose the Information in Issue to the applicant in accordance with procedural fairness or statutory disclosure provisions. I afford these nondisclosure factors significant weight in the circumstances. Balancing the relevant factors The RTI 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.[32] I have taken into account the pro-disclosure bias in balancing the relevant factors. I afford significant weight to the three factors favouring disclosure identified at paragraph 13 as disclosing the Information in Issue would further the Department’s accountability and transparency and provide a more detailed understanding of how the Department managed the relevant issues and the information it took into account in reaching its decision with respect to whether the particular allegations were substantiated or unsubstantiated. However, I also afford significant weight to the three factors favouring nondisclosure identified at paragraph 43 and consider that there is a strong public interest in protecting the Department’s management function and the flow of confidential information in the context of workplace investigations. I afford equal weight to the three factors favouring disclosure and the three factors favouring nondisclosure of the Information in Issue. A small part of the Information in Issue relates directly to the deceased and the applicant and gives rise to three additional factors favouring disclosure (identified at paragraphs 21 and 29). I afford only minimal weight to the factors relating to the personal information of the deceased and the applicant given that the applicant is generally aware of this information due to her involvement in the investigation processes. As the applicant has a particular interest in the action taken by the Department in response to the allegations relating to the deceased, I consider the factor relating to the fair treatment of the applicant arises for consideration. I afford this factor moderate weight but only in relation to the small amount of information which relates directly to the deceased and the applicant. The Information in Issue comprises the personal information of other individuals. This information is sensitive and personal in nature and its disclosure under the RTI Act would be a significant intrusion into the privacy of these individuals. I afford significant weight to the two factors favouring nondisclosure identified at paragraph 32. A small part of this information relates directly to the deceased and the applicant but this information cannot be separated from the personal information of other individuals. As this information will be generally known to the applicant, this reduces the weight of these factors to some degree. I afford moderate weight to these two factors in relation to that information. I afford significant weight to the two factors identified at paragraph 19 to the part of the Information in Issue which relates to substantiated allegations. To the extent the Information in Issue relates to unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct, I afford significant weight to the factor identified at paragraph 39 relating to the fair treatment of individuals. The public interest considerations are finely balanced in this case. However, I am satisfied that disclosing the Information in Issue under the RTI Act would, on balance, be contrary to the public interest and access is refused on this basis. DECISION I affirm the Department’s decision and find that access to the Information in Issue can be refused 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 145 of the RTI Act. ________________________ L Lynch Assistant Information Commissioner Date: 17 July 2014 APPENDIX Significant procedural steps Date Event 1 October 2013 The Department received the access application under the RTI Act. 11 December 2013 The Department issued its decision to the applicant refusing access to the requested information. 31 December 2013 The applicant applied to OIC for external review of the Department’s decision. 17 January 2014 OIC notified the applicant and the Department that the external review application had been accepted and asked the Department to provide the documents in issue to OIC by 3 February 2014. 31 January 2014 OIC received the documents in issue from the Department. 19 February 2014 OIC conveyed a preliminary view to the applicant on the information which the Department had decided comprised exempt information. The applicant accepted OIC’s preliminary view. 9 April 2014 OIC conveyed a preliminary view to the Department that there was no basis to refuse access to a small amount of information and invited the Department to provide submissions supporting its case by 28 April 2014. 15 April 2014 The Department accepted OIC’s preliminary view and agreed to release the additional information to the applicant. 1 May 2014 OIC conveyed a preliminary view to the applicant on the remaining information. The applicant requested the preliminary view in writing. 2 May 2014 OIC asked the Department to release the additional information to the applicant by 9 May 2014. 12 May 2014 OIC conveyed its preliminary view to the applicant in writing and invited her to provide submissions supporting her case by 27 May 2014. 27 May 2014 The applicant notified OIC she did not accept the preliminary view and provided submissions supporting her case. [1] The applicant accepted OIC’s preliminary view that access to 1089 pages could be refused on the basis that they comprised exempt information under sections 47(3)(a), 49 and schedule 3, section 10(4) of the RTI Act. OIC formed the view that a small amount of additional information in 7 pages could be released to the applicant. The Department accepted OIC’s view and released this information to the applicant.[2] 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. [3] 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. [4] Section 49(3) of the RTI Act.[5] Schedule 4, part 2, item 1 of the RTI Act.[6] Schedule 4, part 2, item 2 of the RTI Act. [7] Schedule 4, part 2, item 11 of the RTI Act.[8] At pages 10, 12 and 13 of its decision dated 11 December 2013. [9] Submissions to OIC dated 31 December 2013 and 26 May 2014. [10] Schedule 4, part 2, item 5 of the RTI Act.[11] Schedule 4, part 2, item 6 of the RTI Act.[12] Schedule 4, part 2, item 10 of the RTI Act. [13] (1994) 2 QAR 293 at paragraph 190. The Information Commissioner’s comments were made in the context of the repealed Freedom of Information Act 1992 (Qld) but provide guidance on the interpretation of this factor under the RTI Act. In its decision, the Department identified the applicant’s ‘justifiable need to know’ as an additional factor favoring disclosure. This is a facet of the public interest factor at schedule 4, part 2, item 10 of the RTI Act. [14] At pages 11, 12 and 13 of its decision dated 11 December 2013.[15] Submissions to OIC dated 26 May 2014.[16] Submissions to OIC dated 26 May 2014. [17] Schedule 4, part 2, item 7 of the RTI Act. 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 2, item 9 of the RTI Act. [19] At page 11 of its decision dated 11 December 2013.[20] Schedule 4, part 3, item 3 of the RTI Act. [21] Schedule 4, part 4, item 6(1) of the RTI Act. [22] Submissions to OIC dated 31 December 2013. [23] (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.[24] Underwood and Department of Housing and Public Works (Unreported, Queensland Information Commissioner, 18 May 2012) at paragraph 60. [25] Schedule 4, part 3, item 6 of the RTI Act.[26] Submissions to OIC dated 31 December 2013. [27] Schedule 4, part 3, item 16 of the RTI Act.[28] Schedule 4, part 3, item 19 of the RTI Act.[29] Schedule 4, part 4, item 3(c) of the RTI Act. [30] At pages 15 and 16 of its decision dated 11 December 2013.[31] Submissions to OIC dated 31 December 2013 and 26 May 2014. [32] Section 44 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Phyland and Department of Police [2011] QICmr 35 (31 August 2011)

Phyland and Department of Police [2011] QICmr 35 (31 August 2011) Last Updated: 21 October 2011 Decision and Reasons for Decision Application Number: 310548 Applicant: Phyland Respondent: Department of Police Decision Date: 31 August 2011 Catchwords: RIGHT TO INFORMATION – INFORMATION AS TO EXISTENCE OF PARTICULAR DOCUMENTS - where agency neither confirms nor denies existence of a document - whether document, if it existed, would be a document to which access would be refused under section 47(3) of the Right to Information Act 2009 Qld – whether document , if it existed, would be comprised of prescribed information Contents REASONS FOR DECISION Summary By application dated 6 December 2010, the applicant applied to the Department of Police[1] under the RTI Act for access to ‘documents showing the criminal record’ of a named individual. By letter dated 11 January 2011, Senior Sergeant MB McGhie, Freedom of Information and Privacy Unit, QPS, decided to neither confirm nor deny the existence of the requested documents under section 55 of the RTI Act. By letter dated 27 January 2011, the applicant applied to the Information Commissioner for external review of the QPS decision. For the reasons set out below, I affirm QPS’s decision to neither confirm nor deny the existence of the documents sought by the applicant under section 55 of the Right to Information Act 2009 (Qld) (RTI Act) on the basis that if the documents did exist, access to the documents would be refused under section 47(3) of the RTI Act because they would be comprised of prescribed information. Reviewable decision The decision under review is the decision of Senior Sergeant McGhie dated 11 January 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 are set out in the Appendix. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching my decision is as disclosed in these reasons (including footnotes and appendix). Relevant law Section 23 of the RTI Act relevantly provides that a person has a right to be given access to documents of an agency (which includes the QPS). This right of access is subject to other provisions in the RTI Act, including section 55, which provides: 55 Information as to existence of particular documents (1) Nothing in this Act requires an agency or Minister to give information as to the existence or non-existence of a document containing prescribed information. (2) For an access application for a document containing prescribed information, the agency or Minister may give a prescribed written notice that does not include the details mentioned in section 191(a) or (b) but, by way of a decision, states that— (a) the agency or Minister neither confirms nor denies the existence of that type of document as a document of the agency or a document of the Minister; but (b) assuming the existence of the document, it would be a document to which access would be refused under section 47(3) to the extent it comprised prescribed information. (3) The prescribed written notice may be given in a schedule of relevant documents. [my emphasis] The rationale for the inclusion of a provision in the nature of section 55 of the RTI Act has been explained as follows:[2] A particular problem that arises in relation to the giving of reasons and particulars ... is the position of the decision-maker when ... confronted with a request for a document which is manifestly exempt from disclosure, but where the character of the document is such that the mere acknowledgment of its existence, albeit accompanied by a denial of access, will itself cause the damage against which the exemption provision is designed to guard. One obvious example would be a request for a Cabinet paper recommending a devaluation of the currency; another might be a request for a criminal intelligence record disclosing the activities of a particular police informant. ... We agree that there will, on occasion, be a need for an agency to refuse to acknowledge the very existence of a document. However ... it ought to be confined to a very narrow set of exemptions, namely those relating to classes of documents which by their very nature are likely to be widely accepted as especially sensitive. Findings A review of a decision in which the agency has relied on section 55 of the RTI Act presents procedural challenges. As the Information Commissioner explained in EST:[3] In a review of an ordinary refusal of access decision, the applicant for access is necessarily disadvantaged, in the extent to which meaningful submissions can be made about the exempt status of matter in issue, by a lack of precise knowledge as to the nature of the matter in issue. That disadvantage is exacerbated in a review of a decision to invoke a s.35 "neither confirm or deny" response. The review must largely proceed in private between the Information Commissioner and the respondent ... The Information Commissioner went on in the paragraph of EST excerpted above to note that where requested documents do exist, they would be called for and examined. In many cases, this will often be an appropriate course of action. However, in a case such as this, where the nature of any documents, if they do exist, is evident from the terms of the access application, it is unnecessary to require the agency to confirm the existence of any relevant documents. Therefore, in this review, I have not asked QPS to indicate to me whether or not the documents sought actually exist.[4] Prescribed information Section 55 of the RTI Act essentially permits an agency to give no information as to the existence or non-existence of documents that would, assuming their existence, contain ‘prescribed information’. When relying on section 55, however, an agency must demonstrate that the documents requested by the applicant would, if they exist, contain the requisite prescribed information. ‘Prescribed information’ is relevantly defined in schedule 6 of the RTI Act: prescribed information means— ... (b) personal information the disclosure of which would, on balance, be contrary to the public interest under section 47(3)(b). In accordance with this definition, I must be satisfied that the documents requested by the applicant would, if they existed, contain: personal information the disclosure of which would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act. (i) personal information ‘Personal information’ is defined as follows:[5] Personal information is information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. The access application seeks access to a named individual’s criminal record. It is clear that the requested documents, if they exist, would contain information – name, date of birth, offence history, for example – about an individual whose identity is apparent from the information (the individual named in the access application). I am satisfied the documents, if they exist, would comprise the personal information of the relevant individual. (ii) contrary to the public interest For personal information to comprise ‘prescribed information’, it must also be information the disclosure of which would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act.[6] In determining whether disclosure of information, would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act, I must:[7] identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to the public interest. Irrelevant Factors I have not taken any irrelevant factors into account in making this decision. Factors favouring disclosure The applicant contends that she requires access to the requested documents for the purposes of Family Court proceedings involving children, between herself and the individual named in the access application. It is arguable that the applicant’s submissions in this regard go toward the public interest in disclosing information that may contribute to the administration of justice for a person.[8] An individual’s criminal record, if such documents exist, may be relevant to Family Court proceedings. I am prepared to consider this public interest factor in making my determination in this case. The applicant also submits that she has limited financial resources which have prevented her from obtaining legal representation in the Family Court proceedings noted above, and from availing herself of alternative court processes that may allow her to access the requested documents (should they exist).[9] The applicant contends that: ‘RTI should provide a viable right of access to individuals irrespective of financial capacity’;[10] and ‘the RTI Act was set up to avoid complicated and expensive legal action by individuals who simply cannot afford them.’[11] While I note the applicant’s submissions, her personal financial capacity does not give rise to a public interest factor telling in favour of disclosure.[12] Her submissions in this regard essentially amount to an argument that while alternative routes of access may exist, she is not in a financial position to pursue these, and that consequently she should be permitted access by way of the less-expensive mechanisms contained in the RTI Act. 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, including refusal of access where, as I have discussed below, disclosure would disclose personal information or infringe upon an individual’s right to privacy. The applicant also contends that a criminal record should effectively be seen as a public record, as criminal cases are conducted in public and reported publicly and the ‘public have a right to know about criminal proceedings and convictions’.[13] I do not consider that there is a general right for the public to ‘know about criminal proceedings and convictions’, as the applicant contends. The public has a right to expect that judicial proceedings will be conducted openly and transparently, although even this principle is not absolute.[14] The expectation of open justice, however, is distinct from a general right to know about and have access to a specific individual’s particular offence and conviction history, as is clearly demonstrated by the existence of the Criminal Law (Rehabilitation of Offenders) Act 1986 Qld (CLROO Act). This legislation entitles offenders to suppression or nondisclosure of ‘spent convictions’ – a criminal record as it relates to particular offences, of a certain age, where the offender has not subsequently reoffended.[15] In the CLROO Act, Parliament has provided that, contrary to the applicant’s contentions, the public does not have a right to openly access the criminal records of offenders (insofar as the requirements of the Act are met). Accordingly, I do not consider that the applicant’s submissions concerning a ‘public right to know’ about individual criminal records give rise to a public interest factor favouring disclosure of the requested documents (if they exist). Factors favouring nondisclosure I have identified two factors favouring nondisclosure of the requested documents (if they exist): disclosure of the information could reasonably be expected to prejudice the protection of an individual’s right to privacy;[16] and disclosure of the information could reasonably be expected to cause a public interest harm if disclosure would disclose personal information of a person.[17] I am satisfied that if the requested documents exist, disclosing those documents would disclose the personal information of the individual identified in the access application. I am also satisfied that such disclosure could reasonably be expected to prejudice[18] the named individual’s right to privacy.[19] In reaching this conclusion, I accept that there may be offences detailed in a given criminal record that have been the subject of public trial and reporting, arguably diminishing the privacy interest in information of that kind.[20] A given criminal record may, however, also contain details of ‘spent offences’ subject to the CLROO Act. Disclosure of this information would clearly defeat the privacy protections intended by this legislation (not to mention occasion an offence against the Act), and prejudice the individual’s right to privacy. Public interest balancing exercise As noted above, I have identified one factor favouring disclosure of the requested documents, and two favouring non-disclosure. In this case, I consider that: the public interest in the administration of justice should be afforded marginal weight; the public interest in: safeguarding personal information and; protecting an individual’s right to privacy and thus avoiding public interest harm, should each be afforded substantial weight. I will briefly discuss my reasoning in this regard. In assessing the balance of the public interest, I note that there is no great detail before me as to the nature of the Family Court proceedings in which the applicant is involved, nor the potential relevance of the requested documents (if they exist). In any case, regardless of the particulars of the relevant litigation, I anticipate that the Family Court, applying legislation in which the interests of children are paramount,[21] would be reluctant to make determinations about parenting without a complete record before it, should there exist any suspicions or concerns as to the suitability of a particular individual. In this regard, I note that the Family Court may order a State agency to provide information to the Court concerning child abuse or family violence where allegations of this kind have been raised in given proceedings.[22] In this context, I do not consider the single prodisclosure public interest factor noted above should be afforded significant weight. Conversely, I consider the privacy interests identified above should be afforded substantial weight. I acknowledge that many criminal prosecutions are conducted (and subsequently reported) openly, arguably diminishing the privacy interest in a criminal record insofar as it records such a conviction. As noted above, however, there are numerous criminal proceedings that are subject to suppression. I am also highly conscious of the not inconsiderable range of offences potentially subject to the privacy protections afforded offenders by the CLROO Act which may well appear in a criminal record of the kind requested. The policy considerations underlying that Act indicate that it is proper to afford privacy protection to relevant criminal records. Having balanced factors favouring disclosure and nondisclosure, I am satisfied that disclosure of the requested documents (if they exist) would, on balance, be contrary to the public interest. I have found that the requested documents (if they exist) would comprise personal information, the disclosure of which would, on balance, be contrary to the public interest. Accordingly, I am satisfied that the relevant documents (if they exist) would be documents to which access would be refused under section 47(3) of the RTI Act as documents comprised of prescribed information The QPS is therefore entitled to neither confirm nor deny the existence of the requested documents under section 55 of the RTI Act. DECISION I affirm the decision of QPS to neither confirm nor deny the existence of the documents requested by the applicant, on the basis that if such documents did exist they would be documents to which access would be refused under section 47(3) of the RTI Act as documents comprised of prescribed information. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ Jenny Mead Right to Information Commissioner Date: 31 August 2011 APPENDIX Significant procedural steps Date Event 6 December 2010 Applicant applied to QPS for access to criminal record of named individual. 11 January 2011 QPS decided to neither confirm nor deny existence of requested document under section 55 of the RTI Act. 27 January 2011 Applicant applied to OIC for external review of QPS decision. 16 March 2011 OIC conveys to applicant written preliminary view QPS entitled to neither confirm nor deny existence of requested document under section 55 of the RTI Act. 8 April 2011 Applicant’s representative advises applicant does not accept OIC’s preliminary view, lodges written submissions in support of applicant’s case. [1] Known as the Queensland Police Service (QPS). [2] EST and Department of Family Services and Aboriginal and Islander Affairs [1995] QICmr 20; (1995) 2 QAR 645 at paragraph 11 (EST, citing the 1979 Report by the Senate Standing Committee on Constitutional and Legal Affairs [SSCCLA] on the Freedom of Information Bill 1978 at page 121, point 9.27).[3] At paragraph 20.[4]My approach in this regard is consistent with the procedure adopted by the Information Commissioner in Tolone and Department of Police (220006, 9 October 2009) (see paragraph 28).[5] See Schedule 6 of the RTI Act and section 12 of the IP Act.[6] Section 47(3)(b) relevantly permits an agency to refuse access to a document to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest under section 49 of the RTI Act.[7] In accordance with section 49(3) of the RTI Act.[8] Schedule 4, part 2, factor 17 of the RTI Act. I should note that, technically, the ‘persons’ in whose favour this prodisclosure should be seen to operate in this context would be relevant children, given the ‘child paramountcy principle’ governing proceedings under the Family Law Act 1975 (see further note 18).[9] Such as by way of the subpoena process prescribed in Part 15.3 of the Family Court Rules 2004.[10] External review application dated 27 January 2011.[11] Submissions dated 8 April 2011.[12] Noting that, in general terms, a public interest consideration is one common to all members or a substantial segment of the community, as distinct from matters concerning purely private or personal interests.[13] External review application dated 27 January 2011.[14] For an overview of the range of exceptions to the principle of open justice in Queensland, see ‘Closed Court Exceptions to the General Principle of Openness’, Queensland Supreme and District Courts Benchbook, http://www.courts.qld.gov.au/Benchbook/SD-61-ClosedCourtExceptionsToTheGeneralRuleOfOpenness.pdf (accessed 12 August 2011).[15] The CLROO Act relevantly prohibits disclosure of certain convictions where the rehabilitation has expired in relation to a conviction recorded against any person and the conviction has not been revived in respect of the person: see CLROO Act, section 6.[16] Schedule 4, part 3, item 3 of the RTI Act.[17] Schedule 4,part 4, item 6 of the RTI Act.[18] 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.[19] The concept of ‘privacy’ is not defined in either the RTI or IP Acts; it can, however, be viewed as the right of an individual to preserve their personal sphere free from interference from others (Paraphrasing the Australian Law Reform Commission’s definition of the concept in “For your information: Australian Privacy Law and Practice” Australian Law Reform Commission Report No. 108 released 11 August 2008, at paragraph 1.56).[20] And noting that privacy interests attaching to historical material of this kind are protected by a degree of ‘practical obscurity’, i.e. the practical barriers – researching newspaper and court record archives in this case – to access, such that it could not be said relevant privacy interests were completely destroyed by contemporary publication.[21] Family Law Act 1975, section 60CA .[22] Ibid, sections 60K and 69ZW.

queensland

court_judgement

Queensland Information Commissioner 1993-

B97 and Queensland Police Service [2022] QICmr 19 (1 April 2022)

B97 and Queensland Police Service [2022] QICmr 19 (1 April 2022) Last Updated: 19 September 2022 Decision and Reasons for Decision Citation: B97 and Queensland Police Service [2022] QICmr 19 (1 April 2022) Application Number: 316109 Applicant:  B97 Respondent: Queensland Police Service Decision Date: 1 April 2022 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - LAW ENFORCEMENT - access sought to warrant application concerning the applicant - whether disclosure could reasonably be expected to prejudice the effectiveness of a lawful method or procedure - whether information exempt - section 67(1) of the Information Privacy Act 2009 (Qld) - sections 47(3)(a) and 48 and schedule 3, section 10(1)(f) 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 certain information about a search warrant issued in February 2020.[2] In response to the access application, QPS located the relevant search warrant application (and related checklist) comprising eight pages in total. It released[3] one page of the search warrant application in full, and the remaining seven pages were partially[4] refused on the basis that 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 (Lawful Method or Procedure Exemption).[5] The applicant then applied[6] to the Office of the Information Commissioner (OIC) for external review of QPS’ decision. In his application for external review, the applicant disputed the application of the Lawful Method or Procedure Exemption. In relation to the information he is seeking, he noted:[7] I simply want to know WHAT IT WAS that prompted the Warrant. I absolutely reject the suggestion that the QPS is unable to tell me WHAT IT WAS without “prejudicing methods and procedures”. I do not accept that the one simple piece of information I am requesting cannot be left unredacted – whether it is a filename or some other description saying exactly WHAT IT WAS. I have considered the information the applicant is seeking, along with the parties’ submissions. For the reasons set out below, I vary QPS’ decision, and refuse access to the information sought by the applicant under section 67(1) of the IP Act[8] and sections 47(3)(a), section 48 and schedule 3, section 10(1)(f) of the Right to Information Act 2009 (Qld) (RTI Act). Background In his access application,[9] the applicant explained that he was seeking information in relation to a search warrant issued in February 2020. The warrant application related to a suspicion of possession of child exploitation material. As noted above, the applicant’s key concern is what prompted this warrant. During this review, OIC proposed to QPS settlement of the matter[10] by release of certain information of particular concern to the applicant. QPS did not accept this informal resolution proposal and maintained its objection to disclosure.[11] Significant procedural steps in the review are set out in the Appendix to this decision. Reviewable decision QPS originally refused to deal with the applicant’s access application.[12] The applicant applied to OIC for external review of QPS’ refusal to deal decision, and this review was resolved informally,[13] with QPS agreeing to recommence processing of the application from 31 March 2021. QPS then did not make its decision within the recommenced processing period,[14] and accordingly, on the last day of the processing period – 14 April 2021 – it was taken to have made a deemed decision[15] refusing access to information sought by the applicant.[16] This deemed decision is the decision under review. QPS’ purported decision notice dated 31 May 2021 sets out its position on access (as explained at paragraph 2 above). Evidence considered The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). On three occasions, we also sought to clarify with QPS the way that we could describe the information in issue for the purposes of our analysis in these reasons.[17] QPS expressed concern about describing the information in issue, even in general terms, due to the potential prejudice to QPS’ investigative methods.[18] For this reason, and given my obligations concerning information in issue under the IP Act,[19] I am constrained in the level of detailed analysis I am able to provide in these reasons. I have had regard to the Human Rights Act 2019 (Qld) (HR Act),[20] particularly the right to seek and receive information as recognised in section 21 of the HR Act. I consider that a decision maker, when observing and applying the law prescribed in the IP Act and the RTI Act, ‘will also be respecting, and acting compatibly with, the applicant’s right to freedom of expression’ under the equivalent provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic).[21] I also note the observations made by Bell J on the interaction between the Victorian equivalents of the Queensland IP and RTI Acts and HR Act:[22] ‘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’. Information in issue As noted above, on external review, the applicant has indicated that he ‘simply want[s] to know WHAT IT WAS that prompted the Warrant’.[23] Accordingly, the only information in issue in this review, and considered in this decision, is the refused information that sets out the basis for the warrant application (information in issue).[24] Issue for determination The issue for determination is whether access to the information in issue may be refused on the ground that it is exempt under the Lawful Method or Procedure Exemption.[25] QPS’ position is also that[26] disclosure of some of the information in the warrant application would, on balance, be contrary to the public interest.[27] Given my findings concerning the Lawful Method or Procedure Exemption, it is not necessary to consider this alternative ground of refusal.[28] 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.[29] This right is subject to other provisions of the IP Act and the RTI Act, including the grounds on which an agency may refuse access to information.[30] Relevantly, access to information may be refused to the extent it comprises exempt information.[31] The Lawful Method or Procedure Exemption applies if the following requirements are met:[32] a) there exists an identifiable method or procedure b) it is a method or procedure for the preventing, detecting, investigating or dealing with a contravention or possible contravention of the law; and c) disclosure of the information could reasonably be expected to prejudice the effectiveness of that method or procedure. However, information will not be exempt if one of the exceptions listed in schedule 3, section 10(2) of the RTI Act apply. Findings Having considered the information in issue, and the submissions provided by QPS on external review,[33] I am satisfied that there exists a lawful method or procedure used by QPS for detecting or investigating contraventions, or possible contraventions of the law, specifically concerning the possession and sharing of child exploitation material. I am unable to further describe these methods or procedures, without disclosing the content of the information in issue.[34] Further, having considered the material before me, I am satisfied that disclosure of the information in issue in this matter could reasonably be expected to prejudice the effectiveness of that method or procedure. I acknowledge that the applicant rejects this, as noted at paragraph 3 above. Once again, I am constrained in the level of analysis I am able to provide concerning the expected prejudice, as to do so would reveal the information in issue.[35] However, based on the information before me,[36] I am satisfied that revealing the information in issue could reasonably be expected to allow an individual to modify their behaviour to avoid detection. This would prejudice the ongoing effectiveness of QPS’ method for detecting and investigating contraventions of the law in relation to child exploitation material. I note that in some cases, information concerning police methodology is available via court disclosure processes as the applicant contends.[37] However, in this case, this has not occurred. Based on the material before me, and the current factual circumstances, I am satisfied that the relevant prejudice could reasonably be expected to arise from disclosure. I have reviewed schedule 3, section 10(2) of the RTI Act, and I am satisfied, given the nature of the information in issue, that the exceptions listed do not apply in the circumstances of this case.[38] Given the applicant’s submissions[39] concerning the intrusive nature of the search, I have specifically considered schedule 3, section 10(2)(a) which provides that information is not exempt where it reveals that the scope of a law enforcement investigation has exceeded the limits imposed by law. Having considered the information in issue, I am satisfied that it does not reveal this, and the exception in schedule 3, section 10(2)(a) does not apply in this case. The applicant submitted that he requires the information to defend his personal integrity and character and is seeking the information to defend himself against serious accusations.[40] As there has been no prosecution resulting from this warrant application, the applicant submitted[41] that this heightens the need for transparency by QPS. He has also submitted that ‘“Lawful methods & procedures” must be balanced against the rights of individuals’.[42] The applicant has also made submissions concerning the power imbalance, given that he has been forced to disclose hundreds of thousands of documents to QPS, and QPS has refused to give him access to the information he is seeking.[43] In relation to these submissions, I acknowledge that the IP Act is to be administered with a pro-disclosure bias.[44] However, the exemptions 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. Once the requirements of an exemption have been established, as I have found in this case, the legislation precludes me from considering public interest factors, no matter how compelling they may be.[45] Finally, I acknowledge the applicant’s submission that the Victorian case of Smith v Thompson & Anor (No 2)[46] supports the release of the information in issue. Quite aside from the matter being from a different jurisdiction, and relating to the law of public interest immunity, the relevant finding of fact in that matter was that the affidavit in issue did not reveal police methodology. Accordingly, I do not consider this has relevance to this matter. On the basis of the above, I am satisfied that the Lawful Method or Procedure Exemption applies to the information in issue.DECISION For the reasons set out above, I vary QPS’ decision and find that access to the information in issue may be refused under section 67(1) of the IP Act, as it comprises exempt information under section 47(3)(a), section 48 and schedule 3, section 10(1)(f) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.Christine JonesA/Assistant Information CommissionerDate: 1 April 2022 APPENDIX Significant procedural steps Date Event 4 June 2021 OIC received the external review application. OIC notified the applicant and QPS that the application for review had been received and requested processing documents from QPS. 7 June 2021 OIC received the processing documents from QPS. 11 June 2021 OIC notified the applicant and QPS that the external review had been accepted and requested the information in issue from QPS. 13 June 2021 OIC received a submission from the applicant. 14 June 2021 OIC received the information in issue from QPS. 18 June 2021 OIC received correspondence from the applicant. 8 July 2021 OIC provided a preliminary view to QPS. 5 August 2021 QPS provided a response to OIC’s preliminary view. 6 August 2021 OIC provided QPS with an extension of time for a further submission in response to the preliminary view. 25 August 2021 OIC received an email from the applicant. 27 August 2021 OIC conveyed a preliminary view to the applicant. 26 September 2021 OIC received an email from the applicant. 7 October 2021 OIC conveyed a preliminary view to the applicant. 8 October 2021 OIC received submissions from the applicant in response to the preliminary view. 28 October 2021 OIC provided QPS with a Notice to Produce. 17 November 2021 OIC received QPS’ submission in response to the preliminary view of 5 August 2021. 15 December 2021 OIC conveyed a further preliminary view to the applicant. The applicant requested a formal decision to finalise the review. 8 February 2022 OIC confirmed the scope of the decision with the applicant and wrote to QPS seeking agreement concerning how to describe the information in issue in the decision. 17 February 2022 OIC contacted QPS concerning the description of the information in issue in the decision. QPS provided a response. 18 February 2022 OIC contacted QPS concerning the description of the information in issue in the decision. 10 March 2022 QPS provided a response. [1] By way of application dated 5 June 2020.[2] Specifically, the applicant sought the file names of the material which prompted the warrant, the application to the Magistrate including grounds in favour or against the warrant application, and all documents pertaining to the decision to raise the warrant. [3] Decision notice dated 31 May 2021. As noted under the heading ‘Reviewable Decision’ below, this decision was made after the end of the processing period, and accordingly the decision under review is a deemed refusal of access.[4] I acknowledge that on pages 2, 4, 7 and 8 the only information released was the footer. [5] Section 47(3)(a), section 48 and schedule 3, section 10(1)(f) of the Right to Information Act 2009 (Qld) (RTI Act). QPS also relied on section 47(3)(b) and section 49 of the RTI Act (that disclosure would, on balance, be contrary to the public interest.) [6] Application received 4 June 2021.[7] Application received 4 June 2021.[8] Under this section, 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.[9] Dated 5 June 2020.[10] As required under section 103(1) of the IP Act, by letter dated 8 July 2021. [11] By email dated 5 August 2021 and submission dated 17 November 2021.[12] Under section 59 of the IP Act.[13] Under section 103(1)(a) of the IP Act.[14] Rather, the decision notice was issued on 31 May 2021.[15] Under section 66 of the IP Act.[16] I note that QPS requested a longer period to consider the application on 4 May 2021, but this was after the end of the processing period. [17] Emails to QPS on 8 February 2022, 17 February 2022, and 18 February 2022.[18] Schedule 3, section 10(1)(f) of the RTI Act.[19] Section 121 (1)(a) of the IP Act.[20] Relevant provisions of which commenced on 1 January 2020. [21] 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].[22] XYZ at [573].[23] Application received on 4 June 2021.[24] This information appears on page 3-4 of the information located by QPS, at paragraph 16 to 21 of the warrant application.[25] Sections 47(3)(a) and 48 and schedule 3, section 10(1)(f) of the RTI Act.[26] As set out in its purported decision notice of 31 May 2021. [27] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act.[28] See Dawson-Wells v Office of the Information Commissioner & Anor [2020] QCATA 60 [15]-[17]. [29] Section 40 of the IP Act.[30] Section 67(1) of the IP Act and section 47 of the RTI Act.[31] Section 47(3)(a) of the RTI Act.[32] As set out in Harris and Queensland Police Service [2014] QICmr 10 (18 March 2014) at [11].[33] Dated 5 August 2021, 17 November 2021, 17 February 2022 and 10 March 2022. [34] Section 121(3) of the IP Act. [35] Section 121(3) of the IP Act. [36] Including the information in issue, and QPS’ submissions dated 5 August 2021, 17 November 2021, 17 February 2022 and 10 March 2022.[37] Submission dated 8 October 2021. [38] Schedule 3, section 10(2) of the RTI Act provides circumstances in which the exemption does not apply. None apply in this case.[39] Submission received 4 June 2021 and 8 October 2021.[40] Submission dated 8 October 2021.[41] Submission dated 8 October 2021.[42] Submission dated 8 October 2021.[43] Submission received on 4 June 2021 and 26 September 2021.[44] Section 64 of the IP Act.[45] Further, under section 118 of the IP Act, the Information Commissioner does not have the power to direct that access to an exempt document be granted. [46] [2021] VSC 632.

queensland

court_judgement

Queensland Information Commissioner 1993-

Gilmore and Department of Minerals and Energy [1995] QICmr 41; (1995) 3 QAR 26 (14 November 1995)

Gilmore and Department of Minerals and Energy [1995] QICmr 41; (1995) 3 QAR 26 (14 November 1995) OFFICE OF THE INFORMATION ) S 129 of 1994; S 137 of 1994;COMMISSIONER (QLD) ) S 138 of 1994; S 139 of 1994; S 148 of 1994; S 153 of 1994 (Decision No. 95026) Participants: S 129 of 1994 DENVER EDWARD BEANLAND Applicant - and - DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL Respondent S 137 of 1994 THOMAS JOHN GEORGE GILMORE Applicant - and - DEPARTMENT OF MINERALS AND ENERGY Respondent S 138 of 1994 ROBERT EDWARD BORBIDGE Applicant - and - DEPARTMENT OF THE PREMIER, ECONOMIC AND TRADE DEVELOPMENT Respondent S 139 of 1994 DAVID JEFFREY FAGAN Applicant - and - DEPARTMENT OF FAMILY SERVICES AND ABORIGINAL AND ISLANDER AFFAIRS Respondent S 148 of 1994 THEO RUSSELL COOPER Applicant - and - QUEENSLAND POLICE SERVICE Respondent S 153 of 1994 THEO RUSSELL COOPER Applicant - and - QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - documents in issue comprising briefing papers prepared by the respondent agencies to brief their respective Ministers for appearances before budget estimates committees of the Queensland Parliament - documents in issue placed before Cabinet after lodgement of the FOI access applications - whether documents in issue exempt under s.36(1)(a) of the Freedom of Information Act 1992 Qld. Freedom of Information Act 1992 Qld s.11(1)(b), s.28(1), s.36(1)(a), s.36(1)(d), s.36(1)(e), s.36(2), s.36(4), s.50(c)(i), s.79(1), s.81, s.85, s.86, s.87, s.88(2), s.92, s.93, s.110Freedom of Information Amendment Act 1993 QldFreedom of Information Amendment Act 1995 QldActs Interpretation Act 1954 Qld s.4, s.14B(1), s.14B(2), s.14B(3), s.20Parliamentary Papers Act 1992 Qld s.3 Manly v Ministry of Premier and Cabinet, Supreme Court of Western Australia, No. SJA 1143 of 1994, Owen J, 15 June 1995, unreportedWoodyatt and Minister for Corrective Services, Re (Information Commissioner Qld, Decision No. 95001, 13 February 1995, unreported) DECISION 1. In each of the applications for review, I set aside the decisions under review, and in substitution for them, I decide that the matter in issue in each case is exempt matter under s.36(1)(a) of the Freedom of Information Act 1992 Qld, as in force following its amendment in March 1995. 2. In respect of the application for review numbered S 137 of 1994, I note that the matter in issue for the purposes of this decision does not include the ten pages referred to in paragraph 2 of my reasons for decision. Date of Decision: 14 November 1995 ........................................................... F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS Page Background....................................................................................................................... 2 External review process................................................................................................... 5 Section 36(1)(a)....................................................................................................... 6 Initial investigations................................................................................................ 9 Objection to provision of further documents........................................................... 11 Ministerial briefing notes and respondent's submission............................................ 16 Amending legislation.............................................................................................. 17 Other exemptions claimed...................................................................................... 20 Application of s.36(1)(a) of the FOI Act.......................................................................... 21 Retrospective operation of legislation................................................................... 21 Time at which material facts are to be considered................................................ 22 Not a real submission............................................................................................. 23 Purpose of consideration........................................................................................ 23 Statistical matter..................................................................................................... 23 Findings in relation to s.36(1)(a)............................................................................. 23 Comments on the amendments to s.36............................................................................ 25 Conclusion ........................................................................................................................ 26 OFFICE OF THE INFORMATION ) S 129 of 1994; S 137 of 1994;COMMISSIONER (QLD) ) S 138 of 1994; S 139 of 1994; S 148 of 1994; S 153 of 1994 (Decision No. 95026) Participants: S 129 of 1994 DENVER EDWARD BEANLAND Applicant - and - DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL Respondent S 137 of 1994 THOMAS JOHN GEORGE GILMORE Applicant - and - DEPARTMENT OF MINERALS AND ENERGY Respondent S 138 of 1994 ROBERT EDWARD BORBIDGE Applicant - and - DEPARTMENT OF THE PREMIER, ECONOMIC AND TRADE DEVELOPMENT Respondent S 139 of 1994 DAVID JEFFREY FAGAN Applicant - and - DEPARTMENT OF FAMILY SERVICES AND ABORIGINAL AND ISLANDER AFFAIRS Respondent S 148 of 1994 THEO RUSSELL COOPER Applicant - and - QUEENSLAND POLICE SERVICE Respondent S 153 of 1994 THEO RUSSELL COOPER Applicant - and - QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent REASONS FOR DECISION Background 1. The applicants in these matters seek review of decisions refusing them access to documents created by the respective respondent agencies in connection with the budget approval process of the Queensland Parliament, in particular, for the purpose of briefing their respective Ministers for appearances before budget estimates committees of the Queensland Parliament in June 1994. It appears that the documents prepared for that purpose were later provided to a meeting of Cabinet, and on that basis the respondents claim that the documents are exempt under s.36(1)(a) of the Freedom of Information Act 1992 Qld (the FOI Act). 2. The issues to be dealt with in each of these applications for review coincide to such an extent that I consider it appropriate to deal with them together in these reasons for decision. This decision will deal with all documents in issue in five of the six applications for review, and all but ten pages of the documents in issue in the other application for review (that of Mr Gilmore, No. S 137 of 1994). Those ten pages (being the whole of document 16 and the attachments to documents 9, 10 and 17) do not form part of the documents in issue dealt with in these reasons for decision. I shall deal with them in a later decision if that proves necessary. 3. On 28 April 1994, the Legislative Assembly varied its procedures for consideration of the annual budget of the State by approving Sessional Orders for the establishment of six budget estimates committees. Prior to 1994, the annual budget papers had been subjected to the scrutiny of a committee of the whole Legislative Assembly. I understand that, in the past, only a limited number of Ministerial portfolios had been subject to scrutiny in any year but that, more recently, a process had been adopted whereby questions could be asked of any Minister concerning the budget estimates of a Department or agency within his or her portfolio. 4. The new process assigned the scrutiny of several portfolios to each budget estimates committee. For example, Estimates Committee C was allocated the portfolios of the Minister for Education, the Minister for Health and the Minister for Employment, Training and Industrial Relations. Each committee, comprising four government members and three opposition members, held hearings for one day in June 1994 and thereupon provided reports to the Legislative Assembly on the budget estimates for relevant portfolios. The budget was then debated by the Legislative Assembly and passed. 5. In the course of the hearings before the estimates committees, each Minister appeared and was questioned by committee members about matters relating to his or her portfolio. In order to better prepare Ministers to attend these hearings, various Departments prepared briefing papers for their respective Ministers. While there are variations in content between the briefing papers of different Departments, they generally contain summaries of the functioning of various units and programs for which the relevant Minister has responsibility, details of past, projected and proposed expenditure for units and programs, details of significant operational issues, and information on questions which might arise during the hearings before the relevant estimates committee. The documents prepared by the six respondent agencies for briefing their respective Ministers are the documents in issue in these reviews. I will refer to them as the budget estimates documents, or the documents in issue. 6. Between 4 July 1994 and 25 July 1994, each of the applicants applied to the relevant respondent agency for access, under the FOI Act, to its budget estimates documents. Material before me indicates that a number of other applications for access to budget estimates documents were made by other persons, one being made as early as 23 June 1994, but the six now under consideration are the only ones which have been pursued to external review. The four applicants who are Members of the Legislative Assembly (the "MLA applicants") applied for budget estimates documents relating to their shadow portfolios. Mr Fagan, a journalist, applied for the budget estimates documents of the Department of Family Services and Aboriginal and Islander Affairs (and of some other agencies, but he has not pursued his applications to other agencies through to the stage of external review). 7. Initial decisions of the respondent agencies were provided to all applicants, other than Mr Fagan, between 22 July and 6 September 1994. No decision had been provided to Mr Fagan by 16 September 1994, when he made his application for external review under Part 5 of the FOI Act on the basis of a deemed refusal of access (see s.79(1) of the FOI Act). 8. Each respondent determined that the documents in issue were exempt under s.36(1) of the FOI Act (as worded prior to its amendment in March 1995 - see paragraph 15 below) with particular reference to s.36(1)(a). For example, Ms L Barratt, Freedom of Information Co-ordinator of the Department of Justice and Attorney-General, found that the budget estimates documents of that Department were exempt under s.36(1)(a) of the FOI Act, stating: All the documents you request have been submitted to Cabinet for its consideration. I have perused the confidential Cabinet minute evidencing this. I consider that all the documents are exempt in accordance with s.36(1) of the Act, and accordingly, access to them is refused. 9. In addition to s.36(1)(a), initial decision-makers in other respondent agencies determined that some or all of their budget estimates documents were also exempt under s.36(1)(d) and s.36(1)(g) (which was amended in March 1995 and redesignated as s.36(1)(e)). 10. The MLA applicants then each applied for internal review on dates ranging between 26 July and 21 September 1994. Internal review decisions were given on dates ranging between 11 August and 29 September 1994: in each case the initial decision was affirmed. 11. Each of the applicants applied to the Information Commissioner for review under Part 5 of the FOI Act, on dates ranging between 15 August and 21 October 1994. In their applications for external review, three of the applicants raised specific arguments as to why they considered that the documents in issue were not exempt under s.36(1). In his application for review dated 15 August 1994, Mr Beanland stated: I now write to ask you to review this decision. Enclosed please find copy of speech which I recently made in Parliament on 5 August on this issue, the particularly relevant section being on page 8903 [of Hansard, 5 August 1994]. It is apparent to me from information that I have been given that these matters were referred to the Cabinet retrospectively, that is after the Estimates Committee hearings and in this instance also following my request to the Attorney-General on 15 July 1994. Further, the Attorney-General's failure to state on ABC radio when challenged or to have the courage to debate me on ABC television confirms in my mind that this did indeed occur. You would be well aware of the changes the Government made last November to broaden the Cabinet exemption provisions to enable them to be able to claim a wide body of material as Cabinet exempt. However, nowhere within the exemption definition does the word "retrospective" appear nor is there any inference that matters can be referred after the event to Cabinet in order to protect the Minister. In my application to you to review this matter, I ask that you carefully look at the legal aspects of the issue, and whether the Minister can in fact claim Cabinet exemption after the event. If so, of course, it makes an even greater mockery of what has become useless and farcical legislation, where non-personal and sensitive issues involving the Government are concerned. 12. Mr Gilmore, in his application for review dated 13 September 1994, stated: My application for a review was based on my belief that the decision not to allow me access to the subject documents was clearly against the spirit of the Freedom of Information Act, and the many statements which have been made by Ministers of the Crown, since its introduction. It appears to me that the tabling of the documents applied for at the country Cabinet meeting in Mount Isa was a ploy, designed to circumvent the provisions of the Freedom of Information Act. It is also my view that the documents were not tabled for the deliberation of Cabinet, and, in fact, were never looked at by Cabinet Ministers. It is, therefore, in my view, likely that the mere tabling of the documentation was insufficient action by the Cabinet to create exemption for the documents under the Act. 13. In his application for review dated 15 September 1994, Mr Borbidge made the following submissions: 1. The documents in issue did not in fact form a submission to Cabinet as they did not comply with the requirements of the Queensland Cabinet Handbook (1992) in that they were not a Policy Submission, an Authority to Introduce a Bill or an Authority to Forward Significant Subordinate Legislation and access to the documents in issue should be provided because they are not exempt matter for the purpose of s.36(1)(a); Alternately, The documents in issue were submitted to Cabinet but not for the purpose of "its consideration". The documents did not receive any consideration by the Cabinet and access to the documents should be provided because they are not exempt matter for the purposes of s.36(1)(a). 2. The disclosure of the documents in issue would not disclose deliberations or decisions of Cabinet which have not been officially published by decision of Cabinet. The Information Commissioner in Hudson v Department of the Premier, Economic and Trade Development [1993] QICmr 4; (1993) 1 QAR 123 approved of the meaning ascribed to the term "deliberation of Cabinet" by the AAT in Re Porter and Department of Community Services and Health (1988) ALD 403 and noted "It is only documents created contemporaneously with, or subsequent to, active discussion and debate within Cabinet, that in my opinion are capable of disclosing any deliberation of Cabinet." Thus the documents in issue are not exempt matter for the purposes of s.36(1)(g) as they are incapable of disclosing any deliberation or decision of Cabinet as the documents in issue were not created contemporaneously with, or subsequent to, active discussion and debate within the Cabinet. The documents in issue therefore do not disclose any deliberation of Cabinet. Furthermore it can not be assumed that there were any deliberations of Cabinet in respect of matter contained in a document simply because that document was before Cabinet. 3. Section 36(2) provides that matter is not exempt under subsection (1) if it is merely statistical, scientific or technical matter. I would submit that the process of identifying matter in the Folios which "could be characterised as 'merely', 'purely' or 'simply' statistical in nature" (paragraph (3) and (4) of [the relevant internal review decision made by Mr E J Bigby on behalf of the] Department of the Premier, Economic and Trade Development, dated 13th September 1994) is sufficient to identify material which is excepted from exemption by s.36(2) and which can be excised. The fact that the material can be so identified means that it is not so inter-woven that it can not be excised. It is therefore practicable to do so in accordance with s.32(b) and access should be provided to a copy of the document from which the exempt matter has been deleted. 4. The phrase "it is practicable to give access" (s.32(b)) should not be qualified by reference to the nature and extent of the work involved and the resources available in deciding the deletions necessary. (Re Carver and the Department of the Prime Minister and Cabinet (1987) 6 AAR 317). Mr Bigby's refusal to permit access is based upon such a consideration. The external review process 14. For ease of understanding, it is appropriate that I divide discussion of the external review process into two parts. I will first describe the external review process in respect of the claim that the documents in issue are exempt under s.36(1)(a) of the FOI Act, before dealing with the external review process in respect of other exemption claims. Section 36(1)(a) 15. The main provision in contention in these external reviews was s.36(1)(a) of the FOI Act. Section 36 was amended during the course of the review. Prior to its amendment, which took effect from 23 March 1995, s.36 of the FOI Act was in the following terms: 36.(1) Matter is exempt matter if- (a) it has been submitted to Cabinet for its consideration; or (b) it was prepared for submission to Cabinet for its consideration and is proposed, or has at any time been proposed, by a Minister to be submitted to Cabinet for its consideration; or (c) it was prepared for briefing a Minister about an issue proposed, or that has at any time been proposed, to be considered by Cabinet; or (d) it forms part of an official record of Cabinet; or (e) it is a draft of matter mentioned in paragraph (a), (b), (c), or (d); or (f) it is a copy of, or contains an extract from, matter or a draft of matter mentioned in paragraph (a), (b), (c) or (d); or (g) its disclosure would involve the disclosure of any deliberation or decision of Cabinet, other than matter that has been officially published by decision of Cabinet; (2) Matter is not exempt under subsection (1) if it is merely statistical, scientific or technical matter unless- (a) the disclosure of the matter under this Act would involve the disclosure of any deliberation or decision of Cabinet; and (b) the fact of the deliberation or decision has not been officially published by decision of Cabinet. (3) For the purposes of this Act, a certificate signed by the Minister certifying that matter is of a kind mentioned in subsection (1), but not of a kind mentioned in subsection (2), establishes, subject to Part 5, that it is exempt matter. (4) In this section - "Cabinet" includes a Cabinet committee. "matter" includes matter that was prepared before the commencement of the Freedom of Information Amendment Act 1993. 16. Following amendments made by the Freedom of Information Amendment Act 1995 (which took effect from 23 March 1995 and were expressed to have retrospective effect), s.36 now provides: 36.(1) Matter is exempt matter if - (a) it has been submitted to Cabinet; or (b) it was prepared for submission to Cabinet and is proposed, or has at any time been proposed, by a Minister to be submitted to Cabinet; or (c) it was prepared for briefing, or the use of, a Minister or chief executive in relation to a matter - (i) submitted to Cabinet; or (ii) that is proposed, or has at any time been proposed, to be submitted to Cabinet by a Minister; or (d) it is, or forms part of, an official record of Cabinet; or (e) its disclosure would involve the disclosure of any consideration of Cabinet or could otherwise prejudice the confidentiality of Cabinet considerations or operations; or (f) it is a draft of matter mentioned in paragraphs (a) to (e); or (g) it is a copy of or extract from, or part of a copy of or extract from, matter mentioned in paragraphs (a) to (f). (2) Subsection (1) does not apply to matter officially published by decision of Cabinet. (3) A certificate signed by the Minister stating that specified matter would, if it existed, be exempt matter mentioned in subsection (1), but not matter mentioned in subsection (2), establishes, subject to part 5, that, if the matter exists, it is exempt matter under this section. (4) In this section - "Cabinet" includes a Cabinet committee or subcommittee. "chief executive" means a chief executive of a unit of the public sector. "consideration" includes - (a) discussion, deliberation, noting (with or without discussion) or decision; and (b) consideration for any purpose, including, for example, for information or to make a decision. "draft" includes a preliminary or working draft. "official record", of Cabinet, includes an official record of matters submitted to Cabinet. "submit" matter to Cabinet includes bring the matter to Cabinet, irrespective of the purpose of submitting the matter to Cabinet, the nature of the matter or the way in which Cabinet deals with the matter. 17. From the initial submissions made by three of the applicants (see paragraphs 11-13 above), I identified four arguments contending that s.36(1)(a) (as in force prior to 23 March 1995) was either inapplicable in the case of the documents in issue, or only partly applicable to those documents. I summarise these arguments below: (a) Time at which material facts are to be considered In respect of FOI access applications lodged before the date of the Cabinet meeting at which the budget estimates documents were present, it was argued that the facts as they stood at the time of lodgement of the FOI access application should be the relevant facts for determination of whether the requested documents are exempt. It was argued that if requested documents were not exempt at the time of lodgment of the FOI access application, they could not be made exempt by later submission to Cabinet. (b) No real submission to Cabinet It was also suggested that the submission to Cabinet of the budget estimates documents did not fit within any of the categories of submission recognised by the Queensland Cabinet Handbook, and the budget estimates documents could not therefore be said to have been formally "submitted" to Cabinet. This claim was, of course, made without the applicants having the opportunity (available to me) of examining the relevant Cabinet submission. (c) A purposive requirement It was argued that the words "for its consideration" in s.36(1)(a) meant that any submission of documents to Cabinet had to be for the purpose of their consideration by Cabinet and that merely placing documents in the Cabinet room without the intention that they be "considered" by Cabinet would not be sufficient to meet the test for exemption under s.36(1)(a). This claim raised two issues. The first was a question of interpretation of s.36(1)(a), namely, whether the words "for its consideration" added a purposive requirement to the verb "submitted". The second was a question of fact: if there was a purposive requirement, was that requirement satisfied in the particular circumstances of these reviews, i.e. was the matter in issue submitted to Cabinet for its consideration? I formed the view that the first issue was sufficiently arguable to warrant a concurrent investigation of both issues. (d) Merely statistical matter It was also argued that at least part of the matter in the documents in issue was "merely" statistical matter and that, by virtue of s.36(2) of the FOI Act, it did not qualify for exemption under s.36(1). It was clear from my own examination of the documents in issue that they contained some matter which arguably fell within the terms of s.36(2) of the FOI Act (as worded prior to its amendment in March 1995). Initial investigations 18. In letters dated between 23 September and 28 October 1994, I asked each of the respondent agencies to provide me with copies of the documents in issue. I also alerted the relevant respondent agencies to some of the points raised by Messrs Beanland, Gilmore and Borbidge, in their applications for review. In addition, I indicated to each agency that the onus lay on it to establish that the documents in issue comprised exempt matter (see s.81 of the FOI Act), and invited each to provide evidence to establish the material facts which would attract the application of the exemption provisions relied upon. For example, after quoting a part of Mr Borbidge's application for external review in a letter to the Department of the Premier, Economic and Trade Development (the Premier's Department), I stated: It seems therefore that evidence will have to be obtained from someone with personal knowledge of the relevant facts, to establish that the documents in issue have been submitted to Cabinet, for consideration by Cabinet. The relevant witness or witnesses will need to be available for cross examination, if necessary, on any evidence which is lodged. Evidence should be lodged in the form of sworn affidavits or statutory declarations, which annex as exhibits any relevant documentary evidence. 19. In each case, the documents in issue were obtained and examined. The volume of documents was substantial, the smallest bundle comprising approximately 100 pages, while the largest set of agency briefing papers comprised more than 800 pages. By letter dated 28 October 1994 from the Premier's Department, I was provided with a statutory declaration made on the same date by Peter John Stanley, a Cabinet Officer. I was later advised by each of the respondents that they relied on the evidence in this statutory declaration to establish their contentions that the documents in issue were exempt under s.36(1)(a) of the FOI Act. Mr Stanley declared: On Friday 15 July 1994, I supervised the preparation, for transport to Mt Isa, of documents which were prepared by Departments for the purpose of briefing their respective Ministers during the June 1994 Parliamentary Estimates Committee Hearings. The documents formed part of a Submission which appeared on the Cabinet Business List for 18 July 1994. On Monday 18 July 1994, I placed the documents in the Mt Isa City Council Chambers which were being used as the Cabinet room on that day, and I removed them after the Cabinet meeting had finished. I am aware that a Cabinet meeting took place in the room. 20. Following examination of the documents in issue and Mr Stanley's statutory declaration, I requested (by letter dated 2 November 1994 to the Crown Solicitor, who ultimately acted on behalf of all respondents) copies of the Cabinet submission referred to in Mr Stanley's statutory declaration, any official record of Cabinet relating to that Cabinet submission, and any decision of Cabinet relating to Cabinet's consideration of that Cabinet submission; these documents being relevant to my consideration of the claims for exemption under s.36(1)(a) and s.36(1)(g) (now s.36(1)(e)) of the FOI Act. The requested documents were subsequently provided to me under cover of a letter dated 14 November 1994. 21. On or about 18 January 1995, I wrote to each of the applicants, advising them, inter alia, of the arguments which I had identified as having been raised by the applicants in support of their contentions that the documents in issue were not exempt. I indicated my preliminary view that the first and second arguments set out at paragraph 17 above would not prove successful, and asked the applicants to confirm in writing if they accepted my preliminary views on those points. I have received no such confirmation, so I have briefly dealt with those arguments at paragraphs 57-59 below. 22. Also on or about 18 January 1995, I wrote to each of the respondents advising them of my preliminary views in relation to several claims for exemption that had been raised, and inviting them to lodge further evidence and written submissions in support of their contentions that the documents in issue were exempt. As to argument (d) listed at paragraph 17 above, I conveyed to the respondents my preliminary view that there was a considerable amount of matter which could be described as "merely statistical", and outlined my suggested approach as to how the extent of such matter might be assessed. In relation to argument (c) listed at paragraph 17 above, I made the following comments: 9. ... it is apparent that the applicants wish to argue that the submission of the Budget Estimates documents to Cabinet was a sham, in that they were not submitted for Cabinet's consideration, but only for the purpose of giving a colourable pretext to claim exemption under s.36(1) of the FOI Act, after the receipt (or foreshadowed receipt) of FOI access applications for the briefing documents prepared for certain Ministers. 10. Reliance on s.36(1)(a) requires that it be established not only that documents have been submitted to Cabinet, but that they have been submitted to Cabinet for consideration by Cabinet. The words "for its consideration" add a purposive requirement to the verb "submitted". 11. To date, you have provided me with a statutory declaration of Peter John Stanley dated 28 October 1994 (on which five agencies are relying) and a copy of Cabinet Submission No. 03758 (and some associated records of Cabinet). Mr Stanley states that the Budget Estimates documents formed part of a Submission (which I take to be Cabinet Submission No. 03758) on the Cabinet business list for 18 July 1994. Clearly, however, they were not circulated to Ministers beforehand, as an attachment to Cabinet Submission No. 03758. That submission recommends ... . There may be an issue of substance as to whether "noting" certain documents is materially different in nature and degree from "considering" certain documents. 12. Mr Stanley's declaration establishes that the Budget Estimates documents were present in the Cabinet room during the course of the Cabinet meeting on 18 July 1994. It is also apparent, however, (from the number of documents provided to me from just six agencies) that the Budget Estimates documents must have comprised many thousands of pages. In my preliminary view, it will be difficult to draw the inference that such a volume of documents could seriously have been submitted for consideration by Cabinet, in connection with one submission on a Cabinet Business List of some two and a half pages in length. 13. The application of s.36(1)(a) is obviously one of the crucial issues in these cases, and I consider that it requires further investigation on my part. To this end, I request that you provide me with complete copies of all files ... which relate to the preparation, and placement before Cabinet, of Cabinet Submission No. 03758. I request that copies of those files be produced to my Office (at Level 25, Jetset Centre, 288 Edward Street, Brisbane) on or before Tuesday, 31 January 1995. The copies will be used only for the purposes of my investigation and review under Part 5 of the FOI Act, and will be returned to you on its completion. Objection to provision of further documents 23. An objection was raised to the provision of the documents I requested at paragraph 13 of my letter dated 18 January 1995. In a letter dated 6 February 1995, the Crown Solicitor insisted that I withdraw my request, stating: To arrive at a proper construction of s.36(1)(a) of the FOI Act, it is legitimate to have regard to the relevant explanatory notes which accompanied the amending Bill [which became the Freedom of Information Amendment Act 1993, which I shall refer to in these reasons for decision as the 1993 Amendment Act] (see s.14B of the Acts Interpretation Act 1954). The explanatory notes, where relevant, provided as follows:- "Reasons for the Bill The amendments concerning the Cabinet and Executive Council exemptions are necessary to ensure the preservation of the conventions of collective and individual Ministerial responsibility. These conventions are fundamental to a democratic government based on the Westminster system. The purpose of collective Ministerial responsibility is to ensure that Cabinet is responsible to the Parliament and, through the Parliament, to the electorate. Part of that convention requires that Cabinet papers are confidential. It was never the intention of the legislature to compromise the fundamental convention of collective Ministerial responsibility by allowing the accessibility of a significant amount of Cabinet material under the Freedom of Information Act. In particular, it was never the legislature's intention to permit the release of expressions of opinion of the sponsoring Minister or implicitly reveal the particular position adopted by a Minister or Ministers. Ensuring the preservation of the important conventions of collective and Ministerial responsibility is consonant with the reasons of the Act as stated in s.5. Subsection 5(2) expressly recognises that there are often competing interests in that disclosure of particular information could be contrary to the public interest because disclosure would have an adverse effect on essential public interests. The section finally declares that the aim of the Act is to strike a balance between those competing public interests. The aim of the amendments to the Cabinet and Executive Council exemptions is to confirm the original intention of exempting Cabinet and Executive Council material in such a way as to preserve the conventions of collective and individual Ministerial responsibility." In my view, it was plainly not the intention of Parliament that in order to satisfy the requirements of s.36(1)(a) of the FOI Act it is necessary to obtain evidence from within the Cabinet as to whether the Cabinet actually considered the relevant documents. Such a construction would be contrary to the language of the section and inconsistent with the reasons underlying the amendments as outlined in the relevant explanatory notes. The proper construction of s.36(1) of the FOI Act is that, if the documents in question were submitted to Cabinet for its consideration, then the exemption is satisfied. There is simply no warrant to proceed further in an attempt to discover what actually happened at the Cabinet meeting. In relation to the claim for exemption under s.36(1)(a) of the FOI Act you have before you the following documents:- (a) A statutory declaration from Peter John Stanley which deposes to the fact that the relevant documents were part of a Cabinet submission and further that the relevant documents were placed within the Cabinet room prior to the Cabinet meeting; (b) A Cabinet submission ... (c) A Cabinet minute ... This material, on any reasonable view, establishes the application of s.36(1)(a) of the FOI Act. In view of the proper construction of s.36(1)(a) of the FOI Act and the factual material already before you, I am instructed to object to the production to you of the documents in question. In order to be properly amenable to production under s.85 of the FOI Act the document must be "relevant to a review under this Division" [external review]. In view of the evidence already before you, the documentation that has been requested is not relevant in terms of this review. In particular, I am instructed to take issue with you regarding your assertions made in paragraph 12 of your letter. There, you remark as follows:- "...it will be difficult to draw the inference that such a volume of documents [many thousands of pages] could seriously have been submitted for consideration by Cabinet...". On my instructions, Cabinet often considers large amounts of material submitted to it. Whether, and to what extent, particular reference is made to particular information depends on the exigencies of the matter for consideration. It is wrong, and as I have said irrelevant, to speculate as to what occurred in Cabinet simply by reference to the size of the material submitted. To adopt such an approach would lead to the opening up of the debate as to what actually happened inside the Cabinet room. This, in my view, would clearly be inappropriate and lead to this review proceeding down an erroneous path having regard to the proper construction and meaning of s.36(1)(a) of the FOI Act. Finally, it seems with respect that in this review you are attempting to investigate an issue that is simply not open on a plain reading of material presently before you. The Cabinet documents before you are unambiguous in their terms. There is no justification whatsoever in the Cabinet material before you to support an allegation that the submission of the Estimates briefing notes in question to Cabinet was a sham. The material before you clearly shows that there was a genuine submission of the documents in question to Cabinet for its consideration. In these circumstances, I suggest with respect that any further inquiry in this regard is simply not justified. 24. I note that the respondents could have avoided the necessity for any inquiry by my office which they consider may have intruded into "the Cabinet room", by exercising the discretion each had, under s.28(1) of the FOI Act, to release documents even if they considered them to be technically exempt (an option which I had suggested in my letters to the respondents dated 18 January 1995: see paragraph 67 below). The applicants in this case were not seeking to intrude into "the Cabinet Room". The documents to which they sought access had no connection with the Cabinet process, until one was created by the actions of the respondents. The documents were prepared for the benefit of Ministers appearing before budget estimates committees of the Parliament, and the purpose for their creation had been satisfied before the first of the FOI access applications for budget estimates documents was lodged. The documents could have been disclosed at first instance in the exercise of the discretion conferred by s.28(1) of the FOI Act, without any indication that they had been sent to Cabinet. It is only the fact that the respondent agencies decided to claim exemptions under s.36(1) of the FOI Act that has alerted the applicants to the fact that the documents in issue were ever placed before Cabinet. 25. Even now the release of the documents in issue would shed no light on the reason why they were presented to Cabinet, nor disclose any deliberation or decision of Cabinet arising from Cabinet's consideration of Cabinet Submission No. 03758. The continued withholding of these documents cannot logically have anything to do with protecting the secrecy of discussions in Cabinet or the views of individual Ministers on issues submitted to Cabinet, with respect to Cabinet Submission No. 03758: disclosure of their contents would involve no intrusion into "the Cabinet room". (In so saying, I do not discount the possibility that some of the matter in issue may be exempt under exemption provisions other than s.36, or even that, in isolated instances, some of the matter in issue might be exempt under s.36 because it had been submitted to Cabinet for its consideration, or would disclose deliberations of Cabinet which occurred, prior to the use of that matter for briefing a Minister for an appearance before a budget estimates committee. However, no case has been put to me on that basis.) 26. I responded to the Crown Solicitor by letter dated 16 February 1995, repeating my request for copies of documents, and stating by way of explanation: [There is a] mistaken assumption in your letter of 6 February 1995 (especially at pp.3-4) ... that I regard it as "necessary to obtain evidence from within the Cabinet as to whether the Cabinet actually considered the relevant documents" or that I am attempting "to discover what actually happened at the Cabinet meeting". As should be clear from paragraphs 7(a) and 10 of my letter to the respondent dated 18 January 1995, I am well aware that s.36(1)(a) of the FOI Act focuses on the purpose of submission of documents or matter to Cabinet. To the extent that what transpired in Cabinet (after the documents in issue were submitted to Cabinet) is relevant to that issue, I do not for the moment (subject to anything raised in the applicants' evidence and submissions) see any need to go beyond the material which the respondent has already provided to me. The request in my letter of 18 January 1995 was for files relating to the preparation, and placement before Cabinet, of Cabinet Submission No. 03758. In making that request I did not seek to obtain copies of material that indicates what happened in the Cabinet room. My particular concern was to obtain copies of documents leading up to the placement before Cabinet of the submission, including all documents relating to the development of the submission and the collection and collation of all the documents in issue in this review. In my view, such documents are clearly relevant to the question of the purpose for which documents were submitted to Cabinet, this being a proper question for investigation under s.36(1)(a) of the FOI Act. The applicant has raised the issue of whether or not the submission to Cabinet, of the Departmental briefings given to Ministers appearing before Estimates Committees, was a sham. It can hardly be irrelevant for me to investigate whether or not there is any substance in the allegation. My ultimate findings may well be in accordance with what you assert in your letter. On the other hand, the material so far provided to me may not tell the whole story with respect to that issue. The assertion implicit in your letter of 6 February 1995 is that I am obliged to accept that the material so far provided to me by the respondent forecloses any finding other than the affirmation of the respondent's decision under review, that any further documents which I may seek are therefore necessarily irrelevant, and that I therefore have no power to seek any further documents. With respect, that is insupportable. I am entitled to seek access to documents which are relevant because they relate to an issue that is in controversy between the participants, even though the documents may ultimately only confirm that one participant's contentions have no substance. I remain of the view that the documents I have requested are relevant to my review. I therefore renew my request... . So that there are no misunderstandings, let me make it quite clear that my request seeks only copies of documents which were created prior to the commencement of the meeting of Cabinet held on 18 July 1994. 27. As can be seen from the Crown Solicitor's letter dated 6 February 1995, the submission of the respondents was that the wording of s.36(1)(a), when read in conjunction with the explanatory note which accompanied the 1993 Amendment Act, made it clear beyond doubt that s.36(1)(a) (as worded prior to its amendment in March 1995) applied to the documents in issue. However, I was then, and still remain, of the view that the correct interpretation of s.36(1)(a) prior to its amendment in March 1995 was as set out in paragraph 10 of my letter quoted at paragraph 22 above. 28. Notwithstanding the submissions made by the Crown Solicitor in his letter dated 6 February 1995 and the assertions attributed (in a subsequent letter) to the then Minister for Justice and Attorney-General as to the intentions of Parliament (see paragraph 40 below), it is my obligation to interpret legislation made by Parliament according to accepted canons of statutory interpretation developed by the courts, and principles laid down in the Acts Interpretation Act 1954 Qld. There is a statutory basis for referring to extrinsic materials in the interpretation of legislation, which is set out in the Acts Interpretation Act 1954. Section 14B(3) of that Act provides a definition of "extrinsic material" which includes an explanatory note or memorandum to a Bill. Section 14B(1) and s.14B(2) provide: 14B.(1) Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation - (a) if the provision is ambiguous or obscure - to provide an interpretation of it; or (b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable - to provide an interpretation that avoids such a result; or (c) in any other case - to confirm the interpretation conveyed by the ordinary meaning of the provision. (2) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to - (a) the desirability of a provision being interpreted as having its ordinary meaning; and (b) the undesirability of prolonging proceedings without compensating advantage; and (c) other relevant matters. 29. In my view, there is a strong argument that the meaning of s.36(1)(a) (as in force prior to 23 March 1995) was plain on its face. I could not readily identify any ambiguity or obscurity in the provision. None was brought to my attention by the respondents. It is a basic canon of statutory interpretation that all words in a statutory provision must, prima facie, be given some meaning and effect: see D C Pearce and R S Geddes, Statutory Interpretation in Australia, 3rd ed, 1988, at p.18, paragraph 2.7, and the cases there cited. To give meaning and effect to the words "for its consideration" within the context of s.36(1)(a), the natural interpretation is that they add a purposive element to the verb "submitted". Thus, to qualify for the exemption, it was necessary to establish that matter had been submitted to Cabinet for a purpose, i.e. for Cabinet's consideration. It would be necessary, therefore, to inquire into the purpose for which the matter in issue had been submitted to Cabinet, and to establish that the matter in issue was submitted to Cabinet for its consideration. Interpretation of s.36(1)(a) in that manner would not have led to a manifestly absurd or unreasonable result, so arguably there was no warrant for resort to extrinsic material as an aid in the interpretation of the provision. 30. Nor am I convinced that the wording of the explanatory note (if it were permissible that it be taken into account) would have precluded interpretation of s.36(1)(a) as requiring a purposive element. On the introduction of the FOI Act in 1992, s.36(1)(a) had read: 36.(1) Matter is exempt matter if - (a) it has been submitted, or is proposed by a Minister to be submitted, to Cabinet for its consideration and was brought into existence for the purpose of submission for consideration by Cabinet; ... 31. In addition to the general "Reasons for the Bill" quoted in the Crown Solicitor's letter (see paragraph 23 above), the explanatory note to the 1993 Amendment Act went on to explain the 1993 amendment to s.36(1)(a) in these terms: New paragraph (a) means that all documents which actually come before Cabinet will automatically fall within the exemption. This means that a purposive test (i.e. that the Cabinet document was created for the sole purpose of submission to Cabinet) is not required in relation to documents that are actually submitted to Cabinet. 32. In the original s.36(1)(a) there were, in my view, two purposive elements: the first that matter be submitted or proposed to be submitted to Cabinet for its consideration; and the second that the matter was brought into existence for the purpose of submission for consideration by Cabinet. There is no doubt that the 1993 Amendment Act did remove a purposive test, i.e. the second one referred to in this paragraph, being the purposive test identified in the extract from the explanatory note quoted above. However, the same wording which, in my view, gave rise to the first purposive element identified in this paragraph, remained in s.36(1)(a) following its amendment by the 1993 Amendment Act. 33. There was, therefore, a substantive argument before me that for exemption under s.36(1)(a) to be established, I must be satisfied that the purpose of the submission of the matter in issue to Cabinet was for its consideration by Cabinet. I was certainly not in a position to ignore the claims of the applicants in that regard, solely on the basis of the respondents' assertions to the contrary (cf. Manly v Ministry of Premier and Cabinet, Supreme Court of Western Australia, No. SJA 1143 of 1994, Owen J, 15 June 1995, unreported, at pp.27-28). Ministerial briefing notes and respondent's submission 34. The Crown Solicitor responded to my letter dated 16 February 1995 (see paragraph 26 above) by forwarding copies of the documents I had requested, under cover of a letter dated 23 February 1995. Those documents, which originated within the Department of the Minister who ultimately took Cabinet Submission No. 03758 to Cabinet, were: (a) Ministerial submission dated 1 July 1994; (b) Ministerial submission dated 8 July 1994 with annexure (being a letter dated 8 July 1994 from the Acting Clerk of the Parliament); (c) Ministerial submission dated 15 July 1994 with annexure (being a legal opinion dated 15 July 1994); (d) Cabinet briefing paper dated 15 July 1994; and (e) Ministerial submission dated 15 July 1994. 35. The documents produced to me (in particular, the issues canvassed in documents (a), (b) and (c) above) afforded evidence which, in my opinion, was capable of supporting a finding that the matter in issue was not submitted to Cabinet for its consideration, but was submitted to Cabinet for the purpose of enabling exemption to be claimed under s.36(1)(a) of the FOI Act. 36. Sworn evidence which put a different complexion on events was, however, subsequently provided to me by a senior officer within the Department of the Minister who ultimately took Cabinet Submission No. 03758 to Cabinet. In a statutory declaration dated 10 March 1995 (a heavily edited copy of which has been supplied to the applicants), that senior officer deposes to certain matters, the effect of which I must paraphrase in these terms - ? that his Minister had instructed him, at a time several months before the holding of the Estimates Committee hearings, that a Cabinet submission, dealing with the subject ultimately dealt with in Cabinet Submission No. 03758, was to go before Cabinet. ? that his Minister's intention to have Cabinet Submission No. 03758 go before Cabinet was not provoked, or influenced, by the lodgement of FOI access applications for the budget estimates documents. 37. As I have said, the documents referred to in paragraph 34 above, looked at in isolation, are capable of supporting a different finding. Indeed, accepting the truth of the facts deposed to in the senior officer's statutory declaration, the timing of the documents referred to in paragraph 34 above and the issues they canvass, relative to the timing of the preparation of Cabinet Submission No. 03758 for consideration at a Cabinet meeting on 18 July 1994, are nevertheless capable of supporting a finding that, even if the subject of Cabinet Submission No. 03758 had long been intended for submission to Cabinet, the timing of its submission was accelerated for the purpose of allowing the budget estimates documents to be forwarded to Cabinet (as background/reference material to its consideration of Cabinet Submission No. 03758) in order to be rendered 'Cabinet exempt' within the statutory time frame for responding to the FOI access applications which had been lodged, seeking access to the budget estimates documents. 38. I cannot disclose the subject-matter of Cabinet Submission No. 03758, other than to say it concerns a fairly routine matter of internal government "housekeeping", and that it was not irrelevant to have the budget estimates documents available as background/reference material to its consideration. While it was also, arguably, unnecessary to have the budget estimates documents available, I did not regard s.36(1)(a) (as in force prior to the March 1995 amendments) as warranting any inquiry as to what material Cabinet regards as necessary or desirable to assist its deliberations, provided I was satisfied that the material had been submitted to Cabinet for the purpose of its consideration by Cabinet. In this regard, I remained troubled (especially in the light of the contents of the documents referred to in paragraph 34 above) about whether several thousand folios of budget estimates documents could seriously have been submitted to Cabinet for the purpose of their consideration by Cabinet. 39. I was in the course of considering what further procedural steps would be necessary to test the evidence then before me (e.g. convening an oral hearing to allow cross-examination of the respondents' deponents, or arranging to question other relevant witnesses), when the government introduced amendments to s.36 of the FOI Act which made further consideration of the issue redundant: see the Freedom of Information Amendment Act 1995 Qld (the 1995 Amendment Act). Amending legislation 40. On 22 March 1995, I received a letter from the Crown Solicitor in the following terms: I am instructed by the Honourable the Attorney-General to advise you as follows. The Freedom of Information Amendment Bill 1995 was introduced into the House last night. The Bill contains amendments to sections 36 and 37 of the Freedom of Information Act 1992 Qld (the Act). I attach a copy of the Bill, Explanatory Notes and Second Reading Speech. I am instructed to inform you of the Government's reasons for the amendments contained in the Bill. As you are aware, sections 36 and 37 were amended in 1993. I am instructed that the Parliament's intention at that time was to remove the purposive element in those sections and exempt all matter that came before Cabinet. This is made abundantly clear in the Explanatory Notes, which state: "New paragraph (a) means that all documents which actually come before the Cabinet will automatically fall within the exemption. This means that a purposive test (i.e. that the Cabinet document was created for the sole purpose of submission to Cabinet) is not required in relation to documents that are actually submitted to Cabinet". Recently, you have provided a preliminary view on an existing review regarding Cabinet documents. You have indicated that the words "for its consideration" add a purposive element to s.36(1)(a). I am instructed to inform you that Parliament's intention in 1993 was to remove this purposive element. These amendments will put Parliament's intention into effect. For this reason I am instructed that the Government has decided that the amendments will have a retrospective effect. I am further instructed to inform you that the Government does not consider it appropriate that the Act be used as a means of inquiring into the Cabinet Room or the reason that a matter was brought to the attention of Cabinet. In the Government's view it is not appropriate for the Government to have to enter into extended debate as to the nature or extent of Cabinet deliberations or the reasons it was considered necessary for Cabinet to consider issues placed before it, and that such inquiries are contrary to the very purpose of the Cabinet exemption, which is to protect the confidentiality and integrity of the Cabinet process. Accordingly, I am instructed to inform you that the Government is strongly of the view that it is in the public interest to maintain the confidentiality and integrity of the Cabinet process, and that Cabinet must have the ability to discuss matters without the threat of access to documents, or parts of documents, under the Act. To provide certainty, and the requisite security to the Cabinet process, the amendments are intended by the Government to ensure the Queensland Freedom of Information Act will operate so that all documents and matter, including statistical, scientific and technical matter, brought to Cabinet will be exempt from access under the Act. It is in the Government's view clearly a matter for Cabinet itself as to whether and to what extent it considers the material before it. 41. The fourth and fifth paragraphs quoted above essentially mirror the arguments put forward in the Crown Solicitor's letter of 6 February 1995. As I indicated above (see paragraphs 28-33), it is necessary for me to interpret the provisions of the FOI Act according to accepted methods of statutory interpretation. 42. It is somewhat ambiguous as to whether the second last paragraph quoted above is directed to my investigative process in the course of this review, or to the uses that applicants may seek to make of the FOI Act. Certainly, the applicants in this case were not seeking to inquire into the Cabinet room or into the nature or extent of Cabinet deliberations. The documents to which they sought access had no connection with the Cabinet process, until one was created by the actions of the respondents. Even now, disclosure of the budget estimates documents would have no impact on the "confidentiality and integrity of the Cabinet process", as I have explained at paragraphs 24-25 above. 43. If the comments in the second last paragraph quoted above were directed to me, I merely observe that if my duties under Part 5 of the FOI Act require me to inquire into deliberations and decisions of Cabinet, to ensure that the provisions of the FOI Act have been properly applied in a particular case, then I must do so. Inquiries into whether exemption provisions such as s.36(1)(d) or 36(1)(e) of the FOI Act have been properly applied will from time to time require me to do so (as they have done in the past with little demur from relevant agencies). It is necessary, in order to guarantee the credibility of the administration of the FOI Act, that the independent external review authority have power to make such investigations and inquiries (as is implicitly recognised in s.85, s.86 and, particularly, s.92 of the FOI Act), subject to appropriate safeguards, which are afforded by s.87 and s.93 of the FOI Act. 44. The 1995 Amendment Act was passed on 22 March 1995, having been before the Parliament for a period of less than 24 hours: a step which is contrary to usual parliamentary procedure requiring that proposed legislation should lie on the table of Parliament for at least seven days before it is debated (see debate on the motion to suspend Standing Orders and Sessional Orders, at Hansard, 22 March 1995, pp.11244-8). The 1995 Amendment Act received the Royal assent, and came into force, on the following day, 23 March 1995. The 1995 Amendment Act made significant changes to the FOI Act and to the course of these reviews. It removed the words "for its consideration" from s.36(1)(a), which had been pivotal to the applicants' third argument described at paragraph 17 above. It also inserted in s.36 a definition of "submit" which made it clear that no purposive element qualifies that verb in the context of s.36(1). It further removed the exception relating to "merely statistical" matter, which had been contained in s.36(2) and which in my preliminary view would have excepted a significant amount of the matter in issue from exemption under s.36(1) in its previous form. The 1995 Amendment Act also contained a provision which made it clear that the amendments were to have retrospective effect - applying to all FOI access applications whether they had been made before or after the 1995 Amendment Act came into force. 45. The Crown Solicitor had written to me on 13 March 1995, forwarding a written submission on behalf of the respondents (as well as the statutory declaration referred to in paragraph 36 above) which maintained the claim that the budget estimates documents were exempt under s.36(1)(a), as in force prior to the 1995 Amendment Act. By letters dated 23 March 1995, I provided edited copies of the respondents' submissions and evidence to the applicants and drew their attention to the amendments contained in the 1995 Amendment Act. I invited the applicants to provide evidence or submissions in support of their case for disclosure of the documents in issue. The only written response I have received is a letter from Mr Cooper dated 27 March 1995. In that letter Mr Cooper stated: ... I would be grateful if you could advise me what stages your reviews of these two matters have reached and, specifically in this regard, if amendments to the Freedom of Information Act - forced through Parliament last night by the Government - have effectively closed off any hope I might have had that you could have found that I had a right of access to all or any of the identified documents. In this regard, you may be interested to know that Mr G W Taylor, General Manager, Finance and Administration, of the Corrective Services Commission and the person who undertook the internal review of the Commission's initial decision to refuse my request for access, advised me in a letter dated 29 September 1994, that, of the 300 pages of Commission documents identified as relevant to my request, "approximately 100 pages" are copies of the budget papers and Departmental Estimates Statement which were previously provided to members of the Estimates Committee. I would be interested to know on what basis the Corrective Services Commission could deny me F.O.I. access to documents which I had already been supplied as a member of the relevant Estimates Committee and, in fact, if the above-mentioned amendments have actually given these documents a retrospective exempt status as Cabinet documents. 46. The applicants have not supplied any further submissions. Given the comprehensive way in which the amended s.36 has removed any statutory language which tended to support the contentions raised by the applicants, it is difficult to conceive of anything further that the applicants could have usefully contributed in respect of the application of s.36(1)(a). 47. I note that until the time that the 1995 Amendment Act took effect, I had accorded these reviews a high priority, aiming to complete them before the 1995 hearings by budget estimates committees. However, after the March 1995 amendments came into force, it was clear that there could realistically be only one outcome to this review, and not one that would establish a right to disclosure of additional information under the FOI Act, so priorities were reassessed and attention was transferred to earlier applications for review. Other exemptions claimed 48. In addition to s.36(1)(a), it was suggested by various respondents that s.36(1)(d) and (g) (as in force before the 1995 Amendment Act - they are set out at paragraph 15 above) were of relevance, as well as s.11(1)(b) and s.50(c) of the FOI Act, which provide: 11.(1) This Act does not apply to - ... (b) the Legislative Assembly, a member of the Legislative Assembly, a committee of the Legislative Assembly, a member of a committee of the Legislative Assembly, a parliamentary commission of inquiry or a member of a parliamentary commission of inquiry; ... . ... 50. Matter is exempt matter if its public disclosure would, apart from this Act and any immunity of the Crown - ... (c) infringe the privileges of - (i) Parliament; ... . 49. On 8 December 1994, I received a submission from the Department of Family Services and Aboriginal and Islander Affairs (which had not made a decision, prior to Mr Fagan invoking his right to apply for external review on the basis of a deemed refusal of access) indicating that two provisions of the FOI Act had been considered in respect of Mr Fagan's application. The Department drew my attention to s.11(1)(b) and s.50(c)(i) of the FOI Act, but did not expressly state that it sought to rely on them for the purposes of this review. Section 11(1)(b) states that the FOI Act does not apply to, among others, committees or members of the Legislative Assembly. I formed the view that this provision was of no relevance in these reviews. The applications in these cases were made to agencies for documents held by agencies, not to a committee or member of the Legislative Assembly for documents held by a committee or member of the Legislative Assembly. The fact that the documents were in some way relevant to a committee of the Legislative Assembly does not attract the application of s.11(1)(b) of the FOI Act. 50. Section 50(c)(i) provides that matter is exempt if its public disclosure would infringe the privileges of Parliament. It was suggested that the effect of s.3 of the Parliamentary Papers Act 1992 Qld was such that papers prepared for the benefit of a Minister giving evidence before a Parliamentary committee could be regarded as "proceedings in Parliament", and so public disclosure of them might amount to an infringement of Parliamentary privilege. I considered that I should bring both provisions to the notice of each of the respondents and raise the possible application of s.50(c)(i) of the FOI Act with the Speaker of the Legislative Assembly. 51. I wrote to the Speaker on 24 January 1995, outlining a number of concerns I had as to the possible applicability of s.50(c)(i) and inviting him to apply to become a participant in these external reviews. The Speaker responded by letter dated 10 March 1995, indicating that he did not consider that there was any basis on which a claim to exemption under s.50(c)(i) could succeed, and declining to apply to be a participant. 52. On or about 18 January 1995, I wrote to each of the respondents indicating my preliminary view that s.11(1)(b) was not applicable in the circumstances of these applications and that the documents in issue were not exempt under s.36(1)(d) or s.36(1)(g), as in force prior to the 1995 Amendment Act. I indicated that s.36(1)(d) and (g) were clearly designed to protect official records of Cabinet and deliberations or decisions of Cabinet, not material which had simply been provided to Cabinet. There has never been any contention on the part of the respondents that the documents in issue were prepared for submission to Cabinet or with Cabinet in mind. Their release would shed no light on the reason why they were presented to Cabinet, nor disclose any deliberation or decision of Cabinet in respect of Cabinet Submission No. 03758. 53. By letter dated 13 March 1995, the Crown Solicitor, acting on behalf of the respondents, indicated that his clients did not seek to rely on exemption provisions other than s.36(1)(a) of the FOI Act in contending that all of the documents in issue were exempt, but stated that his clients wished to reserve their rights to make submissions in relation to particular documents if a general claim to exemption under s.36(1)(a) should be rejected. In the circumstances, there is no need to consider these provisions further. Application of s.36(1)(a)of the FOI Act 54. As the applicants have not indicated that they accept my preliminary views in relation to any of the arguments set forth at paragraph 17 above, it is necessary for me to consider each of those arguments. Before doing so, I will consider the claim of the respondents that s.36 of the FOI Act, as amended by the 1995 Amendment Act, has retrospective operation. Retrospective operation of legislation 55. In Re Woodyatt and Minister for Corrective Services (Information Commissioner Qld, Decision No. 95001, 13 February 1995, unreported), I decided that the applicant had an accrued right to have his FOI access application dealt with in accordance with the provisions of the FOI Act as in force at the time he made his FOI access application. Section 20 of the Acts Interpretation Act 1954 preserved that accrued right in the face of subsequent amendments to s.36 of the FOI Act made by the 1993 Amendment Act. However, as I noted in that decision, the application of s.20 of the Acts Interpretation Act may be displaced, wholly or partly, by a contrary intention appearing in any Act (see Acts Interpretation Act, s.4). The 1995 Amendment Act added a new s.110 to the FOI Act which provides: 110.(1) The amendments made by the Freedom of Information Amendment Act 1995 (the "amending Act") apply to an application made under this Act before the commencement of the amending Act. (2) Without limiting subsection (1), in deciding the application of the amendments made by the amending Act, the Acts Interpretation Act 1954, section 20 does not apply to an application made under this Act before the commencement of the amending Act. (3) This section does not apply to the amendment of section 42 made by the amending Act. (4) This section is a law to which the Acts Interpretation Act 1954, section 20A applies. (5) In this section - "application" includes an application for review under section 52, 73 or 84. 56. Section 110 gives the amended s.36 retrospective operation, so that it applies to the FOI access applications lodged by the applicants for review. Accordingly, I am required to apply s.36 as in force at the time I give my decision in these reviews. Time at which material facts are to be considered 57. A distinct but related question is whether the material facts which I must consider are those which existed at the time of lodgement of the relevant FOI access applications, or those which apply at the time I give my decision in these reviews. If I must consider the material facts as at the time of lodgement of the relevant FOI access applications, then the documents in issue in the applications commenced by Mr Fagan, Mr Borbidge, Mr Beanland and Mr Cooper would not be exempt under s.36(1)(a), because they had not by that time been placed before Cabinet. It appears that Mr Gilmore's FOI access application was not received until after the budget estimates documents were placed before Cabinet. 58. However, the relevant legal principles in this regard are, in my opinion, clear. They are stated at paragraph 35 (and re-stated at paragraph 58) of my reasons for decision in Re Woodyatt. A tribunal which, like the Information Commissioner, is empowered to conduct a full review of the merits of an administrative decision under challenge, for the purpose of determining whether an applicant has a present entitlement to some right, privilege or benefit, ordinarily (unless there is a clear indication to the contrary in the relevant statute) has regard to the relevant facts and circumstances as they stand at the date of its decision. As I said in Re Woodyatt at paragraph 58: A significant change in material facts or circumstances may mean that a requested document which was not exempt at the time of lodgement of an FOI access application, has become exempt by the time of making a decision in response to the application (and vice versa), but that is simply a risk which the applicant must bear given the nature of many of the exemption provisions. I must therefore consider whether the documents in issue are exempt on the basis of the material facts as they now stand, rather than as at the time the applicants lodged their FOI access applications. Not a real submission to Cabinet 59. In his letter of 15 September 1994, Mr Borbidge suggested that the documents in issue had not been submitted to Cabinet in a formal sense. Having examined the Cabinet submission and considered the relevant parts of the Cabinet Handbook, I am satisfied that there is no merit in this claim. A definition of the term "submit" was inserted in s.36(4) of the FOI Act by the 1995 Amendment Act (see paragraph 16 above) and I consider that the process by which the documents were put before Cabinet falls within that definition. Purpose of consideration 60. The nature of this issue has been explained at paragraphs 17(c) and 29 above. The amendments to s.36(1) effected by the 1995 Amendment Act rendered this issue redundant before my investigations had reached a stage at which I was in a position to make a determinative finding in respect of it. 61. The amendments which came into force on 23 March 1995 make it clear beyond doubt that any purposive element has been removed from s.36(1)(a). Even if a document was deliberately submitted to Cabinet simply to make it exempt from disclosure under the FOI Act, the only finding open to me, on proof that the document had been submitted to Cabinet, would be a finding that the document comprises exempt matter under s.36(1)(a) of the FOI Act. 62. It is possible that an applicant for access under the FOI Act, who was aggrieved by the actions of an agency in arranging for a requested document to be placed before Cabinet for no legitimate purpose, but merely to render it 'Cabinet exempt' within the time-frame for processing the FOI access application, could apply to the Supreme Court by way of judicial review (or an action seeking a declaration) on the basis that the actions of the agency constituted an abuse of power. An issue of that kind is not one which I have jurisdiction to determine in a review under Part 5 of the FOI Act. However, a person seeking to pursue a Supreme Court challenge of the kind I have mentioned would face formidable hurdles in obtaining the evidence to support a case. Much of the necessary evidence would itself be exempt matter under the unnecessarily broad terms of s.36 (or s.37) of the FOI Act, and may even be subject to a claim of privilege from production in legal proceedings on grounds of public interest immunity. Statistical matter 63. A number of the respondent agencies acknowledged that the documents in issue contain statistical matter. My examination of the documents in issue confirms this. The FOI Act prior to 23 March 1995 contained an exception to s.36(1) whereby "merely statistical matter" would not qualify for exemption under s.36(1), unless s.36(2)(a) and (b) were applicable. The respondents objected to release of all this matter on the grounds that it was not "merely" statistical matter, but a number of the applicants argued that some of the matter was merely statistical and therefore not exempt. That contest has been rendered redundant by the 1995 Amendment Act, which repealed (with retrospective effect) the former s.36(2) exception for "merely statistical, scientific or technical matter". Findings in relation to s.36(1)(a) 64. The arguments of substance initially raised by the applicants (being the last two arguments referred to above) have been rendered redundant by the retrospective amendments to s.36 made by the 1995 Amendment Act. On the basis of Mr Stanley's statutory declaration, I find that the documents in issue in each application for review have been submitted to Cabinet, and that they therefore comprise exempt matter under s.36(1)(a) of the FOI Act, in its present form. 65. This applies not only to documents which have not been released to the applicants, but also to documents which have previously been released to an applicant, or indeed published. For example, in the case of one of Mr Cooper's applications (S 153/94), the internal review decision-maker indicated that approximately 100 pages of the documents in issue were claimed to be exempt, notwithstanding that they had already been provided to Mr Cooper in his capacity as a member of a budget estimates committee. It is also clear that a small number of the documents in issue have been published by agencies. 66. Publication of material will not necessarily mean that it ceases to be exempt under s.36(1) in its present form. The only exception to the exemption appears in s.36(2), which provides that s.36(1) does not apply to matter officially published by decision of Cabinet. Despite indications of prior publication of some documents in issue, by a Minister or Department, I am not aware of any decision by Cabinet authorising publication of any of the budget estimates documents since the time that they were forwarded to Cabinet on 18 July 1994. They therefore remain exempt documents under the FOI Act. 67. Of course, agencies have a discretion to give access under the FOI Act to exempt documents or exempt matter (see s.28(1) of the FOI Act). In my letters to respondent agencies forwarded on or about 18 January 1995, I drew the attention of all respondents to the possible exercise of their discretion to disclose some of the matter in issue, even if it is exempt matter, saying: While in the balance of this letter, I have proceeded on the basis that you and other relevant agencies wish to defend the decisions under review, I now ask that you give careful consideration to whether it is necessary or appropriate to exercise the discretion under s.28(1) of the FOI Act to claim exemption for all of the documents in issue (assuming for the moment that they are, technically, exempt). To my mind, there is an air of unreality about the making of this blanket claim for exemption in respect of documents that were not initially prepared for submission to Cabinet, but to brief Ministers for an exercise in public accountability, viz. questioning by the elected representatives of the people of Queensland, on aspects of the performance of agencies for which the relevant Ministers are responsible and accountable. A great deal of the briefing material must have been prepared on the basis that it was appropriate information to be put on the public record in response to questioning. I note, merely by way of example, that there is nothing in the briefing for the Premier prepared by the Office of the Parliamentary Commissioner for Administrative Investigations (which is among the documents in issue) which I regard as inappropriate or unsuitable to be placed on the public record. Indeed, it was prepared on the basis that the Premier may need to place on the public record (in response to questioning) any of the details contained in it. While I recognise that in respect of other agencies there are probably parts of the briefing materials which they would prefer should remain confidential, I consider that there are likely to be many other parts which the agencies would concede were always considered to be appropriate for release on to the public record, or the release of which, at this stage, could do no conceivable harm. If my views are correct, then the decision to claim a blanket exemption on the basis that the documents were subsequently submitted to Cabinet (for no more significant purpose, it appears, than ... ) seems to me to be contrary to the spirit of the FOI Act, and arguably an inappropriate exercise of the discretion conferred by s.28(1) of the FOI Act (cf. Re Norman and Mulgrave Shire Council (Information Commissioner Qld, Decision No. 94013, 28 June 1994, unreported) at paragraphs 11-18). Decisions of this kind make it understandable why journalists and Opposition MP's have grown cynical about the administration of the FOI Act. I request that you give serious consideration to whether your Department should agree to the release of those documents in issue, the disclosure of which could do no harm to any relevant public or private interest, and inform me of any documents or parts of documents which you are prepared to release. I am sure any concessions on your part would be accepted by the applicants as a sign of good faith that such an exceptionally wide exemption provision as s.36(1) (which is capable of applying to documents already on the public record) is to be administered in a common sense manner. 68. Notwithstanding my suggestion, the respondents did not agree to the disclosure of any of the matter in issue. The exercise of the discretion to release exempt documents is limited to agencies and Ministers. I am prohibited by s.88(2) of the FOI Act from directing the release of exempt documents. As the respondents have declined to exercise the discretion granted to them, and the matter in issue is exempt under s.36(1)(a) in its present form, I cannot direct release even of those documents which have previously been published, or made available to an applicant. Comments on the amendments to s.36 69. In Re Woodyatt at paragraphs 11-12, I made comments that were critical of the extremely wide coverage of the s.36 exemption following the amendments effected by the 1993 Amendment Act. The amendments to s.36 (and s.37) effected by the 1995 Amendment Act only serve to amplify the concerns which prompted my previous critical comments. So wide is their reach, following the 1993 and 1995 amendments, that s.36 and s.37 of the FOI Act can no longer, in my opinion, be said to represent an appropriate balance between competing public interests favouring disclosure and non-disclosure of government information. They exceed the bounds of what is necessary to protect traditional conceptions of collective Ministerial responsibility (and its corresponding need for Cabinet secrecy) to such an extent that they are antithetical to the achievement of the professed objects of the FOI Act in promoting openness, accountability and informed public participation, in the processes of government. I have explained my concerns in this regard at some length in Chapter 3 of my third Annual Report as Information Commissioner (1994/95). 70. The potential for abuse of the accountability objects of the FOI Act is apparent on the face of these provisions. Under s.36(1)(a) in its present form, any document (even a bundle of thousands of documents) can be made exempt by placing it before Cabinet. A Minister, or official with sufficient influence to have a document placed before Cabinet, now holds the power, in practical terms, to veto access to any document under the FOI Act by adopting this mechanism. It does not matter that the document was not created for the purpose of submission to Cabinet, or that the disclosure of the document would not compromise or reveal anything about the Cabinet process. It is not even necessary that the document be in any way relevant to any issue considered by Cabinet. At any time, even at a time after an FOI access application has been made for that specific document, a document may be made exempt by placing it before Cabinet. (Section 36(1)(c) of the FOI Act, in its present form, also carries similar potential for abuse, as explained in paragraph 3.24 of my third Annual Report (1994/95)). 71. Much of the benefit of the FOI Act is prophylactic - the prospect of public scrutiny should deter officials from impropriety and encourage the best possible performance of their functions. However, the intended prophylactic effect of accountability measures of this kind is negated if there exists a certain method for evading scrutiny in the event of problems arising, by preventing the disclosure of embarrassing or damaging information. Moreover, the prospect of concerned citizens obtaining documents which would permit informed participation in the policy development phase of some issue which is ultimately intended to go before Cabinet or Executive Council is also reduced, by these exemption provisions, to something which is entirely at the discretion of Ministers, or officials with sufficient influence to create circumstances which attract the application of these exemption provisions. 72. Other anomalies in the operation of these unnecessarily wide exemption provisions should be apparent from my reasons for decision in this case. In Chapter 3 of my third Annual Report, I have recommended that s.36 be amended to restore it to the form in which it was originally enacted in 1992, when it struck an appropriate balance between preserving the degree of secrecy necessary in the Cabinet process to protect the convention of collective Ministerial responsibility and, on the other hand, promoting the public interests in openness, accountability and informed public participation in the processes of government, which the FOI Act was intended to foster. Conclusion 73. As my ultimate findings are based on an exemption provision which has been amended substantially since the making of the decisions under review, I consider it appropriate to set aside the decisions under review. In substitution for them, I find that the matter in issue in each application for review is exempt matter under s.36(1)(a) of the FOI Act, as in force following its amendment by the 1995 Amendment Act. I note, however, in respect of application for review No. S 137 of 1994, that ten pages remain in issue (see paragraph 2 above), not having been dealt with as documents in issue in these reasons for decision. F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

A51 and Office of the Health Ombudsman [2020] QICmr 17 (24 March 2020)

A51 and Office of the Health Ombudsman [2020] QICmr 17 (24 March 2020) Last Updated: 17 June 2020 Decision and Reasons for Decision Citation: A51 and Office of the Health Ombudsman [2020] QICmr 17 (24 March 2020) Application Number: 314687 Applicant: A51 Respondent: Office of the Health Ombudsman Decision Date: 24 March 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - NONEXISTENT OR UNLOCATABLE DOCUMENTS - applicant submits agency did not locate all relevant documents - whether agency has conducted reasonable searches - whether access to further documents may be refused on the basis they are nonexistent or unlocatable - sections 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied, under the Information Privacy Act 2009 (Qld) (IP Act), to the Office of the Health Ombudsman (OHO), for ‘information about me and my matters’, including ‘text messages and calendar entries’ for named OHO officers.[1] OHO located 37 pages of emails and internal OHO documents, and released these to the applicant, subject to the redaction of information on two pages.[2] The applicant applied to the Office of the Information Commissioner (OIC) for external review ‘on the basis of insufficient searches’.[3] On external review, OHO released an additional five pages to the applicant. However, the applicant maintained that further documents should have been located. I vary OHO’s decision and find that access to further documents may be refused on the basis that they do not exist or are unlocatable.[4] Background The decision under review is OHO’s decision dated 26 June 2019. Significant procedural steps taken by OIC in conducting the external review are set out in the appendix to these reasons. Evidence, submissions, legislation, and other material considered in reaching this decision are referred to in these reasons (including footnotes and appendix). Issues for determination The applicant believes that OHO should have located more documents in response to her application. The issues to be determined are therefore: (1) whether OHO has taken reasonable steps to locate all relevant documents, and (2) whether access to further documents may be refused on the basis that they are nonexistent or unlocatable.[5] The applicant also raised concerns about deficiencies in OHO’s conduct in dealing with her complaints and processing her access application, and also queried the content of released documents. To the extent the applicant’s submissions are relevant to the issue for determination, I have addressed them below.[6] However, some aspects of the applicant’s submissions fall outside the Information Commissioner’s external review jurisdiction and therefore, I have not considered, nor referred to those parts of her submissions, in these reasons. Relevant law The IP Act provides citizens with a right to be given access to documents of an agency, to the extent they contain the individual’s personal information.[7] This right is subject to certain limitations including grounds for refusal of access.[8] One such ground is where the requested information is nonexistent or unlocatable.[9] A document will be nonexistent if there are reasonable grounds to be satisfied it does not exist.[10] To be satisfied that a document does not exist, the Information Commissioner has previously had regard to various key factors including the agency’s record keeping practices and procedures (including, but not limited to, its information management approaches).[11] By considering the relevant factors, the decision maker may conclude that a particular document was not created because, for example, the agency’s processes do not involve creating that specific document. In such instances, it is not necessary for the agency to search for the document. Rather, it is sufficient that the relevant circumstances to account for the nonexistent document are adequately explained by the agency. The Information Commissioner may also take into account the searches and inquiries conducted by an agency, in determining whether a document is nonexistent. The key question here is whether those searches and inquiries amount to ‘all reasonable steps’.[12] 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. Such steps may include inquiries and searches of all relevant locations identified after consideration of relevant key factors.[13] A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find it, but it cannot be found. In determining whether a document is unlocatable, it is necessary to consider the specific circumstances of each case,[14] and in particular whether: there are reasonable grounds for the agency to be satisfied that the requested documents have been or should be in the agency’s possession; and the agency has taken all reasonable steps to find the document.[15] The agency that made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[16] Where the issue of missing documents is raised on external review, the agency must demonstrate that reasonable steps have been taken to identify and locate relevant documents.[17] If the applicant maintains further documents exist, the applicant bears a practical onus of demonstrating that the agency has not discharged its obligation. Suspicion and mere assertion will not satisfy this onus.[18] Submissions The applicant was not convinced that the 35 pages released to her by OHO represented all relevant documents responding to the terms of her application. The applicant specifically raised concerns that SMS messages from the mobile phones of particular OHO staff should have been located.[19] OHO provided evidence[20] to OIC that the following locations had been searched: Resolve, HP Records Manager (HPRM) and S:\Drive all Outlook mailboxes and calendar entries of the following OHO staff: the Health Ombudsman the Principal Officer of the Assessment and Resolution Division the Director of Triage of Assessment the Executive Director of Assessment and Resolution Division the Director of Complaints Intake and Referrals the Director of Resolution and Conciliation all Outlook mailboxes of the Principal Review Officer and Internal Review team; and mobile telephones of two named officers for relevant SMS messages. OHO submitted that its usual record keeping practice is to save all case related correspondence in Resolve and HPRM, and all non-case specific correspondence is saved on S:/Drive.[21] OHO submitted that it had required officers that were not named in the application to search for records as they had previously been involved in the applicant’s matters.[22] OHO’s searches of the mobile phone records of two officers did not reveal any relevant documents. However, one staff member named in the application had recently ceased employment with OHO and, in accordance with standard OHO Information and Communications Technology practice, the work mobile telephone of that staff member was factory reset and its contents erased.[23] In summary, the applicant’s ongoing concerns[24] regarding missing documents include: records demonstrating why the Chief Executive Officer managed her complaints had not been located the applicant’s original complaint, any processing documents or records of discussions with involved parties or external agencies and an outcome report had not been located the calendar entries, emails and text messages of the Health Ombudsman were not searched; and correspondence between OHO and the Information Commissioner in relation to the applicant’s complaints were not located. Findings The applicant considers that the 35 pages released to her was insufficient. While I accept that this is a relatively small number of pages, the fact that the access application[25] covered a short timeframe of approximately five weeks, and sought only information about the applicant and her personal interactions with OHO, is likely to have contributed to the location of only 35 pages. Having considered OHO’s submissions regarding its recordkeeping practices, I am satisfied that it was reasonable for OHO to conduct searches in the locations described above in paragraph 17, including the Outlook mailboxes and calendar entries of the officers named in the access application. I also consider that OHO’s searches of the Outlook accounts of other OHO officers (not named in the application but who had previously been involved in dealings with the applicant) have served to further enhance its search efforts. I acknowledge that OHO was unable to conduct searches of the records on a work mobile telephone, due to that officer having left OHO’s employment. However, given OHO’s submission regarding its recordkeeping practices in relation to mobile phone records of past employees, I am satisfied that any relevant documents that may have been stored on that device have been destroyed and are therefore, nonexistent. The applicant submits that the Health Ombudsman’s calendar entries, emails and SMS messages were not searched. OHO provided evidence[26] that the Health Ombudsman’s calendar entries and emails were searched, however, records of SMS messages were not searched. The access application sought SMS messages from three named officers, and on review, the applicant confirmed that part of her request related to those three officers. Therefore, I am satisfied that it was reasonable for OHO to conduct searches of SMS records in relation to those three named officers only. Overall, I am satisfied that the searches and inquiries undertaken by OHO in response to the application, and during the external review, have been targeted, informed by OHO’s working knowledge of its internal recordkeeping practices and processes, and involved officers who have interacted/dealt with the applicant. In view of this, and taking into account the terms of the access application, limited date range, and the absence of any objective evidence to support the existence of further documents, I am unable to identify any further searches OHO could reasonably be asked to undertake. For these reasons, I find that OHO has taken reasonable steps to locate all documents relating to the access application and access to any further documents may be refused on the basis they are non-existent or unlocatable.[27]DECISION I vary OHO’s decision and find that access to further documents may be refused under section 67(1) of the IP Act and 47(3)(e) of the RTI Act on the basis they are nonexistent or unlocatable under section 52(1) of the RTI Act. I have made this decision under section 123 of the IP Act, as a delegate of the Information Commissioner under section 139 of the IP Act.Assistant Information CommissionerDate: 24 March 2020 APPENDIX Significant procedural steps Date Event 26 June 2019 OIC received the application for external review. 1 July 2019 OIC requested, and received, procedural documents and submissions from OHO. 13 August 2019 OIC received submissions from OHO. 26, 27, and 28 August 2019 OIC received submissions from the applicant. 29 August 2019 OIC wrote to the applicant to request additional information in support of her application for external review and received submissions. 9, 11 and 19 September 2019 OIC received submissions from the applicant. 24 September 2019 OIC requested, and received, additional information from OHO. 26 September 2019 OIC received submissions from the applicant. 27 September 2019 OIC requested submissions and search certifications from OHO. 16 October 2019 OIC received submissions and search certifications from OHO. 18 November 2019 OIC wrote to the applicant and requested additional information in support of her application for external review. 19 November 2019 OIC received submissions from the applicant. 21 November 2019 OIC received submissions from the applicant. 11 December 2019 OIC identified information located by OHO that had not been released to the applicant. OHO agreed to release the information to the applicant. OIC notified the applicant that the application for external review had been accepted and received submissions. 11 February 2020 OIC requested OHO undertake additional searches and provide search certifications. 12 February 2020 OIC received submissions and search certifications from OHO. 13 February 2020 OIC conveyed a preliminary view to the applicant and OHO. 17 February 2020 and 5, 11 and 12 March 2020 OIC received submissions from the applicant. [1] Access application dated 7 June 2019. The date range applicable to the application was from 2 May 2019 to 7 June 2019.[2] Decision dated 26 June 2019.[3] Application for external review dated 26 June 2019. [4] Section 67(1) of the IP Act and section 47(3)(e) of the Right to Information Act 2009 (Qld) (RTI Act).[5] Section 47(3)(e) and 52(1) of the RTI Act. On review, the applicant did not seek to contest OHO’s decision to refuse access to parts of two pages. Therefore, that redacted information is not considered in these reasons.[6] However, OIC does not have jurisdiction to examine broader compliance/complaint issues, nor to comment on the way an agency chooses to record information in its records. Therefore, such issues are not considered in these reasons.[7] Section 40 of the IP Act. [8] Section 67(1) of the IP Act states that an agency may refuse access to a document of an agency in the same way and to the same extent the agency could refuse access to the document under section 47 of the RTI Act, were the document to be the subject of an access application under the RTI Act. [9] Sections 47(3)(e) and 52(1) of the RTI Act.[10] Section 52(1)(a) of the RTI Act. For example, a document has never been created.[11] Isles and Queensland Police Service [2018] QICmr 27 (7 June 2018) at [15] which adopted the Information Commissioner’s comments in PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE) at [37]-[38]. PDE addresses the application of section 28A of the now repealed FOI Act. Section 52 of the RTI Act is drafted in substantially the same terms as the provision considered in PDE and, therefore, the Information Commissioner’s findings in PDE are relevant. [12] As set out in PDE at [49]. See also section 137(2) of the IP Act.[13] As set out in PDE at [38]. [14] Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [21]. See also, F60XCX and Office of the Queensland Parliamentary Counsel [2016] QICmr 42 (13 October 2016) at [84] and [87], and Underwood and Minister for Housing and Public Works [2015] QICmr 27 (29 September 2015) at [33]-[34] and [49].[15] Section 52(1)(b) of the RTI Act.[16] Section 100(1) of the IP Act.[17] Section 137(2) of the IP Act.[18] Dubois and Rockhampton Regional Council [2017] QICmr 49 (6 October 2017) at [36].[19] Application for external review dated 26 June 2019. [20] Search records and certifications dated 4, 8, 9, 10, 14, 15 and 16 October 2019 and 11 and 12 February 2020.[21] OHO submissions dated 1 July 2019, 24 September 2019 and 16 October 2019 and submissions received by telephone on 13 August 2019. [22] OHO submission received by telephone on 13 August 2019. [23] OHO submission dated 12 February 2020.[24] As set out in her correspondence to OIC dated 26, 27 and 28 August 2019, 9, 11, 19 and 26 September 2019, 19 and 21 November 2019, 11 December 2019, 17 February 2020 and 5, 11 and 12 March 2020.[25] 2 May 2019 to 7 June 2019.[26] Search certification dated 4 October 2019. [27] Section 67(1) of the IP Act and sections 47(3)(e) and 52 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

West and Banana Shire Council [2009] QICmr 31 (19 May 2009)

West and Banana Shire Council [2009] QICmr 31 (19 May 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210628 Applicant: Ms L West Respondent: Banana Shire Council Decision Date: 19 May 2009 Catchwords: FREEDOM OF INFORMATION – Section 44(1) of the Freedom of Information Act 1992 (Qld) – information concerning the personal affairs of person – identifying information about complainants Contents REASONS FOR DECISION Summary 1. Having considered the parties’ submissions and evidence, relevant legislation, case law and decisions, I am satisfied that access to the Complainant Details should be refused under section 44(1) of the Freedom of Information Act 1992 (Qld) (FOI Act) on the basis that: • the information concerns the personal affairs information of other persons • on balance, disclosure of the information is not in the public interest. Background 2. By undated letter received by Banana Shire Council (Council) on 30 July 2008, the applicant applied for access to ‘all the Council records and correspondence in relation to the complaint of [the applicant’s] dogs barking’ (FOI Application). 3. By letter dated 8 September 2008 (Original Decision) Council’s Chief Executive Officer, Mr Jason Bradshaw (CEO), provided the applicant with partial access to a two page form titled ‘Animal Nuisance Complaint’[1] (Complaint Form) and advised that identifying information about the persons who had made the complaints (Complainant Details) had been withheld under section 27(3) of the FOI Act on the basis that the information was irrelevant to the FOI Application. 4. The Original Decision mistakenly[2] informed the applicant of a right of internal review and accordingly the applicant applied to Council for an internal review on 10 September 2008 (Internal Review Application). 5. By letter dated 24 September 2008, Council’s Acting Director of Corporate Services, Mr Dennis Carr, informed the applicant that he had decided to deny her access to the Complainant Details under sections 42(1)(b), 42(1)(ca) and 42(1)(e) of the FOI Act (Internal Review Response). 6. By letter dated 1 October 2008 the applicant applied to this Office for external review of the Internal Review Response (External Review Application). Decision under review 7. The decision under review is the Original Decision referred to in paragraph 3 above. Steps taken in the external review process 8. In correspondence received by Council on 14 October 2008 this Office: • informed Council that the External Review Application had been accepted • requested that Council provide copies of the documents relevant to the review • provided Council with the opportunity to submit any additional information it wished to rely on to support its claims for exemption/exclusion under the FOI Act. 9. By letter dated 10 October 2008 Acting Information Commissioner Kinross indicated to the applicant that the External Review Application had been accepted. 10. By letter dated 23 October 2008 Council provided this Office with a copy of the Complaint Form. 11. By letter dated 30 October 2008 Council provided submissions in support of its claims under sections 27(3), 42(1)(b), 42(1)(ca) and 42(1)(e) of the FOI Act. 12. On 29 January 2009 this Office contacted two of the Complainants[3] to discuss the possibility of release of the Complainants Details in the context of this FOI Application. Both Complainants stated they did not want the Complainant Details disclosed. During the course of these discussions, one of the Complainants indicated that the applicant was no longer living at her provided address. 13. On 2 February 2009 this Office, wrote to the applicant at her provided address to request information concerning her current address.[4] 14. On 4 February 2009 the applicant telephoned this Office to confirm that she had moved. The applicant provided this Office with the details of her new address. 15. On 9 February 2009 this Office contacted Council and informed it that it was considering the potential application of section 44(1) of the FOI Act to the Complainant Details. Council was provided the opportunity to provide submissions but stated that it did not wish to take up the opportunity. 16. By letter dated 9 October 2009 Acting Assistant Commissioner Jefferies provided the applicant with a preliminary view that the Complainant Details qualified for exemption under section 44(1) of the FOI Act. 17. By letter dated 17 February 2009 the applicant indicated that she did not accept the preliminary view. 18. In making my decision in this review, I have taken into account the following: • the FOI Application, Internal Review Application and External Review Application • the Original Decision and Internal Review Response • the Complaint Form containing the Complainant Details • written correspondence received from Council during the course of this review • written correspondence received from the applicant during the course of this review • file notes of telephone conversations between a staff member of this Office and Council on 8 December 2008, 9 December 2008 and 9 February 2009 • file notes of telephone conversations between a staff member of this Office and Complainants on 29 January 2009 • file notes of telephone conversations between a staff member of this Office and the applicant on 6 April 2009 • Banana Shire Council (Keeping and Controlling of Animals) Local Law No.6 • Banana Shire Council Complaints Management Policy • relevant provisions of the FOI Act as referred to in this decision • decisions of this Office as referred to in this decision. Matter in issue in this review 19. The applicant is seeking access to the identities and contact information of the persons who lodged a complaint with Council concerning her dogs’ barking. 20. As previously indicated the information which Council has refused to provide to the applicant comprises identifying information about the complainants (Complainant Details) as contained within the Complaint Form. Specifically it includes the following information about each complainant: • first name, last name and gender • domestic address • domestic telephone number • signature located below the following headings as they appear on pages one and two of the Complaint Form: A) Applicant Details D) Witness Details. 21. Accordingly, the issue to be determined in this review is whether the Complainant Details qualify for exemption under section 44(1) of the FOI Act. Findings Relevant law Section 44(1) of the FOI Act 22. Section 44(1) of the FOI Act provides: 44 Matter affecting personal affairs (1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. ... 23. Section 44(1) of the FOI Act protects the privacy interests of individuals. The wording of the section gives rise to a presumption against disclosure of ‘personal affairs information’ unless, on balance, disclosure of the information would be in the public interest. 24. In Stewart and Department of Transport,[5] a previous decision of this Office, the Information Commissioner discussed the application of section 44(1) of the FOI Act in detail and stated:[6] The FOI Act is concerned with access to documents in the possession or control of government agencies and Ministers. Government agencies must gather a good deal of personal information about individuals in the discharge of their public functions, such as the provision of health services, administration of schemes for the provision of welfare benefits, and so forth. Frequently, personal information is volunteered by persons seeking a service or benefit, though usually on the express or implied understanding that the information will be used only for the purpose for which it is provided. In some circumstances, government agencies have coercive powers to compel persons to disclose personal information. In other instances, personal information may be collected without the knowledge of the person concerned. Clearly, in enacting s.44 of the FOI Act, Parliament intended that much of the personal information that government agencies collect, store and use, should not be able to be accessed as of right by third persons pursuant to the general right of access conferred by s.21 of the FOI Act. (my emphasis) 25. It is now well accepted that the following information qualifies as being a person’s ‘personal affairs information’: • a person’s signature[7] • a person’s name in connection with their: o home address o telephone number.[8] 26. While a person’s name does not always automatically qualify as being information concerning their personal affairs, the Information Commissioner has held the fact that a person has made a lawful complaint to a government agency constitutes information concerning their personal affairs. [9] 27. I have examined the Complainant Details and am satisfied that this information concerns the personal affairs of a person other than the applicant. 28. Given my finding above it is necessary to consider whether there are public interest considerations that favour disclosure of that information which outweigh the public interest in protecting personal privacy and any other public interest considerations that favour non-disclosure of the Complainant Details. Public interest arguments favouring disclosure Council submissions 29. As Council had variously applied sections 27(3), 42(1)(b), 42(1)(ca) and 42(1)(e) of the FOI Act to exempt the Complainant Details and those provisions do not contain public interest balancing tests, none of the material I had before me from Council contained any consideration of public interest arguments relating to the disclosure of the Complainant Details. 30. Accordingly, I invited Council to make submissions on the applicability of section 44(1) of the FOI Act to the Complainant Details, and therefore to consider any public interest arguments for and against disclosure, but Council declined the invitation. Applicants submissions 31. The applicant’s submissions have also predominantly focussed on the application of sections 27(3), 42(1)(b), 42(1)(ca) and 42(1)(e) of the FOI Act to the Complainant Details. 32. However, in response to the preliminary view concerning the application of section 44(1) of the FOI Act the applicant made the following submissions: • this Office has failed to consider whether the complaint received by Council formed the basis of an official Council complaint governed by Local Law No.6 • the applicant does not consider that Local Law No.6 has been complied with • the applicant believes the complaint is based on falsified evidence. 33. The applicant asserts there is both a ‘public interest’ in ensuring that Council complies with the terms of its local laws[10] and in a person ‘accused’ under those laws being able to contest the charges made against them. 34. I have considered the applicant’s submissions above and acknowledge that in the circumstances, the following public interest considerations favouring disclosure of the Complainant Details may be relevant: • Council’s accountability in the performance of its functions (Accountability of government) • the public interest in persons having the opportunity to dispute and/or defend adverse allegations made against them (Opportunity to dispute/defend adverse allegations). Accountability of government 35. The applicant has indicated in communications with this Office that she is distrustful of Council’s actions in its handling of the complaint and believes Council, in acting on the complaint has failed to comply with the requirements of the relevant by-law. 36. Facilitating the accountability of government is a public interest consideration recognised by section 4 of the FOI Act. Enabling accountability of government also promotes informed public participation in the processes of government, recognised as one of the FOI Act’s major objectives. 37. The question in this case is whether disclosure of the Complainant Details would allow members of the public a better understanding of action taken by Council and enable them to better scrutinise and assess Council’s performance.[11] 38. As this matter concerns the enforcement of Banana Shire Council (Keeping and Controlling of Animals) Local Law No.6 (Local Law No. 6) it is appropriate that information on this law be examined to the extent that it relates to the issues being considered in this external review. 39. Dog barking is dealt with in Division 4 – Nuisances of Local Law No. 6.[12] The applicant does not accept that section 25(3)(a) of Local Law No.6[13] has been complied with because she is not satisfied that: • Council received complaints from three separate persons • the Complainants live in the vicinity of her former street address • the Complainants occupy separate premises • the barking of her dogs is sufficient to constitute a breach of section 25(1) of Local Law No.6. 40. The applicant also submits that the Complainant’s ‘testimony’ (their reasons for the complaint, as provided to her by Council) is incomplete and does not satisfy the minimum criteria for Council to take action under Local Law No.6. 41. Although it is not the role of this Office to investigate the validity of the complaint or Council’s investigation of it,[14] I do acknowledge that there is a general public interest in enhancing the accountability of Council for its investigation of, or action taken in response to complaints. In relation to action taken by Council in response to the complaint, Council submits the following: • in response to a telephone complaint, a compliance officer employed by Council (Compliance Officer) (together with a member of the Queensland Police Service) visited the applicant on 4 July 2008 and spoke with her concerning her dogs’ barking • on receipt of a written complaint, the Compliance Officer contacted the complainants to confirm information relating to the complaint and verify their details • the Compliance Officer attended at the applicant’s residence on 23 July 2008 but the applicant was not at home[15] so the Compliance Officer left a visit card requesting that the applicant call Council • on 24 July 2008 a written notice[16] was sent to the applicant • further contact was made with the Complainants • no further action was taken by Council in respect of this complaint because the applicant moved to another residence, away from the vicinity of the Complainants. 42. Notwithstanding the above, the applicant submits that release of the Complainant Details is the only method in which she can properly scrutinise whether Council has complied with the requirements of 25(3) of Local Law No.6.[17] 43. I consider it is evident from the partially released Complaint Form provided to the applicant by Council, that the contact details of three separate individuals have been removed from the document, one from the ‘Applicant’ section and two from underneath the ‘Witness Details’ section below ‘Witness One’ and Witness Two’. Although only one of these persons is identified as the ‘applicant’ who made the animal nuisance complaint, it appears that the Complaint Form is designed to satisfy section 25(3)(a) of Local Law No.6, in that the two witnesses (living in separate premises in the vicinity) must also be affected by the nuisance. Therefore, the applicant’s argument that the names are required to scrutinise Council is not made out, because she can see on the face of the document (with deletions) that three separate individuals are named, and in what capacity those names appear. 44. Although it is not clear from Council’s written notice what part of section 25(3) of Local Law No.6 it relied upon, I note that even if there were fewer than 3 persons listed on the Complaint Form, Council would still be able to issue a written notice under section 25(3)(b) of Local Law No.6. 45. In view of the above, I do not consider that disclosure of the Complainant Details would materially enhance the applicant’s ability to scrutinise whether Council has complied with the requirements of section 25(3) of Local Law No.6. Accordingly, the public interest in ensuring accountable government should be afforded little or no weight in these circumstances. Opportunity to dispute/defend adverse allegations 46. Although this public interest consideration would normally carry considerable weight in the public interest balancing test, in this matter the substantive content of the complaint has already been released to the applicant by Council during the FOI process. 47. In view of this I am satisfied that: • the information already released to the applicant is sufficient to address this public interest consideration • disclosure of the Complainant Details would not advance this public interest in the circumstances. Public interest arguments favouring non-disclosure 48. I consider that there are two public interest considerations which favour non-disclosure of the Complainant Details in this case. These are: • the inherent public interest in protecting personal privacy of those persons who may be identified by the Complainant Details (Privacy Interest) • the public interest in safeguarding the flow of information to government which will allow the relevant government agency to deal properly with complaints made to it (Flow of Information).[18] Privacy Interest 49. As indicated above, there is an inherent public interest in protecting personal privacy if the information in issue concerns the personal affairs of a person other than the applicant. An appropriate weight must be allocated to that interest, having regard to the character and significance of the particular matter in issue.[19] 50. Ordinarily, the weight to be accorded to the privacy interest in matter relating to the identities of persons providing information to Council in these circumstances is relatively high, unless that information has been treated in such a way as to reduce the weight of the privacy interest. For instance, if matter in issue could be obtained with little difficulty from sources in the public domain, or has received publicity in the media, and in particular, where an individual has volunteered (or consented to) the public disclosure of information. In such cases the weight that can be sensibly accorded to the protection of a privacy interest must be reduced.[20] 51. In the current review the applicant has indicated that on two separate occasions she received threatening letters for which she requested police assistance. The applicant further states that the author of one of these letters identified themselves to her as one of the complainants and confirmed that they were one of the three people who Council was liaising with about the dog barking complaint. 52. Although the applicant suspects the identity of one of the complainants, there is no evidence before me which substantiates this claim or demonstrates that the applicant has at any time received official confirmation as to the identities of any of the Complainants. Further, I note that in consultations with this Office each of the Complainants (who were able to be contacted) indicated that they did not wish for their identity to be released to the applicant. One of the complainants expressed particular concern about ‘any repercussions’ if their identity were made known to the applicant. 53. Although the applicant has maintained an argument that she requires the Complainant Details in order to determine Council’s compliance with Local Law No.6, she has also indicated in communications with this Office that on receipt of such information she intends to contact the Complainants and closely question those persons about the incidents complained about. 54. Given the concerns of the Complainants noted at paragraph 52 above and in view of the fact that there is no evidence to suggest that the identities of the Complainants are known to the applicant, I consider that the weight which should be attributed to this public interest remains high. Flow of Information 55. A further public interest consideration favouring non-disclosure of the Complainant Details, is the public interest in safeguarding the future flow of information from members of the public concerning possible breaches of the law. As the Assistant Commissioner said in Kinder and Department of Housing:[21] Those essential public interests include ensuring that government agencies do not suffer any unwarranted hindrance to their ability to perform their important functions for the benefit of the wider Queensland community, as a result of any unwarranted inhibition on the supply of information from citizens, on whose co-operation and assistance government agencies frequently depend. 56. I note that government agencies such as Council discharge important regulatory functions on behalf of the community and in discharging those functions frequently rely on information provided by members of the community. 57. In the circumstances I believe that members of the public would be less likely to provide similar information to Council if there was a possibility that information as to their identity would be disclosed to a person about whom a complaint was made. 58. I am therefore satisfied that the weight to be given to this public interest consideration is relatively high. Summary of public interest considerations 59. I have weighed the public interest considerations which favour disclosure against those that favour non-disclosure of the Complainant Details. 60. Whilst I acknowledge that there are a number of public interest considerations which favour disclosure, in the current circumstances I am satisfied that the weight of the public interest considerations which favour non-disclosure of the Complainant Details, including the privacy interest of those persons and the free flow of that information to Council, continue to outweigh those public interest considerations in favour of disclosure of the Complainant Details. DECISION 61. I vary the decision under review by finding that the Complainant Details qualify for exemption under section 44(1) of the FOI Act. ________________________ V Corby Assistant Commissioner Date: 19 May 2009 [1] Made pursuant to section 25(3) of the Banana Shire Council (Keeping and Controlling of Animals) Local Law No.6.[2] Under section 52(3) of the FOI Act there is no right of internal review if the decision on the FOI application is made by an agency’s ‘principal officer’. Under section 7 of the FOI Act a ‘principal officer’ of a local government is the CEO. As the Initial Decision was decided by the CEO of Council, no right of internal review arises and the applicant must apply for external review of the Initial Decision. For the purposes of this review I have also considered Council’s views as expressed in the Internal Review Response as being a submission. [3] The third complainant is no longer contactable through their provided contacts. [4] Under section 77(1)(d) of the FOI Act, the Information Commissioner (or her delegate) can discontinue a review if he/she considers that an applicant is no longer contactable at the address provided and the applicant has not advised this Office of a new address within a reasonable time.[5] [1993] QICmr 6; (1993) 1 QAR 227 (Stewart).[6] At paragraph 72.[7] Stewart at paragraph 80.[8] Pearce and Qld Rural Adjustment Authority; Various Landholders (Third Parties) (1999) 5 QAR 242 at paragraph 38.[9] Stewart at paragraph 119. In Byrne and Gold Coast City Council [1994] QICmr 8; (1994) 1 QAR 477 at paragraph 36 the Information Commissioner noted that that the fact of making a complaint is to be distinguished from the substance of the complaint (which may or may not itself comprise information concerning the personal affairs of the complainant so as to qualify for exemption under section 44(1) of the FOI Act). This is not a relevant consideration in this case given Council has already provided the applicant with access to the substance of the complaint. [10] In terms of a Council being accountable to its constituents for its processes.[11] Burke and Department of Families, Youth and Community Care [1997] QICmr 19; (1997) 4 QAR 205.[12] The relevant parts of section 25 in Division 4 of Local Law No. 6 state: Duty to avoid nuisances 25. (1) A person must not keep an animal on land if – (a) the animal causes a nuisance; (2) Without limiting this section, an animal causes a nuisance if (a) it makes a noise which – (i) occurs more than once; and (ii) disrupts or inhibits an activity ordinarily carried out on adjoining or nearby land; ... (3) An authorised person may – (a) on receiving three complaints in writing of a contravention of section 25.(1) of this local law from 3 persons all of whom occupy separate premises in the same or adjoining street to the land the subject of the complaints; or (b) on receiving fewer than 3 complaints in writing of a contravention of section 25(1) of this local law and, having regard to the nature and location of the complainants’ property, an authorised person has reasonable grounds for believing that a contravention of section 25(1) exists. give written notice to the keeper of the animal requiring the person to take relevant action to prevent further contravention or to remove the animal. [13] Which requires a ‘dog barking complaint’ to be made by three individuals all living separately, but in the same or adjoining streets to that of the dog/s complained about.[14] These are matters which may be pursued through Council or an appropriate investigative body. [15] This submission was put to the applicant by a staff member of this Office, however the applicant disputes these facts on the basis that she considers the visit related to another matter. [16] Pursuant to section 25(3) of Local Law No.6.[17] The applicant’s submissions on this point only discuss Council’s compliance with the requirements of section 25(3)(a) of Local Law No.6.[18] See Pemberton and The University of Queensland (1994) 2 QAR 293 at paragraphs 164-193.[19] See Lower Burdekin Newspaper Company Pty Ltd and Burdekin Shire Council; Hansen, Covolo and Cross (Third Parties) [2004] QICmr 6; (2004) 6 QAR 328 (Burdekin) at paragraph 23.[20] See Burdekin at paragraph 24.[21] (Unreported, Queensland Information Commissioner, 12 March 2002) at paragraph 31.

queensland

court_judgement

Queensland Information Commissioner 1993-

Australian Conservation Foundation and Department of Environment and Science; Adani Mining Pty Ltd (Third Party) [2019] QICmr 54 (4 December 2019)

Australian Conservation Foundation and Department of Environment and Science; Adani Mining Pty Ltd (Third Party) [2019] QICmr 54 (4 December 2019) Last Updated: 9 January 2020 Decision and Reasons for Decision Citation: Australian Conservation Foundation and Department of Environment and Science; Adani Mining Pty Ltd (Third Party) [2019] QICmr 54 (4 December 2019) Application Number: 314627 Applicant: Australian Conservation Foundation Respondent: Department of Environment and Science Third Party: Adani Mining Pty Ltd Decision Date: 4 December 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - BREACH OF CONFIDENCE – expert report commissioned by agency - whether disclosure of information would found an action for breach of confidence - whether exempt information to which access may be refused - sections 47(3)(a) and 48 and schedule 3, section 8 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - whether disclosure of information would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant, Australian Conservation Foundation (ACF), applied[1] to the Department of Environment and Science (DES) under the Right to Information Act 2009 (Qld) (RTI Act) for access to the ‘Review (final or latest draft) of Adani’s Black-Throated Finch Management Plan, as completed by the panel team led by Brendan Wintle’. DES did not make a decision in response to the application within the timeframe stipulated by the RTI Act, and was therefore deemed to have refused access to the requested information.[2] ACF applied to the Office of the Information Commissioner (OIC) for external review of DES’s deemed refusal of access.[3] For the reasons explained below, I set aside DES’s deemed refusal of access. In substitution, I find that there are no grounds for refusing access to the requested information under the RTI Act. Background The debate around the potential impact of Adani Mining Pty Ltd’s (Adani) Carmichael coal mine on the Black-Throated Finch population is well-known. The mine’s location hosts the largest and most significant known population of the finch in Australia.[4] As part of the environmental approval conditions for the mine, Adani was required to prepare and submit to DES a ‘Black-Throated Finch Management Plan’ (BTFMP). Adani submitted the BTFMP in May 2017. It was re-submitted in November 2018. In January 2019, DES announced that it was ‘seeking the best possible scientific advice on how the Carmichael coal mine may impact this species. Accordingly, DES engaged Brendan Wintle, Professor in Conservation Ecology at the University of Melbourne, to develop a panel to undertake an independent expert review of the ... BTFMP.’[5] A six member panel of conservation and wildlife science experts led by Professor Wintle was formed to undertake the review. The panel completed its review and prepared a report on the BTFMP dated 15 February 2019. On 2 May 2019, DES set out a series of commitments required of Adani in the BTFMP.[6] Adani submitted a new version of the BTFMP on 28 May 2019. On 31 May 2019, DES approved the BTFMP. A copy of the final, approved BTFMP is available on Adani’s website.[7] Reviewable decision The decision under review is DES’s deemed refusal of access notice dated 24 May 2019. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and the appendix). Information in issue The information in issue comprises the expert panel report dated 15 February 2019 (the Report). Issues for determination The issues for determination are: whether the Report is exempt information under section 48 and schedule 3 to the RTI Act; and, if it is not, whether disclosure of the Report would, on balance, be contrary to the public interest under section 49 and schedule 4 to the RTI Act. Steps taken during the external review process At the outset of the external review, DES advised that it did not object to disclosure of the Report. On 12 August 2019, I wrote to Adani’s lawyers to consult with Adani under section 37 of the RTI Act regarding disclosure of the Report. On the information then before me, I expressed the preliminary view that disclosure of the Report would not, on balance, be contrary to the public interest. In the event that Adani did not accept my preliminary view and objected to disclosure of the Report, I invited it to apply to participate in the review under section 89(2) of the RTI Act. Adani’s lawyers responded by advising that their client objected to disclosure of the Report, and that it wished to participate in the review.[8] During the review, Adani and ACF each provided written submissions in support of their respective positions, which were exchanged with each other.[9] Onus Section 87 of the RTI Act provides that, on external review, the agency that made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant. In this case, DES gave a deemed refusal of access decision and therefore provided no reasons in support of that decision. As DES does not object to disclosure of the Report, Adani, as the only party objecting to disclosure, bears the practical onus of establishing that the Information Commissioner should give a decision adverse to the applicant. Relevant law Exempt information The RTI Act gives a right of access to documents of government agencies.[10] This right is subject to other provisions of the RTI Act, including grounds on which access may be refused. Access may be refused to information to the extent the information comprises ‘exempt information’.[11] Adani claims that the Report is exempt information under schedule 3, section 8(1) of the RTI Act – information is exempt information if its disclosure would found an action for breach of confidence. Contrary to the public interest information A further ground on which access to information may be refused under the RTI Act is where disclosure of the information would, on balance, be contrary to the public interest[12] within the meaning of section 47(3)(b) and section 49 of the RTI Act. Non-exhaustive lists of public interest factors weighing both for and against disclosure of information are contained in schedule 4 to the RTI Act. The steps a decision-maker must take in considering the application of the public interest balancing test to particular information are as follows:[13] identify any irrelevant public interest factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors; and decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. Adani relies on the following nondisclosure factors in support of its argument that disclosure of the Report would, on balance, be contrary to the public interest: schedule 4, part 3, item 2 – disclosure could reasonably be expected to prejudice Adani’s business or financial affairs schedule 4, part 3, item 16 – disclosure could reasonably be expected to prejudice an agency’s ability to obtain confidential information (CI Prejudice Factor); and schedule 4, part 3, item 20 – disclosure could reasonably be expected to prejudice a deliberative process of government (DP Prejudice Factor). Adani also relies on the following factors (Harm Factors) contained in schedule 4, part 4 of the RTI Act: schedule 4, part 4, section 4 – disclosure could reasonably be expected to cause a public interest harm through disclosure of an opinion, advice or recommendation that has been obtained, prepared or recorded; or a consultation or deliberation that has taken place, in the course of, or for, the deliberative processes involved in the functions of government (DP Harm Factor); and schedule 4, part 4, section 8 – disclosure could reasonably be expected to cause a public interest harm if it consists of confidential information that was communicated in confidence and its disclosure could reasonably be expected to prejudice the future supply of information of this type (CI Harm Factor). Exempt information – breach of confidence Submissions of Adani Adani claims that disclosure of the Report would give rise to an action in equity for breach of confidence. In its submission dated 30 August 2019, Adani contended that the requirements to establish an equitable obligation of confidence were satisfied as follows: • the relevant information is specifically identifiable as information that is secret the relevant information has the necessary quality of confidence the information was received in such circumstances as to import an obligation of confidence disclosure would constitute unauthorised use of the information unauthorised use would cause detriment to the confider.[14] Adani submitted that the Report ‘contains confidential and commercially sensitive information about the BTFMP, communicated in private between the review panel and the Department.... Adani submits that the sole purpose of the communication was to inform the Department and progress the Department’s internal processes. Under these circumstances, it could reasonably be expected that the communication would remain confidential’.[15] Adani submitted that it held ‘genuine concerns regarding both the independence of the review panel and the value of the Document itself’. It contended that the findings and recommendations of the review panel were ‘flawed’ and went ‘well beyond’ the requirements of the Environmental Authority with which Adani was required to comply.[16] If detriment to the confider is to be regarded as a requirement to establish an equitable obligation of confidence, Adani argued that disclosure ‘would reasonably be expected to cause the kind of detriment to the review panel (as private citizens) contemplated in Commonwealth of Australia v John Fairfax & Sons Ltd’.[17] It did not elaborate on this submission and I am uncertain of the argument it is intending to advance. I presume its argument is that disclosure of the Report may expose the Report and its authors to public discussion and criticism. In its second submission dated 16 October 2019, Adani’s lawyers submitted that, while the communication in question did not directly involve Adani, they were instructed by Adani that the Report contained commercial information that was communicated by Adani to the Department and the Report’s authors in confidence and which did not form part of the final BTFMP, thereby remaining confidential. In a telephone conversation on 21 October 2019, an OIC officer asked Adani’s lawyers to specifically identify such information contained in the Report and to explain the circumstances of the communication. In an email on 25 October 2019, Adani’s lawyers advised that their client did not wish to make any further submissions. Adani also submitted, relying on QCAT’s decision in Ramsay as regards the relevance of public interest considerations in determining whether information was communicated in confidence, that the public interest is just one factor and not the sole determining factor. ‘Adani submits that, when the matrix of factors is considered as a whole, the analysis favours nondisclosure’.[18] Again, Adani was invited to provide further information in support of this submission, specifically, to identify the other factors that it contended formed part of the matrix that I should take into account in making my decision. As noted above, Adani’s lawyers advised that their client declined the request to provide any further submissions in support of its position. Submissions of ACF ACF argued that the Report reviewed and discussed a version of the BTFMP that Adani had submitted to DES for approval. The conditions of the Environmental Authority required Adani to publish the BTFMP on its website within 10 business days of its approval. On that basis, ACF argued that Adani could never have held a reasonable expectation that the information contained in the BTFMP would be kept confidential. It also contended that Adani had not identified how any of the information in the Report was commercial in nature. ACF took issue with Adani’s contention that the review panel was not independent and that its findings were flawed. It pointed out that the panel was selected by the National Director of the Threatened Species Recovery Hub, which is funded by the Australian Government’s National Environmental Science Program. ACF also argued that, given that Adani’s BTFMP had been approved, Adani had not shown how disclosure of the Report could cause any detriment. Discussion Adani does not argue that a contractual obligation of confidence exists between the Report’s authors and DES. It bases its claim under schedule 3, section 8(1) of the RTI Act on the existence of an equitable obligation of confidence. The test for exemption under schedule 3, section 8(1) must be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, with appropriate standing to bring an action to enforce an obligation of confidence said to be owed to that plaintiff by an agency such as DES.[19] As noted, DES does not object to disclosure of the Report. It therefore clearly does not consider itself to be under an equitable obligation to keep the Report confidential. There is also no evidence before me that the authors of the Report would seek to press a claim of confidentiality against DES regarding the Report. I note that after the BTFMP was approved by DES on 31 May 2019, the Report’s authors published an article setting out why they considered the BTFMP that they had reviewed was inadequate.[20] Nor do I consider it would have been reasonable, in the circumstances of the communication of the Report, and taking account of the purpose for which the Report was prepared and submitted, for either DES or the Report’s authors to have expected that the Report would be kept confidential. I will discuss this further below. The basis for Adani‘s case must therefore rest on Adani, rather than the Report’s authors, being the ‘identifiable plaintiff’ with standing to bring an action against DES restricting disclosure of certain information contained in the Report that Adani has declined to identify. The first difficulty with this argument is that, as has been submitted by ACF, at the time Adani submitted the November 2018 BTFMP to DES, it was done with the expectation that, once approved, the BTFMP would be required to be published. The second difficulty is that the bulk of the information contained in the Report that is extracted from the November 2018 BTFMP is also contained in the final, approved BTFMP that has been published on Adani’s website. This information is therefore in the public domain and is no longer secret. As noted at paragraph 29 above, Adani argues that there is some information in the Report that is Adani’s ‘commercial-in-confidence’ information and that ‘was shared with the Department solely in circumstances importing an obligation of confidence’.[21] Adani argued that this information did not form part of the final BTFMP and remained confidential. However, when requested to identify this information, and to make submissions about the circumstances in which it was communicated, it declined to do so. In the circumstances, I am not satisfied that there exists a clearly identifiable plaintiff, with appropriate standing to bring an action in equity to enforce an obligation of confidence said to be owed to that plaintiff by DES. I will nevertheless set out additional reasons for finding that the Report is not exempt information under schedule 3, section 8(1) of the RTI Act. The Information Commissioner has historically identified five cumulative criteria as being necessary to establish an equitable obligation of confidence, as follows:[22] (a) relevant information must be capable of being specifically identifiable as information that is secret, rather than generally available (b) the information must have the necessary quality of confidence – ie, it must not be trivial or useless, and must have a degree of secrecy sufficient for it to be subject to an obligation of conscience (c) the circumstances of the communication must create an equitable obligation of confidence (d) disclosure of the information to the access applicant must constitute an unauthorised use of the confidential information; and (e) disclosure must cause detriment to the plaintiff. The Information Commissioner explained the inclusion of the fifth criterion – detriment – in Re B and BNRHA, at [109] - [111] of that decision. There is, however, now doubt as to the necessity to establish detriment in cases such as the present, where the party said to be owed an obligation of confidence is a non-government actor.[23] It is not a matter I need to address, however, as I do not consider that any of the first three requirements for exemption are satisfied. As to the first requirement, I do not consider that the information that is claimed to be confidential is specifically identifiable as secret. Despite being invited to do so, Adani has declined to identify specific information contained in the Report that it claims that it communicated in confidence to DES and that remains secret, as opposed to having been published as part of the approved BTFMP. I am not able to identify any such information. As such, in terms of the second requirement, I also am not satisfied on the information before me that information contained in the Report that was communicated by Adani retains a degree of secrecy sufficient for it to be subject to an obligation of confidence. Requirement (c) requires that information must have been communicated in such circumstances as to fix the recipient with an equitable obligation not to use the confidential information in a way that is not authorised by the confider.[24] In B and BNRHA, the Information Commissioner stated that, when considering this requirement:[25] ...the fundamental inquiry is aimed at determining, on an evaluation of the whole of the relevant circumstances in which confidential information was imparted to the defendant, whether the defendant's conscience ought to be bound with an equitable obligation of confidence. 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. [emphasis added] To put it another way, the touchstone in assessing whether requirement (c) is satisfied ‘lies in determining what conscionable conduct requires of an agency in its treatment of information claimed to have been communicated in confidence’.[26] There is nothing on the face of the Report to suggest that it was communicated subject to any agreed, mutual understanding of confidence. As I have noted, neither DES nor the Report’s authors (as far as I am aware) makes any claim for confidential treatment. The authors have published an article explaining why they considered the BTFMP that they reviewed was inadequate. In addition, given the relationship between the parties and the circumstances of the Report’s communication – that is, the authors were independent experts retained to review the BTFMP and to prepare a report to assist DES to discharge the regulatory decision-making role that it conducts on behalf of the Queensland public – I do not consider it would have been reasonable for either party to expect that DES would be obliged to keep the Report confidential from the public. Nor do I consider, given that the BTFMP has now been approved and much of the information that the Report discusses is contained in the published BTFMP, that the Report is of a secret and sensitive nature such as to justify a finding that DES ought to be bound by an equitable obligation of confidence. The same can be observed about the relationship between Adani and DES. Adani was required to submit the BTFMP to DES as part of DES’s role as a regulatory agency that is accountable to the public for the decisions it makes. I do not accept that a relationship of this nature could give rise to a reasonably-based mutual expectation that the information communicated by Adani would be kept confidential. Adani should reasonably have expected that DES would be required to account to the public for the decisions it made about the BTFMP and the information it took into account in making those decisions. I also take note of the fact that Adani was aware that its BTFMP was required to be published when approved. In addition to these factors,[27] in considering whether information has been communicated in circumstances giving rise to an equitable obligation of confidence, an RTI decision-maker may, as I understand recent appeal decisions, have regard to public interest considerations:[28] ...In the case of information produced to and held by a government agency, it can be accepted that the public interest in having access to the particular information is one of the factors to be considered when ascertaining whether or not that information is held under an obligation of confidence. Indeed, it may be a factor to which considerable weight attaches. But it is not the sole determining factor. It needs to be weighed in the mix of all the relevant circumstances under which the information was imparted to ascertain whether the information is held subject to an equitable obligation of confidence. [emphasis added] As will be discussed further below, I consider there are strong public interest considerations favouring disclosure of the Report. These can be coupled with the public interest in informing the community of DES’s operations, and the general public interest in promoting access to information in government possession or control. I communicated this view to Adani in my letters dated 12 August 2019 and 25 September 2019. In response, as noted above at paragraph 30 above, Adani argued that the public interest was just one factor (and not the sole determining factor) to be considered in the matrix of factors in determining whether information is held under an obligation of confidence. I accept this, and I have discussed above in paragraphs 45 and 46, the other factors that I consider are relevant. When Adani was asked to identify any other factors that it contended should be taken into account, it declined to do so.[29] With these considerations in mind, I am satisfied that, having regard to ‘the mix of all the relevant circumstances’,[30] conscionable conduct would not require DES, as a government agency with a duty to account to the community, to keep confidential from the Queensland public, an expert report that it commissioned, at public expense, to assist it to discharge important environmental regulatory functions on behalf of the community. Finding For the reasons explained, I find that the Report is not exempt information under schedule 3, section 8(1) of the RTI Act. Contrary to the public interest information Factors favouring nondisclosure Adani alternatively argues that disclosure of the information in issue would, on balance, be contrary to the public interest. This comprises a further ground on which access to information may be refused. The nondisclosure factors relied upon by Adani are set out at paragraphs 22 and 23 above. The factors for deciding the public interest itemised in schedule 4 to the RTI Act generally require that the particular outcome each seeks 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 said:[31] 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. Other authorities note that the words ‘could reasonably be expected’:[32] ... 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. Prejudice to business/financial affairs Adani claims that the Report contains information about the business affairs of Adani, ‘being information about the development of the BTFMP and review of the BTFMP by the review panel. ... Specifically, release of the Document could reasonably be expected to result in third parties seeking to actively interfere with – and as a result delay – Adani’s commencement of the next stage of the Project’.[33] Adani made reference to the history of third party interference with the mine project and submitted that it was reasonable to ‘expect interference with the Project will occur as a direct result of release of the Document’.[34] ACF disputed Adani’s submission,[35] arguing that even if interference with the project could reasonably be expected as a result of disclosure (which it did not accept), the RTI Act specifically provided that potential mischievous conduct by an applicant is an irrelevant consideration that cannot be taken into account by a decision-maker when balancing the public interest.[36] ACF also submitted that Adani had failed to explain how release of the Report could delay the next stage of the project and cause detriment to Adani, given that the BTFMP had been approved by DES. In its second submission,[37] Adani continued to argue that it was reasonable to expect that release of the report would ‘trigger further action from Activist Groups’ and that, given the past behaviour of these groups, this expectation was reasonably-based and not merely speculative. Taking account of the fact that the final BTFMP has been approved by DES, and published on Adani’s website, together with the fact that the Report’s authors have previously published a summary of their concerns about the BTFMP that they reviewed,[38] I do not accept that there are reasonable grounds for expecting that disclosure of the Report would result in an adverse effect on Adani’s business or financial affairs by activists somehow taking action to delay the mine project. Beyond making the general assertion that activist groups will ‘actively interfere with the project’, Adani has not established how disclosure of the particular information contained in the Report could reasonably be expected to have the adverse effect contended for, given what is already in the public domain about the BTFMP and the findings of the Report. I also accept that whether or not ‘mischievous’ conduct by an applicant will result from disclosure of information is an irrelevant factor to deciding the public interest. In the interest of completeness, I should note that Adani does not seek to rely on the substantially similar nondisclosure factor in schedule 4, part 3, item 15 of the RTI Act, nor the business affairs harm factor in schedule 4, part 4, section 7(1)(c) of the RTI Act. For the reasons explained, I find that none of schedule 4, part 3, items 2 or 15, or schedule 4, part 4, section 7(1)(c) of the RTI Act applies in favour of nondisclosure of the Report. CI Prejudice Factor and CI Harm Factor The CI Harm Factor will only arise if: the information consists of information of a confidential nature the information was communicated in confidence; and its disclosure could reasonably be expected to prejudice the future supply of such information. The associated CI Prejudice Factor requires only that disclosure could reasonably be expected to prejudice an agency’s ‘ability to obtain confidential information’. For the reasons discussed above when considering the application to the Report of schedule 3, section 8(1) of the RTI Act, I am not satisfied that the Report contains information of a confidential nature that was communicated in confidence. While Adani claims that there is information in the Report that it communicated separately to the BTFMP and that remains confidential, it has not identified that information or made submissions about the circumstances of the communication so as to allow me to make an assessment of this submission. There is no evidence before me of the existence of a mutual understanding of confidence, either between DES and the Report’s authors, or between DES and Adani. In its submission dated 30 August 2019, Adani submitted that ‘it is reasonably possible that the availability and quality of future similar reports may be affected if the authors are aware that such reports – produced for internal purposes – are likely to be released’. ACF refuted this claim, arguing that the possibility of public disclosure should improve, rather than reduce, the quality of such reports, and also pointing to the fact that the Report’s authors had published an article about their review, and had participated in media interviews, leading to the reasonable conclusion that they were aware that the Report was likely to be released to the public and that they were not concerned by this.[39] In my letter to Adani dated 25 September 2019, I referred to previous decisions of the Information Commissioner regarding whether it is reasonable to expect that future supply of information to government will be prejudiced in situations where entities must supply the information under contractual arrangements or regulatory requirements if they are to receive some benefit from government: Where persons are under an obligation to continue to supply such ... information (e.g. for government employees, as an incident of their employment; or where there is a statutory power to compel the disclosure of the information) or 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.[40] Adani responded[41] by arguing that its situation was different because some information in the Report was supplied voluntarily to the Department and the Report’s authors during the review process, in addition to the information in the BTFMP. Again, I note the difficulty presented in assessing this submission when Adani has declined to identify the information in question or to explain the circumstances of the communication. Based on the information before me, even if I were to be satisfied that the Report comprised confidential information, I am not satisfied, firstly, that there are reasonable grounds for expecting that a substantial number of experts available to DES would refuse to provide similar information to DES in the future, particularly when they receive payment for their work. There is no evidence before me to support this assertion. Whether or not the quality of the information provided would suffer through disclosure is irrelevant to a consideration of the CI Prejudice Factor. But I would record my view in any event that there is no reasonable basis for Adani’s submission in this regard. Secondly, I am not satisfied that any reasonable grounds exist for expecting that a substantial number of private entities in the position of Adani, i.e., entities that are required to submit information to government in order to receive a benefit from government in the form of regulatory approval of a significant project, would not provide information of the highest detail and quality so as to ensure the best possible chance of receiving approval. While Adani submits that information contained in the Report was provided voluntarily and would not be provided in future without an assurance of confidentiality, it has not identified that information. I do not accept the submission in any event. Adani no doubt submitted such information in order to strengthen its case for approval of the project. I am not satisfied that a substantial number of entities in a similar position to Adani would refuse to do the same as a result of disclosure of the Report. Accordingly, I am not satisfied that disclosure of the Report could reasonably be expected to: prejudice DES’s ability to obtain confidential information; or prejudice the future supply to DES of information of this type. I find that the CI Prejudice Factor and the CI Harm Factor do not apply in favour of nondisclosure of the Report. DP Prejudice Factor and DP Harm Factor DES does not claim that any harm to its deliberative processes would result from disclosure of the Report. However, Adani claims that disclosure could reasonably be expected to: cause a public interest harm through disclosure of deliberative process information; and prejudice a deliberative process. In its submission dated 30 August 2019, Adani submitted: The Document is opinion/advice obtained by the Department in the course of a specific deliberative process, being the decision whether to approve the BTFMP. As such ... its disclosure can reasonably be expected to cause public interest harm. Further, disclosure of the Document is contrary to the public interest, because disclosure of this deliberative process information could reasonably be expected to: (a) result in active interference by third parties with the next stage of the Project; (b) as a result, delay the delivery of the Project’s benefits to the community, as well as harming the interests of Adani shareholders and employees; and (c) cause impacts of a kind contemplated in Johnston and Brisbane City Council.[42] In response,[43] ACF argued that the relevant deliberative process has been completed and therefore cannot be prejudiced by disclosure of the Report. It also contended that Adani had failed to establish how disclosure of the Report would result in delay to the project, given that the thrust of the Report and the authors’ concerns about the BTFMP that they reviewed have been publicised. It rejected Adani’s reliance on the relevant extract from the Information Commissioner’s decision in Johnston and Brisbane City Council, pointing out that, unlike the present situation, the relevant deliberative process in that case had not been completed. In my letter to Adani’s lawyers dated 25 September 2019, I explained that I was of the preliminary view that the DP Prejudice Factor did not apply because the relevant deliberative process had been completed. I also advised that the Information Commissioner has found that, when applying the DP Harm Factor in a situation where the deliberation has finished, there can be a significant reduction of the harm that could result from disclosure, and it has often been afforded no to low weight when balancing the public interest. In response, Adani submitted[44] that its submission focused on the DP Harm Factor rather than the DP Prejudice Factor, and reiterated its earlier submissions. Although it seems that Adani no longer relies on the DP Prejudice Factor, I record for completeness my finding that this factor does not apply to the Report because DES’s deliberations have been completed and disclosure of the Report therefore could not reasonably be expected to prejudice a deliberative process of government. In respect of the DP Harm Factor, I accept that the Report is deliberative process information and that a public interest harm is therefore presumed to arise from its disclosure. The three harms identified by Adani are set out at paragraph 75 above. I do not accept that the third harm has any application as it relates to a situation where the relevant deliberative process is ongoing. As to the first two harms, I have set out above my views about Adani’s arguments that there are reasonable grounds for expecting that disclosure of the Report, in circumstances where the BTFMP has been finalised, approved and published, and the Report’s authors have previously publicly discussed the concerns they held about the BTFMP that they reviewed, could reasonably be expected to result in delay to the project through the actions of activists. I find that any harm to the public interest would be slight, and I afford the DP Harm Factor low weight in the public interest balancing test. Factors favouring disclosure Adani did not identify any public interest factors favouring disclosure that it conceded would apply to the Report. In my letter to Adani’s lawyers dated 12 August 2019, I identified four public interest factors that I considered weighed in favour of disclosure: (a) schedule 4, part 2, item 1 of the RTI Act – disclosure could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability (b) schedule 4, part 2, item 2 of the RTI Act – disclosure could reasonably be expected to contribute to positive and informed debate on important issues or matters of serious interest (c) schedule 4, part 2, item 3 of the RTI Act – disclosure could reasonably be expected to inform the community of the Government’s operations; and (d) schedule 4, part 2, item 11 of the RTI Act – disclosure could reasonably be expected to reveal the reason for a government decision and any background or contextual information that informed the decision. In addition to the public interest factors favouring disclosure identified above, ACF raised the application of the following factors:[45] (e) schedule 4, part 2, item 5 of the RTI Act – disclosure could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official; and (f) schedule 4, part 2, item 13 of the RTI Act – disclosure could reasonably be expected to contribute to the protection of the environment. ACF also made general observations about the RTI Act’s pro-disclosure bias, and the unprecedented public interest in the Carmichael coal mine and its potential impact on the Black-Throated Finch population. DES commissioned the Report in order to obtain ‘the best possible scientific advice’ on the potential impact of the Carmichael coal mine on the Black-Throated Finch population.[46] DES discharges, on behalf of the public of Queensland, an important regulatory function aimed at protecting the environment from harm. It sought expert advice, which was funded by public monies, to assist it to make a significant decision about whether or not to approve Adani’s BTFMP. That decision, and all decisions and actions that DES has taken in respect of the approval process for the Carmichael coal mine, are taken on behalf of the community. As such, a high level of scrutiny and need for accountability attaches to any such decisions, which must be as transparent as possible. The public is entitled to obtain access to information that will enable it to understand the relevant issues, the decision-making process, the information upon which the decision was based, and the reasons for the decision. The high level of public interest in the Carmichael coal mine is clear, both from supporters and opponents of the project. For the past several years, it has received unprecedented media coverage and has been the subject of extensive public debate and discussion. The approval of the BTFMP was a significant step in the approval process for the project and I accept that some regard it as controversial. I consider that disclosure of the Report could reasonably be expected to promote and enhance the accountability of DES in its decision-making process by informing the public of information that DES gathered and considered when making its decision to approve Adani’s BTFMP. I consider there is a strong public interest in disclosing to the community on behalf of whom DES acts, information that informed or was relevant to the decision so as to allow the community to meaningfully assess the reasonableness or otherwise of the decision. For these reasons, I afford significant weight to each of the factors (a) to (d) set out at paragraph 84 above. As regards the additional factors relied upon by ACF in paragraph 85, I am not satisfied that disclosure could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official. While ACF argues that this expectation is not merely speculative given the ‘highly political nature of the post-election approval’,[47] I am not satisfied that disclosure of the Report itself would give rise to reasonably-based grounds for the relevant expectation. However, I do accept ACF’s submission that disclosure could reasonably be expected to contribute to the protection of the environment. I accept that disclosure of the Report, which was prepared by recognised experts in their respective fields, would inform the public about the Black-Throated Finch population and assist the public to better understand the issues and obstacles facing the survival of this species and ways in which the population can be protected. As such, I am satisfied that disclosure of the Report could reasonably be expected to contribute to protection of the environment. I afford this factor moderate weight in the public interest balancing test.Balancing the public interest I have taken no irrelevant factors into account in considering the public interest. I afford low weight to the DP Harm Factor, which is the only public interest factor favouring nondisclosure that I am satisfied applies to the Report. I afford significant weight to the public interest factors favouring disclosure of the Report identified at paragraph 84(a) to (d) above, and moderate weight to the factor identified at paragraph 85(f). I find that the factor at paragraph 85(e) does not apply. After balancing the public interest, I am satisfied that disclosure of the Report would not, on balance, be contrary to the public interest.DECISION For the reasons explained, I set aside the deemed refusal decision of DES dated 24 May 2019. In substitution for that decision, I find that the Report is not exempt information under the RTI Act, and nor would its disclosure, on balance, be contrary to the public interest. As such, there are no grounds under the RTI Act to refuse access to it. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Louisa Lynch Right to Information CommissionerDate: 4 December 2019APPENDIX Significant procedural steps Date Event 27 May 2019 OIC received the application for external review. OIC requested that DES provide procedural documents. 10 June 2019 DES provided procedural documents. 3 July 2019 OIC advised the applicant and DES that the application for external review had been accepted. OIC requested that DES provide copies of the Report in issue. OIC confirmed with DES its verbal advice that it did not object to disclosure of the Report. 31 July 2019 DES provided a copy of the Report. 12 August 2019 OIC consulted with the third party. 26 August 2019 The third party’s lawyers requested that the identity of the applicant be disclosed. The applicant advised that it was agreeable to its identity being disclosed to the third party. 30 August 2019 The third party provided a written submission. 2 September 2019 The third party’s submission was provided to the applicant. 23 September 2019 The applicant provided a written submission. 25 September 2019 The applicant’s submission was provided to the third party and OIC communicated a preliminary view to the third party. 16 October 2019 The third party provided a written submission. 21 October 2019 OIC invited the third party to provide additional information in support of its submission. 25 October 2019 The third party advised that it did not wish to provide any further submissions in support of its position. 28 October 2019 The third party’s submission was provided to the applicant. 11 November 2019 The applicant provided its final submission. 12 November 2019 The applicant’s submission was provided to the third party. [1] Application dated 5 March 2019.[2] Deemed decision notice dated 24 May 2019.[3] Application dated 27 May 2019. [4] <www.des.qld.gov.au/mediareleases/2019-01-21-expert-review-black-throated-finch-mgment-plan-adani.html> (accessed 28.11.19)[5] <www.des.qld.gov.au/mediareleases/2019-01-21-expert-review-black-throated-finch-mgment-plan-adani.html> (accessed 28.11.19)[6] <www.des.qld.gov.au/our-department/news-media/mediareleases/2019-05-31-black-throated-finch-mp-approved> (accessed 28.11.19)[7] <https://www.adaniaustralia.com/-/media/Project/Australia/Our-Projects--Businesses/mine-environment-reporting/BTF-Management-Plan_v8a-FINAL-28May2019.pdf?la=en&hash=D4C8EBBFB222B5FF28A61321F1A2078B> (accessed 28.11.19)TF-Management-Plan_v8a-FINAL-28May2019.pdf /203 [8] Letter dated 30 August 2019.[9] Adani submissions dated 30 August 2019 and 16 October 2019; ACF submissions dated 23 September 2019 and 11 November 2019. [10] Section 23 of the RTI Act. [11] Sections 47(3)(a) and 48 of the RTI Act. [12] The words ‘public interest’ refer to considerations affecting the good order and functioning of the community and government affairs for the wellbeing of citizens. This means that, in general, a public interest 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. [13] Section 49(3) of the RTI Act. [14] A recent decision of the Queensland Civil and Administrative Tribunal (QCAT) expresses doubt that detriment to the confider is a necessary requirement: Ramsay Health Care v Information Commissioner & Anor [2019] QCATA 66 (Ramsay).[15] Submission dated 30 August 2019. [16] Submission dated 30 August 2019.[17] [1980] HCA 44; (1980) 147 CLR 39 at [51]- [52]. [18] Submission dated 16 October 2019. [19] B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (B and BNRHA). [20] Stephen Garnett, Brendan Wintle & David Lindenmayer et al, ‘Adani’s finch plan is approved, just weeks after being sent back to the drawing board’, The Conversation (online), 31 May 2019 <https://theconversation.com/adanis-finch-plan-is-approved-just-weeks-after-being-sent-back-to-the-drawing-board-118114> (accessed 28.11.19). [21] Submission dated 16 October 2019. [22] B and BNRHA at [57]-[58].[23] Ramsay at [91]-[96]. [24] B and BNRHA at [76]-[102].[25] At [82], citing the 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 [302]- [304]. See also Ramsay at [79].[26] Pearce and Qld Rural Adjustment Authority; Various Landholders (Third Parties) (1999) 5 QAR 242 at [84].[27] Being the relationship between the parties, the sensitivity of the information, and the circumstances of the relevant communications.[28] Ramsay at [82].[29] Letter dated 25 October 2019. [30] Ramsay at [82], quoted in full above at paragraph 47. [31] B and BNRHA at [154]-[160].[32] Smolenski v Commissioner of Police, NSW Police [2015] NSWCATAD 21 at [34], citing Commissioner of Police, NSW PoliceForce v Camilleri (GD) [2012] NSWADTAP 19 at [28], McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] andAttorney-General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at [190].[33] Submission dated 30 August 2019. [34] Submission dated 30 August 2019. [35] Submission dated 23 September 2019. [36] Schedule 4, part 1, item 3 of the RTI Act. [37] Submission dated 16 October 2019. [38] See paragraph 35 above. [39] Submission dated 23 September 2019.[40] B and BNRHA at [161].[41] Submission dated 16 October 2019. [42] Unreported, Queensland Information Commissioner, 6 December 2013 at [39] (Johnston and Brisbane City Council). The impacts discussed were a ‘large amount of disruptive public debate. This could reasonably be expected to prejudice Council’s ability to objectively consider the options available and reach a considered decision... ’. [43] Submission dated 23 September 2019.[44] Submission dated 16 October 2019. [45] Submission dated 23 September 2019. [46] See paragraph 6 above. [47] Submission dated 23 September 2019.

queensland

court_judgement

Queensland Information Commissioner 1993-

Hawkswood and Department of Health [2009] QICmr 21 (30 March 2009)

Hawkswood and Department of Health [2009] QICmr 21 (30 March 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210656 Applicant: Mr I Hawkswood Respondent: Department of Health Decision Date: 30 March 2009 Catchwords: FREEDOM OF INFORMATION – Section 45(1)(c) of the Freedom of Information Act 1992 (Qld) – whether information concerns the business, professional, commercial or financial affairs of the agency or another person – prejudice to the future supply of information to government – draft deed of agreement Contents REASONS FOR DECISION Summary 1. Having considered the parties’ submissions, relevant legislation and decisions, I am satisfied that the relevant deed qualifies for exemption from disclosure under section 45(1)(c) of the Freedom of Information Act 1992 (Qld) (FOI Act). Background 2. By application dated 24 June 2008, the applicant requested access to (FOI Application): The latest version of a Heads of Agreement/Agreement or similar document for the Hancock Street Car Park between Q health and all or some of Mater Health Services, St Laurence’s College, Somerville House.[1] 3. By letter dated 2 September 2008, the Department of Health (Department) refused the applicant access to the 38 page document responding to the FOI Application under section 45(1)(c) of the FOI Act (Original Decision). 4. By application dated 8 September 2008, the applicant applied for internal review of the Original Decision. 5. By letter dated 6 October 2008, the Department affirmed its Original Decision (Internal Review Decision). 6. By letter dated 4 November 2008, the applicant applied to this Office for external review of the Internal Review Decision. Decision under review 7. The decision under review is the Internal Review Decision referred to in paragraph 5 above. Steps taken in the external review process 8. By letters dated 6 November 2008, this Office advised the applicant and the Department that the External Review Application had been accepted. 9. By letter dated 24 November 2008, the Department provided this Office with a copy of the document relevant to this review. 10. By letters dated 14 January 2009, I informed Mater Health Services and St Laurence’s College of the review and invited them to apply to participate in the review in accordance with section 78 of the FOI Act. I also asked these third parties whether they had any objection to release of the document in issue. 11. By letters dated 19 January 2009 and 27 January 2009, Mater Health Services and St Laurence’s College responded to this Office’s correspondence (Third Party Submissions). 12. By letter dated 9 February 2009, I provided the applicant with a preliminary view regarding the exemption provision claimed by the Department. 13. By letter dated 17 February 2009, the applicant advised that he did not agree with the preliminary view and requested a copy of the Third Party Submissions. 14. By letter dated 23 February 2009, I provided the applicant with a copy of the Third Party Submissions. 15. By email dated 2 March 2009, the applicant provided submissions in response to the preliminary view. 16. In making this decision, I have taken into account the following: • the FOI Application, Internal Review Application and External Review Application • the Original Decision and Internal Review Decision • the relevant deed • the Third Party Submissions • letters from the applicant to this Office dated 17 February 2009 and 2 March 2009 • file notes of telephone conversations between this Office and the applicant[2] • relevant provisions of the FOI Act as referred to in this decision • decisions of this Office and case law from other Australian jurisdictions referred to in this decision. Matter in issue 17. The matter in issue in this review comprises a 38 page draft Deed of Agreement concerning the construction of the Hancock Street Car Park as part of the Queensland Children’s Hospital Project (Deed). Findings Section 45(1)(c) of the FOI Act 18. Section 45(1)(c) of the FOI Act provides: 45 Matter relating to trade secrets, business affairs and research (1) Matter is exempt matter if— ... (c) its disclosure— (i) would disclose information (other than trade secrets or information mentioned in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or another person; and (ii) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to government; unless its disclosure would, on balance, be in the public interest. 19. The Information Commissioner has previously stated that section 45(1) of the FOI Act is the primary vehicle for reconciling the main objects of the FOI Act, that is, promoting open and accountable government administration and fostering informed public participation in the process of government, with the legitimate concerns for the protection from disclosure of commercially sensitive information.[3] 20. The purpose of the section is to provide a means whereby the general right of access to documents in the possession or control of government agencies can be prevented from causing unwarranted commercial disadvantage to: • persons carrying on commercial activity who supply information to government or about whom government collects information; or • agencies which carry on commercial activities. 21. Provisions such as section 45(1)(c) of the FOI Act (and interstate equivalents) have also been described as reflecting:[4] ... the commercial reality that many State and local governments are increasingly engaged in commercial activities and is intended to ensure that the commercial and business affairs of government agencies - conducted by those agencies for and on behalf of the ... public - are not jeopardised by the disclosure of documents under the FOI Act unless there is a public interest that requires such disclosure. Requirements for exemption under section 45(1)(c) of the FOI Act 22. To qualify for exemption under section 45(1)(c) of the FOI Act it must be established that: a) the Deed is information concerning the business, professional, commercial or financial affairs of a person, including a company or agency b) disclosure of the Deed could reasonably be expected to have either of the following effects: ○ an adverse effect on the business, professional, commercial or financial affairs of the person which the information in issue concerns; or ○ prejudice to the future supply of such information to government. 23. If both a) and b) are established, the Deed is exempt unless its disclosure would, on balance, be in the public interest. Application of section 45(1)(c) of the FOI Act to the Deed 24. I will consider each of the above requirements in turn. a) Information concerning the business, professional, commercial or financial affairs of an agency or another person 25. The Department submits that the information contained within the Deed concerns the business, professional, commercial and financial affairs of the Department, Mater Health Services and St Laurence’s College. 26. Both Mater Health Services and St Laurence’s College advise that they support the Department’s position and submit that the information contained within the Deed also concerns their business, commercial and/or financial affairs. 27. Although Mater Health Services and St Laurence’s College have not provided detailed submissions on this point, I note that for the purposes of section 45(1)(c) of the FOI Act, it is only necessary for the Department to demonstrate that its business, professional, commercial and/or financial affairs would be adversely affected by disclosure of the Deed. 28. The extent to which a document contains information concerning an agency’s business, professional or commercial affairs has previously been explained in the following terms: "for a document to concern business, professional or commercial affairs, the document must contain material that goes beyond simply referring to those affairs. The document must contain something relating to business, professional or commercial affairs that is of a real and genuine substance." [5] 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... [6] 29. Similarly, business affairs are generally understood to concern the conduct of a business or the carrying on of a commercial operation.[7] 30. Having carefully considered the Deed, I am satisfied that the information contained within that document: • identifies the respective rights and obligations of the Department, Mater Health Services and St Laurence’s College at a particular point in time as they relate to the construction of the Hancock Street car park • concerns the business, professional, commercial or financial affairs of the Department, in that it relates directly to a commercial transaction to which the Department is a party. b) Adverse effect on business, professional, commercial or financial affairs 31. The Information Commissioner has previously stated that an ‘adverse effect’ will typically be established on the facts if the information comprised within the document/s in issue is capable of causing competitive harm to the relevant agency/person:[8] In most instances, the question of whether disclosure of information could reasonably be expected to have an adverse effect will turn on whether the information is capable of causing competitive harm to the relevant agency, corporation or person. Since the effects of disclosure of information under the FOI Act are, with few exceptions, to be evaluated as if disclosure were being made to any person, it is convenient to adopt the yardstick of evaluating the effects of disclosure to a competitor of the agency which, or person whom, the information in issue concerns. ... A relevant factor in this regard would be whether the agency or other person enjoys a monopoly position for the supply of particular goods or services in the relevant market (in which case it may be difficult to show that an adverse effect on the relevant business, commercial or financial affairs could reasonably be expected), or whether it operates in a commercially competitive environment in the relevant market. 32. In reliance on the first limb of section 45(1)(c)(ii) of the FOI Act,[9] the Department submits that disclosure of the Deed could reasonably be expected to have an adverse effect on its business, professional, commercial and financial affairs[10] as: • construction of the Hancock Street car park is critical to the uninterrupted operation of the Mater Hospital and the construction of the new Queensland Children’s Hospital • confidential negotiations between the Department, Mater Health Services and St Laurence’s College regarding the construction works of the Hancock Street car park were not finalised at the time the Deed was created[11] • disclosure of the Deed may enable a third party to seek to influence ongoing negotiations • any interference in present negotiations would affect the commercial and financial affairs of all negotiating parties by causing unnecessary delays to the construction of the Queensland Children’s Hospital and may result in additional costs to the Department • release of the terms and conditions in the Deed may enable other parties (with whom the Department is currently negotiating compensation issues) to seek similar commercial arrangements with the Department. 33. In relation to any adverse effect which may be experienced by the Department, Mater Health Services and St Laurence’s College, the applicant submits: • none of the parties have car parking operations as their core business • the adverse effect on the financial affairs of those parties would be less than 0.00001% of the Department’s budget, less than 0.01% of the Mater Health budget and less than 1% of St Laurence’s budget • because Mater Health Services is the only significant land holder who has the capacity to control car parking availability and fees in the area, there is no information that could be released that will have an adverse effect on it being the monopoly supplier and controller of car parking in the immediate vicinity.[12] 34. In respect of the applicant’s first submission, I do not consider that whether car parking operations fall within the Department’s core business is determinative in considering whether its business, professional, commercial and/or financial affairs would be adversely affected. 35. In respect of the applicant’s second submission that only a small percentage of the Department’s budget would be adversely affected, I note that the Queensland Children’s Hospital project represents an investment of approximately $1.1 billion[13] by the Department. 36. In respect of the applicant’s third submission, I confirm that in the circumstances, it is unnecessary to consider whether disclosure could reasonably be expected to adversely affect the business, professional, commercial or financial affairs of Mater Health Services. 37. Having carefully considered the particular circumstances of this case, I am satisfied that the Deed: • is a working document which has been, and will continue to be amended to reflect ongoing negotiations between the parties until it is finalised • does not reflect the final negotiated position of the Department with Mater Health Services and St Laurence’s College • may, when compared with the finalised agreement, disclose the respective negotiating positions of the Department with Mater Health Services and St Laurence’s College to its competitors and could prejudice the Department’s ability to negotiate favourably with other entities in the future. 38. Accordingly, on the information available to me, I consider that disclosure of the Deed could reasonably be expected to adversely effect the business, professional, commercial and/or financial affairs of the Department. Public interest balancing test 39. As I have found that the requirements of section 45(1)(c)(i) and (ii) of the FOI Act are met, I must now consider whether there are public interest considerations favouring disclosure of the Deed which, on balance, outweigh the public interest in protecting the business, professional, commercial or financial affairs of the Department. 40. In terms of public interest arguments favouring disclosure of the Deed, the applicant submits that: • he has a direct interest in the Deed because he is a nearby resident who will be directly affected by the construction and operation of the Hancock Street car park • to date, substantial detrimental effects have been experienced by the residents of Stephens Road • at a time when funding is tighter than it has been is previous years, any public spending must be very carefully targeted to benefit the greatest number of jobs for state workers • given the significant amount of public monies being expended by the government on this project, there is a public interest in members of the public being advised of the real cost of the car park and the Queensland Children’s Hospital. 41. In consideration of the applicant’s submissions, I will consider the following public interest considerations favouring disclosure: • the applicant’s justifiable need to know information • the accountability of government. Justifiable need to know 42. This public interest consideration recognises that in certain cases, information contained within a document may affect or concern an applicant to such a degree that it gives rise to a public interest in the applicant having a justifiable need to know that information, which is more compelling than for other members of the public.[14] 43. The Information Commissioner has previously indicated that this public interest will not arise if the applicant merely has a personal interest in having access to particular information. Rather, the information must either concern the personal affairs of the applicant or relate to a situation where the applicant’s 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.[15] 44. While I acknowledge that the applicant’s interest in the information may be greater than for other members of the public, I note that: • the Deed does not concern the applicant’s personal affairs • the Department has gone to considerable effort to ensure that interested members of the public are kept informed about the construction of the Hancock Street car park and Queensland Children’s Hospital.[16] 45. On the information available to me, I find that this public interest consideration should be afforded little or no weight in the circumstances. Accountability of government 46. Facilitating the accountability of government is a public interest consideration recognised by section 4 of the FOI Act. Enabling accountability of government also promotes informed public participation in the processes of government, recognised as one of the FOI Act’s major objectives. 47. The question in this case is whether disclosure of the Deed would allow members of the public a better understanding of action taken by the Department and enable them to better scrutinise and assess the Department’s performance.[17] 48. Accordingly, I must consider whether disclosure of the Deed would materially enhance this public interest consideration to an extent that warrants it being accorded significant weight in favour of disclosure. 49. Although I acknowledge the significant public interest in enhancing the accountability of government agencies in respect of the performance of their functions (including their management of major projects), I am also mindful of the Information Commissioner’s statement regarding the issue of government accountability in the context of commercially sensitive information concerning other entities:[18] ... the legitimate public interest in commercial organisations being able to protect commercially sensitive information must be taken into account in the balancing process. Often, sufficient information to serve the public interest in scrutiny and accountability of government can be disclosed while accommodating legitimate interests in the protection of commercially sensitive information. 50. In consideration of the above and having regard to the following factors: • the amount of information about this project which is already publicly available • the fact that the agreement comprising the Deed does not reflect the final negotiated position of the parties, I consider that disclosure of the Deed would not materially enhance this public interest consideration and on this basis, it should be afforded little or no weight in the circumstances. Summary - public interest considerations 51. In summary, I am satisfied that: • the public interest considerations favouring disclosure in this matter are insufficient to outweigh the public interest in protecting the business, professional, commercial and/or financial affairs of the Department • the Deed qualifies for exemption from disclosure under section 45(1)(c) of the FOI Act. DECISION 52. I affirm the decision under review by finding that the Deed qualifies for exemption from disclosure under section 45(1)(c) of the FOI Act. 53. 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: 30 March 2009[1] I note that the scope of the application was later reduced by the applicant’s email to the Department of Health dated 21 August 2008. [2] On 20 February 2009 and 19 March 2009.[3] Cannon and Australian Quality Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 (Cannon).[4] Lee Phillips Hemsley and City of Subiaco and Foxington P/L, Re 2008] WAICmr 46 at paragraph 45.[5] Fulham v Director-General, Department of Environment and Conservation [2005] NSWADT 88 at paragraph 29 as approved in McDermott v Junee Shire Council [2009] NSWADT 29.[6] Cannon and Australian Quality Egg Farms Ltd [1994] QICmr 9 at paragraph 81.[7] Young v Wicks [1986] FCA 169; (1986) 79 ALR 448 at paragraph 453.[8] Cannon at paragraph 84.[9] The Department does not argue that disclosure of the Deed could reasonably be expected to prejudice the future supply of similar information to government. Accordingly, it is not necessary for me to consider the second limb of section 45(1)(c)(ii) of the FOI Act.[10] Mater Health Services and St Laurence’s College support the Department’s position in respect of this point.[11] This situation can be contrasted to a situation where a project has been finalised or is at an advanced stage. See Johnson and Queensland Transport; Department of Public Works (Third Party) [2004] QICmr 1 where the Information Commissioner considered that: the lapse of time since the report was written and the consultation processes were undertaken the advanced stage the project had reached by the time the matter came to external review, meant that the adverse effect of disclosure claimed by the agency was too remote and speculative to warrant a finding that on balance disclosure would be contrary to the public interest.[12] I confirm that in the circumstances it is unnecessary to consider any adverse effect attributable to the business, professional, commercial or financial affairs of Mater Health Services.[13] As reported on the following website: http://www.health.qld.gov.au/childrenshospital/.[14] Pemberton and The University of Queensland (1994) 2 QAR 293 (Pemberton) at paragraphs 164-193[15] Pemberton at paragraphs 188 – 200.[16] See the website specifically concerned with matters relating to the construction of the new Queensland Children’s Hospital - see http://www.health.qld.gov.au/childrenshospital/.[17] Burke and Department of Families, Youth and Community Care [1997] QICmr 19; (1997) 4 QAR 205[18] Cardwell Properties Pty Ltd; Williams and Department of the Premier, Economic and Trade Development; North Queensland Conservation Council Inc (Third Party) [1995] QICmr 19; (1995) 2 QAR 671 at paragraph 31.

queensland

court_judgement

Queensland Information Commissioner 1993-

WEU27L and Mackay Hospital and Health Service [2017] QICmr 44 (11 September 2017)

WEU27L and Mackay Hospital and Health Service [2017] QICmr 44 (11 September 2017) Last Updated: 1 December 2017 Decision and Reasons for Decision Citation: WEU27L and Mackay Hospital and Health Service [2017] QICmr 44 (11 September 2017) Application Number: 312974 Applicant: WEU27L Respondent: Mackay Hospital and Health Service Decision Date: 11 September 2017 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - medical record of deceased adult child - personal information of deceased and third parties - whether disclosure would, on balance, be contrary to the public interest - whether access to information may be refused under section 47(3)(b) of the Right to Information Act 2009 (Qld) REASONS FOR DECISIONSummary The applicant applied under the Right to Information Act 2009 (Qld) (RTI Act) to the Mackay Hospital and Health Service (Health Service)[1] for access to medical records of his deceased adult child. The Health Service refused access to the requested medical records on the basis that disclosure would, on balance, be contrary to the public interest.[2] The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Health Service’s decision. I have decided to vary the Health Service’s decision, and find that disclosure of the relevant medical records would, on balance, be contrary to the public interest and therefore, access to them is refused under section 47(3)(b) of the RTI Act.Background The applicant’s child, a parent of three children, died suddenly in July 2015. The applicant states that the deceased had stopped residing with the applicant when an infant, however, at the time of the deceased’s death, the applicant and the deceased had recently renewed contact and were establishing a close relationship. The applicant seeks information about the deceased’s health and living circumstances, in order to know more about the deceased, and so as to be able, when his grandchildren are older, to provide them with information about their parent. He also wishes to provide the grandchildren with information about themselves, recorded in the Information in Issue. Additionally, the applicant asserts that the deceased reported having experienced familial ill treatment as a child. The applicant considers information in the medical record will support this assertion and assist him in presenting his concerns,[3] that one of the deceased’s children may be experiencing abuse similar to that which the deceased reported, to appropriate welfare agencies. Significant procedural steps taken by OIC in conducting the external review are set out in the Appendix to these reasons.Reviewable decision The decision under review is the decision of the Health Service, dated 21 September 2016, refusing access to the deceased’s medical records under section 47(3)(b) of the RTI Act.Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix). The applicant provided written and oral submissions to OIC supporting his case.[4] Information in issue The access application seeks access to ‘Medical files, D/C summaries, corro – would like information in the medical file’ (Original Scope). During processing by the Health Service, the applicant narrowed the scope of the access application to two categories of documents, being discharge summaries and correspondence.[5] Despite this, the Health Service located and made its decision on documents responsive to the Original Scope (436 pages).[6] However, for the purpose of this review, only discharge summaries and correspondence are within the reviewable scope. Additionally, on external review, the applicant further narrowed the scope of the access application by electing not to seek access to information about the deceased’s mental health diagnosis, and some information about third parties, such as their telephone numbers.[7] The information within scope in this review (Information in Issue) consists of information from the deceased’s medical records. It comprises personal details of the applicant, the deceased, and individuals other than the applicant or the deceased, including other family members of the deceased. Consent form On external review, the applicant provided OIC[8] with a consent form (Consent)[9] which the applicant submits has legal force entitling him to access to the deceased’s medical records. The Consent contains two signatures, which the applicant asserts are those of himself and the deceased. The Consent states that the deceased gives consent to the applicant to access and discuss, including with law firms, the deceased’s records held by police, schools, guidance counsellor, child services and youth services. The Consent does not indicate that it applies to any other Government agencies. Given that the specific entities listed in the Consent have, primarily, a welfare function, and the Consent does not mention any agencies having a health or medical function, such as the Health Service, I find that the Consent does not apply to agencies having a health or medical function, such as the Health Service. On its face, the Consent indicates that the signatories agreed to the applicant accessing sensitive personal information of the deceased from welfare agencies. It does not indicate if it was intended to continue to be effective in the event of the deceased’s death, and there is no independent evidence before me to verify that the other signature is the deceased’s. Nevertheless, the Consent is consistent with the applicant’s contention that he and the deceased were establishing a cooperative and trusting relationship. On that limited basis, I have included it in my consideration[10] in assessing relevant pro-disclosure and nondisclosure public interest factors relating to whether disclosure of the Information in Issue would, on balance, be contrary to the public interest.Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[11] 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.[12] Relevantly, an agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[13] 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[14] and explains the steps that a decision-maker must take[15] 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.Analysis No irrelevant factors arise in the circumstances of this review. Factors favouring disclosure I recognise the general public interest in advancing access to government-held information, that is, the pro-disclosure bias.[16] Personal information In circumstances where information is: the applicant’s personal information;[17] and the personal information of a deceased individual and the applicant is an eligible family member of the deceased,[18]this will enliven two public interest factors in favour of disclosure enunciated in the RTIAct. In this matter, a very small amount of the Information in Issue is the personal information of the applicant. Ordinarily the factor favouring disclosure to the applicant of his personal information would attract significant weight, however, in this case the nature of the Information in Issue is such that it is not possible to separate the applicant’s personal information from the personal information of the deceased and another individual. In other words, disclosing to the applicant the small amount of Information in Issue that comprises his personal information would disclose to him personal information of other individuals, which would result in the adverse public interest consequences discussed below,[19] thus lessening the weight to be attributed to the public interest in favour of disclosure of the applicant’s personal information. Accordingly, the otherwise significant weight of this factor is reduced to a moderate weight. As the father of the deceased, the applicant is an eligible family member of the deceased person, giving rise to the public interest factor favouring disclosure of the deceased’s personal information. The Information in Issue consists of information about the deceased, the deceased’s health and the deceased’s personal relationships. It therefore comprises personal information of the deceased. Accordingly, this factor applies regarding the entirety of the Information in Issue. Disclosing the Information in Issue would enhance the public interest in the applicant being provided with information about the deceased’s health and well being. As noted above,[20] the Consent supports the applicant’s contention that he had been reconnecting with the deceased prior to the deceased’s death. The Consent identifies several welfare services whose documents the applicant may access. However, there is no evidence before OIC indicating that the Consent extends to the deceased’s sensitive private health and medical information such as is contained in medical records.[21] I am therefore unable to regard the Consent as indicating agreement by the deceased to the applicant accessing their sensitive medical and health information. It appears that the applicant’s contact with the deceased, as an adult, was for several months[22] prior to the deceased’s death at the age of 23, and this appears to have occurred subsequent to the period covered by the Information in Issue.[23] Having considered the degree to which the applicant was in contact with the deceased, I attribute only moderate weight to the factor favouring disclosure of a deceased’s personal information to an eligible family member of the deceased person. The applicant submits that disclosing information about the deceased will assist in preventing one of his grandchildren from experiencing abuse similar to that which the deceased reported having experienced. This submission gives rise to a consideration of whether disclosure of the Information in Issue could reasonably be expected to contribute to the enforcement of the criminal law. I consider that the nature of the applicant’s concerns are such that a report may be made to the appropriate authorities at any time without access to the Information in Issue. Disclosing the Information in Issue could not reasonably be expected to contribute to any ensuing enforcement action as the nature of the Information in Issue is such that it may be obtained independently by an investigating body such as the Queensland Police Service in the course of an investigation. Accordingly, the public interest in disclosing information to contribute to the enforcement of the criminal law has no weight. Additionally, I note that portions of the Information in Issue concerning the applicant’s grandchildren, which the applicant wishes to provide to them, is the personal information of each grandchild, and each grandchild may themselves apply for access to that information under the Information Privacy Act 2009 (IP Act). I can, in this review, identify no other public interest considerations telling in favour of disclosure of the Information in Issue than those discussed above. I cannot see how disclosure of the Information in Issue could, for example, reveal that the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant[24] or contribute to the administration of justice generally.[25] Factors favouring nondisclosure The RTI Act gives rise to factors favouring non-disclosure in circumstances where: disclosing information could reasonably be expected to: cause a public interest harm by disclosing the personal information of other individuals;[26] or prejudice the protection of an individual’s right to privacy;[27] or the information is personal information 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.[28] Personal information of others Disclosing the Information in Issue would reveal sensitive private information about the deceased’s health and medical care and the personal information of individuals other than the deceased, such as relatives and acquaintances. The personal information of the deceased concerns information about medical procedures and tests undergone by the deceased, test results, medical practitioners’ observations of the deceased’s health, and medication and medical treatment provided to the deceased. The personal information of individuals other than the deceased concerns sensitive information about those persons’ identities, relationships, living circumstances and emotions. I find that disclosing sensitive personal information of the nature described, of the deceased and others, would cause a significant public interest harm.[29]Protection of an individual’s right to privacy The Information in Issue concerns sensitive private information about the deceased’s health and medical care and also contains sensitive private information about individuals other than the deceased. It has not been disclosed to the applicant and remains private. In such circumstances, the privacy interests of the deceased and other individuals remain high and may be adversely affected by disclosing this information. I have considered whether these privacy interests have been reduced. Where information is already known to an applicant, this reduces, to an extent, the privacy interest attaching to the information. Previous decisions of OIC have established that in some circumstances, the weight to be applied to these nondisclosure factors may be greatly diminished due to the nature of the relationship between the applicant and the deceased.[30] The applicant submits that he had reconnected with the deceased approximately four months before the deceased’s death and that he had always sought to be in the deceased’s life, having, during the deceased’s childhood, made child support payments and two Family Court applications to seek access to the deceased. He submits that the deceased was intending to move residence to live with the applicant[31] and had signed the Consent for the applicant to be able to obtain information about the deceased, and that doctors had noted the applicant as next of kin. The deceased’s privacy interest in the Information in Issue is arguably somewhat reduced, commensurate with the applicant’s renewed relationship with the deceased. As noted above,[32] it appears the applicant was not in contact with the deceased for all of the period covered by the Information in Issue. There is no information before me, and no indication in the Information in Issue, that the applicant had any knowledge of, or involvement in, the medical care provided to the deceased. The applicant acknowledges his lack of involvement in the deceased’s life and medical care. Indeed, he submits that this is a factor prompting his access application. Disclosure of the Information in Issue would therefore reveal to the applicant and others[33] previously unknown information about the deceased, regarding medical and other sensitive personal issues. There is no suggestion, either in the applicant’s submissions or in the Information in Issue, that the deceased wished, or had intended, to disclose to the applicant any information about their medical care. While the nature of the information to which the Consent purports to authorise access is likely to concern some sensitive private aspects of the deceased’s life regarding their emotional development and residential circumstances, the Consent does not indicate an intention or authorisation on the deceased’s part for the applicant to access the very sensitive private information that is contained in medical records. I consider it does not reduce the deceased’s privacy interest in their medical records. Based on the above, I find that: the public interest in protecting a person’s right to privacy would be only minimally reduced by the applicant’s renewed relationship with the deceased; and the weight attributed to this nondisclosure factor remains high, and is significant, in relation to the Information in Issue in the deceased’s medical records. Some portions of the Information in Issue concern the private personal information of individuals other that the deceased who did not themselves volunteer the information. The information about these persons has not been disclosed and remains private. In these circumstances, I consider that the privacy interests of these individuals are significant. I am satisfied that disclosure of private information about the deceased and other individuals, to the applicant, could reasonably be expected to prejudice the protection of their right to privacy, by intruding into the ‘personal sphere’ of the lives of those individuals. The applicant has indicated he intends to further disseminate the Information in Issue by providing it to others. I therefore allocate significant weight to the non-disclosure factor protecting from prejudice the right to privacy of the deceased and other individuals.[34] Eligible family member As noted above: the applicant is an eligible family member of the deceased[35] disclosing the Information in Issue would disclose personal information of the deceased such as the medical tests and treatment provided to the deceased and medical practitioners’ views on the deceased’s health, of which the applicant is not aware;[36] and I am unable to regard the Consent as extending to the Information in Issue.[37] Based on this, I find that disclosing the Information in Issue could reasonably be expected to impact significantly on the deceased’s privacy. I allocate significant weight to the factor favouring nondisclosure of a deceased’s personal information to an eligible family member of the deceased person.[38] Public interest balancing In relation to the public interest factors that apply, I give: moderate weight to the public interest factor favouring disclosure of the small amount of the applicant’s personal information and moderate weight to the public interest factor favouring disclosure of the deceased’s personal information to the applicant as an eligible family member; and significant weight to the public interest factors favouring non-disclosure relating to the protection of personal information and the privacy of the deceased and other individuals; and significant weight to the factor favouring nondisclosure of a deceased person’s personal information to an eligible family member. On balance, I am satisfied that the significant weight of the nondisclosure factors in this case outweigh the pro-disclosure factors and 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 vary the decision under review and find that access to the Information in Issue may be refused under section 47(3)(b) of the RTI Act as its disclosure would, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Assistant Information Commissioner CorbyDate: 11 September 2017 APPENDIXSignificant procedural steps Date Event 22 September 2016 OIC received the external review application. OIC notified the applicant and the Health Service that it had received the external review application. OIC asked the Health Service to provide a copy of relevant procedural documents. 26 September 2016 OIC received the procedural documents from the Health Service. 7 October 2016 OIC notified the applicant and the Health Service that it had accepted the external review application. OIC also asked the Health Service to provide a copy of the information in issue by 21 October 2016. 27 October 2016 The Health Service requested an extension of time in which to provide OIC with the information in issue. OIC granted the Health Service an extension of time until 2 November 2016 to provide OIC with the information in issue. The applicant narrowed the scope of the access application. 2 November 2016 OIC received the information in issue from the Health Service. 14 November 2016 OIC asked the Health Service for information regarding the applicant narrowing the scope of the access application during processing by the Health Service. 15 November 2016 The Health Service supplied documents to OIC about the narrowing of scope during processing of the access application. OIC conveyed a preliminary view by telephone to the applicant that access may be refused to the information in issue on the basis that disclosure would, on balance, be contrary to the public interest. OIC received oral submissions from the applicant. 18 January 2017 OIC received further submissions from the applicant by telephone. 2 February 2017 OIC wrote to the applicant confirming the preliminary view that access may be refused to the information in issue. 14 February 2017 The applicant informed OIC by telephone that he did not accept the preliminary view and he provided further oral submissions. OIC received an email from the applicant providing further written submissions and the Consent. 17 February 2017 OIC wrote to the applicant acknowledging OIC’s receipt of the Consent and confirming OIC’s view, conveyed by telephone on 14 February 2017, that the applicant was able now to report concerns about his grandchild’s welfare to appropriate authorities. 1 March 2017 OIC wrote to the applicant confirming that, having examined the Consent, OIC maintained the preliminary view that access may be refused to the information in issue. OIC received an email from the applicant requesting information about the process to appeal OIC’s decision. 8 March 2017 OIC wrote to the applicant clarifying that OIC’s letter dated 1 March 2017 was not a final decision and that that letter advised the applicant that, after considering his letter dated 14 February 2017, OIC’s preliminary view remained the same. OIC invited the applicant to provide any submissions by 15 March 2017. OIC received an email from the applicant stating that the applicant did not agree with OIC’s decision. 10 May 2017 OIC wrote to the applicant noting that he did not accept the preliminary view and informing him that the next step in the review process would be to issue a formal written decision to finalise the review. [1] Access application dated 13 August 2016, which became compliant under section 33(4) of the RTI Act on 19 August 2016. [2] Decision dated 21 September 2016.[3] The applicant explained this concern to OIC in a telephone conversation on 15 November 2016.[4] The applicant’s submissions were provided by telephone on 18 January 2017 and 14 February 2017, and emails dated 14 February 2017, and 1 and 8 March 2017. The submissions were made in respect of both this review and a separate external review, 313012, in which the applicant seeks review of a decision of the Darling Downs Hospital and Health Service refusing him access to the deceased’s records held by that Health Service. [5] The Health Service’s RTI Unit running sheet regarding the access application records that the applicant agreed on 22 June 2016 to narrow the scope of his access application to discharge summaries and correspondence.[6] The Health Service’s decision states that 435 pages were located, however it provided 436 pages to OIC. [7] Telephone conversation with OIC on 27 October 2016.[8] By email dated 14 February 2017.[9] Dated 27 April 2015. [10] Fleming and Queensland Police Service (Unreported, Queensland Information Commissioner, 1998 S0069, 24 April 1998) (Fleming). Although Fleming concerns a review under the now repealed Freedom of Information Act 1992 (Qld), the principles are nonetheless applicable in this matter. [11] Section 23 of the RTI Act. [12] Set out in section 47 of the RTI Act. [13] Under sections 47(3)(b) and 49 of the RTI Act. [14] 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.[15] Section 49(3) of the RTI Act.[16] Section 44 of the RTI Act.[17] Schedule 4, part 2, item 7 of the RTI 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.’[18] Schedule 4, part 2, item 9 of the RTI Act.[19] Paragraphs [34] and [40].[20] Paragraph [16].[21] The Information in Issue includes information about medical procedures and tests undergone by the deceased, test results, medical practitioners’ observations of the deceased’s health, and medication and medical treatment provided to the deceased.[22] From approximately March 2015 until the deceased’s death in July 2015.[23] That is, from approximately 16 July 2008 to approximately 18 December 2014.[24] Schedule 4, part 2, item 12 of the RTI Act. [25] Schedule 4, part 2, item 16 of the RTI Act. [26] Schedule 4, part 4, section 6 of the RTI Act. [27] Schedule 4, part 3, item 3 of the RTI Act. [28] Schedule 4, part 3, item 5 of the RTI Act. [29] Schedule 4, part 4, section 6 of the RTI Act. [30] See for example Keogh and Department of Health (Unreported, Queensland Information Commissioner, 31 August 2010), 44ZNEO and Department of Health (Unreported, Queensland Information Commissioner, 31 March 2010), and Novak and Department of Health (Unreported, Queensland Information Commissioner, 30 June 2010) which decisions acknowledged that an applicant’s familiarity with a deceased person’s medical treatment may diminish the high privacy interest noted Summers and Department of Health; Hintz (Third Party) [1997] QICmr 5; (1997) 3 QAR 479.[31] This would have taken place a week after the deceased’s death.[32] Paragraph [26].[33] The applicant has indicated he intends to provide the information to children of the deceased and law enforcement authorities.[34] Schedule 4, part 3, item 3 of the RTI Act. [35] Paragraph [24].[36] Paragraph [34].[37] Paragraph [25].[38] Schedule 4, part 3, item 5 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

C and Department of Tourism, Small Business and Industry [1998] QICmr 21 (23 June 1998)

C and Department of Tourism, Small Business and Industry [1998] QICmr 21 (23 June 1998) "C" and Department of Tourism, Small Business and Industry (S 9/97; 23 June 1998, Information Commissioner) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) REASONS FOR DECISION Background The applicants in this external review [(to whom I will refer as "persons A, B and C")] were the authors of letters of complaint to the Liquor Licensing Division (the LLD) of the respondent. Two letters, dated 12 August 1996 and 24 August 1996, were written by persons A and B. The other two letters, dated 29 June 1996 and 12 August 1996, were written by person C. They are pursuing this 'reverse FOI' application because they object to the respondent's decision to disclose to the access applicant, Mr R Modin, the bulk of the information contained in three of the letters and the entire contents of the other letter. By letter dated 28 August 1996, Mr Modin, the Nominee of the Rainbow Beach Sports, Recreation and Memorial Club (the Club), applied to the respondent for access to: any information you can supply me regarding any liquor licensing complaints made against this Club in particular those received recently to Dominic TENNISON from your Sunshine Coast Regional Office. ... Our committee is in the process of taking legal action against any person found defaming any members of this committee. In accordance with its obligations under s.51 of the FOI Act, the respondent consulted with a number of persons who had made complaints against the Club, including persons A, B and C. By letter dated 14 October 1996, Power & Cartwright, Solicitors, on behalf of persons A, B and C and other persons, objected to the disclosure to Mr Modin of their clients' complaints to the LLD. Power & Cartwright submitted that the documents were exempt under s.42(1)(b), s.42(1)(c), s.42(1)(e), s.44(1), s.45(1)(c), and s.46(1) of the FOI Act. The respondent also sought the views of the Queensland Police Service (the QPS) as to whether the documents, some of which referred to physical assaults at the Club, might be exempt under s.42(1)(a), on the basis that their disclosure could prejudice any police investigations into those matters. The QPS advised that it had no objection to the disclosure of the documents to the access applicant. By a letter dated 18 November 1996, Mr M Jones of the respondent informed persons A and B of his decision that some parts of their complaint letters dated 12 August 1996 and 24 August 1996 were exempt matter but, that the balance of the letters did not comprise exempt matter under the FOI Act. By a letter of the same date, person C was informed of Mr Jones' decision that some parts of the letter dated 12 August 1996 were exempt matter, but that the balance of that letter, and the whole of the letter dated 29 June 1996, were not exempt matter under the FOI Act. Persons A, B and C then sought internal review of Mr Jones' decision to give access to parts of the letters dated 12 and 24 August 1996, and to all of the letter dated 29 June 1996 (the "matter in issue"). Mr Jones' decision was upheld on internal review by Mr S Chapman in his decision dated 6 January 1997. By letter dated 22 January 1997, persons A, B and C applied to me for review, under Part 5 of the FOI Act, of Mr Chapman's decision. External review process I obtained from the respondent copies of the four complaint letters. I also obtained the respondent's internal records of its consultations in accordance with s.51 of the FOI Act. Mr Modin has not sought to challenge the respondent's decision that parts of three of the complaint letters referred to above are exempt matter, and hence the status of those parts of the complaint letters is not in issue in this external review. On the question for determination in this review, i.e., whether the balance of the matter in issue is exempt matter under the FOI Act, Mr Modin applied for, and was granted, status as a participant in this review, in accordance with s.78 of the FOI Act. Members of my staff interviewed Mr Jones of the respondent and Mr John Roscarel, an investigator employed by the LLD. At that conference, Mr Roscarel explained the process by which investigations are conducted by the LLD, and the particulars of his investigation of a series of complaints made about the Club, including those to which the matter in issue relates. Mr Roscarel subsequently provided this office with a statutory declaration dated 3 March 1998, and a draft Report in respect of the investigation of the various complaints against the Club. The Information Commissioner then wrote to persons A, B and C advising of his preliminary view that the matter in issue was not exempt matter under the FOI Act and inviting their respective written submissions and/or evidence, if they wished to contend that the matter in issue was exempt under the FOI Act. Persons A, B and C responded by letter dated 19 April 1998, rejecting the Information Commissioner's preliminary view. However, because that letter indicated a misapprehension about the role of the Information Commissioner in this external review, the Assistant Information Commissioner wrote to persons A, B and C explaining the situation and allowing further time for the lodging of submissions and/or evidence. By letter dated 3 May 1998, persons A, B and C again rejected the Information Commissioner's preliminary views regarding the matter in issue and sought to rely on the earlier submissions made by their solicitors, Power & Cartwright, during the respondent's consultation process. It was also requested that further correspondence be addressed to Power & Cartwright. On 7 May 1998, the Assistant Information Commissioner wrote to Power & Cartwright and provided that firm with the opportunity to make additional submissions on behalf of its clients. That opportunity has not been availed of. I will deal with each of the exemption provisions which have been referred to by Power & Cartwright or by persons A, B and C. I should note that, because the identities of persons A, B and C are in issue, I am constrained from including in my reasons for decision, information which would enable their identities to be ascertained. This necessarily means that discussion of certain aspects of my reasons for decision must be limited. Application of s.46(1) of the FOI Act Section 46(1) of the FOI Act provides: 46.(1) Matter is exempt if— (a) its disclosure would found an action for breach of confidence; or (b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest. I discussed the requirements for exemption under s.46(1)(a) and s.46(1)(b) in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279. As to s.46(1)(a), there is no question of any contractual obligation of confidence arising in the circumstances of this case. To establish an equitable duty of confidence owed by the respondent to the complainants, which would be breached by disclosure of the matter in issue (thus founding an action for breach of confidence), each of the following five criteria must be satisfied: (a) it must be possible to specifically identify the information in issue, in order to establish that it is secret, rather than generally available information (see Re "B" at pp.303-304, paragraphs 60-63); (b) the information in issue must possess "the necessary quality of confidence"; i.e., the information must not be trivial or useless information, and it must possess a degree of secrecy sufficient for it to be the subject of an obligation of conscience, arising from the circumstances in or through which the information was communicated or obtained (see Re "B" at pp.304-310, paragraphs 64-75); (c) the information in issue must have been communicated in such circumstances as to fix the recipient with an equitable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it (see Re "B" at pp.311-322, paragraphs 76-102); (d) it must be established that disclosure to the applicant for access under the FOI Act would constitute a misuse, or unauthorised use, of the confidential information in issue (see Re "B" at pp.322-324, paragraphs 103-106); and (e) it must be established that detriment is likely to be occasioned to the original confider of the confidential information in issue if that information were to be disclosed (see Re "B" at pp.325-330, paragraphs 107-118). For s.46(1)(b) of the FOI Act to be made out, each of the following criteria must be satisfied: (a) the information in issue is information of a confidential nature; (b) the information was communicated in confidence; (c) disclosure of the information could reasonably be expected to prejudice the future supply of such information to the LLD; and (d) disclosure of the information would not, on balance, be in the public interest. In his statutory declaration dated 23 February 1998, Mr Roscarel explained the circumstances of the investigations he conducted for the LLD: I became involved in the investigation of these complaints when letters were received by the Liquor Licensing Branch from Person C and other persons concerning a number of perceived problems at the Club which the complainants requested this Branch to investigate. On 24 September 1996, in the company of Ms Patrice Costello, I had a meeting with some of the complainants concerning their complaints. Persons A and B were among those present. I wrote down a list of their complaints, a number of which were not liquor licensing complaints. I then explained to the complainants which complaints were within my jurisdiction to investigate and which were not. I informed the complainants that because of the very specific allegations raised, in the interests of fairness, I would need to put their names and the specific facts to the Club management if I were to investigate the various complaints. None of the complainants, at the meeting raised any objection to my disclosing the allegations they had made or their names to the Club for the purposes of my investigation. Following that meeting, I attended the Club and met with Club committee members, including Rick Modin. The committee provided me with its version of the incident involving Person C about which Person C had complained. I do not recall specifically to what extent I disclosed the contents of Person C's letters of complaint in my contact with the Club committee but, in order to be fair, I would have had to have given an outline of Person C's allegations about the incident and the questioning of Person C by the Club committee to see if the committee agreed with Person C's version. It is required by the Code of Conduct which applies to investigators under the Liquor Act 1992 that investigators, such as myself, ensure fairness in our official dealings with the public. None of the letters which are sent to complainants from the Liquor Licensing Division indicate that their identities and their complaint will be kept confidential. I do not believe that there was anything in my dealings with Persons A, B or C, or other complainants from which they could have understood that what they told me would be kept confidential from Rick Modin. The second and third requirements for exemption under s.46(1)(a) involve similar considerations to the first two requirements for exemption under s.46(1)(b). Necessary quality of confidence/information of a confidential nature In Re "B" at pp.337-338 (paragraph 148), I said: In my opinion, [the first criterion for exemption under s.46(1)(b)] calls for a consideration of the same matters that would be taken into account by a court in determining whether, for the purpose of satisfying the second element of the equitable action for breach of confidence, the information in issue has the requisite degree of relative secrecy or inaccessibility. The matters referred to in paragraphs 71 to 72 above will also therefore be relevant to the question of whether this first criterion for the application of s.46(1)(b) is satisfied. It follows that, although it is not a specific statutory requirement, it will for practical purposes be necessary to specifically identify the information claimed to be of a confidential nature, in order to establish that it is secret, rather than generally available, information. The question of whether the information in issue is of a confidential nature is to be judged as at the time the application of s.46(1)(b) is considered. Thus if information was confidential when first communicated to a government agency, but has since lost the requisite degree of secrecy or inaccessibility, it will not satisfy the test for exemption under s.46(1)(b). (See also Re McMahon and Department of Consumer Affairs [1994] QICmr 3; (1994) 1 QAR 377, at p.383, paragraph 21.) In his initial decision concerning the complaint letters of person C, Mr Jones found that because person C's actions had clearly indicated to the Club management that person C wanted the respondent to investigate the complaints, the information contained in the letters, including person C's identity, did not have the requisite degree of secrecy or inaccessibility to make it information "of a confidential nature." I agree with that conclusion. It is clear from Mr Roscarel's declaration, and from his draft Report regarding the investigation, that members of the Club committee, including Mr Modin, have been advised by Mr Roscarel that person C has made a complaint, and have been advised of the nature of the complaint. The identity of the complainant cannot be said to retain any element of confidentiality as against Mr Modin so as to satisfy the second requirement for exemption under s.46(1)(a), and the first requirement for exemption under s.46(1)(b), as set out above. The material before me (including one of the annexures to person C's letter dated 29 June 1996) shows that the details of person C's main complaint, along with other complaints, were revealed to members of the Club committee by Mr Roscarel (in order to allow them to respond, for the purposes of his investigation) and that the complaint made by person C has been raised with the Club committee by person C. While the entire text of person C's complaint letters to the respondent may not have been made available to Mr Modin, there is no information of substance in those letters of which Mr Modin is not already aware. I find that the matter in issue in person C's complaint letters does not have the necessary quality of confidence to satisfy the second requirement for exemption under s.46(1)(a), or the first requirement for exemption under s.46(1)(b), as set out above. As for the complaint letters by persons A and B, Mr Jones found that any identifying information in those letters was exempt matter under s.46(1) but that the remaining parts of those letters (apart from some matter found to be exempt under s.44(1)) should be disclosed to the applicant for access. It does not appear that the identities of persons A and B were revealed to the Club committee during the course of the LLD's investigations. The material before me, including the draft Report of the preliminary investigations of the complaints against the Club, indicates that the complaints raised in the letters from persons A and B were considered to be outside the LLD's jurisdiction and, consequently, were not acted upon by the LLD. It therefore appears that the matter in issue in the letters from persons A and B has not been revealed to the Club and retains the necessary quality of confidence or secrecy to satisfy the second requirement for exemption under s.46(1)(a), and the first requirement for exemption under s.46(1)(b). Equitable obligation of confidence/Communicated in confidence As to whether there existed an equitable obligation of confidence (for the purposes of s.46(1)(a)) or whether the information in any of the letters in issue was communicated in confidence (for the purposes of s.46(1)(b)), I can find no evidence on the material before me that any express assurances of confidential treatment were provided to person A, B or C, or any other complainants, either prior to the forwarding of the letters containing the matter in issue or at the meeting with Mr Roscarel, described in his statutory declaration. However, in Re "B" at p.318 (paragraph 90), I said (in respect of the third requirement for exemption under s.46(1)(a) of the FOI Act): It is not necessary therefore that there be any express consensus between confider and confidant as to preserving the confidentiality of the information imparted. In fact, though one looks to determine whether there must or ought to have been a common implicit understanding, actual consensus is not necessary: a confidant who honestly believes that no confidence was intended may still be fixed with an enforceable obligation of confidence if that is what equity requires following an objective evaluation of all the circumstances relevant to the receipt by the confidant of the confidential information. In its letter dated 14 October 1996, Power & Cartwright stated: When our clients initially made contact with [the respondent] they were advised that, for the matter to be investigated, they would need all complaints in writing. For reasons set out below, our clients were hesitant to do so for fear of their identity being disclosed at a later date. However, they did feel that the matters being complained of were of such a serious nature that they co-operated with the respondent in this regard. They believed that whilst those concerned would discover the nature of the complaints, they did not at any time believe that the actual documents of complaint would be revealed. In the internal review application lodged on behalf of persons A and B, it was submitted: Government departments must rely on the public providing information of misconduct and therefore should treat all of this information on a confidential basis. Until such time as government departments are able to have officers in every town ... it is imperative that they do not discourage members of the public from providing information. If any of our information is released it will encourage us to turn a blind eye to any misdemeanour that occurs in this town, no matter how big or small.... ... There is no doubt that even if our names are removed from this letter the management ... will know who wrote the letters and will use this information to degrade us in this very small town. The management will turn this information around to make it appear that we are causing problems..... Similar submissions were made in person C's internal review application. In Re McEniery and the Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349, at pp.359-364 (paragraphs 24-34) and at p.371 (paragraph 50), I considered the factors relevant to determining whether information has been supplied to an agency on the implicit mutual understanding that the identity of the supplier of the information would remain confidential. In particular, I said, at p.361 (paragraph 26) that a relevant issue is whether the supplier and the recipient of the information could reasonably have expected that the supplier's identity would remain confidential given the procedures that must be undertaken if appropriate action is to be taken by the recipient, in respect of the information, for the purposes of the enforcement or administration of the law. Further (at pp.361-362 (paragraph 28)), I said that the legal requirement that government agencies observe the rules of procedural fairness, or the duty to act fairly, will affect the question of whether a supplier of information to a government agency, and the agency itself, could reasonably expect the confidentiality of the supplier's identity to be preserved while taking appropriate action in respect of the information conveyed. In relation to the matter in issue in person C's letters, I find that the situation is quite similar to that which I dealt with in Re McMahon. In Re McMahon, a complaint was made by the applicant to a regulatory authority about a specific incident that had transpired between the applicant and the subject of the complaint, and it was impossible for the applicant's identity to be treated in confidence if the complaint were to be investigated. At p.364 (paragraph 23), I said that neither the applicant nor the respondent agency in that case could reasonably have expected that the applicant's identity, and the substance of his complaint, could remain confidential from the subject of the complaint, if appropriate action was to be taken in respect of that complaint. Where a person is the subject of an investigation by a government agency, particularly a regulatory body such as the LLD, the duty of fairness will at least require that a person, against whom specific adverse allegations are made, be given an effective opportunity to know the substance of the case against the person (so that he/she can answer it). Sometimes it is possible for a person to be given an effective opportunity to know the substance of adverse allegations, without revealing the identity of the source of information. Re McEniery was a case of that kind, and other examples are given in Re McEniery at p.361 (paragraph 27). However, as I said in Re McEniery at pp.363-364 (paragraph 32): Where the substance of the case against a person is dependent on the direct observation and testimony of a source of information, or on the disclosure of the identity of a source of information as the person against whom a wrong is alleged to have been committed, then the source and the government agency could not reasonably expect that the source's identity could remain confidential, if appropriate action is to be taken on the information conveyed by the source ... Both of person C's letters strongly urge the LLD to investigate the matters raised in the letters, and the letter dated 12 August 1996 asks for investigations of specific incidents involving Mr Modin. I do not consider that person C could reasonably have expected that the matters raised by person C's letters could be properly acted upon by the LLD without the substance of the complaints being disclosed to Mr Modin. The specific nature of the complaints was such that they could not have been properly investigated without disclosing the identity of the complainant. On the material before me, I do not accept that there was an express or implicit mutual understanding that person C's identity, or the contents of person C's complaint letters, would be treated in confidence by the respondent. Nor are the circumstances of the communications such as to warrant a finding that there is an equitable obligation of confidence binding the respondent not to disclose person C's identity, or the contents of the complaint letters, to Mr Modin. Turning to the letters from persons A and B, Mr Jones' initial decision was that the identities of persons A and B were capable of being preserved by the LLD while investigating the substance of their complaints. While that may be the case, persons A and B cannot have reasonably expected that action could have been taken on their complaints unless the substance of those complaints was made known to the Club management. As explained above, the procedures that were adopted by the LLD in order to investigate, and, if necessary sanction, the Club were such that the rules of procedural fairness required that the substance of the complaints be put to the Club in order for the management to answer the adverse allegations raised in the complaints. As Mr Roscarel stated (at paragraphs 3 and 4 of his statutory declaration), it was made clear at his meeting with the complainants, which included persons A and B, that if the complaints were to be acted upon, the identities of the complainants and the detail of their complaints would be made known to the Club. Even if persons A and B had had some understanding as to confidentiality up to that time, there could have been no doubt afterwards, that there was no understanding on the part of the respondent that the details of their complaints were to be treated in confidence. The complainants still had the opportunity at that stage, before Mr Roscarel commenced his investigation, to withdraw the complaints, but they chose not to do so. Indeed, the overwhelming inference from the material before me is that persons A and B desired the intervention of the LLD. The wording of the complaint letters makes it clear that persons A and B wanted action to be initiated on their word alone. However, they could not have expected that where the matters complained of could not be independently verified by the LLD investigators, that they would not be raised with the Club. In fact, it appears that the LLD considered that the matters were not within its power to investigate, thus obviating the need to raise them with the Club. However, all of the circumstances indicate disappointment by persons A and B in the LLD's perceived inaction in relation to those matters. In order for those matters to have been properly investigated by the LLD, the investigators would necessarily have had to make known the detail of the complaints to the Club. The material before me leads to the conclusion that there was no express or implicit mutual understanding that the matter in issue in the letters written by persons A and B, would be treated in confidence by the respondent agency. I also find that the circumstances of the communication of the information in those letters were not such as to impose on the respondent an equitable obligation of confidence binding the respondent not to disclose the matter in issue to Mr Modin. Findings on s.46(1) I therefore find that the matter in issue does not qualify for exemption under s.46(1)(a) or s.46(1)(b) of the FOI Act. Application of s.42(1)(a) of the FOI Act Section 42(1)(a) of the FOI Act provides: 42.(1) Matter is exempt matter if its disclosure could reasonably be expected to— (a) prejudice the investigation of a contravention or possible contravention of the law (including revenue law) in a particular case; or In Re "B" at pp.339-341 (paragraphs 154-160), I analysed the meaning of the phrase "could reasonably be expected to", by reference to relevant Federal Court decisions interpreting the identical phrase as used in exemption provisions of the Freedom of Information Act 1982 Cth. Those observations are also relevant here. In particular, I said in Re "B" (at pp.340-341, paragraph 160): The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e., expectations for the occurrence of which real and substantial grounds exist. The ordinary meaning of the word "expect" which is appropriate to its context in the phrase "could reasonably be expected to" accords with these dictionary meanings: "to regard as probable or likely" (Collins English Dictionary, Third Aust. ed); "regard as likely to happen; anticipate the occurrence ... of" (Macquarie Dictionary, 2nd ed); "Regard as ... likely to happen; ... Believe that it will prove to be the case that ..." (The New Shorter Oxford English Dictionary, 1993). In Power & Cartwright's letter dated 14 October 1996, it was stated: ...Our clients believe that the investigation into the activities of the club may be prejudiced by the disclosure of the documents at this point. They feel that if the details of the complaint are revealed, then the relevant parties shall have sufficient notice to be able to "cover their tracks". In his initial decision, Mr Jones said: I have discussed this issue with licensing investigators and am satisfied that given the investigations are close to finalisation and the fact the club has been made aware of the allegations, this exemption cannot be relied upon in this particular case. Mr Roscarel's statutory declaration states that he and another Investigator met with a number of the complainants to discuss their complaints, and to determine what their main concerns were. Mr Roscarel then attended at the Club and met with members of the Club committee. One of the matters raised with the Club was the circumstances surrounding the main complaint raised by person C. The Club's version of those events was obtained. Having perused those documents, I wrote to persons A, B and C on 30 March 1998, conveying my preliminary view that it appeared that the investigations into the complaints at the Club had been concluded and that any concerns about prejudice to the LLD's investigations were no longer relevant. In response, persons A, B and C, in a letter to me dated 19 April 1998, stated: ....you have been supplied with the wrong information by John Roscarel of [the LLD], in that he has declared the investigation over. This is far from the truth. Mr Roscarel might think he could wash his hands of the whole matter because it is too hard, however, we have, via the Minister, questioned what has happened to our original complaint. After complaining, the Minister then directed Mr Ross Bearkley to come to Rainbow Beach and meet with us. Many matters are not yet resolved and until [the LLD] has addressed our concerns and complaints we will not accept that any of our information is released. After meeting with Mr Bearkley in late February, we are still waiting for a response of his investigations. Subsequently, in late April 1998, a member of my staff contacted Mr Bearkley, the manager of the LLD. Mr Bearkley said that he had regarded the investigations of the Club as having been finalised after Mr Roscarel's investigations. However, because of the approach made to the responsible Minister by one of the complainants, some matters were further investigated. Mr Bearkley said that the investigations were finalised, apart from a minor procedural matter that does not require actual investigation. From my examination of Mr Roscarel's statutory declaration, his draft Report, and the record of conversation with Mr Bearkley, it is clear that the Club management was made aware of complaints made against it, including that of person C. Even if an investigation was still under way, I do not consider that disclosure of the matter in issue could reasonably be expected to prejudice such an investigation. It is also clear that Mr Roscarel considered the complaints made in the letters from persons A and B were not complaints which the LLD had power to investigate. I find that the matter in issue does not qualify for exemption under s.42(1)(a) of the FOI Act. Application of s.42(1)(b) of the FOI Act Section 42(1)(b) of the FOI Act provides: 42.(1) Matter is exempt matter if its disclosure could reasonably be expected to— ... (b) enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained; ... In Re McEniery at pp.356-357 (paragraph 16), I said that matter will be eligible for exemption under s.42(1)(b) if the following three requirements are satisfied: (a) there exists a confidential source of information; (b) the information which the confidential source has supplied (or is intending to supply) is in relation to the enforcement or administration of the law; and (c) disclosure of the matter in issue could reasonably be expected to - (i) enable the existence of a confidential source of information to be ascertained; or (ii) enable the identity of a confidential source of information to be ascertained. At pp.358-359 (paragraphs 20-35) of Re McEniery, I considered the concept of a "confidential source of information" for the purposes of s.42(1)(b) of the FOI Act, and found that it referred to a person who supplies information on the express or implied understanding that the person's identity will remain confidential (citing Keely J in Department of Health v Jephcott [1985] FCA 370; (1985) 62 ALR 421 at p.426). For the reasons stated at paragraphs 21-22 and 32-35 above, I find that person C is not a confidential source of information for the purposes of s.42(1)(b). I do not consider that there was ever an express or an implicit understanding, on the part of the respondent (nor could there reasonably have been, in the relevant circumstances), that person C's identity would be kept confidential. It is clear from the material before me, including an attachment to one of person C's letters of complaint, that the identity of person C as a complainant is known to Mr Modin. Turning to persons A and B, the respondent contends that it has refused access to all matter in their complaint letters which could reasonably be expected to identify them as sources of complaint. I agree. Therefore, even if requirements (a) and (b) above, were satisfied, disclosure of the matter remaining in issue in their complaint letters could not reasonably be expected to identify the complainants. I therefore find that the matter in issue is not exempt matter under s.42(1)(b) of the FOI Act. Application of s.42(1)(c) of the FOI Act Section 42(1)(c) of the FOI Act provides: 42.(1) Matter is exempt matter if its disclosure could reasonably be expected to— ... (c) endanger a person's life or physical safety; ... In Re Murphy and Queensland Treasury & Ors [1995] QICmr 23; (1995) 2 QAR 744 at p.760 and p.761 (paragraphs 45 and 47), I said that the question of whether disclosure of information could reasonably be expected to endanger a person's life or physical safety is to be examined objectively by the decision-maker authorised to determine questions of access under the FOI Act, in light of the relevant evidence, including any evidence obtained from or about the claimed source of danger, and not simply on the basis of what evidence is known to persons claiming to be at risk of endangerment. In Re Murphy, at pp.767-777 (paragraphs 86-91), I expressed the view that evidence of intemperate verbal abuse does not necessarily mean that the person guilty of such conduct would commit acts that would endanger the life or physical safety of another person. I also observed that harassment does not fall within the terms of s.42(1)(c), unless it is harassment which endangers a person's life or physical safety. In the internal review application lodged on behalf of persons A and B, it was contended that they had "a very real fear that ourselves and our family ... will suffer severe victimisation if any information is released." They stated that there had already been violence at the Club and that the release of information "will only spur matters on." It was also submitted by persons A and B that they have been subjected to threatening and abusive language by a club employee. Person C's internal review application states that person C has been assaulted at the Club on a couple of occasions, but then goes on to say that person C would be prepared to go to Court to give evidence if necessary. The initial and internal review decisions by the respondent's authorised decision makers did not consider that the circumstances of the case warranted a finding that endangerment to life or physical safety could reasonably be expected to follow from the disclosure of the matter in issue. In its letter dated 14 October 1996, Power & Cartwright asserted that the complainants all feared for their physical safety if the documents in issue were disclosed. Amongst correspondence on the respondent's internal review file is a record of conversation between Mr Jones of the respondent, and a solicitor from Power & Cartwright, during which the solicitor said that there was a real and serious risk that the complainants would be harmed if the information was released. He told Mr Jones that the clientele of the Club were noted for their aggressive nature and the Club had a history of fights. On the other hand, the draft Report by the Investigation and Complaints Unit states that, on making contact with the local police regarding complaints at the Club, Mr Roscarel was informed that the Club had not posed a real problem to the police, although there had been an incident of assault that same year to which the police were called and charges were laid. In my letter to persons A, B, and C dated 30 March 1998, I expressed the preliminary view that there was insufficient evidence to make out a claim for exemption under s.42(1)(c) of the FOI Act. In the case of persons A and B, the fact that their names and other identifying details had been removed from the letters made it difficult to find a reasonably based expectation of harm. Persons A, B and C did not offer any further evidence to establish a reasonably based expectation of physical harm. A great deal of the information in person C's letters has already been investigated by the LLD and, in the course of such investigations, has been put to the Club management. There is no evidence of physical violence against any person because of that disclosure by the LLD. Person C's identity as a complainant to the LLD and the substance of those complaints is already well known to the Club. On an objective evaluation of all of the circumstances of person C's situation, including the information remaining in issue, I am not satisfied that disclosure of the matter remaining in issue, or the identity of person C, could reasonably be expected to endanger any person's life or physical safety. In respect of the matter in issue contained in the letters provided by persons A and B to the LLD, I am not satisfied, having regard to the nature of the matter in issue, and all of the relevant circumstances, that disclosure could reasonably be expected to endanger any person's life or physical safety. My view would be the same whether or not the identities of persons A and B were to be revealed. I therefore find that the matter in issue does not qualify for exemption under s.42(1)(c) of the FOI Act. Application of s.42(1)(e) of the FOI Act In its letter dated 14 October 1996, Power & Cartwright referred to s.42(1)(e), but in a context which suggested it was discussing s.42(1)(a). For the sake of completeness, I record my finding that the matter in issue is not exempt under s.42(1)(e). Section 42(1)(e) of the FOI Act provides: 42.(1) Matter is exempt matter if its disclosure could reasonably be expected to— ... (e) prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (including revenue law); ... The correct approach to the interpretation and application of s.42(1)(e) was explained in Re "T" and Queensland Health [1994] QICmr 4; (1994) 1 QAR 386. I discussed the submission by Power & Cartwright in dealing with s.42(1)(a). The matter in issue does not disclose any secret or unusual investigative method or procedure of the LLD. It merely comprises letters of complaint. The material before me does not afford a reasonable basis for an expectation that disclosure of the matter in issue could prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law. Application of s.44(1) of the FOI Act Section 44(1) of the FOI Act provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. In applying s.44(1) of the FOI Act, one must first consider whether disclosure of the matter in issue would disclose information that is properly to be characterised as information concerning the personal affairs of a person. If that requirement is satisfied, a prima facie public interest favouring non-disclosure is established, and the matter in issue will be exempt, unless there exist public interest considerations favouring disclosure which outweigh all identifiable public interest considerations favouring non-disclosure, so as to warrant a finding that disclosure of the matter in issue would, on balance, be in the public interest. In Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, I identified the various provisions of the FOI Act which employ the term "personal affairs", and discussed in detail the meaning of the phrase "personal affairs of a person" (and relevant variations thereof) as it appears in the FOI Act (see pp.256-257, paragraphs 79-114, of Re Stewart). In particular, I said that information concerns the "personal affairs of a person" if it concerns the private aspects of a person's life and that, while there may be a substantial grey area within the ambit of the phrase "personal affairs", that phrase has a well accepted core meaning which includes: family and marital relationships; health or ill health; relationships and emotional ties with other people; and domestic responsibilities or financial obligations. Whether or not matter contained in a document comprises information concerning an individual's personal affairs is essentially a question of fact, to be determined according to the proper characterisation of the information in question. In Re Byrne and Gold Coast City Council [1994] QICmr 8; (1994) 1 QAR 477, I held that the fact that a person made a complaint to an elected representative about a matter of concern was information concerning that person's personal affairs, for the purposes of s.44(1) (see, in particular, at p.487, paragraphs 26-27, and pp.488-490, paragraphs 33-38). I consider that the fact that persons A, B and C made complaints to the LLD is information which concerns their respective personal affairs. Turning first to the matter in issue in the complaint letters by persons A and B, the respondent has deleted identifying information from the letters, and other information of a personal nature concerning persons A and B. The information comprising the matter in issue in the complaint letters by persons A and B is not of a particularly sensitive or personal nature. It relates to observations made by those persons of activities and possible breaches of rules at the Club concerning the conduct of others, and contains criticisms of the LLD's investigations of the matters. In Re Stewart at p.258 (paragraph 81) I said: For information to be exempt under s.44(1) of the FOI Act, it must be information which identifies an individual or is such that it can readily be associated with a particular individual. Thus deletion of names and other identifying particulars or references can frequently render a document no longer invasive of personal privacy, and remove the basis for claiming exemption under s.44(1). This is an expedient (permitted by s.32 of the Queensland FOI Act) which has often been endorsed or applied in reported cases: see, for example, Re Borthwick and Health Commission of Victoria (1985) 1 VAR 25 where the applicant sought disclosure of the names and medical history (clearly "personal affairs" information) of intellectually handicapped children who had been the subject of a Health Commission inquiry. Rowlands J (President) held that the applicant's interest in the documents, and the privacy of the children, could both be accommodated by substituting letters of the alphabet for the children's names. The matter in issue in the complaint letters by persons A and B merely discloses the substance of the complaints made against the Club and the action (or alleged inaction) of the LLD in respect of those complaints. I have found above that disclosure of the matter in issue could not reasonably be expected to disclose the identities of persons A and B. I do not consider that the disclosure of the matter in issue from the letters written by persons A and B, would associate that information with the personal affairs of identifiable individuals, so as to be invasive of their personal privacy. I find that the matter in issue in the complaint letters by persons A and B is not exempt matter under s.44(1) of the FOI Act. I consider that disclosure of the matter in issue in the complaint letters by person C would identify person C as a complainant to the LLD, or a person who has assisted the LLD with the enforcement of the laws it administers. I consider that the matter in issue is information concerning the personal affairs of person C, and is prima facie exempt under s.44(1) of the FOI Act. I turn now to the application of the public interest balancing test incorporated in s.44(1). There is considerable evidence before me, including an attachment to person C's letter dated 29 June 1996, which warrants a finding that the relative weight of the public interest in protecting the privacy of the information concerning the personal affairs of person C has been significantly reduced. I do not consider that the public interest in non-disclosure of the identity of person C as a complainant to the LLD can be given any substantial weight, since the applicant has already been made aware by person C, that person C was going to complain to the LLD. In addition, it is clear from the evidence before me that the substance of the information provided by person C to the LLD has already been made known to the Club committee, not only by the LLD, but by person C directly. Person C's own conduct with respect to disclosure of this personal affairs information to the Club committee (which includes Mr Modin) indicates that no substantial weight should be accorded, in all the relevant circumstances, to the public interest consideration which tells against disclosure of information concerning the personal affairs of a person other than the applicant for access. I have previously held that there may be a public interest in a person having access to information which involves or concerns the person to such a degree as to give rise to a justifiable 'need to know' which is more compelling than for other members of the public, and that the public interest in fair treatment of an individual may favour an applicant being given the opportunity to see and to answer any allegations that are adverse to him or her (see Re Pemberton and The University of Queensland (1994) 2 QAR 293 at pp.368-377, paragraphs 164-193). Although it appears that the investigations by the LLD of the Club are all but complete, the complaints are still retained on the files of the respondent as information adverse to Mr Modin and the Club management in general. I consider that there is a public interest consideration which favours a subject of adverse information held on government records, having access to the information in order to know what has been said about him and enable him to respond to it, if necessary. I am satisfied that disclosure to Mr Modin of the complaint letters written by person C would, on balance, be in the public interest. I therefore find that none of the matter remaining in issue is exempt from disclosure to Mr Modin under s.44(1) of the FOI Act. Application of s.45(1)(c) of the FOI Act Section 45(1)(c) of the FOI Act provides: 45.(1) Matter is exempt matter if— ... (c) its disclosure— (i) would disclose information (other than trade secrets or information mentioned in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or another person; and (ii) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to government; unless its disclosure would, on balance, be in the public interest. The correct approach to the interpretation and application of s.45(1)(c) is explained in Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491, at pp.516-523 (paragraphs 66-88). In summary, matter will be exempt under s.45(1)(c) of the FOI Act if I am satisfied that: (a) the matter in issue is properly to be characterised as information concerning the business, professional, commercial or financial affairs of an agency or another person (s.45(1)(c)(i)); and (b) disclosure of the matter in issue could reasonably be expected to have either of the prejudicial effects contemplated by s.45(1)(c)(ii), namely: (i) an adverse effect on the business, professional, commercial or financial affairs of the agency or other person, which the information in issue concerns; or (ii) prejudice to the future supply of such information to government; unless I am also satisfied that disclosure of the matter in issue would, on balance, be in the public interest. In Re Cannon at p.516 (paragraph 67), I said that the word "concerning", as it is used in the context of s.45(1)(c), means "about, regarding". It is not sufficient for the matter in issue merely to have some connection with the business, commercial or financial affairs of (in this case) persons A, B or C. The matter in issue must itself comprise information about their respective business, commercial or financial affairs. Persons A, B and C contend that disclosure of their complaint letters may prejudice their respective business affairs. However, even if there was sufficient evidence to support a finding that disclosure could reasonably be expected to prejudice the business affairs of one or more of them (which there is not) the matter in issue does not concern the business, commercial or financial affairs of any of them. The information in issue concerns personal aspects of the lives of persons A, B and C, and the management of the Club. It has nothing whatsoever to do with their business affairs. I find that neither criterion (a) nor criterion (b) above is satisfied, and that the matter in issue does not qualify for exemption under s.45(1)(c) of the FOI Act. DECISION For the foregoing reasons, I affirm the decision under review (being the decision made by Mr Chapman on behalf of the respondent dated 6 January 1997).

queensland

court_judgement

Queensland Information Commissioner 1993-

The Sunrise Project Australia Limited and Sunwater Limited [2023] QICmr 24 (1 June 2023)

The Sunrise Project Australia Limited and Sunwater Limited [2023] QICmr 24 (1 June 2023) Last Updated: 21 September 2023 Decision and Reasons for Decision Citation: The Sunrise Project Australia Limited and Sunwater Limited [2023] QICmr 24 (1 June 2023) Application Number: 316772 Applicant: The Sunrise Project Australia Limited (ABN 65 159 324 697) Respondent: Sunwater Limited (ACN 131 034 985) Decision Date: 1 June 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - BREACH OF CONFIDENCE - correspondence between Sunwater and the third party - whether disclosure would found an action for breach of confidence - section 47(3)(a) and section 48 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The Sunrise Project made an application[1] to Sunwater Limited (Sunwater) under the Right to Information Act 2009 (Qld) (RTI Act) [2] for all correspondence between Sunwater and Adani Mining Pty Ltd, Adani Infrastructure Pty Ltd, Carmichael Rail Network Pty Ltd or Bravus Mining and Resources (Bravus)[3] for the period June 2021-February 2022. Sunwater consulted Bravus as a third party under section 37 of the RTI Act about the potential disclosure of information to the applicant. Bravus objected to the release of the information on the grounds that it comprised exempt information as its disclosure would found an action for breach of confidence under section 47(3)(a) and schedule 3, section 8 of the RTI Act.[4] Sunwater accepted Bravus’ objection and decided to refuse access to the information.[5] The Sunrise Project applied to the Office of the Information Commissioner (OIC) for external review of Sunwater’s decision.[6] For reasons set out below, I affirm the decision under review. I am satisfied that access to the information in issue can be refused under section 47(3)(a) of the RTI as it comprises exempt information as its disclosure would found an action for breach of confidence under section 47(3)(a) and schedule 3, section 8 of the RTI Act. Background Significant procedural steps taken in these reviews are set out in the appendix. Reviewable decision The decision under review is Sunwater’s decision dated 10 June 2022. Evidence considered 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 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 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 During the external review, OIC identified that a small number of the pages located by Sunwater were not relevant to the terms of the application because they either: fall outside the date range of the request or are blank pages; or are internal Sunwater documents (i.e. not correspondence between Sunwater and Bravus). There are also a small number of pages which are within scope and do not comprise exempt information. However, these pages contain purely administrative information and are trivial in nature. They do not reveal any information relating to the substance of the application; rather they relate to staff availability at certain times. The applicant did not continue to seek access to that information on external review and this information is no longer in issue. The information in issue (Information in Issue) is approximately 232 pages and comprises correspondence between Sunwater and Bravus in the relevant timeframe. Issue for determination The issue for determination is whether Sunwater correctly decided to refuse access to the Information in Issue under section 47(3)(a) of the RTI Act on the grounds that it comprises exempt information as its disclosure would found an action for breach of confidence.Findings The RTI Act confers a right of access to documents of government agencies.[10] However, this access right is subject to other provisions of the RTI Act, including grounds on which access may be refused.[11] Section 47(3)(a) of the RTI Act permits an agency to refuse access to documents to the extent they comprise exempt information.[12] Under schedule 3, section 8 of the RTI Act, information will be exempt information where its disclosure would found an action for breach of confidence. The cause of action referred to in schedule 3, section 8(1) of the RTI Act can arise in either contract or equity.[13] The test for exemption under schedule 3, section 8(1) of the RTI Act must be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, with appropriate standing to bring an action to enforce an obligation of confidence said to be owed to that plaintiff by an agency such as Sunwater.[14] I find that Bravus comprises a clearly identifiable plaintiff with appropriate standing to bring an action to enforce an obligation of confidence said to be owed to that plaintiff by Sunwater. In its decision, Sunwater explained that the Information in Issue arises from, and concerns the performance of, contracts between Sunwater and certain third parties and that each of the relevant contracts Sunwater has entered into contains confidentiality provisions which prohibit the unauthorised disclosure of documents or information to which the confidentiality provisions apply. Bravus’ submission to Sunwater identified the relevant agreements and set out the specific confidentiality clauses in each of them. In reaching these findings, I have carefully considered these contractual arrangements (Agreements). They each contain express confidentiality clauses that bind the parties to keep certain information confidential. I am prevented from revealing or discussing the operation of these confidentiality clauses in any detail as I consider they extend to the terms of the Agreement themselves.[15] I acknowledge that the inability of the applicant to examine the confidentiality clauses means that it is not able to make meaningful submissions about whether or not the scope of the asserted confidentiality exists, or if it does, whether it is restricted in some material way. However, that is the effect of the relevant nondisclosure provisions in the RTI Act.[16] While the obligations of confidence created in the Agreements do provide for disclosure in certain circumstances, I am satisfied that none of those circumstances have arisen in the present case. I am also satisfied that the confidentiality clauses continue to operate at the time of making this decision and bind the parties and that there was an exchange of consideration moving between the parties to the Agreements in this case.[17] The applicant submits that the release of a document in another matter highlights an inconsistency in the view that disclosing the Information in Issue in this review would found an action for breach of confidence. The relevant document is located on the Department of Regional Development, Manufacturing and Water’s Disclosure Log[18] and can be identified as ‘Application for Permit to Take Water from Mistake Creek – Supporting Document’ dated 22 May 2020 created by Adani Infrastructure Pty Ltd (Permit Application). This document is publicly available and is not in issue in this review. I have considered the content of the Permit Application and references within that document to Sunwater. The Permit Application relates to the development of the Carmichael Coal Mine and section 1.6 of the Permit Application relevantly provides that ‘...water is to be extracted from a variety of locations and water sources for construction activities, including Mistake Creek. These sources are: ... Sunwater – 1,270 ML from Sunwater supply until 31 August 2020.’ Appendix C of the Permit Application (Water Demand & Source Breakdown) provides some monthly usage figures which relate to Sunwater. The applicant acknowledges that the information which has been disclosed is not the same as the Information in Issue in this review.[19] I am not satisfied that the Information in Issue in this review has been published within that document – even in summarised form. In these circumstances, I do not consider that the publication of the Permit Application on the Disclosure Log is inconsistent with the parties’ claim of confidentiality over the Information in Issue in this review. The applicant asked me to consider Principle 4 of the Government Owned Corporations Release of Information Arrangements (Proactively Push Information to Public Domain) and advise whether the documents in issue could be redacted to remove exempt information and the remainder released. These arrangements provide:[20] The “push” model means the Government expects all GOCs to provide information to the public as a matter of course unless there are good public interest reasons for not doing so. Those documents assessed as being of public interest should be made available to the public. The Office of the Information Commissioner has published a guideline that explains the concept of administrative access to information and how it supports proactive disclosure of information. Examples of exceptions to this would include information that is assessed as commercially sensitive, subject to legal professional privilege, or information that would breach privacy principles if it were to be released. If part of a document is assessed as not being able to be publicly released, this does not preclude the rest of the document being publicly released. I note generally that the RTI Act is to be administered with a pro-disclosure bias in deciding access to documents which means that an agency should decide to give access unless giving access would, on balance, be contrary to the public interest.[21] However, both the ‘push’ model and pro-disclosure bias, recognise that there are necessary exceptions and limitations to the disclosure of information – one of those being in the case of exempt information. In this case, I have carefully considered the information before me, which includes the Information in Issue and the Agreements, and I am satisfied that the confidentiality clauses in the Agreements operate to bind Sunwater and apply to the Information in Issue in its entirety and that disclosing the Information in Issue would found an action for breach of confidence under schedule 3, section 8(1) of the RTI Act. It is therefore not necessary, nor appropriate for me to consider part release of the Information in Issue to the applicant. I note also that there is no scope for discretion in determining this issue in the sense that I may grant access to the Information in Issue, notwithstanding that it comprises exempt information, on the basis of public interest considerations or other factors arising in the circumstances of this case. While an agency has a discretion under the RTI Act to grant access to exempt information,[22] the Information Commissioner does not.[23] Sunwater decided, on the alternative basis, that access to the Information in Issue could be refused as its disclosure would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act. As a result, the applicant’s submissions on external review address in detail why the public interest favours disclosure of the Information in Issue. However, once information is found to be exempt, as is the case here, this removes the need for any further consideration of public interest matters, or for any engagement in a public interest balancing exercise. Therefore, it is not necessary for me to review this aspect of Sunwater’s decision. In submissions to OIC,[24] the applicant contends that section 48(1) of the RTI Act requires OIC to determine if the disclosure would, on balance, be contrary to public interest. The applicant’s submissions on the public interest factors can be summarised as follows: There has been significant interest in the Carmichael Coal Mine’s impact on Queensland’s water resources and the source of water Adani has secured for the construction and operation of the project. Adani has adopted a deliberate strategy to obscure details about the source of its water supply. The Queensland Government refused to look into Adani’s undisclosed sources of water after Adani told the media its undisclosed water sources were ‘legal’ but ‘commercial in confidence’. There is therefore significant public interest in identifying the source of Adani’s water and significant obfuscation from Adani and a lack of transparency about its sources of water. The information will provide critical insight into the extent of water resources required to support the project and the impact that may have on water supplies across the state of Queensland. The application is for information about the supply of publicly owned resources by a publicly owned entity to a foreign owned coal mining company, the Adani Group. The taxpayers of Queensland should be entitled to this information as they ultimately own the water resources that Sunwater is trading on their behalf. The applicant’s submission in this regard is misconceived. Section 48(2) of the RTI Act provides that schedule 3 sets out the types of information the disclosure of which the Parliament has considered would, on balance, be contrary to the public interest, in all circumstances.[25] As explained above, I have not considered the application of public interest factors, as my view is that the Information in Issue comprises exempt information. Accordingly, it is not necessary, nor appropriate, for me to take public interest considerations into account in this review. QCAT confirmed in the decision in Adani Mining Pty Ltd v Office of the Information Commissioner & Ors (Adani)[26] that, apart from the possibility of disclosure arising from the nature of ‘responsible government’, there is no public interest exception in respect of a contractual obligation of confidence. In any event, there is nothing in the material before me that would raise an issue about the genuineness of the obligations of confidentiality imposed by the Agreements, or that would suggest that the parties entered into the Agreements for a collateral or improper purpose sufficient to render the clauses unenforceable.[27] I acknowledge the applicant’s submissions about the public interest in disclosing the Information in Issue. However, for the reasons explained above, I am satisfied that the Information in Issue meets the requirements for exemption under schedule 3, section 8(1) and there is no basis upon which public interest considerations can be taken into account. In summary, and for the reasons set out above, I find that: the confidentiality clauses in the Agreements cover the Information in Issue in this review and continue to operate at the time of making this decision there was an exchange of consideration moving between the parties to the Agreements creating a binding agreement the terms of those Agreements and the specific confidentiality clauses within, bind Sunwater as a party to those Agreements and do not permit disclosure of the Information in Issue in these circumstances disclosing the Information in Issue to the applicant under the RTI Act would found an action for breach of a contractual obligation of confidence; and Bravus as the plaintiff would have appropriate standing to bring an action to enforce the obligation of confidence owed by Sunwater. DECISION For reasons explained above, I affirm Sunwater’s decision. I am satisfied that access to the Information in Issue can be refused under section 47(3)(a) of the RTI Act on the basis that its disclosure would found an action for breach of confidentiality. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. T MainwaringPrincipal Review Officer Date: 1 June 2023 APPENDIX Significant procedural steps Date Event 29 June 2022 OIC received the external review application. OIC requested preliminary documents from Sunwater. 4 July 2022 OIC received preliminary documents from Sunwater 18 July 2022 OIC advised the applicant and Sunwater that the external review application had been accepted. OIC requested relevant documents from Sunwater. 1 August 2022 and 15 August 2022 OIC received the requested documents from Sunwater. 21 December 2022 OIC requested further submissions from Sunwater. 16 January 2023 OIC received further submissions from Sunwater. 28 February 2023 OIC conveyed a preliminary view to the applicant and invited the applicant to provide submissions supporting its case if it did not accept the preliminary view. 28 March 2023 The applicant notified OIC it did not accept the preliminary view and provided submissions supporting its case. [1] Access application dated 25 February 2022.[2] Sunwater is a government owned corporation and therefore meets the definition of ‘agency’ under section 14 of the RTI Act. [3] For ease of reference, I have referred to the various entities (Adani Mining Pty Ltd, Adani Infrastructure Pty Ltd, Carmichael Rail Network Pty Ltd or Bravus Mining and Resources) as ‘Bravus’ in this decision. [4] Bravus submitted that, in the alternative, disclosing the information would be contrary to public interest under section 47(3)(b) of the RTI Act. It also submitted some of the information was outside the scope of the access application. [5] Decision dated 10 June 2022.[6] External review application dated 29 July 2022.[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 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 (QCAT) 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] Section 23 of the RTI Act.[11] Section 47 of the RTI Act. In reaching my view, I have also taken into account that the refusal grounds are to be interpreted narrowly (section 47(2)(a) of the RTI Act) and the RTI Act be administered with a pro-disclosure bias (section 44 of the RTI Act).[12] The types of exempt information are set out in schedule 3 of the RTI Act. [13] Ramsay Health Care v Office of the Information Commissioner & Anor [2019] QCATA 66 (Ramsay). The applicant submits on external review that the five cumulative elements referred to in Ramsay at [16] are the relevant elements for me to consider in this case. However, those elements apply to an equitable breach of confidence, rather than a contractual breach of confidence. As I am satisfied that there exists a contractual breach of confidence in this review, it is not necessary for me to consider whether there is also an equitable breach of confidence, even though I addressed this briefly in my preliminary view letter to the applicant. It is therefore irrelevant for me to consider the five elements required to establish an equitable breach of confidence, and the applicant’s submissions to the extent they address those elements. [14] B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (B and BNRHA) at [44].[15] Refer to the restrictions placed on the Information Commissioner under section 108 of the RTI Act. [16] As also noted in Park and Moreton Bay Regional Council & Ors [2020] QICmr 39 (23 July 2020) (Park) at [17]. [17] In B and BNRHA at [45], Information Commissioner Albietz discussed the requirement for there to be an exchange of consideration in these circumstances and relevantly explained: A contractual term requiring that certain information be kept secret will not necessarily equate to a contractual obligation of confidence: an issue may arise as to whether an action for breach of the contractual term would satisfy the description of an "action for breach of confidence" (so as to fall within the scope of s.46(1)(a) of the FOI Act). An express contractual obligation of confidence ordinarily arises in circumstances where the parties to a disclosure of confidential information wish to define clearly their respective rights and obligations with respect to the use of the confidential information, thereby enabling the parties to anticipate their obligations with certainty. A mere promise to keep certain information secret, unsupported by consideration, is incapable of amounting to a contractual obligation of confidence, and its effectiveness as a binding obligation would depend on the application of the equitable principles discussed in more detail below.[18] https://www.daf.qld.gov.au/__data/assets/pdf_file/0006/1630464/20-442.pdf. [19] Submissions to OIC on 28 March 2023. [20] https://s3.treasury.qld.gov.au/files/Release-of-Information-Arrangements.pdf. [21] Section 44(1) of the RTI Act. [22] Section 44(4) of the RTI Act.[23] Section 105(2) of the RTI Act.[24] Submissions to OIC on 29 June 2022 and 28 March 2023. [25] See Park at [30] where the RTI Commissioner explained that: ... in enacting schedule 3 to the RTI Act, Parliament has already decided that disclosure of information in the cases identified in schedule 3 would, on balance, be contrary to the public interest. The proposition advanced by the applicant which is, in effect, that it must be shown, in a particular case, that the balance of the public interest is in favour of disclosure in a case falling within schedule 3, would involve adopting an interpretation which overrides the judgment of Parliament.[26] [2020] QCATA 52 at [32]- [39]. [27] These being the only such matters which may prevent a contractual confidentiality clause from imposing an obligation of contractual confidence under the schedule 3, section 8(1) exemption: Adani at [32]-[39].

queensland

court_judgement

Queensland Information Commissioner 1993-

Tomkins and Rockhampton Regional Council [2016] QICmr 2 (22 January 2016)

Tomkins and Rockhampton Regional Council [2016] QICmr 2 (22 January 2016) Last Updated: 20 January 2017 Decision and Reasons for Decision Citation: Tomkins and Rockhampton Regional Council [2016] QICmr 2 (22 January 2016) Application Number: 312363 Applicant: Tomkins Respondent: Rockhampton Regional Council Decision Date: 22 January 2016 Catchwords: ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT - REFUSAL OF ACCESS - applicant seeking access to information about himself and his dogs - audio recordings of interviews and photographs of dogs relating to Council investigation of a dog attack - 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) REASONS FOR DECISION Summary The applicant applied to Rockhampton Regional Council (Council) under the Information Privacy Act 2009 (Qld) (IP Act) for access to all documents relating to allegations about himself and his dogs, for the period 1 December 2013 to 1 January 2015.[1] Council refused access to all the information it located in response to the application on the ground of legal professional privilege. The applicant then applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision. During the external review, a number of documents were released to the applicant by Council and the applicant also agreed not to pursue access to certain information. Two categories of information remain in issue on external review: audio recordings of interviews Council held with the victim of the dog attack (Interview Recordings) and dog “line up” photographs shown to the victim (Photos). For the reasons set out below, I vary the Department’s decision and find that the Interview Recordings and Photos do not contain the applicant’s personal information and therefore, cannot be subject to the applicant’s access application under the IP Act. Background Significant procedural steps relating to the external review are set out in the Appendix. During the external review, Council accepted OIC’s view that the majority of the documents located in response to the access application were not subject to legal professional privilege. Council also located and agreed to release additional information to the applicant. The applicant accepted OIC’s views on various issues.[2] The applicant made a number of submissions to OIC about the sufficiency of Council’s searches.[3] Council conducted additional searches during the review process and provided OIC with relevant search results and submissions. The applicant accepted OIC’s view that various additional documents were nonexistent or unlocatable[4] and therefore, those issues are not dealt with in this decision. The applicant did not accept that Council located all of the Photos and Interview Recordings. As stated at paragraph 4, I have found that these categories of information do not contain the applicant’s personal information and therefore, cannot be subject to an access application under the IP Act. Accordingly, the issue of sufficiency of search with respect to these categories of information is beyond the scope of this external review and therefore, it is not addressed in this decision. Reviewable decision The decision under review is Council’s decision dated 28 January 2015. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). The applicant (via his authorised representative) provided OIC with extensive submissions in support of his case.[5] I have carefully considered those submissions. The applicant raised a number of concerns regarding Council’s investigation process, the veracity of information relied upon by Council in making its decision to prosecute him and the information released to him under the prosecution process.[6] To the extent the applicant’s submissions are relevant to the issue for determination, I have addressed them below. Issue for determination The issue to be decided is whether the Interview Recordings and Photos can be the subject of the applicant’s access application made under the IP Act on the basis that they contain the applicant’s personal information.[7] 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.[8] Personal information is defined in the IP Act as:[9] ... 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 Right to Information Commissioner has previously determined that information will be a particular individual’s personal information for the purposes of the IP Act if: the individual can be identified from the information sought; and the information sought is about that individual.[10] In some instances, an individual’s identity is clear from the face of the documents, for example, an individual’s name or photograph or a detailed description of a particular individual. Where a document does not contain information that obviously identifies an individual, the Right to Information Commissioner has previously considered that, in some instances, an individual may be reasonably identifiable through additional information. The Right to Information Commissioner has previously considered that the below factors will influence whether an individual’s identity can be reasonably ascertained:[11] 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. Whether information is ‘about’ an individual is a contextual question, independent from considering whether the information identifies an individual. The word ‘about’ is not defined in the IP Act and it is therefore necessary to consider the word’s ordinary meaning, which includes ‘of; concerning; in regard to ... connected with’.[12] Accordingly, in considering whether information is ‘about’ an individual, it is necessary to consider whether the information reveals anything about the individual.[13] Findings As the access application was made under the IP Act, the only documents which can be subject to the application are those that contain the applicant’s personal information.[14] The Interview Recordings and Photos were brought into existence during Council’s investigation of a dog attack, for which the applicant’s dogs were identified by Council as responsible. The Interview Recordings comprise the victim’s account of the attack and confirm that photographs of various dogs (being the Photos) were shown to the victim.[15] The Photos depict a number of different dogs, each with a handwritten identification number. They contain no further identifying information, such as owner details, registration details, locations or dog names. I accept that the applicant has a strong personal interest in accessing information relating to his dogs and Council’s investigation of the dog attack. However, the fact that the dogs Council identified as responsible for the attack are owned by the applicant does not automatically mean that all of the documents relating to the dog attack investigation will contain the applicant’s personal information. To determine whether the Interview Recordings and Photos contain the applicant’s personal information and therefore can be the subject of the IP Act application, I must consider: firstly, whether the applicant can be identified from the Interview Recordings and Photos; and secondly, whether the Interview Recordings and Photos are about the applicant. Can the applicant be identified from the Interview Recordings and Photos? No, for the reasons that follow. The applicant generally submits he has an entitlement to access all documents within Council’s investigation files, including the Interview Recordings and Photos, because the investigation led to his prosecution and the dogs are his property and this leads to the identification of him in all documents. More specifically, the applicant submits that: the Interview Recordings triggered an investigation, which resulted in Council forming a database of his ‘personal information and opinions’ made about him’;[16] and as the Photos were shown to the victim during the investigation, the depicted dogs ‘now make up [the applicant’s] personal information and personal opinions held about him.’ [17] I have carefully considered the Interview Recordings and Photos and I am satisfied that they contain no information which references or identifies the applicant. It is therefore necessary to consider whether the applicant can be reasonably identified through additional information. In this case, although the applicant’s ownership of his dogs can be ascertained from additional information,[18] the Interview Recordings and Photos do not specifically identify the applicant’s dogs. The Interview Recordings contain the victim’s description of the dogs who attacked her and record her consideration of a series of photographs of unidentified dogs with similar physical characteristics to the descriptions she gave to Council. The Photos are of various dogs and do not reveal any connection with their owner, nor do they contain the dog names, breeds or registration numbers. Neither the Interview Recordings nor the Photos contain any information which relates to any ownership conduct or action of the applicant in respect of the dogs which he owns. For the above reasons, I am satisfied that a person receiving the Interview Recordings and Photos would not be able to use them to identify the applicant. Accordingly, I am satisfied that the applicant’s identity could not be reasonably ascertained through additional information. Are the Interview Recordings and Photos about the applicant? No, for the reasons that follow. The information in the Interview Recordings does not identify or refer to the applicant as the owner of the dogs responsible for the attack. Similarly, the Photos do not identify or refer to any of the depicted dogs as being owned by the applicant. The Interview Recordings and Photos are therefore, not obviously about the applicant. The question is then whether the Interview Recordings and Photos reveal anything about the applicant or, in other words, whether there is a sufficient link or connection between the Interview Recordings and Photos and the applicant to conclude that the Interview Recordings and Photos are about the applicant’s personal information. The recordings are, as noted above, about the victim’s account of the attack and her consideration of the dog “line up” photographs. While the victim may have provided Council with a description of the physical qualities of the dogs involved in the attack, there is no connection between that description and the applicant. For these reasons, I am satisfied that the information in the Interview Recordings does not reveal a fact or opinion about the applicant. I also find that there is not a sufficient link or connection between this information and the applicant to make the Interview Recordings about the applicant. As noted above, the victim was shown a series of photographs of dogs with similar physical characteristics to those she described in her account of the attack and those photographs were only identified by handwritten numbers. I find that there is no connection between the applicant and the Photos.[19] For these reasons, I am satisfied that the Photos do not reveal a fact or opinion about the applicant and there is not a sufficient link or connection between the Photos and the applicant to make them about the applicant. Accordingly, I am satisfied that the Interview Recordings and Photos contain no information which is about the applicant. Conclusion For the reasons set out above, I am satisfied that the Interview Recordings and Photos do not contain the applicant’s personal information and therefore, the Interview Recordings and Photos cannot be subject to the applicant’s access application which was made under the IP Act. DECISION I vary Council’s decision and find that the Interview Recordings and Photos do not contain the applicant’s personal information and therefore, cannot be subject to the applicant’s access application which was made under the IP Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. ________________________ K Shepherd Assistant Information Commissioner Date: 22 January 2016 APPENDIX Significant procedural steps Date Event 16 January 2015 Council received the access application. 28 January 2015 Council issued its decision to the applicant. 1 February 2015 OIC received the application for external review of Council’s decision. 2 February 2015 OIC notified Council that the external review application had been received and requested relevant procedural documents by 9 February 2015. 3 February 2015 OIC received the procedural documents from Council. OIC received the applicant’s authorisation of his representative to act on his behalf in the review. 4 February 2015 OIC notified the applicant and Council that it had accepted the external review application. OIC requested Council provide a copy of the documents in issue by 18 February 2015. 5 February 2015 OIC confirmed its request to Council for a copy of the documents in issue by 18 February 2015. 23 February 2015 OIC received the documents in issue from Council. 31 March 2015 OIC received further information from Council. 17 June 2015 OIC conveyed a preliminary view to Council on various issues and requested submissions by 1 July 2015. 18 June 2015 OIC provided an update to the applicant regarding the preliminary view conveyed to Council. 24 June 2015 Council notified OIC that it accepted the preliminary view and agreed to release documents to the applicant on 25 June 2015. 17 August 2015 OIC conveyed a preliminary view to the applicant on various issues, including the Interview Recordings and Photos, and requested submissions by 31 August 2015. 23 August 2015 OIC received the applicant’s submissions in support of his case. 9 September 2015 OIC confirmed to the applicant OIC’s preliminary view on various issues, including the Interview Recordings and Photos, and requested submissions by 23 September 2015. 21 September 2015 OIC received the applicant’s further submissions in support of his case. 12 October 2015 OIC confirmed to the applicant OIC’s preliminary view on various issues, including the Interview Recordings and Photos, and requested submissions by 2 November 2015. 30 October 2015 OIC received the applicant’s further submissions in support of his case. 12 November 2015 OIC confirmed to the applicant OIC’s preliminary view on various issues, including the Interview Recordings and Photos, and requested submissions by 26 November 2015. 22 November 2015 OIC received the applicant’s further submissions in support of his case. 7 December 2015 OIC confirmed to the applicant OIC’s preliminary view in respect of the Interview Recordings and Photos. 14 December 2015 OIC confirmed its preliminary view in respect of the Interview Recordings. [1] In January 2015, the applicant’s two dogs were declared to be dangerous dogs by Council. The dogs have been the subject of investigations by Council and were identified by Council as the dogs responsible for an attack on another individual in September 2014. Council has since commenced prosecution proceedings in the Magistrates’ Court against the applicant in relation to his dogs. As at the date of this decision, these proceedings are ongoing. [2] Post application documents, blank and duplicate documents, out of scope non-personal information and refusal of access to exempt information and contrary to public interest information. As these issues were resolved with the applicant during the review process, they are not addressed in these reasons for decision. [3] Submissions dated 28 and 29 June, 9 July, 23 August and 21 September 2015. [4] Under section 52 of the Right to Information Act 2009 (Qld) (RTI Act).[5] As set out in the Appendix. The submissions which relate directly to the Interview Recordings and Photos mainly appear in the applicant’s external review application and emails to OIC dated 23 August 2015, 21 September 2015, 30 October 2015 and 22 November 2015. [6] These concerns are irrelevant to the issue for determination in this review. [7] For the reasons set out at paragraph 8 above, sufficiency of search issues do not form part of the issue for determination. [8] Section 40(1)(a) of the IP Act. [9] Section 12 of the IP Act. [10] Mahoney and Ipswich City Council (Unreported, Queensland Information Commissioner, 17 June 2011) (Mahoney) at [19]. [11] Mahoney at [21]. [12] Macquarie Dictionary online. [13] Mahoney at [23] to [27]. [14] Section 40 of the IP Act.[15] By letter dated 12 January 2015, responding to the applicant’s submissions regarding a proposed regulated dog declaration notice, Council advised the applicant that ‘The victim was shown a series of photos of dogs with similar markings, size and colouring’. [16] Submission dated 23 August 2015. [17] Submission dated 21 September 2015. [18] Relevant extraneous material includes the applicant’s registration form relating to those dogs, which was released to the applicant on external review. The information provided to the applicant under the separate prosecution process also includes photographs of two dogs, which are the applicant’s dogs, with the victim’s handwritten statements on the back of one photograph of each dog. In one of these handwritten statements, the victim indicated she was very confident that the depicted dog was involved in her attack. [19] The information provided to the applicant under the separate prosecution process included the majority of the Photos. In his submission dated 23 August 2015, the applicant states ‘Dog photos already received 1,2,3,5.7.8. are not [the applicant’s] dogs’. This submission also relates to the applicant’s concerns about sufficiency of search which, for the reasons explained at [8], are not relevant to the issue for determination in this review.

queensland

court_judgement

Queensland Information Commissioner 1993-

Carter and Department of Justice and Attorney-General [2017] QICmr 43 (11 September 2017)

Carter and Department of Justice and Attorney-General [2017] QICmr 43 (11 September 2017) Last Updated: 1 December 2017 Decision and Reasons for Decision Citation: Carter and Department of Justice and Attorney-General [2017] QICmr 43 (11 September 2017) Application Number: 312972 Applicant: Carter Respondent: Department of Justice and Attorney-General Decision Date: 11 September 2017 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - LEGAL PROFESSIONAL PRIVILEGE - information about the applicant’s pardon application and legal proceedings - communications between the agency’s internal legal advisers and client or counsel - whether the improper purpose exception to legal professional privilege is enlivened - whether information would be privileged from production in a legal proceeding on the ground of legal professional privilege - sections 47(3)(a) and 48 and schedule 3, section 7 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - IRRELEVANT INFORMATION - whether information may be deleted on the basis it is irrelevant to the terms of the application - section 73 of the Right to Information Act 2009 (Qld) REASONS FOR DECISIONSummary The applicant applied to the Department of Justice and Attorney-General (Department) under the Right to Information Act (Qld) (RTI Act) for access to documents concerning his March 2015 pardon application to the Governor of Queensland and his ‘case in general’.[1] The Department decided to release 196 full pages and 29 part pages and refused access to the remaining information (Remaining Information) on the basis that it was exempt from disclosure on the grounds of legal professional privilege. The applicant applied to the Office of the Information Commissioner (OIC) for external review. For the reasons set out below, I vary the Department’s decision and find that: information on five part pages of the Remaining Information[2] is irrelevant to the terms of the access application and may be deleted under section 73 of the RTI Act; and access to the balance of the Remaining Information is refused on the grounds that it is subject to legal professional privilege and accordingly is exempt from disclosure under sections 47(3)(a) and 48 and schedule 3 section 7 of the RTI Act.Background The applicant, a prisoner, had applied in November 2010 (First Petition) to the Governor of Queensland (Governor) for a pardon. That application was refused and the Attorney-General decided under section 672A of the Criminal Code Act 1899 (Qld) (Criminal Code) not to refer the case to the Queensland Court of Appeal.[3] The applicant applied to the Supreme Court for judicial review of the Attorney-General’s decision. The Supreme Court refused the judicial review application. The Court of Appeal later dismissed the applicant’s appeal against the Supreme Court’s decision. In March 2015, the applicant lodged a further pardon application (Second Petition) to the Governor, requesting that his case be referred to the Court of Appeal. The Governor declined to grant a pardon and the Attorney-General decided not to refer the Second Petition to the Court of Appeal. In September 2015, the applicant applied to the Supreme Court for judicial review of the Attorney-General’s decision.[4] That application has not yet been determined.[5] The applicant seeks access to documents concerning the Second Petition and his case generally. Significant procedural steps in the external review are set out in the Appendix to this decision.Reviewable decision The decision under review is the Department’s decision dated 9 September 2016.Evidence considered The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and appendices). Issues for determination In this review, the question for consideration is whether: certain parts of the Remaining Information are irrelevant to the terms of the access application;[6] and the balance of the Remaining Information comprises exempt information on the basis that it is subject to legal professional privilege.[7] Remaining Information The Remaining Information in this review comprises information in 1289 full pages and 18 part pages. As previously noted, information on five part pages of the Remaining Information is irrelevant to the terms of the access application.[8] The information does not concern the applicant’s petitions, trials, or court proceedings and is not about the applicant or any matters involving him. It concerns the listing for mention or trial of other court proceedings, not involving the applicant (Court Listing Information). On this basis, I am satisfied that the Court Listing Information does not relate to the subject matter of the applicant’s access application and may be considered to be irrelevant to the access application under section 73(1) of the RTI Act.[9] I discuss below the balance of the Remaining Information (Information in Issue).Does the Information in Issue comprise exempt information on the basis that it is subject to legal professional privilege? Yes, for the reasons that follow. The Information in Issue consists of information in Crown Law files concerning the applicant’s First and Second Petitions and various court proceedings involving the applicant. Relevant law The RTI Act gives a right to access documents of government agencies.[10] However, this right is subject to limitations, including grounds for refusal of access.[11] Access may be refused to documents to the extent that they comprise exempt information.[12] Schedule 3 of the RTI Act sets out categories of information the disclosure of which Parliament has determined 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] 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 (advice privilege), or preparing for, or for use in or in relation to, existing or reasonably anticipated legal proceedings (litigation privilege).[15] Legal professional privilege 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.[16] The privilege also extends to copies of unprivileged documents made for the dominant purpose of obtaining legal advice.[17] Analysis The Information in Issue consists of: correspondence and file notes recording communications between Crown Law and its client, the Attorney-General correspondence with and file notes recording communications between Crown Law and counsel details listing the nature of legal work undertaken on behalf of the Attorney-General research notes and materials, including copies of various decisions and advices; and drafts of legal advices and court documents. The Attorney-General engaged the services of Crown Law in relation to the First and Second Petitions, and related court proceedings. While Crown Law is a unit of the Department overseen by the Attorney-General, its client in this matter, Crown Law operates under the Crown Solicitor as an independent provider of legal services to Government Ministers and agencies, taking instructions, advising and representing the Government on a fee-for-service basis. Given this, I consider that there exists between Crown Law and its client, the Attorney-General, a professional relationship of legal adviser and client which secures the necessary degree of independence in the advice and legal services provided. I have carefully examined the Information in Issue and am satisfied it was, and remains, confidential. The Information in Issue consists of documents relating to legal proceedings involving the applicant. These legal proceedings include proceedings concerning the First and Second Petitions and, additionally, various earlier court proceedings relating to the offence for which the applicant is imprisoned.[18] In proceedings involving the Attorney-General, the Attorney-General was represented by Crown Law. I am satisfied that the documents relating to legal proceedings involving the applicant comprise either legally privileged original documents from files within Crown Law where it was acting on behalf of the Attorney-General, made for the dominant purpose of providing legal advice or for use in legal proceedings, or are copies of original documents, which copies were brought into existence for the dominant purpose of use in providing legal advice in relation to the Second Petition, or other proceedings involving the applicant, and attract legal professional privilege on this basis.[19] The applicant submits that ‘the example used in the RTI Act is one involving a private company not a tax payer funded public service’. It is unclear what example the applicant refers to, as the RTI Act does not provide an example of the application of schedule 3, section 7 of the RTI Act. I understand the applicant to be making a submission that the schedule 3, section 7 exemption of the RTI Act cannot be claimed by a body of Government. However, legal professional privilege arises where the criteria set out above[20] are met and is not constrained by whether the client is a private entity or a government department. Based on the above, I am satisfied that the Information in Issue comprises confidential communications between Crown Law and its client and counsel made for the dominant purpose of seeking or giving legal advice or for use in or in relation to, the then existing or reasonably anticipated legal proceedings.Improper purpose exception The applicant submits[21] that an affidavit filed by the Crown Solicitor on behalf of the Attorney-General in the judicial review application relating to the Second Petition attaches an incomplete version of the applicant’s Second Petition.[22] The applicant contends that, in representing the attachment to be a copy of the Second Petition, the Crown Solicitor acted improperly. 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.[23] 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 circumstances.[24] 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’.[25] I have carefully reviewed the Information in Issue. While I am prohibited by section 108(3) of the RTI Act from disclosing the content of this information, on the information before me, there is no evidence that the affidavit was made in furtherance of any illegal or improper purpose. The applicant’s contention, that the version of the Second Petition attached to the affidavit filed by the Crown Solicitor omits information that was included in the applicant’s Second Petition, is not supported by the Information in Issue. Accordingly, I am satisfied that the improper purpose exception does not apply to the Information in Issue. For the reasons set out above, I am satisfied that the Information in Issue meets each of the requirements of legal professional privilege and that the improper purpose exception to legal professional privilege does not apply. Accordingly, I find that the Information in Issue is exempt information, on the basis that it would be privileged from production in a legal proceeding on the ground of legal professional privilege, and access to it may be refused under section 47(3)(a) of the RTI Act on that basis. DECISION I vary the decision under review and find that: the Court Listing Information is irrelevant to the terms of the access application and may be deleted under section 73 of the RTI Act; and the Information in Issue comprises information which would be privileged from production in a legal proceeding on the ground of legal professional privilege and accordingly is exempt from disclosure under sections 47(3)(a) and 48 and schedule 3, section 7 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: 11 September 2017 APPENDIXSignificant procedural steps Date Event 22 September 2016 OIC received the external review application. OIC notified the applicant and the Department that it had received the external review application. OIC also asked the Department to provide a copy of relevant procedural documents. 27 September 2016 OIC received the procedural documents from the Department. 5 October 2016 OIC notified the applicant and the Department that it had accepted the external review application. OIC also asked the Department to provide a copy of the information in issue. 10 October 2016 OIC received the information in issue from the Department. 9 November 2016 OIC asked the Department for copies of the attachments to the access application. OIC received the requested information from the Department. 1 December 2016 OIC asked the Department for clarification about the number of responsive pages and pages the Department contended were irrelevant. 5 December 2016 OIC received the requested clarification from the Department. 4 April 2017 OIC asked the Department for further information about the status of the applicant’s Court proceedings. OIC received the requested information from the Department. 8 May 2017 OIC wrote to the applicant conveying the preliminary view that some information was exempt from disclosure on the basis of legal professional privilege and the Department was entitled to remove the remaining information from information released to the applicant on the ground it was irrelevant. OIC invited the applicant, if he did not accept the preliminary view, to provide submissions in response. 26 May 2017 OIC received the applicant’s correspondence informing OIC that he did not accept the preliminary view and providing submissions. 14 June 2017 OIC wrote to the applicant noting that the next step in the review process would be to issue a formal written decision. [1] Access application dated 20 July 2016. [2] Being segments of information on pages 158, 161, 162, 266 and 267 of File 1. [3] Under section 672A of the Criminal Code, the AttorneyGeneral is authorised to refer a convicted person’s petition for a pardon to the Court of Appeal, for it to be heard and determined as an appeal or for the Court of Appeal to give its opinion on any point arising in the case.[4] Proceeding BS10138/15[5] The Department informed OIC on 22 August 2017 that the application is in progress. [6] Section 73 of the RTI Act. [7] Sections 47(3)(a), 48 and schedule 3 section 7 of the RTI Act. [8] Comprising the following segments: in File 1 – one segment on each of pages 161 and 266; three segments on each of pages 158 and 267; and four segments on page 162.[9] Under section 73 of the RTI Act, an agency may delete from a copy of a document, prior to giving access to that document, information which it reasonably considers is not relevant to the access application. RTI Commissioner Smith explained in Wyeth and Queensland Police Service [2015] QICmr 26 (18 September 2015) at paragraph [12] that this is not a ground for refusal of access, but a mechanism to allow irrelevant information to be deleted from documents which are identified for release to an applicant.[10] Section 23 of the RTI Act.[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] Esso Australia Resources Ltd v Commission of Taxation [1999] HCA 67; (1999) 201 CLR 49; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [9]. [16] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 95 per Mason and Wilson JJ.[17] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (Propend).[18] The applicant’s initial conviction for the offence for which he is imprisoned was set aside on appeal by the Queensland Court of Appeal. On retrial, he was convicted of the offence. The Court of Appeal dismissed his appeal against that conviction and the High Court refused the applicant’s application for special leave to appeal.[19] Propend. [20] In paragraph [18].[21] Submission dated 25 May 2017.[22] As Exhibit ‘MPG 1’ to the affidavit of Michael Prowse dated 22 January 2016.[23] Secher and James Cook University (Unreported, Queensland Information Commissioner, 6 June 2012) (Secher) at paragraph 20. See also Murphy and Treasury Department [1998] QICmr 9; (1998) 4 QAR 446 at paragraphs 31-42. [24] Secher at paragraph 21 and Propend at pages 545 and 556. [25] Propend at pages 591 and 592.

queensland

court_judgement

Queensland Information Commissioner 1993-

Dimitrijev and Education Queensland [2000] QICmr 9 (31 May 2000)

Dimitrijev and Education Queensland [2000] QICmr 9 (31 May 2000) Dimitrijev and Education Queensland (S 224/99, 31 May 2000, Deputy Information Commissioner) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.-3. These paragraphs deleted. REASONS FOR DECISION Background The applicant, Mrs V Dimitrijev, is a maths/science teacher who currently holds an S2 suitability rating (the highest suitability rating for a teacher being S1) with Education Queensland. The applicant has been seeking employment with Education Queensland for several years but, after some initial short-term teaching contracts at various state high schools, has not been offered either full-time or part-time employment since 1997. After having been informed that adverse reports had been made concerning her performance at two schools, the applicant was offered three further contracts in different schools, but was informed that her suitability rating could be subject to review during those contracts. (I understand that Education Queensland may, at its discretion, reassess a teacher's performance if it believes this to be necessary, and may raise, lower or maintain that teacher's suitability rating as a result of such reassessment. It is my understanding that this condition applies to all teachers.) The applicant did not accept the subsequent offers of employment, as she believed that certain officers of Education Queensland were attempting to improperly obtain adverse reports on her teaching performance, for the purpose of downgrading her suitability rating and denying her further employment with Education Queensland. The applicant also believed that officers of Education Queensland had acted illegally in not observing certain provisions of the Public Service Regulation 1996 Qld (the PS Regulation) in relation to the adverse reports from two of the schools in which the applicant was contracted to teach. Whether Education Queensland followed the appropriate procedures, as specified in the PS Regulation, is not, however, relevant to the present review. I understand that the applicant has already raised those concerns with Education Queensland. Brief statements to the effect that the applicant had been offered, but had declined, the further teaching contracts referred to in paragraph 5 above were entered into EDPERS (Education Queensland's computerised personnel database). I understand that the practice of Education Queensland, if a teacher is offered a contract and refuses that offer, is that future offers of employment may not be made to that teacher until all other available teachers with the same subject capabilities and suitability rating have been given the opportunity to take up an offered contract or position. The applicant asked Education Queensland to remove the entries relating to contracts which she had been offered, but had declined, from her EDPERS records, but Education Queensland refused to do so on an administrative basis. By letter dated 14 July 1999, the applicant wrote to "Freedom of Information, Department of Education", again requesting that Education Queensland remove "improper and adverse information on my 'Staffing Comments Enquiry' screen of EDPERS" and setting out in detail her reasons for seeking to have the record amended. Education Queensland treated that request as an application, under Part 4 of the FOI Act, for amendment of information concerning the applicant. By letter dated 17 August 1999, Mr Paul Reynolds, Education Queensland's Acting FOI Co-ordinator, informed the applicant of his decision that the information in issue concerned the applicant's work affairs, not her personal affairs, and was therefore not information which Education Queensland was required to amend under Part 4 of the FOI Act. Mr Reynolds also informed the applicant that amendment of information by an agency did not include deletion of that information from agency records. The applicant applied for internal review of Mr Reynolds' decision, by way of a letter dated 23 August 1999. The internal review was conducted by Ms Therese Storey, Principal Policy Officer, Judicial and Administrative Review Unit, who informed the applicant, in a letter dated 3 September 1999, that she had decided to uphold Mr Reynolds' decision. Ms Storey offered, however, to add a notation to the information in issue, and invited the applicant to provide the wording for that notation. The applicant's notation was subsequently added to the EDPERS database. The applicant remained dissatisfied, however, with the refusal of Education Queensland to delete or otherwise amend the information in issue, and, by letter dated 27 October 1999, the applicant applied for review, under Part 5 of the FOI Act, of Ms Storey's decision. External review process Education Queensland provided my Office with a printed copy of the EDPERS screen in its present form (i.e., after the applicant's notation, which appears on the screen as lines 5 and 6, had been added by Education Queensland). The "Staffing Comments Inquiry" relating to the applicant then read as follows: COMMENTS Line 1 : has indicated that she is able to teach physics 2 : 23.06.97 - offer 2 wks Cor or R/Plns SHS to assess - DECLINED 3 : 11.07.97 - offered Beaudesert SHS (15.08-19.09.97) DECLINED 4 : 01.08.97 - offered Runcorn SHS (06.10-28.11.97) DECLINED 5 : DECLINED to get involved in improper and quite possibly 6 : unlawful actions of department officers A member of my staff then discussed the information in issue with the applicant, and confirmed that, despite the amendment already made to that information by Education Queensland, the applicant still wished to have the EDPERS entries, relating to offers of teaching positions which the applicant had declined, deleted entirely from the database. By letter dated 21 February 2000, the Information Commissioner informed the applicant of his preliminary view that the information in issue was not information which related to the applicant's personal affairs, and therefore was not information in respect of which the applicant had a legal entitlement to seek amendment under Part 4 of the FOI Act. The Information Commissioner also informed the applicant of his preliminary view that the information in issue, in its current form, was not inaccurate, incomplete, out-of-date or misleading, and that Education Queensland therefore could not be required to consider amendment of the information in issue under Part 4 of the FOI Act, even if the information did not relate to her personal affairs. The applicant lodged a submission in reply, dated 23 February 2000, in which she reiterated her belief that the information in issue did relate to her personal affairs, and that it was incorrect and incomplete. In reaching my decision in this matter, I have had regard to the following documents: the contents of the information in issue; the applicant's initial application for amendment dated 14 July 1999; the initial decision by Mr Reynolds, on behalf of Education Queensland, dated 17 August 1999; the applicant's internal review application dated 23 August 1999; Ms Storey's internal review decision, on behalf of Education Queensland, dated 3 September 1999; the applicant's external review application, dated 27 October 1999; and the applicant's submission dated 23 February 2000. Amendment of personal affairs information Section 53 of the FOI Act provides: 53. If a person has had access to a document from an agency or Minister (whether or not under this Act) containing information relating to— (a) the person's personal affairs; or (b) the personal affairs of a deceased person to whom the person is next of kin; the person is entitled to apply to the agency or Minister for correction or amendment of any part of the information if it is inaccurate, incomplete, out-of-date or misleading. The Information Commissioner has previously considered the application of s.53 of the FOI Act in a number of decisions, including Re Doelle and Legal Aid Office (Queensland) [1993] QICmr 5; (1993) 1 QAR 207; Re Brack and Queensland Corrective Services Commission [1994] QICmr 5; (1994) 1 QAR 414 at p.426, paragraphs 48-50; Re Banks and Queensland Corrective Services Commission [1995] QICmr 5; (1995) 2 QAR 461; Re Jesser and University of Southern Queensland [1997] QICmr 15; (1997) 4 QAR 137. An agency is not required to consider amendment of a document under Part 4 of the FOI Act unless: the person seeking the amendment has previously had access to the document from that agency; the information which the applicant seeks to amend is information which relates to the applicant's personal affairs; and the information which the applicant seeks to amend is inaccurate, incomplete, out-of-date or misleading. If those criteria are satisfied, the agency is required to consider whether it should amend the document and, if it decides to do so, what form the amendment should take. It is clear that the applicant has had access to a copy of the document containing the information in issue, and this is confirmed by Education Queensland. Criterion (a) above is therefore satisfied. Does the information in issue relate to the applicant's personal affairs? With respect to criterion (b), the applicant has presented detailed arguments, in her applications for internal and external review of Education Queensland's decisions, and in her submission to my Office dated 23 February 2000, in favour of her contention that the information in issue does relate to her personal affairs. From my examination of that matter, it is apparent that the applicant's belief that her decision to decline the three offered teaching positions is information relating to her personal affairs, turns on the following points: the phrase "personal affairs" can include information relating to an applicant's work performance and capacity for employment (the applicant cited as examples Re Bewley and Commissioner for Superannuation, Cth AAT, 1 February 1986, unreported, and FOI Memorandum No. 28 of the Commonwealth Attorney-General's Department); the information in issue relates to the applicant's employment entitlements and professional competence, and concerns arrangements for a performance examination (i.e., the reassessment of the applicant's teacher suitability rating), and therefore should be characterised as information which relates to the applicant's personal affairs (even though it is contained on a database which relates to the applicant's employment by a government agency); the applicant held certain beliefs about the genuineness of the offers of employment, and about allegedly improper activities of certain officers of Education Queensland, in which she believed she should not participate; the applicant's reasons for declining the three offers listed in the information in issue were based on her personal attitude and beliefs concerning the nature of the offered positions and the purpose for which they were offered by Education Queensland; the term "Declined" used in the EDPERS database incorrectly describes the applicant's character, her belief in her abilities as a teacher, and her attitude towards genuine offers of employment by Education Queensland; this misleading description of the applicant will, if left on her personnel record, be prejudicial to the applicant's chances of future employment; and the information cannot be about the "employment duties of a government employee" because the applicant was not a government employee at the time the offers were made, and had no duty to accept a contract offer, so the refusal to accept an offer could not be associated with an employment duty. In Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, the Information Commissioner 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, the Information Commissioner said that information relates to the "personal affairs of a person" if it relates to the private aspects of a person's life and that, while there may be a substantial grey area within the ambit of the phrase "personal affairs", that phrase has a well accepted core meaning which includes: family and marital relationships; health or ill health; relationships and emotional ties with other people; and domestic responsibilities or financial obligations. Whether or not information contained in a document comprises information relating to an individual's personal affairs is essentially a question of fact, to be determined according to the proper characterisation of the information in question. A person may accept or reject an offer of employment by an agency for many reasons, including personal reasons (for example, the employment may not suit the physical capabilities or family circumstances of the person to whom it is offered, or may require that person to undertake duties which are inconsistent with his or her religious, political or ethical convictions). If reasons of a personal nature for rejecting the offered employment are recorded in a document held by the agency, then it is arguable that that information is information which relates to the personal affairs of that individual. However, I consider that a record such as the information in issue, which does no more than state that Education Queensland had made the applicant three offers of employment, and that the applicant had declined those offers, does not disclose anything about the applicant's health, relationships or emotional ties with other people, or about the applicant's personal beliefs, attitudes and opinions. In previous cases, the Information Commissioner has indicated that there is a distinction between "personal affairs", dealing with the "private aspects of a person's life", and "employment affairs". In Re Pope and Queensland Health [1994] QICmr 16; (1994) 1 QAR 616, after reviewing relevant authorities (at pp.658-660), the Information Commissioner 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. The applicant relied upon the findings in Re Bewley to support her contention that the information in issue relates to her personal affairs. However, Re Bewley deals with the amendment of documents concerning the disputed entitlement of the applicant to be included in the superannuation scheme available to Commonwealth public servants (on the basis of his physical health and of a previous medical condition), and hence the information in issue in that case would have fallen within the core meaning of "personal affairs" stated in Re Stewart. I do not consider Re Bewley to be of any particular relevance to the applicant's case for amendment of the information in issue in this review. The applicant has also sought to rely upon the wording of an 18 year old memorandum of the Commonwealth Attorney-General's Department, prepared (in 1982) for the assistance of FOI decision-makers in federal agencies before any Federal Court or AAT decisions were given interpreting the meaning of the term "personal affairs" as it appeared in the Freedom of Information Act 1982 Cth (the Commonwealth FOI Act). This is not a document which carries any judicial weight, and I do not consider that it should influence my finding on the correct characterisation of the information which the applicant seeks to amend. I accept that the applicant was not a government employee at the time the offers were made. However, I consider that similar principles to those discussed at paragraphs 26 to 27 above apply in a case where records are kept about a person who may from time to time be available for what may be described as relief or casual work. The information is kept for the employment purposes of the agency, and must properly be characterised as information concerning the employment affairs of the applicant. The first of the three entries concerning offers of employment which constitute the information in issue indicates that the applicant's suitability rating would be assessed during that contract. As I have indicated above, the reassessment of teachers' suitability ratings in the course of their employment is an established practice of Education Queensland. I do not consider that a reference to the fact that a teacher's work performance might be reassessed relates to anything other than the teacher's employment affairs. The applicant stated her belief that the three offers of teaching contracts were made by an officer, or officers, of Education Queensland specifically for the improper purpose of enabling them to downgrade the applicant's teacher suitability rating, and that the applicant did not accept those offers because she did not wish to participate in what she perceived to be an improper process or abuse of power by Education Queensland. Even if the information in issue showed, on its face, such a purpose - which, in my view, it clearly does not - there is nothing before me to indicate how the making of those offers would constitute information which could be properly characterised as information relating to the applicant's personal affairs, nor how the applicant's refusal to accept them could be properly characterised as information relating to her personal affairs, rather than information relating to her employment affairs. Nor does any potential effect of the information on the applicant's prospects for employment, transform the information into information relating to her personal affairs. I find that the information in issue does not relate to the applicant's personal affairs, so that there is no entitlement to seek amendment of that information under s.53 of the FOI Act. Is the information in issue inaccurate, incomplete, out-of-date or misleading? While, given the above finding, it is not strictly necessary for me to do so, I will indicate that I am satisfied that the information in issue is not inaccurate, incomplete, out-of-date or misleading. The information in issue states, in an abbreviated form, that the applicant was offered three temporary teaching contracts, varying in length from two weeks to seven weeks, at different state high schools, and that the applicant declined those contracts. With the addition of the comment at lines 5 and 6 of the EDPERS screen containing the information in issue, it is clear to any person reading the information that the applicant did not accept any of the three contracts because she believed those offers were improperly made, and could involve the applicant in unlawful actions by officers of Education Queensland. I find that the information in issue, in its present form, is not inaccurate, incomplete, or misleading for the following reasons: there is no doubt that the applicant was offered, by Education Queensland, the opportunities to teach in the schools which are listed in the information in issue on the EDPERS database; despite the applicant's suspicions of the motives and intentions of certain officers of Education Queensland, there is nothing before me to establish that those offers were not genuine offers of employment as a teacher in the schools listed; the fact that the applicant's teaching performance would have been subject to assessment (and that, in consequence, the applicant's teacher suitability rating could have been altered) in the course of all or any of the three offered teaching contracts does not, on the material before me, make the offers improper. It is my understanding that Education Queensland may, at its discretion, reassess a teacher's performance if it believes this to be necessary, and may, as a consequence, raise, lower, or maintain that teacher's suitability rating; the applicant did not in fact accept any of the three offered teaching contracts. Whether the word "declined", or some other term, is used by Education Queensland to describe the outcome of those offers is, in my view, merely a matter of semantics, as it is an undisputed fact that the applicant chose not to undertake the work offered for reasons which are now reflected in the EDPERS database. the addition of lines 5-6 has clearly drawn to the attention of Education Queensland staff, the expressed reason of the applicant for declining the offers. In her submission dated 23 February 2000, the applicant stated: ... I cannot accept your view that the information in issue is not incomplete. My test of completeness is very clear: a complete information is the one that will cause a proper action by a placement officer accessing the information. Without lines 5 and 6, the information is incorrect (or at least misleading), as the placement officers would quite reasonably apply the department's rule to place me at the bottom of the list of eligible applicants, however for wrong reasons. The addition of lines 5 and 6 provides correct meaning of the word "DECLINED", but it does not make the information complete, as it does not specify what action should be taken by the placement officers -- confusion and no action is obviously the most likely result of this information, which appears to be what department officer(s) want to improperly achieve. What the applicant appears to be seeking is a policy decision that her three refusals should be disregarded because of the circumstances in which they were made. It is not the role of the Office of the Information Commissioner to dictate what policy decisions Education Queensland should make with respect to the applicant, or at what level such decisions should be made. As I understand it, the present entry reflects the present policy. It is not incomplete or misleading. I therefore would find that, even if the information in issue did relate to the applicant's personal affairs (which, in my view, it does not), the information in issue in its present form is not inaccurate, incomplete, out-of-date or misleading, and that Education Queensland is not required to consider amendment of the information in issue under Part 4 of the FOI Act. DECISION For the foregoing reasons, I affirm the decision under review (being the decision made on behalf of Education Queensland by Ms T Storey dated 3 September 1999).

queensland

court_judgement

Queensland Information Commissioner 1993-

Stewart, Ronald and Minister for Transport [1995] QICmr 14; (1995) 2 QAR 578 (16 May 1995)

Stewart, Ronald and Minister for Transport [1995] QICmr 14; (1995) 2 QAR 578 (16 May 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 70 of 1994COMMISSIONER (QLD) ) (Decision No. 95014) Participants: RONALD KEITH STEWART Applicant - and - MINISTER FOR 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 search efforts of respondent have been reasonable in all the circumstancesFreedom of Information Act 1992 QldFreedom of Information Regulation 1992 QldShepherd 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)Carolyn Dawn Stewart and Minister for Transport, Re (Information Commissioner Qld, Decision No. 95013, 16 May 1995, unreported) DECISIONThe decision under review (being the internal review decision of Mr W J Rodiger, on behalf of the respondent, dated 14 December 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 November 1993, to which the applicant has not been given access, except for the letter dated 12 June 1992 from the applicant to the respondent 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 the applicant to the respondent, I am satisfied that the search efforts made on behalf of 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: 16 May 1995...........................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) S 70 of 1994COMMISSIONER (QLD) ) (Decision No. 95014) Participants: RONALD KEITH STEWART Applicant - and - MINISTER FOR TRANSPORT Respondent REASONS FOR DECISIONBackground1. The applicant complains that the respondent has failed to locate and deal with all documents which fall 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 8 November 1993, Ronald Stewart applied to the Minister for Transport (the Minister) for access to documents, in the following terms: I wish to lodge an FOI against the Minister of Transport, Mr D Hamill. The information I am seeking dates from 21/11/91 up to the present time. This information concerns my personal affairs which involve [here a person, who will be referred to as Mrs Z was identified and that person's part-time occupation was stated] and a number of people which she has drawn into these events which have developed and made it necessary for this FOI application.3. The initial decision in response to this application was made on behalf of the respondent by Mr B J Butterworth of the Department of Transport (the Department) and communicated to Ronald Stewart by a letter dated 30 November 1993, which stated: Your letter of 8 November 1993 addressed to the Minister for Transport has been passed to me for response as The Hon The Minister is aware of your previous submissions. I regret that I cannot see any difference between this application and that which you lodged previously, which you have taken to the Information Commissioner. Whilst an appeal is pending with the Information Commissioner, I am not permitted to proceed further with the matter and I cannot process your request. 4. By a letter dated 6 December 1993, Ronald Stewart applied for internal review of that decision stating: Re your letter dated 30th November, 1993, I do not class this FOI application as the same as the one that is lodged with the Information Commissioner and it is a separate application. I must now ask for an internal review against your decision (which I know will be refused).5. The internal review was conducted by Mr W J Rodiger of the Department, who, in a letter dated 14 December 1993, informed Mr Stewart as follows: I have investigated the situation and am satisfied that the documents which would be responsive to your request have not changed since your original application. You have lodged an appeal with the Information Commissioner in regard to the original application and as Mr Butterworth pointed out, the Department is unable to proceed with a further application whilst the appeal is being decided.6. By letter dated 20 December 1993, the applicant applied for a review under Part 5 of the FOI Act in respect of Mr Rodiger's decision.7. At paragraphs 8 to 15 of my decision in Re Carolyn Dawn Stewart and Minister for Transport (Information Commissioner Qld, Decision No. 95013, 16 May 1995, unreported) I discussed the distinction between "documents of an agency" and "official documents of a Minister". Identical considerations apply, in this application, to those expressed in the cited paragraphs. Scope of the FOI access application8. 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.9. I consider that the terms of Ronald Stewart's FOI access application to the Minister, dated 8 November 1993, make it clear that he sought access only to documents which related to his "personal affairs", thereby intending to avoid the requirement to pay an application fee under the Freedom of Information Regulation 1992. I must therefore consider the sufficiency of search undertaken on behalf of the Minister for documents which relate to Ronald Stewart's personal affairs, as that term is interpreted for the purposes of the FOI Act. 10. As to the time period covered by this application, Ronald Stewart applied for documents created between 21 November 1991 and "the present time". The Minister (through his delegates) has been willing to provide access to documents created up to 14 December 1993 (the date of Mr Rodiger's internal review decision) and I have treated this as the cut-off date for searches.Sufficiency of Search11. 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, the two questions which I must answer in such a case are: (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.12. At paragraph 20 of my 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. I also noted that searches were carried out in Departmental offices in Brisbane and Toowoomba, and in the Minister's office, for documents which might fall within the terms of any of the various applications. I described those 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 Ronald Stewart. As a result of those searches a number of further documents were identified as falling within the terms of Ronald Stewart's various FOI access applications. The Department has agreed to release to Mr Stewart, without deletions, all documents so identified, with the exception of seven documents which were released in part. The position with respect to those documents is explained at paragraphs 35-43 of my decision in Re Ronald Stewart. 13. I turn now to my findings in relation to the question of sufficiency of search. In Re Ronald Stewart, I referred to a letter dated 12 June 1992 from Ronald Stewart to the Minister (a copy of which was provided by Ronald Stewart for my information). That document also falls within the terms of Ronald Stewart's FOI access application to the Minister. 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 an official document of the Minister, but I find that the search efforts made on behalf of the Minister to locate the document have been reasonable in all the circumstances, even though ultimately unsuccessful.14. As to Ronald Stewart's general claim that there are other documents concerning his personal affairs in the possession or under the control of the Minister, I find that there are no reasonable grounds to believe that such documents exist. Extensive searches carried out by staff of the Minister and the Department, and by staff of my office, plus 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 Ronald Stewart's FOI access application for documents relating to his personal affairs. I cannot identify any further searches which the Minister might reasonably be called upon to undertake in a quest for such documents.Conclusion15. 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 November 1993, to which the applicant has not been given access, except for the letter dated 12 June 1992 from the applicant to the respondent 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 the applicant to the respondent, I am satisfied that the search efforts made on behalf of 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-

A52 and Brisbane City Council [2022] QICmr 44 (13 September 2022)

A52 and Brisbane City Council [2022] QICmr 44 (13 September 2022) Last Updated: 20 February 2023 Decision and Reasons for Decision Citation: A52 and Brisbane City Council [2022] QICmr 44 (13 September 2022) Application Number: 316587 Applicant: A52 Respondent: Brisbane City Council Decision Date: 13 September 2022 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - LEGAL PROFESSIONAL PRIVILEGE - communication between agency officers and internal legal advisers - whether information would be privileged from production in a legal proceeding - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a), 48, and schedule 3, section 7 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST INFORMATION - payroll numbers and third party information - personal information and privacy - whether disclosure of information would, on balance, be contrary to the public interest - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to Brisbane City Council (Council) under the Information Privacy Act 2009 (Qld) (IP Act) for certain documents concerning Council ‘wrongly accusing [the applicant] of a parking infringement’. Council located 104 pages[2] and decided[3] to release 81 pages in full, 16 pages in part, and refused access to seven pages in full. This decision was affirmed on internal review.[4] The applicant then applied to the Office of the Information Commissioner (OIC) for external review.[5] During the review, Council agreed to release certain further information to the applicant. For the reasons set out below, I vary[6] Council’s decision and find that access to the information remaining in issue may be refused on the basis that: certain information is exempt as it would be privileged from production in a legal proceeding on the ground of legal professional privilege; and certain information would, on balance, be contrary to the public interest to disclose. Background The significant procedural steps taken during the external review are set out in the Appendix. The background to this matter is that the applicant was incorrectly nominated as being the driver of a vehicle. As a result, he received a parking infringement notice from Council. The applicant has raised concerns, both with Council and with OIC on external review, about his treatment by Council in relation to the matter and the time that was required for him to rectify the issue.[7] As noted above, during the review, Council agreed to release further information to the applicant,[8] and this information is no longer in issue in this review. Reviewable decision The decision under review is Council’s internal review decision dated 15 February 2022. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are referred to in these reasons (including footnotes and Appendix). During the review, the applicant made submissions to OIC in support of his case.[9] I have carefully reviewed those submissions. I note that certain concerns the applicant has raised are not matters that the Information Commissioner has jurisdiction to consider in conducting an external review under the IP Act.[10] I have also had regarding to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[11] 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.[12] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act.[13] Information in issue The information that remains in issue is comprised of: communications between Council and their internal legal advisers and information that reveals the substance of these communications (City Legal Information);[14] and personal information of Council employees (Payroll Numbers)[15] and personal information of other third parties (Third Party Information).[16] Issues for determination The issues for determination in this review are whether access may be refused to: the City Legal Information on the basis that it would be privileged from production in a legal proceeding on the ground of legal professional privilege; and the Payroll Numbers and the Third Party Information on the basis that disclosure would, on balance, be contrary to the public interest. City Legal Information Relevant law Under the IP Act and the Right to Information Act 2009 (Qld) (RTI Act),[17] access may be refused to information that would be privileged from production in a legal proceeding on the ground of legal professional privilege.[18] Legal professional privilege attaches to confidential communications between a lawyer and client made for the dominant purpose of giving or obtaining legal advice.[19] It is well established that this privilege extends to: professional communications between an agency and salaried legal advisers[20] draft working documents prepared by lawyers[21] copies of unprivileged documents attached to requests for, and provision of, legal advice;[22] and internal communications between agency officers repeating legal advice, whether verbatim or in substance.[23] Qualifications and exceptions to privilege (such as waiver and improper purpose) may, in particular circumstances, affect the question of whether information attracts or remains subject to privilege. Findings I am satisfied that the City Legal Information is comprised of confidential communications made for the dominant purpose of Council seeking/receiving legal advice from its in-house lawyers.[24] I have considered the applicant’s submissions, including that disclosure would allow him to ‘... consider the soundness of their position and fight back’.[25] The applicant also submits that if the legal advice is in-house then ‘fairness would dictate that [he is] entitled to view it.’[26] The submissions also raise concerns that Council is hiding behind RTI legislation, and the ‘farce’ of legal professional privilege to ensure he is not privy to Council’s reasoning and logic.[27] These are, essentially, public interest arguments. However, once the requirements of an exemption have been established, I am precluded from considering any arguments which seek to advance public interest factors favouring disclosure, no matter how forcefully argued.[28] There is nothing before me to suggest that the qualification or exceptions to privilege apply in this case. Accordingly, I find that access to this information may be refused under section 47(3)(a) of the RTI Act as it is exempt under schedule 3, section 7 of the RTI Act. Payroll Numbers and Third Party Information Relevant law Under the IP Act, an individual has a right to be given access to documents of an agency, to the extent they contain the individual’s personal information.[29] This right is subject to some limitations, including grounds on which access can be refused, such as legal professional privilege discussed above. Another ground of refusal arises where disclosing information would, on balance, be contrary to the public interest. [30] The term ‘public interest’ generally 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.[31] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[32] identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure of the information in issue 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 irrelevant factors[33] and factors favouring disclosure and nondisclosure. I have considered all of the factors in schedule 4 in reaching this decision. Findings As outlined in paragraph 12, the remaining information in issue is comprised of Payroll Numbers and Third Party Information. I have considered this information carefully and, given its limited nature, I am unable to identify any public interest factors favouring disclosure aside from the general public interest in promoting public access to government-held information.[34] The Payroll Numbers appear in an administrative or clerical context. These numbers generally appear next to a Council officer’s name when they take action on a matter, as part of Council’s record keeping. Similarly, the Third Party Information is very limited. It is comprised of the names, signatures, identifying and contact details of non-Council employees. The applicant’s submissions in support of his case focus on Council’s actions in response to the incorrectly issued infringement, and his dissatisfaction with his treatment. For example, the applicant notes: [35] The issue is the fact that BCC refuses to explain why they are not liable for compensation for zealously and wrongly pursuing me and innocent victim to pay a fine for an infringement I did not commit. I have spent many hours and written over a dozen letters in support of my case. They have treated me with utter contempt and consider they are immune from sanction no matter what outrage they commit. They consider that as I am not a lawyer my time and effort is of no value and consequence... I acknowledge that this is a matter of serious concern to the applicant. However, I cannot identify how disclosure of Payroll Numbers and Third Party Information would assist the applicant with understanding Council’s actions or decisions made in relation to the infringement notice.[36] Council officer names have been released to the applicant, along with the actions taken by Council concerning the matter. Similarly, the Third Party Information is very limited, and by its nature, does not provide insight into Council’s actions or decisions. The surrounding statutory declarations and telephone call notes have been released, and the applicant is able to see the information Council relied upon in dealing with the issue of the parking infringement. The applicant has indicated he is seeking compensation, but having considered this, I do not accept that disclosure of the Payroll Numbers or Third Party Information would contribute to the administration of justice for him.[37] In contrast, release of the Payroll Numbers and Third Party Information would disclose personal information, and could reasonably be expected to intrude into the relevant third party/Council officers’ ‘personal spheres’.[38] Although information relating to the day-to-day work duties and responsibilities of public sector officers is generally disclosed under the IP Act, I do not consider this extends to matters involving their payroll. In terms of the Third Party Information, I acknowledge that the applicant is aware of some of this information (and it is included in notes that record calls with him). Some of the information appears in a contentious setting (that is, a dispute over an infringement notice). I consider that in relation to both the Payroll Numbers and the Third Party Information, these factors carry some – albeit low to moderate – weight. In summary, other than the general public interest in promoting public access to government-held information, I cannot identify any factors in favour of disclosure of the Payroll Numbers or Third Party Information. The applicant’s submissions, in effect, focus on his views about the unfairness of the process in which Council engaged in dealing with the infringement notice and are primarily directed to the City Legal Information.[39] On balance, I am satisfied that the public interest factors favouring nondisclosure are determinative and access to the Payroll Numbers and Third Party Information may be refused as disclosure would, on balance, be contrary to the public interest. DECISION For the reasons set out above, I vary the decision under review and find that: access to the City Legal Information may be refused under section 67(1) of the IP Act and section 47(3)(a) and 48 and schedule 3, section 7 of the RTI Act because it is exempt information;[40] and access to the Payroll Numbers and Third Party Information may be refused under section 67(1) of the IP Act and section 47(3)(b) and 49 of the RTI Act because 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.C JonesA/Assistant Information Commissioner Date: 13 September 2022APPENDIX Significant procedural steps Date Event 22 February 2022 OIC received the application for external review. 23 February 2022 OIC requested initial documents from Council. 28 February 2022 OIC advised the parties that the external review had been accepted. OIC requested Council provide information in issue. OIC received initial documents and information in issue from Council. 21 March 2022 OIC conveyed a preliminary view to Council. 27 April 2022 Council accepted the preliminary view. 29 April 2022 OIC conveyed a further preliminary view to Council. Council accepted the further preliminary view. Council agreed to release additional information to the applicant. 3 June 2022 OIC conveyed a preliminary view to the applicant. 22 June 2022 OIC closed the file on the basis that the applicant had not responded to the preliminary view. 23 June 2022 The applicant contacted OIC to raise concerns that he had provided submissions dated 5 June 2022 (not received by OIC). OIC invited applicant to provide further submissions. 24 June 2022 OIC received submissions from the applicant. OIC advised the parties that the external review had been reopened. 6 September 2022 Council agreed to release additional information to the applicant. [1] Application dated 29 November 2021. [2] The decision notice refers to 98 pages being located, however, this appears to be an administrative error.[3] Decision dated 12 January 2022. [4] Internal review decision dated 15 February 2022.[5] External review application received 22 February 2022.[6] In relation to page 12 and 13 of file ‘CMX LM01161-2001’ I have relied upon a different ground of refusal to Council.[7] As detailed in submissions dated 5 June 2022 and 23 June 2022.[8] Pages 5 and 6 of file ‘CMX LM00679-2021’, pages 5 and 7 of file ‘CMX LM03967-2021’, and parts of page 2 of file ‘CMX LM01161-2001’. [9] Submissions dated 5 June 2022 (received 22 June 2022) and 23 June 2022.[10] For example, in his submission dated 5 June 2022, the applicant stated that he will ‘leave it to [OIC] to consider whether it is appropriate that [he] should be treated so abysmally by these bullies. Please read the file in full and consider whether what they put me through is fair and just.’[11] Section 21(2) of the HR Act.[12] 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].[13] 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’.[14] Contained in pages 3, 10, 11, 12 and 13 of file ‘CMX LM01161-2021’.[15] In pages: 2, 3, 8 of file ‘CMX LM00679-2021’; page 2 of file ‘CMX LM00755-2021’, pages 2-3 of file ‘CMX LM01161-2021’; pages 2-3 of file CMX LM02635-2021’; pages 2-3 of file ‘CMX LM03967-2021.’[16] In pages 16, 21, 28, 29, 30 of file ‘Relevant DCO documents.’[17] Under section 67(1) of the IP Act, an agency may refuse access to a document under the IP Act in the same way and to the same extent as it could refuse access to the document under the RTI Act.[18] Section 47(3)(a), section 48 and schedule 3, section 7 of the RTI Act.[19] Esso Australia Resources Ltd v Commission of Taxation [1999] HCA 67; (1999) 201 CLR 49; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at 552.[20] Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 at 63-64.[21] Including documents that record the legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies, and the like, whether or not they are actually provided to the client: AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 at [46].[22] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 509. [23] Brambles Holdings v Trade Practices Commission (No. 3) [1981] FCA 81; (1981) 58 FLR 452 at 458-459, citing Komacha v Orange City Council (Supreme Court of New South Wales, Rath J, 30 August 1979, unreported).[24] Or and information that reveals the substance of these communications.[25] Submission received 23 June 2022.[26] Submission received 23 June 2022.[27] Submission dated 5 June 2022. [28] Section 48(2) of the RTI Act. Under section 118(2) of the IP Act, the Information Commissioner does not have the power to direct that access be given to an exempt document or exempt information.[29] Section 40 of the IP Act.[30] Section 67(1) of the IP Act and section 47(3)(b) and section 49 of the RTI Act.[31] 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.[32] Section 49(3) of the RTI Act.[33] I have considered the irrelevant factors set out in schedule 4, part 1 of the RTI Act, and I do not consider any arise in the circumstances of this matter.[34] The pro-disclosure bias is set out in section 64(1) of the IP Act.[35] Submission dated 5 June 2022.[36] Factors favouring disclosure under schedule 4, part 2, item 1, 2, 3 and 11 of the RTI Act.[37] Factors favouring disclosure under schedule 4, part 2, item 16 and 17. I do not consider they apply here.[38] Giving rise to factors favouring nondisclosure under schedule 4, part 3, item 3 and part 4, section 6 of the RTI Act.[39] Which I have addressed at paragraph 18 above. [40] Two pages of the City Legal Information were refused by Council on a different basis. That is, that disclosure would, on balance, be contrary to the public interest.

queensland

court_judgement

Queensland Information Commissioner 1993-

Heath and Office of the Health Ombudsman [2016] QICmr 5 (4 February 2016)

Heath and Office of the Health Ombudsman [2016] QICmr 5 (4 February 2016) Last Updated: 20 January 2017 Decision and Reasons for Decision Citation: Heath and Office of the Health Ombudsman [2016] QICmr 5 (4 February 2016) Application Number: 312530 Applicant: Heath Respondent: Office of the Health Ombudsman Decision Date: 4 February 2016 Catchwords: ADMINISTRATIVE LAW – INFORMATION PRIVACY – REFUSAL OF ACCESS – NONEXISTENT DOCUMENTS – applicant seeks access to an agreement between the former Health Quality and Complaints Commission and a dentist – whether there are reasonable grounds to be satisfied the agreement does not exist – section 67(1) of the Information Privacy Act 2009 (Qld) – sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Office of Health Ombudsman (OHO) under the Information Privacy Act 2009 (Qld) (IP Act) for access to an agreement he believes was made between the former Health Quality and Complaints Commission (HQCC) and a dentist relating to the applicant’s dental work (Agreement). OHO searched for the Agreement but was unable to locate it. OHO refused access to the Agreement under sections 67(1) of the IP Act and sections 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) (RTI Act) on the basis that it was nonexistent or unlocatable. The applicant applied to the Office of the Information Commissioner (OIC) for external review of OHO’s decision. For the reasons addressed below, I affirm OHO’s decision and find that access to the Agreement can be refused under section 67(1) of the IP Act and sections 47(3)(e) and 52(1)(a) of the RTI Act as it is nonexistent. Background Significant procedural steps are set out in the appendix to these reasons. Reviewable decision The decision under review is OHO’s decision dated 17 July 2015. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and appendix). Issue for determination The issue for determination on external review is whether OHO was entitled to refuse access to the Agreement on the basis that it is nonexistent or unlocatable. 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.[1] Access to a document may be refused if the document is nonexistent.[2] A document is nonexistent if there are reasonable grounds for the decision-maker to be satisfied that the document does not exist.[3] 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.[4] 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 Information Commissioner’s external review functions include investigating and reviewing whether agencies have taken reasonable steps to identify and locate the requested documents.[5] Generally, the agency that made the decision under review must establish that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[6] However, where an external review involves the issue of missing documents, the applicant bears responsibility for providing reasonable grounds on which to support a belief that the agency has not discharged its obligation to locate all relevant documents.[7] The applicant submits that the dentist made an agreement with HQCC sometime after 25 May 2012 and that both the dentist and HQCC have confirmed the existence of an agreement to him.[8] The applicant’s remaining submissions explain his reasons for seeking access to the Agreement, the history of his dental treatment, interactions with the relevant dentist and his personal circumstances and are irrelevant to the issue for determination. Having carefully considered all of the information the applicant has provided to OIC, I am not satisfied that the applicant’s submissions provide any evidence which points to the existence of the Agreement or supports a reasonable belief that the Agreement exists. In processing the applicant’s request, OHO undertook searches of the electronic and hardcopy files which were transferred from HQCC.[9] These searches did not locate the Agreement. On external review, OHO advised OIC that:[10] it had seven files relating to the applicant’s contact with OHO or HQCC three of these files related to the applicant’s dental work its Records Officer searched the contents of each of the seven files and there was no record of any agreement between HQCC and the dentist in any of these files an agreement would only exist as a result of a conciliation process; and there was no conciliation process in relation to the applicant’s dental work as the applicant did not wish to lodge a formal complaint. OHO provided OIC with a copy of the three files relating to the applicant’s dental work and I carefully considered the contents of each of these files. Only one file relates to the particular dentist identified in the access application. This file contains four pages.[11] This information confirms OHO’s submission that the applicant contacted HQCC about the dentist but did not wish to make a formal complaint. There is no reference in this file, or the other two files relating to the applicant’s dental work, to the Agreement. As the applicant did not make a formal complaint about the dentist, I consider there would not have been an investigation or conciliation process which would have resulted in the creation of an agreement. In the circumstances, I consider that OHO has taken all reasonable steps to locate the Agreement and, if the Agreement did exist, the searches performed would have located it. Furthermore, and as noted above, I am not satisfied that the applicant’s submissions provide any evidence which points to the existence of the Agreement or supports a reasonable belief that the Agreement exists. For these reasons, I consider there are reasonable grounds to be satisfied that the Agreement does not exist and that OHO has taken all reasonable steps to locate the Agreement. DECISION For these reasons, I affirm OHO’s decision and am satisfied that OHO was entitled to refuse access to the Agreement 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 is nonexistent. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. ________________________ Tara Mainwaring A/Assistant Information Commissioner Date: 4 February 2016 APPENDIX Significant procedural steps Date Event 2 July 2015 OHO received the access application. 17 July 2015 OHO issued its decision to the applicant. 21 July 2015 OIC received the external review application from the applicant. 23 July 2015 OIC notified OHO and the applicant that the external review application had been received. OIC asked OHO to provide relevant procedural documents by 28 July 2015. OIC received the requested documents from OHO. OIC received submissions from the applicant by email and phone. 24 July 2015 OIC received submissions from the applicant by email. 29 July 2015 OIC asked OHO to provide a copy of the file relating to the dentist by 5 August 2015. 7 August 2015 OIC received the requested documents from OHO. 13 August 2015 OIC requested further information from OHO about its search process. OIC received submissions from OHO by phone. 14 August 2015 OIC received submissions from the applicant by phone. OIC wrote to the applicant requesting he provide further information supporting his case by 21 August 2015. The applicant requested an extension of time to provide the requested information. 17 August 2015 OIC notified the applicant and OHO that the external review application had been accepted. OIC granted the applicant an extension of time to provide his submissions until 18 September 2015. 16 September 2015 OIC received submissions from the applicant by phone. 18 September 2015 OIC received submissions from the applicant by email. 19 September 2015 OIC received submissions from the applicant by email. 21 September 2015 OIC received submissions from the applicant by phone. 22 September 2015 OIC received submissions from the applicant by email. 20 October 2015 OIC requested that OHO provide further information by 28 October 2015. 27 October 2015 OIC received the requested information from OHO. OHO agreed to release four pages to the applicant to assist in the progress of the review although these pages were not relevant to the scope of the access application. 5 November 2015 OIC conveyed its preliminary view to the applicant and invited him to provide submissions supporting his case by 20 November 2015 if he did not accept the preliminary view. OIC asked OHO to provide the applicant with the four pages it had agreed to release by 12 November 2015. 7 November 2015 OIC received submissions from the applicant by email. 11 November 2015 OHO notified OIC that it had released the four pages to the applicant. 16 November 2015 OIC wrote to the applicant confirming the preliminary view and inviting him to provide any further and final submissions supporting his case by 24 November 2015. 20 November 2015 OIC received submissions from the applicant by email. 15 December 2015 OIC received submissions from the applicant by email. [1] 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.[2] Sections 47(3)(e) and 52(1)(a) of the RTI Act.[3] Section 52(1)(a) of the RTI Act. [4] 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 (Unreported, Queensland Information Commissioner, 9 February 2009). The key factors include: the administrative arrangements of government; the agency structure; the agency’s functions and responsibilities (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.[5] Section 137(2) of the IP Act.[6] Section 100(1) of the IP Act.[7] Mewburn and Department of Local Government, Community Recovery and Resilience [2014] QICmr 43 (31 October 2014) at paragraph 13.[8] Emails to OIC on 19 September 2015 and 22 September 2015. [9] OHO’s decision dated 17 July 2015. [10] In telephone conversation with OIC staff on 13 August 2015. [11] OHO provided the applicant with a copy of these four pages to assist in the progress of the external review. However, these pages are not relevant to the scope of the access application.

queensland

court_judgement

Queensland Information Commissioner 1993-

Taylor and Department of Education [2021] QICmr 64 (2 December 2021)

Taylor and Department of Education [2021] QICmr 64 (2 December 2021) Last Updated: 29 August 2022 Decision and Reasons for Decision Citation: Taylor and Department of Education [2021] QICmr 64 (2 December 2021) Application Number: 315150 Applicant: Taylor  Respondent: Department of Education Decision Date: 2 December 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - BREACH OF CONFIDENCE - School Opinion Survey response data - staff responses to questions about leadership, bullying and sexual harassment - whether disclosure would found an action for breach of confidence - whether information is exempt under sections 47(3)(a) and 48 and schedule 3, section 8(1) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST - School Opinion Survey response data - staff responses to questions about leadership, bullying and sexual harassment - accountability - important issue or matter of serious interest - Government’s operations - deficiencies in conduct - personal information and privacy - agency’s ability to obtain confidential information - management of staff - whether disclosure would, on balance, be contrary to the public interest - whether access may be refused under sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Department of Education (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to the complete data set for School Opinion Surveys in 2018 and 2019.[1] As the Department did not reach a decision within the relevant timeframe, the Department is taken to have made a decision refusing access to all relevant documents. The applicant applied to the Office of the Information Commissioner (OIC) for external review.[2] During the external review process, the information sought by the applicant was released, except for data gathered on seven questions. This data is the subject of this decision.[3] For the reasons set out below, I find that access to the data regarding the seven questions may be refused on the ground that: it comprises exempt information, namely information the disclosure of which would found an action for breach of confidence; and in the alternative its disclosure would, on balance, be contrary to the public interest. Background The School Opinion Survey is an annual survey conducted by the Department to ‘...obtain the views of parents/caregivers, students and school staff from each school on what they do well and how they can improve’.[4] The data from the School Opinion Survey was previously published in a disaggregated form.[5] This means that it revealed the responses for specific schools, rather than grouping results by region or State. In recent years, however, the Department changed its processes and now publishes the data in aggregated form – that is, grouped together at a State level and reported in relation to various categories, eg. school types (primary and secondary), staff type (teaching/non-teaching) and student year level.[6] The Department explained that:[7] In previous years, a School Opinion Survey (SOS) data report covering all schools surveyed was made publicly available on the Department’s website each year. In 2017, seven questions were taken from the ‘Working for Queensland’ survey and placed into the SOS. These seven questions consist of: four questions relating to staff opinion of the performance of the leadership team; and three questions relating to staff bullying and sexual harassment. ... The Queensland Teacher’s Union (QTU) raised concerns about these seven questions being made publicly available. One of the reasons for this was because the questions will often relate to an individual where ‘the leadership team’ is just one person, the principal. Consequently, the Department came to an in-principle agreement with QTU whereby it would not publicly release the data for these seven questions. The Department now only provides the data to relevant regional offices, with a direction that regions are not to publicly or internally release this data. The data for these questions has now been removed from the SOS reports that are provided to individual schools, although schools may request their individual data for these questions from their regional office if required. The applicant began making enquiries with the Department about access to the 2018 School Opinion Survey in March 2018 when she noticed that a School Opinion Survey results link had been removed from the Department’s website.[8] The applicant was unable to access the information she sought through administrative processes, despite extensive correspondence with the Department. In an email to the applicant on 18 December 2019, the Department advised:[9] As you note, you are able to make a Right To [sic] Information application for the School Opinion Survey (SOS) data you are seeking and any application will be assessed and responded to in accordance with the legislation. As background though, I can advise that the SOS data now being released aligns with the Principles and Protocols for Reporting on Schooling in Australia, which was agreed to by Education Ministers from all jurisdictions. Specifically, these principles aim to ensure that the reporting of education data strikes a balance between the community’s right to access information, with the need to avoid the misinterpretation or misuse of information. In the context of SOS data, it is important to note that the SOS is designed to enable individual schools to examine their school’s results and trends in their data. It is not valid to compare the SOS data of different schools. On this basis, individual school reports are now provided directly to schools for planning purposes, while a state-wide report is published on the department’s website. Schools are however, required to make SOS information available through their school annual reports. 2018 data will be available on each schools [sic] website. 2019 data will be released at the end of this financial year. On 22 December 2019, the applicant submitted her access application under the RTI Act for:[10] ... the complete data set of dis-aggregated school opinion surveys from every group surveyed, for each individual school, for each question asked for the year 2018 & 2019 in excel format (as provided in previous years). The applicant has understandably expressed frustration at the length of time it has taken to reach a resolution of this issue since she first began her enquiries with the Department in March 2018. I have explained to the applicant[11] that OIC has attended to her matter consistently since February 2020; however, the external review process has been time consuming as it required a large amount of correspondence back and forth between OIC and the Department so that OIC could interrogate and understand, and the Department could explain: the type of data that is collected in the School Opinion Survey how the surveys have changed in recent years the terms on which the surveys are conducted the way in which the data is collected what standard reports are created from the data whether there is capacity for other types of reports to be generated how much time and what resources would be involved in generating other reports whether the Department is entitled to charge fees for the work involved in preparing other reports privacy concerns in relation to disaggregated data and the seven questions added to the survey in recent years whether or not estimated work would substantially and unreasonably divert the Department’s resources at different times during the global pandemic as business units assisted with COVID-related duties; and whether the applicant’s suggestions for filtering the data would make the application more manageable, and therefore not a substantial and unreasonable diversion of resources. Significant procedural steps in this review are set out in the Appendix. Reviewable decision The decision under review is the deemed decision refusing access to all documents requested by the applicant that the Department is taken to have made[12] on 30 January 2020. Evidence considered 14. In reaching my decision, I have had regard to the submissions, evidence, legislation, and other material referred to throughout these reasons (including footnotes and Appendix). I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[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 of Human Rights and Responsibilities Act for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[16] Information in issue As set out above, the majority of the information sought by the applicant was released during the external review. The information remaining in issue is the disaggregated data (ie. school-by-school data) regarding staff responses to the following questions (Seven Questions) from the School Opinion Surveys for the years 2018 and 2019 (Data):[17] In general, thinking back over this school year, to what extent do you agree or disagree with the following statements: The school leadership team operates with a high level of integrity The school leadership team are willing to act on suggestions to improve how things are done In my school, the leadership team is of high quality The school leadership team model the behaviours expected of all employees In relation to staff interactions during the past 12 months: Have you witnessed bullying or sexual harassment in the workplace? Have you been subjected to bullying in the workplace? Have you been subjected to sexual harassment in the workplace? The applicant agreed to exclude data to which the Department had applied its pre-existing deidentification policy[18] (under which results are shown as ‘DW’ (data withheld) in circumstances when there were fewer than five respondents or all respondents had the same answer to a question). Therefore the Data does not include this data. The Data is stored in an Excel spreadsheet in three sheets named ‘SchoolReport_Staff_All’, ‘SchoolReport_Staff_Teaching’ and ‘SchoolReport_Staff_Interactions’. The Data is categorised by Survey Type, School Name, Survey Year, Centre Code, Item Code, Question, n number, and results. Issue for determination The issue for determination is whether there is any ground on which access to the Data may be refused under the RTI Act. Specifically, I consider below: whether the Data is exempt information, namely information the disclosure of which would found an action for breach of confidence;[19] and in the alternative whether disclosure of the Data would, on balance, be contrary to the public interest.[20] Breach of confidence exemption Relevant law The RTI Act gives a right of access to documents of government agencies.[21] This right is subject to other provisions of the RTI Act, including grounds on which access may be refused. Access to a document may be refused to the extent the document comprises ‘exempt information’.[22] Schedule 3, section 8(1) of the RTI provides that information is exempt information if its disclosure would found an action for breach of confidence. This exemption encompasses both actions for breach of equitable obligations of confidence and actions for breach of contractual obligations of confidence.[23] The test for the exemption must be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff with appropriate standing to bring an action to enforce an obligation of confidence said to be owed to that plaintiff by an agency such as the Department.[24] In order to establish an equitable obligation of confidence, the following four cumulative requirements must be established:[25] (a) the information must be identifiable with specificity (b) it must have the necessary quality of confidence (c) it must have been received in circumstances importing an obligation of confidence; and (d) there must be an actual or threatened misuse of it. Findings The hypothetical plaintiffs in this scenario are the school staff who provided responses that comprise the Data to the Department. Requirement (a): specifically identifiable In relation to this requirement, the applicant submitted that:[26] The QLD Dept. Ed. has previously detailed their routine practise of ensuring confidentiality [Footnote: Results where there were fewer than five respondents and results where total agreement is reported and there were fewer than three respondents are withheld]. As in OIC decision regarding Star News [Footnote: Application of the breach of confidence exemption to workplace survey documents was discussed in Star News Group Pty Ltd and Southern Downs Regional Council [2019] QICmr 39 (12 September 2019)], individual employees cannot be identified from the school level summaries of the SOS, nor can information be attributed to any specific employee. Ass. Inf Comm Rickard refers to the questions as being specific, and not to the individual plaintiff being able to identify (& prove) their specific response. More recently, in response to requirement (a), the applicant submitted:[27] Officer Rickard hypothesized if one respondent out of a cohort of n>= 5 recalled their own response with certainty then they may be able to infer the responses of the other >4 respondents if the data is subsequently withheld via the rule as above. However, n refers to voluntary anonymous respondents (not to all staff) i.e. it is not possible for the hypothetical plaintiff to know with certainty the identity of all of the other anonymous respondents as this survey was not compulsory. Even if the hypothetical plaintiff could achieve the impossible and know with certainty exactly which staff members had or had not filled in a voluntary anonymous survey, a basic excel function on the requested data (currently with the OIC) will reveal if there are indeed any questions to which 100% of responses are identical (and not merely the aggregated ‘mostly yes’, ‘mostly no’ or N/A). In terms of the applicant’s reliance on Star News Group Pty Ltd and Southern Downs Regional Council [2019] QICmr 39 (12 September 2019) (Star News) to dispute the application of requirement (a), I note that that decision did not consider requirement (a), as the decision-maker was satisfied that other requirements (namely (b), (c) and (d)) were not established.[28] The Department does, as the applicant notes, have a policy regarding data collected in the School Opinion Survey, so that certain types of data are withheld from reporting in certain circumstances where the person responding to the survey could be identified.[29] I discuss whether this is effective in relation to the Seven Questions at paragraphs 79 to 91 below – however, this is not relevant to the consideration of requirement (a). The applicant’s submissions suggest that, in order to establish requirement (a), certain individuals should be specifically identifiable. However, case law concerning equitable obligations of confidence provides that it is the information that is said to be the subject of the obligation that must be capable of being specifically identified.[30] The Data has been provided to OIC in the form of an Excel spreadsheet. It is clearly identifiable as it comprises the responses to seven specific questions over two specified years (2018-2019). While there is information on the Department’s website summarising the results of the 2018 and 2019 surveys, it does not provide the level of detail in the spreadsheet that was provided to OIC – ie. answers to the Seven Questions on a school-by-school basis. Therefore, I consider that the Data is specifically identifiable as information that is secret, rather than generally available, and requirement (a) is satisfied. Requirement (b): quality of confidence Information will not have the necessary quality of confidence if it is generally available[31] or trivial information.[32] In relation to this requirement, the applicant submitted that:[33] While not trivial, the information requested does not involve commercial secrets, private secrets or Aboriginal and Torres Strait Islander cultural secrets. This information is in the “public domain” having been published on the QLD Ed Dept. website in 2017, is provided to the relevant regional offices, and to the individual schools [Footnote: From letter received 8th June 2021 Ass. Inf Comm Rickard wrote that the data is “provided to the relevant regional office for each of the schools, and ...to the relevant school’.]. As noted by the applicant, the Department has confirmed that the Data ‘is only provided to the relevant regional office for each of the schools, and is not publicly or internally released, except to the relevant school if required’.[34] I do not consider that the provision of the Data to individual schools on request, or to the regions under the condition they are prevented from publicly or internally releasing the data,[35] equates to it being ‘generally available’. I am not aware of any public access to the answers to the Seven Questions across the State, except for the aggregated data that is available on the Department’s website, which is entirely different to the level of detail disclosed in the Data. I agree with the applicant that the Data does not involve commercial secrets, private secrets or Aboriginal and Torres Strait Islander cultural secrets, however, it is not necessary that the Data comprise such information in order to satisfy requirement (b). The nature of the Seven Questions demonstrates that the Data is sensitive; it is the personal opinions of staff members on the conduct and integrity of their superiors and their personal experiences of bullying and sexual harassment. This is important information concerning serious issues and is not of a trivial nature. In these circumstances, I consider that the Data has the necessary quality of confidence and requirement (b) is met. Requirement (c): circumstances importing obligation of confidence Assessing whether requirement (c) is satisfied requires an evaluation of all relevant circumstances surrounding the communication of the Data, so as to determine whether the Department ‘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’.[36] In B and BNRHA, the Information Commissioner stated that, when considering this requirement:[37] ...the fundamental inquiry is aimed at determining, on an evaluation of the whole of the relevant circumstances in which confidential information was imparted to the defendant, whether the defendant's conscience ought to be bound with an equitable obligation of confidence. 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... Therefore, the relevant question is whether, when considering all of the circumstances under which the Data was collected, the Department is bound in conscience by an obligation to the staff to treat the Data confidentially. The nature of the relationship between the Department and school staff is one of employer and employee, in which there is a natural power imbalance. Asking school staff to disclose sensitive information about the conduct and integrity of their colleagues and superiors requires the trust and confidence of the staff about the way in which the information will be used. I have viewed the information that was provided to staff when completing the 2018 and 2019 surveys. For the 2018 survey, each of the Seven Questions is marked with an asterisk stating that they will be ‘publicly reported at a state level only’.[38] Similarly, for the 2019 survey, five of the Seven Questions are so marked.[39] In both surveys, there is also a general statement that ‘Participation in the survey is anonymous and all the information that you provide will be treated confidentially.’[40] Further, the Department’s website provides that:[41] Will feedback remain confidential? Your responses will be strictly confidential and the information is used in ways which protect individual responses. All responses are protected by the Information Privacy Act 2009 (Qld). The department is legally bound to ensure that no identifying information is published or released. ... Why does the survey ask for personal information? The survey collects general background information to analyse the survey results in different ways, such as differences in responses between groups, like teaching and non-teaching school staff or students in different year levels. Strict confidentiality rules are applied to any reporting of these groups, so that even in very small schools, confidentiality is maintained. Data is not reported if an individual's responses can be identified. ... Where is the survey data stored? All survey responses are treated confidentially and stored securely. As part of the department's adherence to record keeping requirements: paper forms are archived and stored for a period of five years before they are securely destroyed online responses are stored securely on departmental servers with access restricted to a small number of central office staff. The Department also provided OIC with evidence of an agreement with Queensland Teachers’ Union (QTU) which states in relation to the SOS responses:[42] State-level summary published to DoE website; no school-level data is published... Regions will not publicly or internally make available data relating to the seven SOS questions (unless that school-specific data is requested by the school). In relation to requirement (c), the applicant submitted that:[43] Agreements between QLD Dept Ed. & QLD Teacher’s Union do not factor into consideration. The QLD Ed Dept allege assurances were provided stating the SOS will be ‘publicly reported at a state level only’. This requires consideration of to whom the obligation of confidentiality applies, what information it applies to; and whether it has exceptions or permits any use, disclosure, or publication of material derived from the workplace surveys. [Footnote: https://www.oic.qld.gov.au/guidelines/for-government/access-and-amendment/decisionmakin g/access-applications-for-workplace-surveys] QTU is the union which represents ‘more than 47,000 teachers in the Queensland Government's primary schools, secondary schools, special schools, colleges, TAFE institutes and other educational facilities’ and represents more than 90% of all teachers, principals and administrators.[44] The hypothetical plaintiffs in this matter are the Department’s school staff, therefore the views of QTU are representative of a large proportion of the hypothetical plaintiffs. On this basis, I do not accept the applicant’s submission that an agreement between the Department and QTU is irrelevant; rather, it is a key consideration in determining whether an obligation of confidence arises. In relation to the applicant’s concerns about the specificity of the commitment that the Data would be ‘publicly reported at a state level only’, I have outlined above[45] that this was a term connected by asterisk specifically to the Seven Questions, and the Seven Questions only, in the surveys completed by staff. Public interest considerations also form part of the circumstances relevant to whether the Department ought to be bound by an equitable obligation of confidence.[46] Having considered the public interest arguments for and against disclosure in detail below,[47] I reach the conclusion that, on balance, disclosure of the Data would be contrary to the public interest. Similarly, insofar as the public interest is relevant to my considerations regarding requirement (c), I am satisfied that the public interest does not weigh against an equitable obligation of confidence arising. Both the Department and the staff would have been generally aware of the possibility of information release under the RTI Act, and I have taken this into consideration in determining whether the Department is bound in conscience to keep the Data confidential. If there were fewer, or no, assurances given to keep the information confidential, the existence of the possibility of release under the RTI Act would factor more heavily in my consideration of the Department’s equitable obligation. However, I do not consider that a general understanding about possible release of information under the RTI Act outweighs the multiple specific express assurances were made as to the restricted publication of the Data. Taking into consideration all of the above circumstances, I consider that the multiple specific express assurances given by the Department outweigh the other circumstances in which the Data was collected so that the Department received the Data in circumstances which import an obligation of confidence that answers to the Seven Questions would not be publicly released in disaggregated form. Therefore, requirement (c) is met. Requirement (d): actual or threatened misuse In relation to this requirement, the applicant submitted that:[48] Disclosure of summaries of workplace satisfaction surveys should be used to draw attention to (and improve upon) the working conditions of teachers at the school level. I agree with the applicant’s statement, and I have outlined the significant public interest in releasing this type of information at paragraph 73 below. However, this is not relevant to my assessment of whether disclosure of the Data to the applicant would constitute an actual or threatened misuse of the confidential information. In circumstances where the staff were given multiple specific express assurances that the information would only be publicly released at a State level, release to the applicant under the RTI Act would be inconsistent and therefore, a misuse o[49]the Data.49 Accordingly, I consider that the fourth requirement of an action for breach of confidence is satisfied. Detriment Historically, the Information Commissioner has identified a fifth cumulative element – (e) disclosure must cause detriment to the plaintiff.[50] Members of the Queensland Civil and Administrative Tribunal have indicated that they favour the position that this fifth element should not be included in considerations regarding equitable obligations of confidence.[51] Their comments have, to date, comprised obiter, and are therefore highly persuasive, but not strictly binding on OIC. Further, their comments were made in the context of non-government entities, whereas in this decision, the hypothetical plaintiffs are staff of the Department. In these circumstances, and also noting that the decisions in question cite with approval a High Court decision often quoted in the context of considering detriment to the plaintiff,[52] I have, for sake of completeness, included below brief consideration of the element of detriment to the hypothetical plaintiffs in the circumstances of this review – that is certain staff of the Department. The applicant submitted that:[53] There is no evidence that the disclosure of the school level summaries of SOS caused (in 2017 when previously published) or can cause detriment to an individual respondent. While I do not have specific evidence that the release of this information in 2017 caused detriment, I consider this may be inferred from the submission made by the Department that QTU raised concerns about the 2017 iterations of the Seven Questions being made publicly available[54] and evidence of discussions between QTU and the Department in 2018 about terms under which the responses to the Seven Questions would be provided by staff in future. I also observe that it was after the publishing of this information that the Department made the changes to its website to remove disaggregated information and provide State level reporting only. The staff provided information to their employer about sensitive issues relating to their colleagues and superiors on the understanding that it would not be publicly disclosed, except at a State level. I consider that releasing the Data despite multiple express assurances that it would not be publicly released would result in a loss of trust and cause staff stress. I am therefore satisfied that disclosure of the Data would cause detriment to the hypothetical plaintiffs in this matter. Deliberative process exception Schedule 3, section 8(2) of the RTI Act provides that deliberative process information is not exempt information under section 8(1) unless it consists of information communicated by an entity other than a person in the capacity of (amongst others) an officer of an agency. The effect of this exception is that intra-agency and inter-agency communications of deliberative process matter cannot qualify for exemption under section 8 of schedule 3.[55] • ‘a person in the capacity of an officer of an agency’ The definition of ‘officer’ includes ‘a person employed by or for the agency’.[56] Therefore, I consider that the school staff who provided the Data are officers of the Department. However, I am not satisfied that these staff were necessarily acting in their capacity as officers of the Department when voluntarily answering the Seven Questions. In this regard, I note that in Pemberton and The University of Queensland,[57] the Information Commissioner observed in relation to the equivalent provision in the now repealed FOI Act:[58] The words of s.46(2)(a)(iii) raise an issue of some importance in this case. The phrase "a person in the capacity of ... an officer of an agency" was clearly, in my opinion, intended to distinguish acts done by a person who is an officer of an agency (as that word is defined in s.8 of the FOI Act), in his or her capacity as such an officer (i.e. acts done for and on behalf of the person's employing agency, in the course of performing his or her duties of office) from acts done by the person in other capacities, e.g. in a purely private or personal capacity. In Pemberton, the Information Commissioner found that staff members who were required to provide referee reports as part of their duties did so in their capacity as officers of the university:[59] ... for certain kinds of promotional procedures in place at the University, Heads of Department, Deans and Pro-Vice-Chancellors are required, as part of their duties of office, to provide reports or comments on the suitability for promotion of aspiring members of academic staff of the organisational units for which they have responsibility. However, other staff members who provided referee reports on a voluntary basis were found not to be acting in their capacity as officers of the university:[60] ... the evidence makes it clear that an officer of the University approached to act as referee in respect of the teaching experience, ability and performance of a candidate for promotion is not obliged to so act. The relevant guidelines state that the willingness of the nominated person to act as referee must be ascertained in advance. Certainly it does not appear to have been part of the duties of office of staff of the University (other than Heads of Department), to provide referee reports of this nature. While the issue is not free from doubt, I think the better view is that documents 2 and 14 were provided on a voluntary basis by individuals considered to be of sufficient eminence in the academic community to act as referee of the teaching experience, ability and performance of a colleague, rather than in their capacity as officers of the University. I also note that, when considering the balance of the public interest – a separate ground for refusal under the RTI Act[61] – there is a distinction made between ‘routine personal work information’ and ‘non-routine personal information’. These terms are not defined in the RTI Act, but have been used to explain the difference between information that is related to the routine day-to-day work duties and responsibilities of public sector employees, and information of a more sensitive nature that encroaches on, or entirely relates to, an employee’s personal sphere.[62] Routine personal work information is more likely to be released, whereas non-routine personal information requires more careful consideration. This distinction is in my view helpful in determining whether the Data was provided by staff in their official capacity. Clearly, the Department should not have the benefit of an equitable protection of confidence for internal deliberations among its own staff regarding routine day-to-day work duties and responsibilities. However school staff have voluntarily responded to the School Opinion Survey. The voluntary provision of personal opinions – particularly those about the integrity and behaviour of superiors, as well as personal experiences of bullying and sexual harassment in the workplace – is not, in my view, part of the staff members’ duties, or their ‘routine personal work information’. Accordingly, consistent with the abovementioned reasoning in Pemberton and distinction between routine personal work information and non-routine personal information, I do not consider that the Data was provided by these staff acting ‘in the capacity of ... an officer of an agency’. • ‘deliberative process information’ ‘Deliberative process information’ is information disclosing:[63] (a) an opinion, advice or recommendation that has been obtained, prepared or recorded; or (b) a consultation or deliberation that has taken place; in the course of, or for the purposes of, the deliberative processes involved in the functions of government. Deliberative processes are the government’s ‘thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.’[64] The applicant submitted that:[65] Clarification may be sought by reviewing previous rulings on this matter, Eccleston [Footnote: 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 and provides useful analysis of the wording still used in schedule 4, part 4, item 4 of the RTI Act.] “while the term "deliberative processes" encompasses the policy forming processes of an agency, it extends to cover deliberation for the purposes of any decision-making function of an agency. It does not, however, cover the purely procedural or administrative functions of an agency.” “The s.41 exemption is not intended to protect the "raw data" or evidentiary material upon which decisions are made.” “Staff responses to workplace surveys will rarely, if ever, be routine personal work information, as they fall outside staff members' day to day routine duties”, [Footnote: www.oic.qld.gov.au/guidelines/for-government/access-and-amendment/decision-making/accessapplications-for-workplace-surveys] hence do not merely record the procedural or administrative functions of an agency. I have considered previous decisions addressing the interpretation of deliberative process information defined in almost exactly the same words in schedule 4, part 4, section 4 of the RTI Act. As the applicant has mentioned, raw data does not generally fall within the kinds of documents that have previously been found to constitute deliberative process information, such as:[66] evaluations of competing tender submissions[67] information prepared during consultations undertaken by the Treasurer in deliberating on, and evaluating matters in relation to, proposed mining projections;[68] and advice from an external party in relation to the possible development of public land.[69] While I am satisfied that the Data is comprised of opinions, I am not satisfied that these opinions were obtained in the course of, or for the purposes of, the government’s deliberate processes. The Data generated by the SOS process is simply raw data; it is not, of itself, deliberative process material. While the Data may feed into the government’s deliberative processes if it raises concerns in a specific year, the SOS process is a broad monitoring exercise that is several steps removed from the deliberative processes of government. Therefore, I do not consider that the Data is deliberative process information. Conclusion On the basis of the above, I am satisfied that: all requirements necessary to establish an equitable obligation of confidence are satisfied and therefore disclosure of the Data would found an action for breach of confidence the Data was not provided by school staff in their capacity as officers of the Department and is not deliberative process information, and therefore the deliberative process exception in schedule 3, section 8(2) does not apply; and accordingly, access to the Data may be refused on the ground that it is exempt information.[70] As noted in Pemberton,[71] however, a finding that the Data was not provided by school staff in their capacity as officers of the Department is not free from doubt. Given this, and in the event my conclusion that the Data is not deliberative process information is incorrect – in which case the deliberative process exception in schedule 3, section 8(2) would apply and the Data could not be refused under the breach of confidence exemption – I have alternatively considered below whether disclosure of the Data would, on balance, be contrary to the public interest. Public interest balancing testRelevant law Access to a document may be refused to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest.[72] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest and explains that a decision maker must take the following steps in deciding the public interest:[73] identify any irrelevant factors and disregard them identify any relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure would, on balance, be contrary to the public interest. Findings The applicant has indicated that she considers the Department has been attempting to refuse access to the information without just cause.[74] The applicant submits that all four of the following irrelevant factors should be disregarded:[75] Disclosure of the information could reasonably be expected to cause embarrassment to the Government or to cause a loss of confidence in the Government. Disclosure of the information could reasonably be expected to result in the applicant misinterpreting or misunderstanding the document. Disclosure of the information could reasonably be expected to result in mischievous conduct by the applicant. The person who created the document containing the information was or is of high seniority within the agency. The public interest balancing test provides that the decision maker must disregard any irrelevant factors.[76] In terms of the first irrelevant factor, I do not consider that releasing the Data could reasonably be expected to cause a loss of confidence in the Government as most reasonable people would expect any workplace as large as Queensland’s entire State schooling to have some staff record experiences of bullying / sexual harassment or criticism of leadership. To the extent that disclosing any information about these issues could reasonably be expected to cause embarrassment to the Government, I have disregarded this as irrelevant. In terms of the second and third irrelevant factors, the applicant’s communications throughout the review have displayed a sophisticated and comprehensive understanding of the School Opinion Survey, statistical considerations and ways in which the Data may be sensibly be used. On this basis, I hold no concerns about the applicant misunderstanding or misusing the Data and do not consider that these irrelevant factors arise in this review. Further, the document does not appear to have been created by a person of high seniority within the Department. Given this, I do not consider that the fourth irrelevant factor arises either. Even if these factors had arisen in the circumstances of this review, I would be obliged to disregard them.[77] For sake of completeness, I confirm that I have not taken into account any irrelevant factors[78] in making this decision. Factors favouring disclosure Accountability and transparency The applicant raised the public interest favouring disclosure of information where it could reasonably be expected to:[79] enhance the Government’s accountability[80] contribute to positive and informed debate on important issues or matters of serious interest[81] 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[82] allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official[83] reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct;[84] and advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies.[85] The applicant contends that ‘there are generally strong and compelling public interest arguments favouring disclosure.’ [86] She also submits that in the last year of publicly released disaggregated data, ‘in some locations 1 in 4 respondents answered that they had witnessed or been subjected to bullying or harassment... The inference that the [Department] or indeed any government agency is cognisant of how victims feel about their abuse and thus evidence or material which could be used to prevent future abuse should be concealed, is quite shocking’.[87] A comprehensive snapshot of the views of staff about the integrity of their leadership teams and issues of bullying and sexual harassment in the workplace responsible for educating the State’s children is important information and this weighs heavily in favour of release. These are serious issues that would have a significant impact on the functioning of the schools and the workplace health and safety of staff. Releasing the Data would further the public interest in relation to all of the above outlined factors specified in the RTI Act. The Department has discharged its obligation of accountability to an extent by releasing the data for the Seven Questions aggregated at a State level, as noted at paragraph 6 above, and releasing analysis of the data by [88]hool type88 and d[89]ographic.89 Despite this publicly available information, I would still attribute significant weight to the factors listed at paragraph 71, as the Data reveals a level of detail which would allow the public to analyse the issues at a school-by-school level. I have considered whether any other public interest factors favouring disclosure apply, including those listed in schedule 4, part 2 of the RTI Act. I cannot identify any other public interest consideration favouring disclosure of the Data that would carry weight in these circumstances. Factors favouring nondisclosure Personal information and privacy of other individuals There is a public interest favouring nondisclosure of information where it could reasonably be expected to prejudice the protection of an individual’s right to privacy.[90] The RTI Act also recognises that a public interest harm will occur where personal information is disclosed.[91] ‘Personal information’ is:[92] ... 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 Department submitted:[93] The Queensland Teacher’s Union (QTU) raised concerns about the sensitive nature of these questions and communicated a view that this data should not be made publicly available. Consequently, the Department came to an in-principle agreement with QTU whereby it agreed that it would not publicly release the data for these seven questions. The data is only provided to the relevant regional office for each of the schools, and is not publicly or internally released, except to the relevant school if required. As advised in my previous letter of 25 March 2020, the four questions relating to the leadership team will most often be about one person, the Principal, or a very small group of identifiable staff members in schools with ‘leadership teams.’ Disclosure of the responses to these four questions could reasonably be expected to prejudice the protection of an individual’s right to privacy as it would disclose staff opinions about the performance of either their Principal or a small group of people. Similarly, the three questions relating to bullying and sexual harassment could in some cases also identity staff members who have been victim to bullying and/or sexual harassment. This is due to rarity of such incidences resulting in small sample pools of persons indicating they have been subjected to bullying or sexual harassment. It is well established that often victims of bullying and sexual abuse wish to remain anonymous, whether this be out of embarrassment, fear of retribution or for other personal reasons. Similarly, staff members who have provided negative information about their superior’s leadership abilities will likely also not wish to be identified. If the Department were to release the data in issue, staff members may be hesitant to respond honestly, or at all, to the seven questions, if they knew that the Department’s position regarding confidentiality had changed, and that the data could be released to members of the public. The assessment of whether the Data comprises personal information depends on the wording of the question being asked in the survey. The four leadership questions are framed in a way that identifies a specific group of people – the leadership team: In general, thinking back over this school year, to what extent do you agree or disagree with the following statements: The school leadership team operates with a high level of integrity The school leadership team are willing to act on suggestions to improve how things are done In my school, the leadership team is of high quality The school leadership team model the behaviours expected of all employees The applicant submitted:[94] The [Department’s] claim that ‘leadership teams’ are ‘most often about one person’ is grossly inaccurate. In fact, most schools where the respondents were >=5 have more than one member of the leadership team, information found by simple search on the QLD Government website. Despite the submissions of both the Department and the applicant, the size of the leadership team is not relevant to the question of whether the Data is personal information. Regardless of whether the answers to the first four questions are negative or positive, they are opinions about every person in the leadership team of a specific school. I expect that the leadership team would always include the Principal of the school. Therefore, at the very least, the answers to the first four questions are the personal information of the Principal, whose identity is a matter of public knowledge through the Queensland Government’s School Directory.[95] Other members of the leadership team are also likely to be able to be reasonably identifiable from their positions as Deputy Principal, Heads of Department, Heads of Curriculum, Heads of Special Needs, Business Services Manager, etc.[96] If the four questions were worded differently, then the size of the leadership team could possibly be a relevant consideration in determining whether specific individuals are identifiable. However, in this case, given the four questions relate to the leadership team as a whole, the responses relate to every person in that team, and comprise information or opinions about members of leadership teams whose identities can reasonably be ascertained. Accordingly, I am satisfied that the Data relating to the four questions can be categorised as ‘personal information’. However, the three remaining bullying/harassment questions are framed more generally than the four leadership questions: In relation to staff interactions during the past 12 months: Have you witnessed bullying or sexual harassment in the workplace? Have you been subjected to bullying in the workplace? Have you been subjected to sexual harassment in the workplace? These three questions are not framed in a way that results in all responses comprising personal information. However, there are two ways in which the data about the three remaining questions may comprise personal information. Firstly, it may be that information known outside of the survey could be combined with the Data for these questions to result in specific answers being reasonably attributable to a specific person. For example, if it was known that a certain staff member had been subject to a complaint, in some circumstances it may be reasonably inferred from the survey data that this complaint concerned bullying or harassment. Secondly, staff who completed the survey would know what responses they gave, which may allow for them to work out the answers of other staff members in certain circumstances. For example, if there were five respondents and the Data showed that 20% (ie. one respondent) answered in a certain way, the staff member who answered this way would, when looking at the Data, know that all of the other staff answered differently. In terms of the first way, I have no way to know whether there is other information available that can be joined with the data for the three bullying / harassment questions to result in a person’s identity reasonably being ascertained, and therefore cannot determine the extent to which responses to the three questions would enable personal information to be deduced in this manner. In terms of the second way, the applicant submitted:[97] ... it is not possible for the hypothetical plaintiff to know with certainty the identity of all of the other anonymous respondents as this survey was not compulsory. Even if the hypothetical plaintiff could achieve the impossible and know with certainty exactly which staff members had or had not filled in a voluntary anonymous survey, a basic excel function on the requested data (currently with the OIC) will reveal if there are indeed any questions to which 100% of responses are identical (and not merely the aggregated ‘mostly yes’, ‘mostly no’ or N/A). ... The identities and personal information of respondents cannot be discerned from the voluntary anonymous replies of the survey (as explained above) thus privacy factors do not apply. On review, the applicant agreed to rule out any data where all of the respondents gave the same answer to the question, so I am not considering this information.[98] However, as set out above, I am considering the scenario in which one member of staff gave an answer different to the other members of staff. I accept the applicant’s submission that the voluntary nature of the survey is a relevant consideration. The question I am required to consider is whether an individual’s identity can reasonably be ascertained. While I can well imagine circumstances in which staff would share the fact that they have completed the survey, and that in some limited circumstances this would allow a person’s response to reasonably be ascertained, I have no way of knowing with any certainty whether this occurred, and therefore cannot determine the extent to which data regarding the three questions would enable personal information to be deduced as contemplated by the second way noted at paragraph 84 above. Given my conclusions at paragraphs 85 and 88, I cannot make a definitive finding about whether the answers to the last three questions comprise personal information, as doing so would require information to which I do not have access. I have carefully considered the applicant’s suggestion that entries identifying specific people be removed.[99] As discussed in the immediately preceding paragraphs, in relation to the last three questions, while it is possible that the data for the three questions may be personal information, there is no way for me to know where this may be the case. Accordingly, there is no way for me to pinpoint information identifying specific people for removal. In contrast, in relation to the first four questions, all of the responses comprise personal information of the people in the leadership team.[100] Here, it is possible to pinpoint information identifying specific people for removal – however, the removal of this information (that is, all responses) would not be an outcome the applicant intends. The sensitivity of this information varies significantly, as there are both positive and negative responses. It is not possible to remove the negative responses, as it would be evident that the schools that were removed had negative responses, and thus the same harm would occur. In conclusion, I consider the factors favouring non-disclosure set out in paragraph 76 are established in relation to the data for the four leadership questions. These factors are of significant weight as they relate to sensitive matters (ie. the integrity, quality and behaviour of identifiable individuals within a leadership team) and disclosure of the data would be in circumstances where express assurances of confidentiality had otherwise been given. I am unable to reach a finding about whether the factors are established in relation to the data for the three bullying/harassment questions. Prejudice deliberative processes The public interest favours nondisclosure of deliberative process information[101] in some circumstances. In this regard, the applicant made the submissions noted at paragraph 60 above. She also subm[102]ed that:102 Once established as Deliberative Process Information, the school level summaries requested can be assessed (as above) by a Public Interest Test. Deliberative Process Information that consists of factual and/or statistical material, expert opinion or analysis is excluded from the Public Interest harm factor. When considering whether the deliberative process prejudice factor applies, decision makers should first determine if the deliberative process has concluded and if there is no decision left to be made, the factor will not apply. I do not consider that the deliberative process factors weighing against disclosure arise in the circumstances of this review. In this regard, I refer to my reasons at paragraphs 51 to 62 above and repeat my finding that the Data is not deliberative process information, nor could its release be reasonably expected to prejudice the Department’s deliberative processes. Prejudice the ability to obtain confidential information There is a public interest favouring nondisclosure of information where it could reasonably be expected to prejudice an agency’s ability to obtain confidential information (CI Prejudice Factor).[103] The RTI Act also recognises that a public interest harm will occur where information of a confidential nature that was communicated in confidence is disclosed and this disclosure could reasonably be expected to prejudice the future supply of information of this type (CI Harm Factor).[104] The same deliberative process exception as set out in paragraph 51 above regarding breach of confidence may apply to the CI H[105] Factor.105 The applicant submitted that:[106] Confidential prejudice factor and confidential harm factor both require the information to be of a confidential nature, i.e., “the information is attributable to specific people, have the necessary quality of confidence, and, for the Confidential Harm Factor, an understanding of confidence must attach to it. [Footnote: https://www.oic.qld.gov.au/guidelines/for-government/access-and-amendment/decisionmaking/access-applications-for-workplace-surveys]” “Even if the information's confidential nature can be established, both factors have an additional requirement—that its disclosure could reasonably be expected to prejudice the future supply of either confidential information or information of the kind in question. [Footnote: https://www.oic.qld.gov.au/guidelines/for-government/access-and-amendment/decisionmaking/access-applications-for-workplace-surveys]” The Department submitted that ‘staff members may be hesitant to respond honestly to survey questions if the results of these particular questions were to be released’[107] and:[108] As a consequence of staff members not responding (or not responding honestly) to the seven questions of concern, the integrity of the survey would be compromised, and in turn this would prejudice the research of the Department. The Department submits that to act in any way that could reasonably discourage the provision of information concerning leadership, bullying and sexual harassment would cause significant public interest harm. While the CI Prejudice Factor simply requires consideration of whether disclosure could reasonably be expected to prejudice the agency’s ability to obtain confidential information, the CI Harm Factor will only arise if: the information consists of information of a confidential nature the information was communicated in confidence; and its disclosure could reasonably be expected to prejudice the future supply of such information. I am satisfied that the Data consists of information of a confidential nature and was communicated in confidence for the reasons set out at paragraphs 28 to 44 above. If the Data was released despite multiple specific express assurances given by the Department that it would not, in circumstances where the content of the questions is sensitive, where concerns about release had already been raised by QTU, and where participation in the survey is voluntary, I consider that this would prejudice the willingness of staff to participate in the survey in future because the staff would not trust the information to be treated in the way that was promised. In terms of the deliberative process exception to the CI Harm Factor, I repeat and rely on my reasons at paragraphs 51 to 62 above. Therefore, I find that both the CI Prejudice Factor and the CI Harm Factor apply in favour of nondisclosure of the Data and I attribute these factors significant weight for the same reason I attribute the factors favouring disclosure significant weight, ie. the Data concerns serious issues that would have a significant impact on the functioning of the workplace responsible for educating the State’s children and the workplace health and safety of staff, and therefore any prejudice to the collection or accuracy of this Data would be detrimental. Management function There is a public interest favouring nondisclosure of information where disclosure could reasonably be expected to prejudice the management function of an agency or the conduct of industrial relations by an agency.[109] The applicant submitted that:[110] “Where information cannot be linked to identifiable staff members it will be harder to satisfy these factors; even if satisfied, they will likely attract only a low weight. [Footnote: https://www.oic.qld.gov.au/guidelines/for-government/access-and-amendment/decisionmaking/access-applications-for-workplace-surveys]” For example, in the case of Star News [Footnote omitted], the “Commissioner: • noted that, although agency staff may have expressed concerns about disclosure, the workplace survey information in question could not be attributed to any specific staff member; and • found that any impact on the agency's employment relationship would not be significant, nor adversely impact Council's service delivery [Footnote omitted]” “The Commissioner considered that, although these factors did apply to the information, little weight could be afforded to them” [Footnote omitted]. As set out in paragraph 99, releasing the responses to sensitive questions where the Department has expressly promised otherwise, is likely to result in staf[111]istrust.111 I consider mistrust will arise even if specific people are not identified from the staff answers because of the assurances that were given specifically in relation to the Seven Questions. If the staff do not trust what they are being told by their superiors, this will prejudice the employee-employer relationship and make management of the staff, and industrial relations, more difficult. Also, if the staff do not provide accurate data for concerns about leadership, bullying and harassment, it will make it more difficult for the Department to identify and deal with these issues as part of its management function, and this will lead to a deterioration in workplace conditions which will prejudice the employee-employer relationship. Therefore, this factor favouring non-disclosure is established and should be afforded significant weight because of the serious content of the responses to the Seven Questions and the importance of safe and productive working relationships in the system responsible for educating the State’s children. Balancing the public interest I have taken into account the pro-disclosure bias in deciding access to documents under the RTI Act and note that this is the starting point when considering the balance of the public interest.[112] The Data is very important information concerning the quality and integrity of leadership in the State school system and experiences of bullying and sexual harassment in the workplace. This remains of significant public interest even though the data has been released in aggregated form categorised by school type and demographic. The circumstances of collection of the Data are a key consideration in my assessment of the potential outcome of disclosure. Once the Data was collected under those conditions, they have a lasting effect on the way in which the Data should be treated. If the Data was collected in different circumstances, it may have been in the public interest to release. However, the Data was collected in conditions where multiple specific express assurances were given by the Department to staff that no school level data would be published and answers to the Seven Questions would be publicly reported at a State level only. On this basis, I am satisfied that disclosure would cause significant detriment to: employee-employer relationships staff management information gathering; and identifying and resolving leadership, bullying and harassment concerns that affect the workplace health and safety of staff responsible for caring for, and educating, the State’s children, and in turn, affect the proper functioning of the State’s schools. Even if the answers to the three questions concerning bullying and harassment do not comprise personal information, I remain satisfied that the harms listed above weigh heavily against disclosure. Where the Data comprises personal information of the leadership team, the balance weighs even more heavily against disclosure. There are six factors favouring disclosure and five factors favouring nondisclosure in this review. As set out above, I consider all of the factors favouring disclosure and nondisclosure deserve significant weight. However, the balancing process is not a strictly mathematical exercise. The public interests served by the six pro-disclosure factors in this review overlap to a large extent. They largely address considerations of Government accountability including, importantly, identification of deficiencies in conduct and treatment. The factors favouring nondisclosure are more varied and serve the public interest in protecting privacy, ensuring the flow of important information to Government and preventing damage to employer-employee relationships. I consider that these factors favouring non-disclosure have a broader impact and are of more concern in the context of this review. For this reason, even taking into consideration the pro-disclosure bias, I consider that the factors favouring nondisclosure slightly outweigh the factors favouring disclosure. In other words, I am satisfied that there is more public interest harm that will occur by way of disclosure of the Data than public interest that would be served by disclosure. Accordingly, I find that access to the Data may be refused on the ground that its disclosure would, on balance, be contrary to the public interest.[113]DECISION I vary[114] the Department’s decision and find that: the Data is exempt information under schedule 3, section 8(1) of the RTI Act and therefore, access to it may be refused under section 47(3)(a) of the RTI Act; in the alternative, disclosure of the Data would, on balance, be contrary to the public interest and access to it may be refused under section 47(3)(b) of 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.A RickardActing Right to Information CommissionerDate: 2 December 2021 APPENDIX Significant procedural steps Date Event 2 February 2020 OIC received the application for external review. 6 February 2020 OIC wrote to the applicant acknowledging receipt of her external review application. 7 February 2020 OIC wrote to the Department requesting preliminary information. 14 February 2020 The Department provided the preliminary information. 11 March 2020 OIC telephoned the Department to discuss the scope of the application and what responsive documents may exist. OIC wrote to the applicant to advise that the external review application had been accepted. OIC wrote to the Department to request a copy of the information in issue. 25 March 2020 The Department provided a submission to OIC that processing the application would substantially and unreasonably divert its resources. 9 April 2020 OIC wrote to the applicant to ask if she wished to proceed with her review in the circumstances. 23 April 2020 The applicant wrote to OIC confirming that she wished to proceed and providing further information. 27 April 2020 The applicant wrote to OIC confirming she wished to proceed. 27 July 2020 The applicant wrote to OIC requesting an update and providing further information. 29 July 2020 OIC wrote to the applicant regarding the scope of her application. The applicant wrote to OIC proposing a narrowed scope. 15 September 2020 OIC wrote to the Department regarding the applicant’s narrowed scope and requested further submissions from the Department. OIC provided the applicant with an update. 6 October 2020 The Department requested an extension. 7 October 2020 OIC agreed to the Department’s request for an extension. 9 October 2020 The Department provided a submission to OIC confirming it no longer considered that processing the application would substantially and unreasonably divert its resources; however it submitted that certain information may be refused. 23 October 2020 OIC attempted to contact the applicant by phone. 25 October 2020 The applicant wrote to OIC advising of her preference for contact in writing. 30 October 2020 OIC erroneously sent letters finalising the external review. 2 November 2020 OIC contacted the parties to confirm that the external review had not been finalised. The applicant wrote to OIC raising concerns about the delay and requesting an update. 3 November 2020 OIC wrote to the applicant to provide an update. 4 November 2020 OIC wrote to the Department requesting a copy of the information in issue and a submission addressing the grounds for refusal raised by it. 2 December 2020 The Department requested an extension. OIC agreed to the Department’s request for an extension. 4 December 2020 The Department requested a further extension. OIC agreed to the Department’s further request for an extension. 11 December 2020 The Department provided a submission to OIC. 15 December 2020 OIC telephoned the Department to request further information. The Department wrote to OIC confirming that it would provide a copy of the information in issue. 16 December 2020 OIC wrote to the applicant to provide an update. 7 January 2021 OIC wrote to the Department requesting a copy of the information in issue and confirming that, given the decision under review was a deemed decision, application and processing fees were not payable. 14 January 2021 The Department requested an extension. 15 January 2021 OIC agreed to the Department’s request for an extension. 29 January 2021 The Department provided OIC with a copy of the information in issue. 17 March 2021 The applicant wrote to OIC raising concerns about the delay and requesting an update. 22 March 2021 OIC telephoned the Department to obtain further information about the information in issue. 16 April 2021 OIC telephoned the Department to request release of part of the information in issue. 21 April 2021 The Department advised that it would take two weeks to prepare part of the information in issue for release. 30 April 2021 OIC wrote to the applicant to explain the delays and confirm that the majority of the information in issue would soon be released. OIC wrote to the Department to request release of the majority of the information in issue. 27 May 2021 The applicant confirmed she wanted to proceed with the external review in relation to the remaining information in issue and accepted the Department’s application of its pre-existing deidentification policy. 8 June 2021 OIC wrote to the applicant to provide a preliminary view that access to the remaining information in issue may be refused as it is exempt on the basis it would found an action for breach of confidence. 14 June 2021 The applicant provided a submission to OIC. 21 July 2021 The applicant wrote to OIC raising concerns about the delay and requesting an update. 23 July 2021 OIC provided the applicant with an update. 20 August 2021 OIC telephoned the Department to provide an update by telephone. 27 August 2021 OIC telephoned the Department to request staff numbers for various schools. The Department provided the requested information concerning staff numbers. OIC provided the applicant with an update. 7 September 2021 OIC telephoned the Department to query the rules for ‘Data Withheld’. 8 September 2021 The Department emailed OIC clarifying the rules for ‘Data Withheld’. 17 September 2021 The Department emailed OIC clarifying the rules for ‘Data Withheld’. 5 October 2021 OIC telephoned the Department to clarify the rules for ‘Data Withheld’. 15 October 2021 OIC conveyed a preliminary view to the applicant that in addition to being exempt, disclosure of the remaining information in issue would, on balance, be contrary to the public interest. 20 October 2021 The applicant provided a submission to OIC. 22 October 2021 OIC emailed the Department requesting clarification about some aspects of the 2018 and 2019 surveys. 5 November 2021 The Department provided the requested information concerning aspects of the 2018 and 2019 surveys [1] Application dated 22 December 2019.[2] External review application dated 2 February 2020.[3] Except for data to which the Department had applied its pre-existing deidentification policy. In a letter from the applicant to OIC dated 27 May 2021, the applicant confirmed that she did not wish to pursue access to such data. Under the policy in question, results were shown as ‘DW’ (data withheld) when there were fewer than five respondents or all respondents had the same answer to a question. [4] < https://qed.qld.gov.au/publications/reports/statistics/schooling/schools/schoolopinionsurvey >.[5] Department’s submissions dated 25 March 2020 and 3 November 2021. [6] < https://qed.qld.gov.au/publications/reports/statistics/schooling/schools/schoolopinionsurvey >.[7] Letter from the Department to OIC dated 25 March 2020.[8] Email from the applicant to the Department dated 12 March 2018.[9] Email from the Executive Director of Performance Monitoring and Reporting to the applicant dated 18 December 2019.[10] Access application dated 22 December 2019.[11] Letter from OIC to the applicant dated 30 April 2021.[12] Under section 46(1)(a) of the RTI Act.[13] Section 21 of the HR Act. [14] XYZ v Victoria Police (General) [2010] VCAT 255; (2010) 33 VAR 1 (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 at [111].[15] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [16] XYZ at [573].[17] 2018 and 2019 School Opinion Survey forms attached to the Department’s submissions to OIC dated 11 December 2020 and 5 November 2021.[18] Letter from the applicant to OIC dated 27 May 2021.[19] Sections 47(3)(a) and 48 and schedule 3, section 8(1) of the RTI Act.[20] Sections 47(3)(b) and 49 and schedule 4 of the RTI Act.[21] Section 23(1)(a) of the RTI Act. [22] Sections 47(3)(a) and 48 of the RTI Act. [23] Ramsay Health Care Ltd v Information Commissioner & Anor [2019] QCATA 66 (Ramsay) at [66]. [24] B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (B and BNRHA) at [44].[25] Ramsay at [94]-[95] adopting Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; (2010) 265 ALR 281 at 39 and Smith Kline & French Laboratories (Aust) Ltd v Secretary to the Department of Community Services & Health [1989] FCA 384; (1990) 22 FCR 73 (Smith Kline) at 87. See also Screen Queensland Pty Ltd v Information Commissioner & Ors [2019] QCATA 122 (Screen Qld) at [26], and NBN Co Ltd v Information Commissioner & Ors [2021] QCATA 40 (NBN Co) at [27]. [26] Letter from the applicant to OIC dated 14 June 2021. Underlined and bold text is applicant’s emphasis. [27] Letter from the applicant to OIC 20 October 2021. Underlined text is applicant’s emphasis. [28] Star News at [31]. In any event, the circumstances of this review are distinguishable from the Star News decision because: the survey was conducted by a third party in that decision, whereas it was conducted by the Department in this matter the information in issue in that decision was a report to Council by the third party about the results of the survey, which did not include the records of its interviews and meetings with Council’s employees (Star News at [28]), whereas the information in issue in this matter is the raw data; and that decision concerned general assurances of confidentiality (again, Star News at [28]), whereas the Data with which this decision is concerned relates to Seven Questions about sensitive matters for which specific assurances were given by the Department, and the vast majority of the other survey data has been released to the applicant.[29] As noted at footnote 3 and paragraph 16 above.[30] Smith Kline at 87: ‘... the plaintiff must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question’ [my emphasis]; Corrs Pavey Whiting & Byrne v Collector of Customs [1987] FCA 266; (1987) 14 FCR 434 per Gummow J at [443]; Retractable Technologies Inc v Occupational & Medical Innovations Ltd [2007] FCA 545; (2007) 72 IPR 58 at 90.[31] TSO08G and Department of Health (Unreported, Queensland Information Commissioner, 13 December 2011) at [20], adopting the reasoning of B and BNRHA at [43].[32] Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 48.[33] Letter from the applicant to OIC dated 14 June 2021.[34] Letter from the Department to OIC dated 9 October 2020. [35] Letter from the Department to OIC dated 25 March 2020.[36] B and BNRHA at [76] and Ramsay at [82]. [37] At [84], citing the 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 302-4. See also Ramsay at [79].[38] 2018 and 2019 School Opinion Survey forms attached to the Department’s submissions to OIC dated 11 December 2020 and 5 November 2021.[39] The following questions were not marked with an asterisk in 2019: ‘In my school, the leadership team is of high quality.’ and ‘The school leadership team model the behaviours expected of all employees.’.[40] 2018 and 2019 School Opinion Survey forms attached to the Department’s submissions to OIC dated 11 December 2020 and 5 November 2021.[41] < https://qed.qld.gov.au/publications/reports/statistics/schooling/schools/schoolopinionsurvey/faqs >. The entirety of quoted information was on the Department’s website in 2018 and 2019, according to a check of the ‘Wayback Machine’ website (involving entering the aforementioned URL at <http://web.archive.org/> and clicking on all calendar dates on which the URL was ‘crawled’ throughout those years. It is noted that admissibility of archived webpages recorded by the ‘Wayback Machine’ to provide evidence as to the state of a webpage at a particular point in time will depend on the circumstances (see Dyno Nobel Inc v Orica Explosives Technology Pty Ltd (No 2) [2019] FCA 1552 at [17] cf. Harcourts WA Pty Ltd v Roy Weston Nominees Pty Ltd (No 4) [2016] FCA 138 at [171]). It is considered that section 95(1)(c) of the RTI Act enables my reference to the archived webpages in the present circumstances. [42] Department’s submission dated 11 December 2020, which attached an email from QTU to the Department dated 18 December 2018. Bold is my emphasis.[43] Letter from the applicant to OIC dated 14 June 2021.[44] < https://www.qtu.asn.au/about-us >. [45] At paragraph 36.[46] Ramsay at [82].[47] Beginning at paragraph 65.[48] Letter from the applicant to OIC dated 14 June 2021.[49] Seager v Copydex Ltd [1967] 1 WLR 923.[50] B and BNRHA at [57]-[58].[51] Ramsay at [94]-[96], Screen Qld at [37]-[39], Adani Mining Pty Ltd v Office of the Information Commissioner & Ors [2020] QCATA 52 at [12], and NBN Co at [28] and [35]-[36]. [52] That is, The Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 at 51, cited in Ramsay at [75], Screen Qld at [40] and NBN Co at [37] and [45]-[51].[53] Letter from the applicant to OIC dated 14 June 2021.[54] Letter from the Department to OIC dated 25 March 2020.[55] Sandy and Brisbane City Council (Unreported, Queensland Information Commissioner, 18 September 2009) at [33] and Cairns Port Authority and Department of Lands; Cairns Shelf Co No. 16 Pty Ltd (Third Party) [1994] QICmr 17; (1994) 1 QAR 663 at [41] which considered the equivalent provision of the Freedom of Information Act 1992 (Qld) (FOI Act).[56] Subsection (d) in the definition of ‘officer’ in schedule 5 of the RTI Act.[57] (1994) 2 QAR 293 (Pemberton). [58] At [71].[59] At [72]. In contrast, in ‘ALE’ & ‘RBA’ and Central Queensland University; W (Third Party) (Unreported, Queensland Information Commissioner, 20 January 1997) the Information Commissioner found that memoranda written by two staff members criticising another staff member were written in their capacities as officers of the university, and therefore the deliberative process exception applied.[60] At [83]. Bold is my emphasis.[61] Sections 47(3)(b) and 49 of the RTI Act.[62] Kiepe and The University of Queensland (Information Commissioner of Queensland, 1 August 2012) at [19]; Tol and The University of Queensland [2015] QICmr 4 (18 February 2015) at [23]; G46 and Queensland Police Service (No. 2) [2020] QICmr 73 (7 December 2020) at [44].[63] Schedule 3, section 8(3) of the RTI Act.[64] 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].[65] Letter from the applicant to OIC dated 14 June 2021.[66] In Swiatek and The University of Southern Queensland [2017] QICmr 57 (8 December 2017) ‘individual marks awarded to 121 students in two assignments in a particular subject’ was not considered to be deliberative process information at [41].[67] Rylsey Enterprises Pty Ltd and Cassowary Coast Regional Council [2015] QICmr 13 (12 May 2015) at [39].[68] North Queensland Conservation Council Incorporated and Queensland Treasury [2016] QICmr 9 (29 February 2016) at [51].[69] Frecklington, MP and Department of Transport and Main Roads [2020] QICmr 54 (22 September 2020) at [23].[70] Section 47(3)(a) and schedule 3, section 8(1) of the RTI Act.[71] As quoted at paragraph 55 above. [72] Section 47(3)(b) of the RTI Act. [73] Section 49(3) of the RTI Act.[74] Applicant’s submissions to OIC dated 23 April 2020 and 2 November 2020.[75] Letter from the applicant to OIC dated 14 June 2021.[76] Section 49(3)(d) of the RTI Act. [77] Section 49(3)(d) of the RTI Act. [78] Noting that, given the wording of section 49(3)(a) of the RTI Act, the irrelevant factors listed in schedule 4, part 1 of the RTI Act are non-exhaustive.[79] Letter from the applicant to OIC dated 14 June 2021.[80] Schedule 4, part 2, item 1 of the RTI Act. [81] Schedule 4, part 2, item 2 of the RTI Act.[82] Schedule 4, part 2, item 3 of the RTI Act. [83] Schedule 4, part 2, item 5 of the RTI Act. [84] Schedule 4, part 2, item 6 of the RTI Act.[85] Schedule 4, part 2, item 10 of the RTI Act.[86] Letter from the applicant to OIC dated 14 June 2021. [87] Letter from the applicant to OIC dated 20 October 2021. Underlined text is applicant’s own.[88] Namely, Primary, Secondary, P-10/P-12, SDE/EU/SP and Special. [89] Namely, Male, Female, Other Gender, Indigenous and Non-Indigenous.[90] Schedule 4, part 3, item 3 of the RTI Act, raised in the Department’s submissions dated 25 March, 9 October and 11 December 2020.[91] Schedule 4, part 4, section 6(1) of the RTI Act, raised in the Department’s submissions dated 25 March, 9 October and 11 December 2020.[92] Schedule 5 of the RTI Act and section 12 of the Information Privacy Act 2009 (Qld).[93] Letter from Department to OIC dated 9 October 2020.[94] Letter from the applicant to OIC dated 20 October 2021.[95] < https://schoolsdirectory.eq.edu.au/ >.[96] < https://alt-qed.qed.qld.gov.au/working-with-us/induction/queensland-state-schools/leadership-team >. [97] Letter from the applicant to OIC dated 20 October 2021. Underlined text is applicant’s emphasis.[98] Letter from the applicant to OIC dated 27 May 2021.[99] Applicant’s submissions to OIC dated 23 April 2020 and 29 July 2020.[100] As noted at paragraphs 81 and 82 above. [101] Schedule 4, part 3, item 20 and part 4, section 5 of the RTI Act.[102] Letter from the applicant to OIC dated 14 June 2021. Footnotes omitted; bold text is applicant’s own.[103] Schedule 4, part 3, item 16 of the RTI Act, raised in the Department’s submissions dated 25 March, 9 October and 11 December 2020.[104] Schedule 4, part 4, section 8(1) of the RTI Act.[105] Schedule 4, part 4, section 8(2) of the RTI Act[106] Letter from the applicant to OIC dated 14 June 2021.[107] Department’s submission dated 25 March 2020.[108] Letter from Department to OIC dated 9 October 2020.[109] Schedule 4, part 3, item 19 of the RTI Act.[110] Letter from the applicant to OIC dated 14 June 2021.[111] The circumstances of this review are distinguishable from the Star News decision for the reasons noted at footnote 28 above.[112] Section 44(1) of the RTI Act. [113] Sections 47(3)(b) and 49 of the RTI Act. [114] Noting that, as Council did not make a decision within the timeframe set out in the RTI Act, Council is deemed to have made a decision refusing access to all relevant documents.

queensland

court_judgement

Queensland Information Commissioner 1993-

Verska and Queensland Police Service [2018] QICmr 14 (26 March 2018)

Verska and Queensland Police Service [2018] QICmr 14 (26 March 2018) Last Updated: 10 April 2018 Decision and Reasons for Decision Citation: Verska and Queensland Police Service [2018] QICmr 14 (26 March 2018) Application Number: 313423 Applicant: Verska Respondent: Queensland Police Service Decision Date: 26 March 2018 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - complaint information about the applicant - personal information and privacy - accountability - administration of justice - procedural fairness - whether disclosure would on balance be contrary to the public interest - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to documents relating to complaints made against her between 2010 and 14 June 2017.[1] QPS decided to neither confirm nor deny the existence of the requested documents.[2] I vary QPS’s decision and 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. Background Significant procedural steps taken by this Office (OIC) in conducting the external review are set out in the Appendix. Complaints were made to QPS about the applicant and the applicant is greatly concerned that the complaints are ‘fraudulent’. She seeks to know of what she has been ‘accused’. I acknowledge the applicant’s distress and have taken the applicant’s concerns about the veracity of the complaints into account for the purpose of determining public interest factors that may favour disclosure of the information in issue as explained later in these reasons. However, OIC has no jurisdiction under the IP Act or Right to Information Act 2009 (Qld) (RTI Act) to investigate whether or not the complaints are in fact truthful.[3] OIC’s jurisdiction in this matter is limited to considering whether the applicant can access relevant information held by QPS. Reviewable decision The decision under review is QPS’s decision dated 17 July 2017. Evidence considered The 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 in issue comprises the 19 pages of information located by QPS in response to the access application. Issue for determination On external review, QPS accepted[4] OIC’s view that it is not entitled to neither confirm nor deny the existence of the documents requested by the applicant. Therefore, the issue to be determined in this review is whether disclosure of the information in issue would, on balance, be contrary to the public interest.[5] 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 is subject to limitations, including grounds for refusal of access.[6] Access may be refused to documents where disclosure would, on balance, be contrary to the public interest.[7] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest and also explains the steps that a decision-maker must take in deciding the public interest[8] 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 Irrelevant factors I do not consider that any irrelevant factors arise in the circumstances of this case and I have taken none into account. Factors favouring disclosure The applicant contends that several factors favour release of the information in issue to her[9] namely, that it is the applicant’s personal information[10] and its disclosure could reasonably be expected to: enhance the Government’s accountability[11] 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[12] allow or assist with inquiry into possible deficiencies in the conduct or administration of an agency or official[13] reveal the reason for a government decision and any background or contextual information that informed the decision[14] reveal that the information is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant[15] contribute to the maintenance of peace and order[16] contribute to the administration of justice generally, including procedural fairness;[17] and contribute to the administration of justice for a person.[18] I will deal with each in turn. Applicant’s personal information There is a public interest in individuals being able to obtain access to their own personal information[19] held by government. I have reviewed the information in issue and some, but not all of it identifies the applicant and I am therefore satisfied it is the applicant’s personal information. Accordingly, a factor favouring disclosure[20] arises regarding that information comprising the applicant’s personal information and I afford significant weight to this factor. Accountability, transparency and informing the community The RTI Act recognises that public interest factors favouring disclosure will arise where disclosing information could reasonably be expected to: enhance the Government’s accountability[21] 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;[22] and reveal the reason for a government decision and any background or contextual information that informed the decision.[23] Disclosing the information in issue would inform the applicant about complaints made against her to QPS and reveal how QPS dealt with them. I am therefore satisfied that the factors identified in paragraph 17 above apply. However, I consider that the weight attaching to these factors must be discounted because after considering the information it received, QPS took no action against the applicant. In the circumstances, I attach moderate weight to these factors. Deficiencies in the conduct or administration of an agency or official Public interest factors favouring disclosure also arise where disclosure of information could reasonably be expected to: allow or assist with inquiry into possible deficiencies in the conduct or administration of an agency or official;[24] and reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.[25] The applicant submits that disclosure of the information in issue would substantiate her concerns that ‘a police officer attendance on 26 November 2015’ was based on a fraudulent complaint. The applicant also submits that: QPS have failed to assist me in the harassment I have suffered at the hands of [a person] over the years.[26] The IP Act does not permit me to reveal the content of the information in issue in these reasons. I am therefore unable to confirm whether the information in issue contains detail about the referenced police officer attendance on 26 November 2015, the ‘fraudulent complaint’ which the applicant contends formed the basis of such attendance or the subject matter of the Magistrates Court orders she provided in support of her submissions. Further, as noted in paragraph 5 above, the Information Commissioner’s jurisdiction on external review does not extend to making any findings about veracity of the complaints. For these public interest factors to apply, I must be satisfied that there is a reasonably based expectation that disclosing the information in issue could reveal or substantiate that an agency or official has engaged in official misconduct or negligent, improper or unlawful conduct. On careful consideration of the material before me, there is nothing which evidences that QPS has failed to assist the applicant in harassment that she considers she has suffered. Further, as mentioned in paragraph 18, on the material before me, no action was taken against the applicant in respect of information provided to QPS. In these circumstances, I am not satisfied that disclosing the information in issue could reasonably be expected to allow or assist enquiry into, reveal or substantiate, any deficiencies in the conduct of QPS or its officers. Accordingly, I find that these factors do not apply in the circumstances of this review. I note that other avenues are available to the applicant if she seeks to pursue concerns about the basis of the police officer attendance on a specific date[27] which do not require disclosure of the information in issue. This has been communicated to the applicant by OIC.[28] Disclosure would reveal that the information was incorrect, out of date, misleading, gratuitous, unfairly subjective, or irrelevant. A public interest factor favouring disclosure will arise where disclosing information could reasonably be expected to reveal that the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.[29] The applicant asserts[30] that this factor applies as she considers complaints made against her are ‘fraudulent’. However, the applicant does not explain how disclosure of the information in issue could reasonably be expected to reveal that the information in issue itself is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant. The information in issue primarily comprises complaint information received by QPS. Such information is, by its very nature, the opinions and versions of events expressed by relevant individual/s, 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 in issue is necessarily incorrect or unfairly subjective.[31] I have carefully reviewed the information in issue. There is nothing within it, nor in any other information before me, to suggest that the information provided to QPS other than by the applicant is not correct. In these circumstances, I do not consider that disclosure could reasonably be expected to reveal that the information in issue is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant. On this basis, I do not consider that this factor applies in the circumstances of this review. Contribute to peace and order The RTI Act recognises that a public interest factor in favour of disclosure arises where disclosure of information could reasonably be expected to contribute to the maintenance of peace and order.[32] The applicant submits[33] this factor applies, however, submissions do not address how or on what basis disclosure of the information in issue could reasonably be expected to contribute to the maintenance of peace and order. Given the nature of the information in issue and that QPS took no action against the applicant in respect of information it received, I am not satisfied there is a reasonable expectation that disclosure could contribute to the maintenance of peace and order. Accordingly, I do not consider that this factor favouring disclosure applies. Administration of justice for the applicant A public interest factor favouring disclosure[34] will arise where disclosing information could reasonably be expected to contribute to the administration of justice for a person—for example, by allowing a person to access information that may assist them in legal proceedings. In determining whether this public interest factor in favour of disclosure applies, I must consider whether: 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.[35] The applicant submits[36] this factor applies but has not identified what loss, damage or wrong the applicant contends she has suffered or what remedy she considers may be available to her. Nor I am able to deduce this from the information before me. QPS took no action against the applicant in respect of the complaints it received. In these circumstances, I am not satisfied that disclosure of the information in issue is required to enable the applicant to: evaluate whether a legal remedy against any particular individual or entity is available or worth pursuing; or pursue legal action against any particular individual or entity. For these reasons, I do not consider that this factor favouring disclosure applies. Advance fair treatment and procedural fairness The RTI Act also gives rise to factors favouring disclosure in circumstances where disclosing information could reasonably be expected to: advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies;[37] and contribute to the administration of justice generally, including procedural fairness.[38] The applicant submits[39] that disclosing the information in issue ‘will enhance the accountability of the QPS in relation to their fair treatment of me and the orders and applications (copies enclosed) in my favour’.[40] The public interest factor relating to advancing the fair treatment of individuals does not require a decision-maker to ensure that an applicant is provided with sufficient information to enable the applicant to be subjectively satisfied that he or she received fair treatment. Rather, it is about providing information to ensure fair treatment in an applicant’s future dealings with agencies.[41] In circumstances where QPS took no action against the applicant in respect of the complaints that it received, I am not satisfied that disclosure of the information in issue would advance the applicant’s fair treatment in her dealings with QPS and other government agencies and bodies, whether those dealings relate to subject matter of the Magistrates Court orders she has referenced or other matters. I therefore consider that this factor does not apply in the circumstances of this review. 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.[42] Accordingly, the person who is the subject of a decision 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.[43] In this case, however, QPS made no adverse finding against the applicant which could be construed as requiring QPS to inform the applicant of its intended finding and provide relevant material to that finding. In these circumstances, I am not satisfied that disclosure of the information in issue would contribute to procedural fairness for the applicant or any other individual. For these reasons, I consider that this factor does not apply in the circumstances of this review. Other factors To the extent the applicant’s submissions allege that complaints about her were fraudulent, I do not consider that disclosure of the information in issue is required to enable the applicant to refer such an allegation to appropriate government agencies. I am therefore satisfied that the public interest factor relating to contributing to the enforcement of the criminal law[44] does not apply. I have carefully considered all factors listed in schedule 4, part 2 of the RTI Act, and can identify no other public interest considerations telling in favour of disclosure of the information in issue. Taking into consideration the nature of that information, I cannot see how its disclosure could, for example, ensure the effective oversight of expenditure of public funds,[45] contribute to the protection of the environment[46] or reveal environmental or health risks or measures relating to public health and safety.[47] Factors favouring nondisclosure Personal information and privacy of other individuals Public interest factors favouring nondisclosure will arise under the RTI Act where disclosure of information could reasonably be expected to: prejudice the protection of an individual’s right to privacy;[48] and cause a public interest harm because it would disclose personal information of a person, whether living or dead.[49] Comprising as it does, complaint information provided to QPS by individual/s other than the applicant, the identity of other individuals is apparent or can reasonably be ascertained from the information in issue. On this basis, I am satisfied the information in issue is the personal information of these individuals. This personal information is sensitive in nature, being information provided to QPS by or about these individuals (including their names and contact details, their personal circumstances, their observations and recollections of events). As noted in paragraph 15 above, some of the information in issue is also the personal information of the applicant. I am able to confirm that where the personal information of the applicant appears in the information in issue, it is intertwined with the personal information of other individuals. On careful consideration of it, I am satisfied that it is not possible to separate the applicant’s personal information from the personal information of those other individuals. That is, disclosing the personal information of the applicant would necessarily also disclose the personal information of individuals other than the applicant. Therefore, I am satisfied that disclosing the information in issue could reasonably be expected to prejudice the protection of the other individuals’ right to privacy and cause a public interest harm. It is relevant then to consider the extent of the prejudice and harm that could result from disclosing the personal information of these other individuals under the IP Act. Given the sensitive and personal nature of the other individuals’ personal information and the context in which it appears, I consider that its disclosure would be a significant intrusion into the privacy of these individuals. For this reason, I afford significant weight to the privacy factor favouring nondisclosure.[50] I also consider that the extent of the harm that could be anticipated from disclosing information which includes the names, contact details, personal circumstances, observations and opinions of (or about) these individuals under the IP Act would be significant. Accordingly, I afford the harm factor favouring nondisclosure[51] significant weight. Flow of information If disclosing information could reasonably be expected to prejudice the flow of information to law enforcement or regulatory agencies, a public interest factor favouring nondisclosure arises.[52] The applicant submits:[53] I do not agree that disclosure of the information would prejudice the flow of information to law enforcement. I am of the view that the information provided to QPS is not relevant in that it is fraudulent in nature. I would argue that information provided to QPS which is fraudulent does not detrimentally effect their ability to effectively discharge their functions. I would further argue that disclosure of the information would not prejudice the ability of QPS to obtain confidential information. As previously noted, the Information Commissioner’s jurisdiction on external review does not extend to making any findings about the applicant’s concerns that the complaints made against her were fraudulent. I also note that, in discharging its functions, QPS did not take any action against the applicant in respect of the complaints it received. It is generally recognised that there is strong public interest in protecting the free flow of information to law enforcement agencies.[54] This is because agencies such as QPS often rely on information from the public to be alerted to and to pursue potential breaches of the law. Further, the efficient and effective use of public resources is facilitated by police being able to seek and obtain information from members of the community, whether they are complainants, witnesses, informers or the subjects of complaint.[55] I have carefully considered the applicant’s submissions and the information in issue. I consider that routinely disclosing complaint information which QPS receives from the community would tend to discourage individuals from coming forward with relevant information. It is reasonable to expect that this would, in turn, detrimentally effect QPS’s ability to effectively discharge its functions.[56] I afford significant weight to the factor favouring nondisclosure related to protecting the flow of information to QPS.[57] Given the applicant’s submissions, I have also considered whether disclosing the information in issue could reasonably be expected to: prejudice QPS’s ability to obtain confidential information;[58] 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.[59] There is nothing on the face of the information before me which indicates that the information was provided to QPS by individual/s other than the applicant on the specific condition that it was confidential in nature. Accordingly, I do not consider that this public interest factor in favour of nondisclosure[60] or the relevant harm factor[61] apply in the circumstances of this review. Balancing the public interest For the reasons set out above, I am satisfied that the significant weight afforded to the nondisclosure factors relating to protection of personal information, privacy and the flow of information to QPS[62] outweighs the relevant factors favouring disclosure[63] of the information in issue. Accordingly, I consider that disclosing the information in issue would, on balance, be contrary to the public interest and access to the information in issue may be refused.[64] DECISION For the reasons set out above, I vary QPS’s decision and find that access to the information in issue may be refused[65] on the ground 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 LynchA/Right to Information Commissioner Date: 26 March 2018 APPENDIX Significant procedural steps Date Event 24 July 2017 OIC received the external review application. 7 August 2017 OIC notified the applicant and QPS that it had accepted the external review application and asked QPS to provide information. 24 August 2017 OIC received the requested information from QPS. 20 October 2017 OIC conveyed a preliminary view to QPS that QPS was not entitled to neither confirm nor deny the existence of the requested documents, however, disclosure of those documents would, on balance, be contrary to the public interest. QPS accepted the preliminary view. 15 December 2017 OIC conveyed a preliminary view to the applicant that QPS was not entitled to neither confirm nor deny the existence of the requested documents, however, disclosure of those documents would, on balance, be contrary to the public interest. The applicant indicated she did not accept the preliminary view. 2 February 2018 OIC confirmed the preliminary view to the applicant and invited her to provide submissions if she did not accept the preliminary view. 6 February 2018 The applicant confirmed to OIC she did not accept the preliminary view. 14 February 2018 OIC received submissions from the applicant. [1] Being the date QPS received the access application. [2] Pursuant to section 69 of the IP Act. [3] This was explained to the applicant in OIC’s letter dated 2 February 2018.[4] On 20 October 2017. [5] Under sections 49 and 47(3)(b) of the RTI Act. [6] Section 47 of the RTI Act sets out the grounds on which access may be refused to documents. 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. [7] 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. [8] Section 49(3) of the RTI Act. [9] Submissions dated 13 February 2018. [10] Schedule 4, part 2, item 7 of the RTI Act. [11] Schedule 4, part 2, item 1 of the RTI Act. [12] Schedule 4, part 2, item 3 of the RTI Act. [13] Schedule 4, part 2, item 5 of the RTI Act. [14] Schedule 4, part 2, item 11 of the RTI Act.[15] Schedule 4, part 2, item 12 of the RTI Act. [16] Schedule 4, part 2, item 15 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] Schedule 4, part 2, item 7 of the RTI 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’. [20] Schedule 4, part 2, item 7 of the RTI Act. [21] Schedule 4, part 2, item 1 of the RTI Act. [22] Schedule 4, part 2, item 3 of the RTI Act. [23] Schedule 4, part 2, item 11 of the RTI Act. [24] Schedule 4, part 2, item 5 of the RTI Act. [25] Schedule 4, part 2, item 6 of the RTI Act. [26]Submissions dated 13 February 2018. In support of this submission, the applicant provided OIC with copies of certain Magistrates Court orders, which she submitted were in her favour and illustrate a history of ‘bad blood’ between herself and a named individual. [27] Such as raising her concerns with relevant integrity bodies such as the Crime and Corruption Commission. [28] See footnote 3. [29] Schedule 4, part 2, item 12 of the RTI Act. [30] Submissions dated 13 February 2018. [31] Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) (Marshall) at [15]-[20].[32] Schedule 4, part 2, item 15 of the RTI Act. [33] Submissions dated 13 February 2018. [34] Schedule 4, part 2, item 17 of the RTI Act. [35] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 at [17] and confirmed in 10S3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011).[36] Submissions dated 13 February 2018. [37] Schedule 4, part 2, item 10 of the RTI Act. [38] Schedule 4, part 2, item 16 of the RTI Act. [39] Submissions dated 13 February 2018. [40] Being the documents referred to in footnote 32 above. [41] F60XCX and Department of Natural Resources and Mines [2017] QICmr 19 (9 June 2017) at [89]-[90]. [42] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (Kioa) at 584 per Mason J.[43] Kioa at 629 per Brennan J.[44] Schedule 4, part 2, item 18 of the RTI Act. [45] Schedule 4, part 2, item 4 of the RTI Act. [46] Schedule 4, part 2, item 13 of the RTI Act. [47] Schedule 4, part 2, item 14 of the RTI Act. [48] Schedule 4, part 3, item 3 of the RTI Act.[49] Schedule 4, part 4, section 6(1) of the RTI Act.[50] Schedule 4, part 3, item 3 of the RTI Act. [51] Schedule 4, part 4, section 6(1) of the RTI Act. [52] Schedule 4, part 3, item 13 of the RTI Act. [53] Submissions dated 13 February 2018. [54] 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. [55] See Marshall at [29].[56] See Marshall at [29]. Adopting the ordinary meaning of the term ‘prejudice’: see Daw and Queensland Rail (Unreported, Queensland Information Commissioner, 24 November 2010) at [16].[57] Schedule 4, part 3, item 13 of the RTI Act. [58] Schedule 4, part 3, item 16 of the RTI Act. [59] Schedule 4, part 4, section 8(1) of the RTI Act. [60] Schedule 4, part 3, item 16 of the RTI Act. [61] Schedule 4, part 4, section 8(1) of the RTI Act. [62] Schedule 4, part 3, items 3 and 13 and schedule 4, part 4, section 6(1) of the RTI Act. [63] Schedule 4, part 2, item 1, 3, 7 and 11 of the RTI Act. [64] Under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act. [65] Under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Collins and Health Quality and Complaints Commission [2012] QICmr 63 (6 November 2012)

Collins and Health Quality and Complaints Commission [2012] QICmr 63 (6 November 2012) Last Updated: 27 August 2013 Decision and Reasons for Decision Application Numbers: 310696, 310877 Applicant: Collins Respondent: Health Quality and Complaints Commission Decision Date: 6 November 2012 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - applicant sought access to documents relating to an investigation of a complaint made to the Health Quality and Complaints Commission in relation to the applicant’s mother’s death at a public hospital - access refused to the signature of an independent clinician, a qualified medical practitioner, who was involved in early assessment of the complaint - independent clinician did not investigate complaint - independent clinician strongly objected to disclosure of their signature- whether disclosure would found an action for breach of confidence- sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) on the ground set out in schedule 3, section 8 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION – APPLICATION FOR ACCESS TO INFORMATION – REFUSAL OF ACCESS – NON-EXISTENT DOCUMENTS – applicant submits additional relevant documents should exist within the agency – whether there are reasonable grounds for agency to be satisfied that documents do not exist -– whether access to documents can be refused – section 47(3)(e) of the Right to Information Act 2009 (Qld) – section 52(1)(a) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant’s mother passed away in a Queensland public hospital. The applicant’s sibling then made a complaint to the Health Quality and Complaints Commission (HQCC) relating to the hospital treatment of her mother (complaint). HQCC commenced an assessment of the complaint and determined that the matter did not require a formal investigation. In deciding not to investigate the complaint, the HQCC relied on the opinions of an independent clinician who considered that the treatment provided was reasonable. After the HQCC assessment process had been finalised, the applicant applied to HQCC under the Right to Information Act 2009 (Qld) (RTI Act) for access to all documents held by the HQCC in relation to his mother and the complaint (the first access application).[1] HQCC granted the applicant full access to all documents except for part of one page which contained the signature of the independent clinician (clinician’s signature), a qualified medical practitioner, who provided HQCC with a medical opinion in the assessment of the complaint (independent clinician).[2] HQCC refused access to the clinician’s signature under section 47(3)(b) of the RTI Act on the basis that disclosure would, on balance, be contrary to the public interest. The applicant then made a second access application to HQCC for information which would identify the independent clinician, documents about the clinician’s qualifications, as well as documents used to assess the clinician’s independence (the second access application).[3] HQCC decided to release 18 pages in full and one in part, and refuse access to 11 pages on the basis that disclosure, would, on balance, be contrary to the public interest. HQCC also found that some documents did not exist. The applicant applied to the OIC for external review of both decisions.[4] I have decided to deal with both applications in these reasons. During the course of the external reviews, the information under consideration was narrowed to: information identifying the clinician, namely: ○ A signature in the first application[5] ○ A resume in the second application,[6] and ‘any instructions/guidance/advice given to experts about the preparation of expert opinions (instruction documents) in the second application. It is decided that, in the circumstances of this review, HQCC’s decisions are set aside and HQCC: is entitled to refuse access to the identifying information of the independent clinician on the grounds that disclosure would found an equitable action for breach of confidence; and is entitled to refuse access to instruction documents on the grounds that they are non-existent. Reviewable decisions The decisions under review are HQCC’s decision on the first access application dated 10 June 2011 and HQCC’s internal review decision on the second access application dated 16 November 2011. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision is disclosed in these reasons (including footnotes and Appendix). Information in issue The Information in Issue in this review is described at paragraph 8. Issues in this review HQCC decided not to release the identifying information of the independent clinician on the grounds that disclosure would, on balance, be contrary to the public interest. After careful consideration of the relevant information, the relevant law, HQCC’s decision and the applicant’s submissions,[7] I am satisfied that it is more appropriate to consider the application of schedule 3, section 8 of the RTI Act. Accordingly, this decision does not consider whether disclosure of the information in issue would, on balance, be contrary to the public interest.[8] The issues for consideration in this review are therefore: whether HQCC is entitled to refuse access to the instruction documents on the grounds that they are non-existent; and whether disclosure of the identifying information of the independent clinician would found an action in equity for breach of confidence. Refusal of access to non-existent documents Relevant law The RTI Act provides that access to a document may be refused if the document is non-existent.[9] A document is non-existent if there are reasonable grounds for the agency or Minister dealing with the access application to be satisfied that the document does not exist.[10] The RTI Act is silent on how an agency or Minister can be satisfied that a document does not exist. In PDE and the University of Queensland[11] (PDE), the Information Commissioner explained that, to be satisfied that a document does not exist, an agency must rely on its particular knowledge and experience, having regard to various key factors including: the administrative arrangements of government the agency structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including: ○ the nature and age of the requested document/s; and ○ the nature of the government activity the request relates to. When these factors are properly considered and the decision maker is satisfied on reasonable grounds that the document does not exist, then it is unnecessary for searches to be conducted. Alternatively, the decision maker may rely on searches to justify a decision that the document sought does not exist. If an agency relies on searches, all reasonable steps must be taken to locate the requested document. In determining whether all reasonable steps have been taken, regard should be had to the factors listed in PDE. Is HQCC entitled to refuse access to the instruction documents on the basis that they are non-existent? In his second access application, the applicant applied to HQCC for: ...any instructions/guidance/advice/training given to experts about the preparation of expert opinions – Including any general ones and ones specific to the opinion mentioned above. In its decision, HQCC refused access to the documents on the grounds that they were non-existent. This decision was affirmed on internal review. HQCC’s internal review decision sets out clinicians are employed on contracts to assess complaints and provide advice. All advice provided must fall within the clinician’s experience and/or professional registration and clinicians are required to advise HQCC if a matter falls outside their experience, training or professional registration. They also stated that clinicians must advise of any conflicts of interest.[12] HQCC submitted clinicians are employed under an employment agreement and there is no additional information or training provided. Following enquiries on external review, a HQCC staff member made enquiries with relevant staff within HQCC and conducted additional searches. HQCC confirmed in writing[13] that: There are no documents which exist throughout HQCC with this information (the instruction documents) requested by Mr Collins. HQCC is a relatively small organisation. I am satisfied that enquiries made by the staff member would identify documents if they existed. Given HQCC’s submission on internal review, their subsequent searches and the relatively small size of the organisation, I am satisfied that HQCC does not hold instruction documents and these documents do not exist. Breach of confidence Relevant law 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 type of information the disclosure of which the Parliament has considered would, on balance, be contrary to the public interest and is therefore exempt. Information will be exempt if its disclosure would found an action for breach of confidence in equity. The following elements must be established to give rise to an equitable obligation of confidence: information must be capable of being specifically identifiable as information that is secret, rather than generally available information must have the necessary quality of confidence circumstances of the communication must create an equitable obligation of confidence disclosure to the applicant for access must constitute an unauthorised use of the confidential information; and disclosure must cause detriment to the plaintiff.[14] In this case, I am satisfied that HQCC is bound with an equitable obligation of confidence not to disclose the identifying information of the clinician. I explain my reasons below. (a) specifically identified information It must be possible to identify with specificity, and not merely in general terms, the information in question.[15] The information in question is the signature of the independent clinician and the clinician’s resume. I am therefore satisfied that the information is specifically identifiable and that this requirement is met. (b) necessary quality of confidence An equitable obligation of confidence will only protect information with the necessary quality of confidence—it will not extend to information that is generally known, useless or trivial.[16] The applicant submits that the staff members at HQCC would know the identity of the clinician. The law on this issue makes it clear that it is necessary for the information to have a ‘degree of secrecy sufficient for it to be subject to an obligation of conscience’.[17] It is not necessary to demonstrate absolute secrecy or inaccessibly. The fact that staff members at HQCC may know the identity of the clinician does not take away from the quality of confidence over the information in issue. In this case, the identifying information of the clinician (the resume and the signature), despite being known to some members of HQCC, is not generally known, nor is it trivial or useless. I am therefore satisfied that this requirement is satisfied. (c) circumstances of communication All the relevant circumstances in which information was received must be considered to determine whether the party who received the information is bound with an obligation of confidence. The Information Commissioner has previously indicated[18] that the relevant circumstances will include, but are not limited to: nature of the relationship between the parties nature and sensitivity of the information purpose/s for which the information was communicated nature and extent of any detriment to the interests of the information-supplier that would follow from an unauthorised disclosure of the information; and circumstances relating to the communication. I must consider whether HQCC (as the party who received the information) is bound with an obligation of confidence to the clinician to maintain confidentiality over the information in issue (information which would identify the clinician). HQCC has provided a copy of the independent clinician’s employment agreement. This agreement contains a confidentiality clause which states that: HQCC will use its best endeavours to keep confidential any information that could directly or indirectly reveal your identity. While the test I am applying is an equitable one, the above contractual clause is strong evidence of an understanding between the parties that information identifying the clinician would be kept confidential. In submissions in the first external review, HQCC referred to the understanding of confidence between HQCC and the clinician set up by the confidentiality clause in the agreement. HQCC consulted with the clinician, who objected to disclosure of their identifying information. This provides additional evidence of the clinician’s understanding that HQCC would maintain confidentiality over their identifying information. On the basis of the matters set out above, I am satisfied that the identifying information of the clinician was communicated to HQCC in circumstances giving rise to an equitable obligation of confidence. I am therefore satisfied that this requirement is met. (d) unauthorised use Disclosure to the applicant for access must constitute an unauthorised use of the confidential information. Both HQCC and the clinician object to disclosure of the clinician’s identifying information. I am therefore satisfied this requirement is satisfied. (e) detriment Detriment suffered by a non-government plaintiff such as the clinician, 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.[19] HQCC has submitted that disclosure of the information would be of significant concern to the clinician, in particular that there is a concern that disclosure may adversely affect the clinician’s career because of the risk of professional ostracism. The applicant submits that the evidence for professional ostracism must be strong, ‘so it is almost a certainty.’[20] For a non-government plaintiff, it is not necessary for there to be strong evidence. The Information Commissioner in B and BNRNA quoted Attorney-General v Guardian Newspapers: I would think it a sufficient detriment to the confider that information given in confidence is to be disclosed to persons to whom he would prefer not to know of it, even though disclosure would not be harmful to him in any positive way. I accept HQCC’s submission that disclosure would be of significant concern to the clinician and I consider that this is sufficient to satisfy this requirement. Breach of confidence–conclusion On the basis of the matters set out above, I find that the requirements to found an action for breach of an equitable obligation of confidence are established, and that therefore, the identifying information of the clinician is exempt under schedule 3, section 8 of the RTI Act. DECISION HQCC’s decisions are varied and HQCC: is entitled to refuse access to the identifying information of the independent clinician on the grounds that disclosure would found an equitable action for breach of confidence under schedule 3, section 8 and section 47(3)(a) of the RTI Act; and is entitled to refuse access to the instruction documents on the grounds that they are non-existent under sections 47(3)(e) and 52(1)(a) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ V Corby Assistant Information Commissioner Date: 6 November 2012 APPENDIX Significant procedural steps Application 1: 310696 Date Event 6 June 2011 HQCC received the applicant’s access application under the RTI Act. 10 June 2011 HQCC issued its decision refusing access to the Clinician’s Signature. 7 July 2011 The application applied to OIC for an external review of HQCC’s decision. 20 July 2011 OIC received the document from HQCC to which the applicant was refused part access 26 July 2011 OIC conveyed an oral preliminary view to the applicant affirming HQCC’s decision not to release the information 3 August 2011 The applicant corresponded with OIC by email to advise that he did not accept the preliminary view. 3 August 2011 OIC requested HQCC to consult with the clinician. 4 August 2011 HQCC advised OIC that the clinician objects to disclosure of their signature. 15 September 2011 OIC wrote to HQCC explaining further submissions were required to show disclosure of Clinician’s Signature would, on balance, be contrary to the public interest. 6 September, 8 November and 15 November 2011 OIC received further submissions from the applicant 28 September 2011 OIC received further submissions from HQCC. 15 November 2011 OIC met with HQCC staff – RTI officer, General Counsel and Clinical Integrity Officer. During this meeting HQCC provided substantial submissions to OIC. 7 December 2011 OIC conveyed an oral preliminary view to the applicant that disclosure would, on balance, be contrary to the public interest. The applicant did not accept. 20 February 2012 OIC conveyed a written preliminary view to the applicant setting out that disclosure would, on balance, be contrary to the public interest 24 February, 28 February and 5 March 2012 OIC received submissions from the applicant contesting OIC’s preliminary view. 31 August 2012 OIC conveyed a preliminary view to the applicant both of his external reviews. 14 September 2012 The applicant responded to the preliminary view. He did not accept that disclosure of the identifying information of the clinician was exempt. Application 2: 310877 Date Event 2 September 2011 HQCC received the applicant’s access application under the RTI Act 27 September 2011 HQCC issued its decision refusing access to the resume of the Clinician 24 October 2011 The applicant sought internal review of HQCC’s decision 16 November 2011 HQCC issued its internal review decision affirming the access decision 15 December 2011 The applicant applied to OIC for an external review of HQCC’s internal review decision 10 January 2012 OIC received the documents from HQCC to which the applicant was refused access 14 February 2012 OIC received further documents relevant to the review from HQCC 28 August 2012 OIC wrote to HQCC requesting further submissions concerning refusal of access and sufficiency of search 31 August 2012 OIC conveyed a preliminary view to the applicant both of his external reviews. 14 September 2012 The applicant responded to the preliminary view. He did not accept that disclosure of the identifying information of the clinician was exempt or that the instruction documents were non-existent. [1] External review no. 310696[2] The clinician’s name was not recorded on any of the documents.[3] External review number 310877.[4] On 1 June 2011 for the first access application and on 29 August 2011 for the second access application. [5] Following enquiries from the applicant as to whether the signature is legible, HQCC submitted that the clinician’s identity can be reasonably identified by inputting the signature into the Australian Health Practitioner Regulation Agency’s register of medical practitioners in Queensland. I accept this submission and consider that the signature does identify the clinician. [6]The applicant has questioned if the resume identifies the clinician. HQCC submitted, in their decision dated 16 November 2011, ‘The clinician’s resume would disclose the identity of the clinician given the various positions the clinician has held in professional associations, colleges and university. Having knowledge of these positions and the date these positions were held, a simple internet search would reveal the identity of the clinician.’ I accept this submission and consider that the resume does identify the clinician.[7] The applicant made a number of submissions on the public interest factors favouring disclosure of the identifying information of the clinician. As I have decided that the identifying information of the clinician is exempt from disclosure, I have not considered the applicant’s submissions on the public interest in this decision. [8] As to the correctness of this approach, see Boorman v Office of the Information Commissioner, Department of Communities, [2012] QCAT at 15. [9] Sections 47(3)(e) and 52 of the RTI Act.[10] Section 52(1)(a) of the RTI Act.[11] (Unreported, Queensland Information Commissioner, 9 February 2009). Although PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld), the requirements of that section are replicated in section 52 of the RTI Act. [12] In the internal review decision dated 16 November 2011. [13] In an email dated 28 August 2012. [14] The Queensland Information Commissioner identified these requirements in B and Brisbane North Regional Health Authority [1994] QICmr 1 (B and BNRHA) in applying the equivalent exemption under the repealed Freedom of Information Act 1992 (Qld). See also Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) and Another [1987] FCA 266; (1987) 14 FCR 434 (Corrs Pavey) at 437 per Gummow J. The recent decision of TS008G and Queensland Health (Unreported, Queensland Information Commissioner, 13 December 2011) confirmed the requirement of detriment in RTI cases. [15] B and BNRHA at paragraphs 60-63.[16] B and BNRHA at paragraph 43; Callejo at paragraph 139. [17] B and BNRHA.[18] B and BNRHA at paragraph 84.[19] Dean, R., (1990) The Law of Trade Secrets, Law Book Company, pp. 177-8.[20] This submission is linked to the applicant’s previous submissions in the first external review relating to whether disclosure of the identifying information of the clinician would, on balance, be contrary to the public interest. As this is not considered in this decision, not all of the applicant’s submission is relevant.

queensland

court_judgement

Queensland Information Commissioner 1993-

P6Y4SX and Department of Police [2012] QICmr 9 (2 February 2012)

P6Y4SX and Department of Police [2012] QICmr 9 (2 February 2012) Last Updated: 28 May 2013 Decision and Reasons for Decision Application Number: 310654 Applicant: P6Y4SX Respondent: Department of Police Decision Date: 31 January 2012 Catchwords: INFORMATION PRIVACY ACT – REFUSAL OF ACCESS – applicant sought access to a police report concerning stalking allegations made against him from the Queensland Police Service – Queensland Police Service had determined that the allegations were unfounded – whether disclosing 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) Contents REASONS FOR DECISION Summary The applicant applied to the Queensland Police Service (QPS) for access to a police report and all of the complainant’s submitted evidence, including a CD, arising out of stalking allegations made against the applicant. The police report indicated that the applicant was accused of stalking and raping[1] the complainant, however, the police investigation concluded that ‘no offence has occurred’. QPS released parts of the police report but refused access to 19 pages in full and 9 pages in part as well as the CD on the basis that disclosing this information would, on balance, be contrary to the public interest under section 47(3)(b) of the Right to Information Act 2009 (Qld) (RTI Act). As QPS concluded the allegations were unfounded, the applicant submits that he should have access to all of the information surrounding those allegations. In particular, the applicant expresses concern about the effect the allegations have had on his and his wife’s wellbeing and contends that he hasn’t had a chance to clear his name and requires access to the information in issue to do so. Having considered the applicant’s submissions and the relevant law, I am satisfied that there is a strong public interest in the applicant accessing his personal information as well as in protecting the privacy of the complainant (in relation to a significant portion of the information in issue) and other individuals. However, I consider that the public interest in protecting the free flow of information to QPS from members of the community is sufficiently strong as to tip the balance in favour of nondisclosure. Accordingly, I am satisfied that QPS was entitled to refuse access to the information in issue on the basis that its disclosure would, on balance, be contrary to the public interest. Background Significant procedural steps relating to the external review application are set out in the Appendix. Information in Issue On external review QPS agreed to release to the applicant a small amount of additional information.[2] Further, in a letter dated 7 August 2011 the applicant indicated that he did not require access to a letter he sent to QPS. The additional information released by QPS and the applicant’s letter are no longer in issue in this review. The information remaining in issue is a CD and 27 pages[3] comprising a police report, witness statement, draft witness statement, QPS file note and correspondence sent by the complainant to QPS. Reviewable decision The decision under review is QPS’s decision dated 9 May 2011 to refuse the applicant access to the information in issue. 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 the Information Privacy Act 2009 (Qld) (IP Act), a person has a right to be given access to documents of an agency to the extent they contain that person’s personal information.[4] However, this right is subject to other provisions of the IP Act including the grounds on which an agency may refuse access to documents.[5] Relevantly, access may be refused where disclosure would, on balance, be contrary to the public interest.[6] What is the public interest? 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. How is the balance of the public interest determined? 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:[7] 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 Where does the balance of the public interest lie in this matter? I am satisfied that disclosing the information in issue would, on balance, be contrary to the public interest for the reasons that follow. 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. I consider that there are a number of factors favouring disclosure and nondisclosure in this case. I discuss these and their relative weight below. QPS accountability There is a clear public interest in ensuring that agencies such as QPS are accountable for the conduct of their investigations.[8] However, in this instance, the information disclosed to the applicant evidences the investigation processes undertaken by QPS and disclosing the information remaining in issue would not significantly advance this public interest consideration. In any event, the investigation has been finalised and no action taken against the applicant. Accordingly, this public interest factor favouring disclosure should be afforded minimal weight. Personal information and privacy 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.[9] As some of the information in issue refers to the applicant and includes statements and information about the applicant, this factor is relevant.[10] In submissions to the Office of the Information Commissioner (OIC) throughout this review the applicant has conveyed the extremely detrimental impact dealing with the allegations and their aftermath has had on both he and his wife. Understandably, the applicant has made impassioned requests to ‘know’ all that has been said against him. Given the nature of the information in issue and the extent to which it concerns the applicant, I consider that this factor favouring disclosure warrants significant weight. Whilst much of the information in issue comprises the applicant’s personal information, the information is also the personal information of the complainant as well as a small amount of other individuals’ personal information. Consequently, in a practical sense, it is not possible to separate the applicant’s personal information from that of the complainant and other individuals. Therefore, the relevant privacy interests of the complainant (and any other factor favouring nondisclosure) must be balanced against this factor favouring disclosure. The RTI Act provides that it is reasonable to expect that disclosing an individual’s personal information to someone other than that individual will cause a public interest harm.[11] Information an individual provides to a law enforcement agency such as QPS about a matter they seek to have investigated is that individual’s personal information. On this basis it is reasonable to expect that disclosing the information in issue to the applicant will cause a public interest harm. It is therefore relevant to consider the extent of that harm. In this instance the harm is reflected in the intrusion into the complainant’s privacy. If disclosing information could reasonably be expected to prejudice the protection of an individual’s right to privacy a public interest factor favouring nondisclosure will arise and it will also be relevant to consider the weight of this factor.[12] The applicant contends that he already knows the complainant’s name, date of birth and address details.[13] Information provided to the applicant indicates that he has viewed parts of the CD. Further, the substance of the allegations made against the applicant was put to him for his response as part of the police investigation process. Where information is already known to an applicant, this potentially reduces (though does not negate) the privacy interest attaching to the information. Therefore, to the extent that the applicant already knows specific aspects of the information in issue, the public interest in protecting the complainant’s privacy is significantly diminished. This is not the case in relation to information which is not known to the applicant. In raising issues of concern with QPS the complainant has provided information of a private nature relating to their personal experience. I am satisfied that disclosing the information in issue could reasonably be expected to prejudice the complainant’s privacy and the privacy of other individuals. The extent of the intrusion, and therefore the anticipated harm is considerably lowered in respect of information which is already known to the applicant, however, this harm remains significant and the public interest factor warrants substantial weight in relation to information not already known to the applicant. Administration of justice If disclosing information could reasonably be expected to contribute to the administration of justice for a person or generally, including procedural fairness, it is relevant to consider these public interest factors favouring disclosure.[14] The applicant indicates that he is particularly concerned to know all of the allegations made against him.[15] He also contends that he needs to respond to the allegations and clear his name, stating ‘the stigma will always be there till I get my name cleared through the courts.’ QPS officers interviewed the applicant in relation to the allegations. No further action was taken and the investigation was finalised because, as stated in the police report, ‘evidence indicates offence did not occur’ and the ‘matter [was] unfounded’. Having considered the information already disclosed to the applicant, I am satisfied the applicant has also been made aware of the substance of the allegations made against him. No procedural fairness issues arise because the applicant had an opportunity to refute the allegations through the police investigation process, which ultimately lead to the matter being finalised. As QPS determined that no offence occurred, the matter did not proceed to charges being laid and being heard before a court. The applicant has not been named in a criminal matter as generally occurs when such matters proceed to court. In any event, he has already been cleared of any wrongdoing through the preliminary investigation process. There is simply no case for the applicant to answer because QPS concluded there was no substance to the claims and therefore this factor favouring disclosure does not arise in this case. The applicant also indicates that he requires all of the information in issue for his solicitors, stating:[16] We want to take legal proceedings against [the complainant] for making these false and malicious allegations against me, for [the complainant] invading our privacy by photographing/videoing us at will and hopefully stop [the complainant] from doing the same thing to someone else... In Willsford and Brisbane City Council[17] 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.[18] The applicant has not specified the particular remedies being considered by his solicitors. I note though that under section 10.21 of the Police Service Administration Act 1990 (Qld) (PSA Act), it is an offence to knowingly make a false representation to QPS, which leads to an investigation. Further, in Australia there is neither a constitutional right to privacy nor is there a generally recognised legal cause of action of ‘unjustified invasion of privacy’, although the possibility of one has not necessarily been excluded and Justice Skoien in Grosse v Purvis[19] formed the view that there was such an actionable right. In this matter it is possible that the first two requirements identified in Willsford are met, though this is not the case in relation to the third requirement. In respect of the claim of making false allegations to QPS, accessing the information in issue would not assist the applicant to pursue a remedy because the applicant is able to, and I understand, has already, taken this matter up with QPS. Similarly, in relation to the privacy matter, the applicant’s concerns are specific and he is already in a position to convey his concerns to his solicitor for consideration as to relevant causes of action. Further, I do not consider there is any basis on which to conclude that having access to the information in issue is necessary for the applicant to commence any relevant legal action. In view of the above, I am satisfied that this public interest factor does not arise here. In any event, if it did, the weight attributable to it would be minimal. Information not contained in the information in issue The applicant also expresses concern that information he expected to be detailed in the police report wasn’t mentioned, including QPS’s conclusion about CCTV cameras and the applicant’s concerns regarding the contents of the CD. The right of access conferred by the IP Act is a key mechanism for enabling citizens to access Queensland government information. The right of access is however, subject to other provisions of the Act and confined to information in documents that exist on the day the access application is received.[20] I accept that the QPS report does not contain information which the applicant wants to know. However agencies are not obliged to create new documents to satisfy an applicant’s request for particular information. In processing the access application QPS was only required to locate and determine whether to give access to documents relevant to the application existing at the time the application was made. That those documents do not contain all of the information anticipated by the applicant is not a relevant consideration here. Prejudice the flow of information If disclosing information could reasonably be expected to prejudice the flow of information to the police, a public interest factor favouring nondisclosure arises.[21] The applicant acknowledges the significance of this public interest factor favouring nondisclosure. However, he expresses concern that a person can make false allegations to QPS and the accused cannot access the identity and statements of the complainant through RTI legislation.[22] As I have already indicated, QPS in this instance found the allegations were unfounded. Nonetheless, that the applicant was the subject of such allegations has had a very negative effect on the health and wellbeing of the applicant and his wife. Any person wrongly accused of a serious crime may, understandably, experience a sense of unfairness and injustice in being unable to know the identity and statements of their accuser. This is a difficult issue which has received judicial consideration, both in Australia and elsewhere. In McEniery and Medical Board of Queensland (McEniery), the Information Commissioner noted that there is no unqualified principle under the common law in Australia that entitles an accused to know their accuser, due to the public policy in protecting the free flow of information to police.[23] I am satisfied the same public policy considerations arise in relation to balancing the public interest in this review. In McEniery the Information Commissioner acknowledged that the public policy considerations underlying the rule are arguably insensitive to the plight of the person who is falsely accused and that such conduct has ‘severe and unwarranted consequences for the person improperly informed against’ and ‘occasions a waste of scarce public resources’.[24] In McEniery the Information Commissioner noted that these unfortunate consequences must be tolerated where informants genuinely, but mistakenly, believe that a person requires investigation by the relevant authorities.[25] He also acknowledged that the effect of the weight afforded to the public policy considerations protecting this type of information provides a shield of anonymity for those who knowingly make false allegations to police and regulatory authorities, noting though that relevant legislation, including section 10.21 of the Police Service Administration Act 1990 (Qld), act as a deterrent and afford some means of redress.[26] In this review, as in McEniery, I am not required to determine, and it is not being suggested, that the complainant knowingly made false allegations, as the QPS investigation concluded only that ‘evidence indicates offence did not occur’ and the ‘matter [was] unfounded’. As already explained, 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. Agencies such as QPS rely significantly on information from the public to be alerted to and to pursue breaches of the law. Routinely disclosing the type of information in issue in this review would tend to discourage individuals from coming forward with relevant information and concerns. This in turn would significantly prejudice QPS’s ability to effectively discharge its functions in enforcing the law. I am satisfied that, notwithstanding that the allegations were not substantiated, this public interest factor weighs very heavily against disclosure. Conclusion – balancing the factors In the circumstances of this review I consider there is a strong public interest in the applicant accessing his personal information. Balanced against this, however, is the strong public interest in protecting the privacy of the complainant (in relation to a significant portion of the information in issue) and other individuals as well as the key public interest in protecting the free flow of information to QPS from members of the community. I consider these strong public interest factors favouring nondisclosure tip the balance of the public interest in favour of nondisclosure of all of the information in issue. I am therefore satisfied that disclosing the information in issue would, on balance, be contrary to the public interest. DECISION For the reasons set out above, I affirm the decision under review by finding that disclosure of the information in issue 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. ________________________ Suzette Jefferies Assistant Information Commissioner Date: 31 January 2012 APPENDIX Significant procedural steps Date[27] Event 30 March 2011[28] The applicant applied to QPS for access to a police report and all submitted evidence, including a CD, arising out of stalking allegations made against him. 9 May 2011 QPS issued a decision to the applicant (access decision). 2 June 2011[29] The applicant applied to the OIC for external review of the access decision. 9 June 2011 OIC informed QPS and the applicant that the external review application had been accepted for review. 13 July 2011 OIC conveyed an oral preliminary assessment to the applicant. 26 July 2011 OIC issued a written preliminary assessment to the applicant. 7 August 2011 The applicant provided submissions to OIC. 19 September 2011 The applicant provided submissions to OIC. 8 November 2011 The applicant provided submissions to OIC. 22 November 2011 The applicant provided submissions to OIC. 5 December 2011 The applicant provided submissions to OIC. 14 December 2011 OIC issued a preliminary view to the applicant. 16 December 2011 The applicant provided submissions to OIC. 4 January 2012 The applicant provided submissions to OIC. 24 January 2012 In response to a request from OIC, QPS agreed to release the additional information identified in paragraph 7 above. [1] QPS subsequently confirmed in an email to the applicant that there had been a misunderstanding and no allegations of rape had been made.[2] This release was consistent with QPS’s decision. [3] 19 pages in full and 8 pages in part. [4] Section 40 of the IP Act.[5] Section 67 of the IP Act – access may be refused in the same way and to the same extent as under section 47 of the RTI Act. [6] Section 47(3)(b) of the RTI Act. [7] Section 49(3) of the RTI Act. [8] Schedule 4, part 2, item 1 of the RTI Act. [9] Schedule 4, part 2, item 7 of the RTI Act[10] 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.[11] Schedule 4, part 4, section 6 of the RTI Act. [12] Schedule 4, part 3, item 3 of the RTI Act. [13] Submissions dated 4 January 2012.[14] Schedule 4, part 2, item 16 and 17 of the RTI Act. [15] Submissions dated 4 January 2012.[16] Submissions dated 16 December 2011. [17] Willsford and Brisbane City Council (Unreported, Queensland Information Commissioner, 27 August 1996) (Willsford). [18] Willsford at paragraph 17. [19] Grosse v Purvis [2003] QDC 151; (2003) Aust Torts Reports 81-706. [20] Sections 40 and 47 of the IP Act.[21] Schedule 4, part 3, item 13 of the RTI Act. [22] Submissions dated 4 January 2012. [23] McEniery and Medical Board of Queensland (Unreported, Queensland Information Commissioner, 28 February 1994). This decision considered section 42(1)(b) of the now repealed Freedom of Information Act 1992 (Qld), which provides that matter 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, [24] McEniery at paragraph 62. [25] McEniery at paragraph 62.[26] McEniery at paragraph 62.[27] Of correspondence or relevant communication unless otherwise stated. [28] Access application dated 28 March 2011 received by QPS.[29] External review application dated 1 June 2011 received by OIC.

queensland

court_judgement

Queensland Information Commissioner 1993-

Sheridan and South Burnett Regional Council; Dalby Regional Council; Local Government Association of Queensland, Inc. Crime and Misconduct Commission (Third Party) [2009] QICmr 26 (9 April 2009)

Sheridan and South Burnett Regional Council; Dalby Regional Council; Local Government Association of Queensland, Inc. Crime and Misconduct Commission (Third Party) [2009] QICmr 26 (9 April 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210201, 210238, 210285 and 210286 Applicant: Ms L Sheridan Respondents: South Burnett Regional Council Local Government Association of Queensland Inc. Dalby Regional Council Third Party: Crime and Misconduct Commission Decision Date: 9 April 2009 Catchwords: FREEDOM OF INFORMATION – section 42(1)(ca) of the Freedom of Information Act 1992 – matter relating to law enforcement or public safety – whether disclosure of the matter in issue could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation FREEDOM OF INFORMATION – section 29(4) of the Freedom of Information Act 1992 – refusal to deal with application – agency’s or Minister’s functions – refusal to deal with the application without having identified any or all of the documents Contents REASONS FOR DECISION.................................................................................................. 4 Summary............................................................................................................................... 4 Background............................................................................................................................ 4 • Employment................................................................................................................ 5 • Grievance.................................................................................................................... 5 • Australian Industrial Relations Commission proceedings.......................................... 6 • Complaint to the Crime and Misconduct Commission............................................... 6 • Termination of the applicant’s employment................................................................ 6 • Further AIRC proceedings.......................................................................................... 6 • Supreme Court proceedings....................................................................................... 6 • Application of Local Government Workcare............................................................... 7 • Sheridan and South Burnett Regional Council........................................................... 7 • External review 210201............................................................................................... 7 • External review 210238............................................................................................... 8 • External review 210285............................................................................................... 8 • External review 210286............................................................................................... 8 Decisions under review........................................................................................................ 9 Steps taken in the external review process.......................................................................... 9 • External review 210201............................................................................................... 9 • External review 210238............................................................................................... 12 • External review 210285............................................................................................... 14 • External review 210286............................................................................................... 14 Steps taken in relation to the question of the application of section 42(1)(ca) of the FOI Act in external reviews 210201, 210238, 210285 and 210286............................................. 15 Issue for determination......................................................................................................... 17 Matter in issue....................................................................................................................... 17 • External review 210201............................................................................................... 17 • External review 210238............................................................................................... 18 • External review 210285............................................................................................... 20 • External review 210286............................................................................................... 20 The law................................................................................................................................. 20 • Section 42(1)(ca) of the FOI Act................................................................................. 20 • Legislative history of section 42(1)(ca) of the FOI Act................................................ 20 • Interpretation of section 42(1)(ca) of the FOI Act........................................................ 21 o ‘Could reasonably be expected to’..................................................................... 24 o ‘Harassment’...................................................................................................... 25 o ‘Intimidation’....................................................................................................... 25 o ‘A serious act of harassment or intimidation’.................................................... 26 • How relevant information is considered...................................................................... 26 Submissions and relevant information................................................................................. 27 • Submissions by the respondent agencies.................................................................. 27 • Information provided by Mr Gray................................................................................. 28 • Information contained on Bunya Watch...................................................................... 29 • Information from the report on A Current Affair........................................................... 32 • Information from other agencies................................................................................. 32 • Other information........................................................................................................ 32 • The applicant’s submissions...................................................................................... 32 o Submissions by the respondent agencies........................................................ 33 o Information provided to the Office by Mr Gray................................................... 34 o Involvement in the alleged incidents.................................................................. 35 o Bunya Watch..................................................................................................... 37 o FOI applications................................................................................................. 38 o Likely effect of disclosure.................................................................................. 41 Findings................................................................................................................................ 42 • Serious acts of harassment and intimidation............................................................. 46 o Threatening phone call and act of physical violence......................................... 46 o Bunya Watch postings...................................................................................... 46 o FOI applications................................................................................................. 48 • Could disclosure of the Matter in Issue reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation?................... 54 o Nature of the Matter in Issue and likely effect of disclosure.............................. 54 o Past conduct...................................................................................................... 56 o Nature of the relationship between the parties.................................................. 56 • Sufficiency of search................................................................................................... 57 DECISION............................................................................................................................. 58 REASONS FOR DECISION Summary 1. For the reasons set out below, I have decided: • the remaining matter in issue in each of these reviews qualifies for exemption from disclosure under section 42(1)(ca) of the Freedom of Information Act 1992 (FOI Act) • to refuse to deal with the sufficiency of search issues under section 29(4) of the FOI Act, on the basis that it appears that any further documents responsive to the freedom of information (FOI) applications qualify for exemption under section 42(1)(ca) of the FOI Act. Background 2. The Office of the Information Commissioner (the Office) has eight associated external review applications on foot from the applicant and Ms Susan Scott, one of the applicant’s supporters. The Office has finalised six other associated external review applications.[1] 3. The applicant is represented by Ms Susan Moriarty of Susan Moriarty & Associates (and previously of Kerin & Co). The applicant’s submissions as referred to in this decision have been made by Ms Moriarty on behalf of her client. 4. This decision primarily concerns the application of section 42(1)(ca) of the FOI Act in the following external reviews involving the applicant: External review Respondent agency 210201 the former Nanango Shire Council (NSC) (now South Burnett Regional Council) 210238 the Local Government Association of Queensland Inc. (LGAQ) 210285 the former Dalby Town Council (DTC) (now Dalby Regional Council) 210286 the former Wambo Shire Council (WSC) (now Dalby Regional Council) 5. NSC did not specifically submit that section 42(1)(ca) applied to the matter in issue in external review 210201. Such submissions however were received in relation to the other three external reviews. 6. These four external review applications had been substantially dealt with to date. However, based on submissions received and a review of the eight external review applications currently before the Office as a whole, it was appropriate to consider the application of section 42(1)(ca) of the FOI Act in the applicant’s four external reviews. 7. The procedures to be followed on external review are within the discretion of the Information Commissioner. Proceedings are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the FOI Act and a proper consideration of the matters before the Information Commissioner permit. The Information Commissioner is not bound by the rules of evidence and may inform himself or herself on any matter in any way the Information Commissioner considers appropriate.[2] 8. Section 88(1)(b) of the FOI Act provides that in the conduct of a review, the Information Commissioner has power to decide any matter in relation to the application that could have been decided by an agency or Minister under the FOI Act. The Information Commissioner must also take into account relevant considerations which arise during the investigation and review of a decision. 9. In conducting a review the Information Commissioner is required to adopt procedures that are fair having regard to her obligations under the FOI Act and to ensure that each participant in the review has an opportunity to present their views. To this end the applicant was provided with a very detailed preliminary view which set out the factors that would be taken into account in any decision and affording the applicant an opportunity to make submissions in relation to the matters the Information Commissioner might rely upon and any other information/evidence the applicant thought might be relevant to any decision. 10. At the request of the Office, Mr Shane Gray, the former Chief Executive Officer (CEO) of NSC provided written and oral submissions to the Office in relation to his concerns about the release of documents to the applicant and Ms Scott under the FOI Act. Employment 11. The applicant was employed by NSC and worked in the library. Her employment was terminated in 2006. 12. Mr Gray was the CEO of NSC for part of the time that the applicant was employed by NSC and when her employment was terminated. Mr Gray is no longer the CEO of NSC. Grievance 13. On 12 August 2005 the applicant lodged a grievance with NSC in relation to a colleague (Grievance). 14. On 7 September 2005 NSC retained Assure Corporate to provide conflict management services to assist in the resolution of the Grievance. 15. In September 2005 Mr Jacklin of Assure Corporate interviewed the relevant members of staff in relation to the Grievance and issued a report which suggested a number of options for resolution, including mediation. 16. On 5 December 2005 the applicant was relocated from the library to the Visitor Information Centre. 17. In January 2006 NSC employed a Library Co-ordinator, Ms Val Hooper, and the applicant returned to work in the library. Australian Industrial Relations Commission proceedings 18. On 3 February 2006 the applicant’s solicitor filed a Notification of Alleged Industrial Dispute in the Australian Industrial Relations Commission (AIRC) on behalf of her client which related to a number of issues relating to NSC officers. 19. On 8 February 2006 a conciliation conference was held for the AIRC dispute with Commissioner Spencer. The proceedings were adjourned so that NSC could determine whether an alternative position could be created for the applicant. Mediation was to occur if an alternative position could not be created. 20. NSC determined that an alternative position could not be created and sought to have the matter referred to mediation. The applicant did not accept NSC’s request for a multilateral mediation. 21. NSC claimed that the applicant failed to keep information about the dispute and the conciliation conference confidential. On 16 March 2006 a letter from NSC addressed to the applicant’s solicitor was delivered to the applicant’s house requesting that the applicant and her solicitor ensure that the information was not published or made public. 22. On 17 March 2006 an article about the applicant and her employment with NSC was published in the South Burnett Times. 23. On 17 March 2006 Ms Crumpton and Mr Gray allegedly received threats with reference to the applicant. Complaint to the Crime and Misconduct Commission 24. On 17 March 2006 the applicant’s solicitor made a complaint on behalf of the applicant to the Crime and Misconduct Commission (CMC) about the conduct of Mr Gray and Mr Mercer relating to the delivery of a letter to the applicant’s house on 16 March 2006 (CMC Complaint). Termination of the applicant’s employment 25. On 24 March 2006 the applicant’s employment with NSC was terminated (Termination). Further AIRC proceedings 26. On 11 April 2006 the applicant’s solicitor filed an Application for Relief in respect of the Termination with the AIRC on behalf of the applicant. The matter was listed for hearing before Commissioner Bacon and settled informally. Supreme Court proceedings 27. On 22 August 2006 the applicant’s solicitor filed an application for judicial review in the Supreme Court of Queensland on behalf of the applicant. The application related to the referral by the CMC of the CMC Complaint to the Mayor of NSC. 28. In December 2006 the application for judicial review was heard in the Supreme Court before Justice Douglas. A declaration was made that the referral of the CMC Complaint to the Mayor of NSC was ineffective on the ground that the Mayor was not a relevant public official within in the meaning of the Crime and Misconduct Act 2001. An order was also made that the CMC and LGAQ pay part of the applicant’s costs. 29. On 8 February 2007 the CMC advised that it had determined that no further action was warranted by the CMC or any other body in relation to the CMC Complaint. Application to Local Government Workcare 30. The applicant lodged two applications with Local Government Workcare for compensation for an injury arising out of her employment with NSC. In her applications, the applicant alleged that: • she had developed a psychological condition following an accumulation of stress associated with her work colleagues and upper management who she maintained had been harassing and bullying her over a period of time • her condition had been exacerbated by the delivery of the letter to her house and the Termination. 31. Local Government Workcare rejected both applications. 32. The applicant appealed to QComp in relation to one of the applications. QComp decided to refuse the applicant compensation. 33. The matter was heard in the Magistrates Court of Queensland. On 7 November 2008 Magistrate Ehrich dismissed the applicant’s appeal with costs. 34. The applicant appealed Magistrate Ehrich’s decision. Sheridan and South Burnett Regional Council 35. I refer to the decision of Sheridan and South Burnett Regional Council[3] in external review 210240 in which the applicant was a participant. 36. I note that the decision considers the application of section 42(1)(ca) of the FOI Act to the specific matter in issue in that review. The First Assistant Commissioner decided that disclosure of the matter in issue in that review could not reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation. 37. The decision was based on the specific matter in issue and the particular submissions made by the parties in that review. At that time, there was insufficient evidence available to the First Assistant Commissioner to support the application of section 42(1)(ca) of the FOI Act. However, in the course of progressing the eight other external reviews involving the applicant and Ms Scott and obtaining more detailed submissions from Mr Gray at the request of the Office, consideration has now been given to these reviews as a whole. External review 210201 38. By letter dated 30 May 2006 the applicant’s solicitor applied to NSC for access under the FOI Act to 54 categories of documents on behalf of the applicant. 39. NSC did not issue a decision within the timeframe provided by the FOI Act and was taken to have refused the applicant access to the requested documents.[4] 40. By letter dated 4 April 2007 the applicant’s solicitor applied for external review of NSC’s deemed decision on behalf of the applicant. External review 210238 41. By letter dated 22 March 2007 the applicant’s solicitor applied to LGAQ for access to a range of documents under the FOI Act on behalf of the applicant. 42. By letter dated 28 May 2007 LGAQ issued a considered decision[5] and advised the applicant’s solicitor that: • it had agreed to release a number of documents to the applicant • it had decided to refuse the applicant access to some documents under various provisions of the FOI Act (including section 42(1)(ca) of the FOI Act) • some documents the applicant requested did not exist. 43. By letter dated 8 June 2007 the applicant’s solicitor applied for external review of LGAQ’s considered decision on behalf of the applicant. External review 210285 44. By an undated letter faxed to DTC on 25 March 2007 the applicant’s solicitor applied for access under the FOI Act to documents which essentially comprise Mr Gray’s personnel file on behalf of the applicant. 45. By letter dated 29 May 2007 DTC issued a considered decision[6] and advised the applicant’s solicitor that: • in accordance with section 35 of the FOI Act, DTC neither confirms nor denies the existence of the requested documents but if they did exist, they would be exempt documents • the FOI application relates to documentation that would include exempt matter under section 42(1)(ca) of the FOI Act. 46. By letter dated 7 June 2007 the applicant’s solicitor applied for internal review of the considered decision on behalf of the applicant. 47. By letter dated 4 July 2007 DTC affirmed the considered decision. 48. By letter dated 25 July 2007 the applicant’s solicitor applied for external review of the internal review decision on behalf of the applicant. External review 210286 49. By letter dated 23 March 2007 the applicant’s solicitor applied to WSC for access under the FOI Act to documents which essentially comprise Mr Gray’s personnel file on behalf of the applicant. 50. By letter dated 25 May 2007 WSC issued a considered decision[7] and advised the applicant’s solicitor that: • in accordance with section 35 of the FOI Act, WSC neither confirms nor denies the existence of the requested documents but if they did exist, they would be exempt documents • the FOI application relates to documentation that would include exempt matter under section 42(1)(ca) of the FOI Act. 51. By letter dated 7 June 2007 the applicant’s solicitor applied for internal review of the considered decision on behalf of the applicant. 52. By letter dated 20 June 2007 WSC affirmed the considered decision. 53. By letter dated 25 July 2007 the applicant’s solicitor applied for external review of the internal review decision on behalf of the applicant. Decisions under review 54. The following decisions are under review: • the deemed decision of NSC in external review 210201 • the considered decision of LGAQ dated 28 May 2007 in external review 210238 • the internal review decision of DTC dated 4 July 2007 in external review 210285 • the internal review decision of WSC dated 20 June 2007 in external review 210286. Steps taken in the external review process External review 210201 55. By email dated 10 April 2007 the Office requested that NSC provide certain initiating documents relevant to the review. 56. By letter dated 13 April 2007 NSC provided the relevant initiating documents. 57. By letter dated 13 April 2007 the First Assistant Commissioner requested that NSC advise whether it was prepared to grant the applicant access to the requested documents and, if not, to provide submissions outlining the reasons for refusing access under the FOI Act. 58. By letter dated 18 April 2007 NSC provided the Office and the applicant with a copy of its submissions dated 17 April 2007 setting out whether it was prepared to grant the applicant access to the requested documents. 59. By letter dated 9 May 2007 the First Assistant Commissioner advised the applicant’s solicitor that NSC’s deemed decision would be reviewed and invited the applicant’s solicitor to provide any submissions in support of the applicant’s case. 60. By letter dated 9 May 2007 the First Assistant Commissioner advised NSC that its deemed decision would be reviewed and asked it to provide a copy of the documents to which it intended to refuse access. 61. By letter dated 15 May 2007 the applicant’s solicitor provided submissions and documentation in support of the applicant’s case. 62. By letter dated 22 May 2007 the applicant’s solicitor was invited to provide further submissions and evidence in support of the applicant’s case in relation to the sufficiency of search issues she had raised. 63. By letter dated 23 May 2007 NSC provided the Office with a copy of the documents to which it intended to refuse access. 64. By letter dated 6 June 2007 the applicant’s solicitor provided submissions in support of the applicant’s case. 65. By letters dated 19 November 2007 the Acting Information Commissioner provided a preliminary view to a number of individuals. The individuals were invited to participate in the external review and to make submissions if they wished to object to release of the relevant information. 66. By letter dated 19 November 2007 the Acting Information Commissioner also provided a preliminary view to NSC and invited it to provide submissions in support of its case if it did not accept the preliminary view. NSC was also asked to provide submissions in relation to some of the sufficiency of search issues the applicant had raised. 67. On 27 November 2007 one of the individuals spoke with a staff member of the Office by telephone and advised that she accepted the preliminary view and did not object to disclosure of the relevant information. The other third parties did not respond to the preliminary view letter. 68. By letter dated 30 January 2008 NSC provided submissions in response to the preliminary view. 69. On 12 February 2008 a staff member of the Office contacted NSC to clarify certain aspects of its submissions. 70. By letter dated 4 March 2008 the Acting Information Commissioner provided a further preliminary view to NSC and requested further submissions in relation to some aspects of the external review. 71. On 5 March 2008 a staff member of the Office contacted NSC to clarify other parts of its submissions. 72. By letter dated 7 March 2008 the Acting Information Commissioner wrote to Livingstones Australia (Livingstones) (who were engaged by NSC in relation to the Termination) and requested information relevant to this review. 73. By letter dated 20 March 2008 Livingstones provided the requested information. 74. On 27 March 2008 and 17 April 2008 a staff member of the Office made enquiries with the AIRC registry in relation to the information provided by Livingstones. 75. By letter dated 25 March 2008 NSC provided further information relevant to the review. 76. By letter dated 4 April 2008 the Acting Information Commissioner made further enquiries with the AIRC in relation to the information provided by Livingstones. 77. By letter dated 16 April 2008 the AIRC provided the requested information to the Office. 78. By letter dated 28 April 2008 the First Assistant Commissioner provided a preliminary view to Livingstones (and NSC) in relation to a certain aspect of this review. Livingstones (and/or NSC) was invited to provide submissions in support of its case if it did not accept the preliminary view. 79. By letter dated 19 May 2008 Livingstones advised that NSC did not wish to contest the preliminary view. 80. By letter dated 30 May 2008 the First Assistant Commissioner provided a preliminary view to the applicant’s solicitor and invited her to provide submissions in support of the applicant’s case if she did not accept the preliminary view. 81. By letters dated 12 June 2008 and 18 June 2008 the applicant’s solicitor responded to the preliminary view and provided submissions in support of the applicant’s case. 82. On 24 June 2008 and 26 June 2008 a staff member of the Office made enquiries with NSC in relation to some of the applicant’s submissions. 83. By letter dated 3 July 2008 the First Assistant Commissioner asked NSC to provide further information in relation to the matters raised in the applicant’s submissions. 84. By letter dated 3 July 2008 the First Assistant Commissioner asked the applicant’s solicitor to provide further information in relation to some of the applicant’s submissions. 85. By letter dated 4 July 2008 the applicant’s solicitor provided the requested information and documentation. 86. By letter dated 22 July 2008 NSC provided further submissions in support of its case. 87. On 19 August 2008 a staff member of the Office spoke to a NSC officer to confirm some of NSC’s submissions. 88. By letter dated 25 August 2008 NSC provided further submissions to the Office in support of its case. 89. By letter dated 3 September 2008 the Acting Assistant Commissioner provided the applicant’s solicitor with a preliminary view in relation to several items of the FOI application. The applicant’s solicitor was invited to provide submissions in support of the applicant’s case if she did not accept the preliminary view. The applicant’s solicitor was advised that if the Office did not hear from her by 18 September 2008, the Office would assume that the applicant had accepted the preliminary view. 90. By letter dated 18 September 2008 the applicant’s solicitor provided submissions in support of the applicant’s case in response to the preliminary view. 91. By letter dated 20 November 2008 the applicant was asked to confirm whether, in view of the stated purpose of the applicant’s external review application, the applicant wished to proceed with external review 210201. 92. By letter dated 20 November 2008 the applicant’s solicitor advised that the applicant wished to proceed with external review 210201. External review 210238 93. By letter dated 15 June 2007 the Office advised the applicant’s solicitor that LGAQ’s considered decision would be reviewed. 94. By letter dated 15 June 2007 the Office advised LGAQ that the considered decision would be reviewed and asked it to provide a number of documents relevant to the review, including the matter claimed to be exempt. 95. By letters dated 26 November 2007 and 27 November 2007 the requested documents were provided to the Office by LGAQ and LGAQ’s solicitors, King & Company. 96. On 4 February 2008 a staff member of the Office telephoned LGAQ to make enquiries about certain aspects of the considered decision. 97. By email on 5 February 2008 the Office made further enquiries with LGAQ in relation to the considered decision. 98. By email on 13 February 2008 LGAQ clarified parts of its considered decision and provided submissions to the Office. 99. In a telephone call on 15 February 2008 with a staff member of the Office, LGAQ clarified submissions made in the email dated 13 February 2008. 100. On 27 March 2008 a staff member of the Office made enquiries with the CMC in relation to certain aspects of the external review. 101. By letter dated 27 March 2008 the CMC provided information relevant to the external review, including a copy of a letter from the CMC to Kerin & Co dated 8 February 2007 advising the outcome of the applicant’s CMC Complaint. 102. By email dated 27 March 2008 the Office requested that LGAQ provide further documents and information in relation to part of the considered decision. 103. By letter dated 7 April 2008 the Acting Information Commissioner wrote to the applicant’s solicitor to clarify the basis of the applicant’s external review application and to seek further submissions in relation to certain aspects of the considered decision. 104. By letter dated 14 April 2008 LGAQ provided the documents and information as requested. 105. By email on 16 April 2008 the applicant’s solicitor requested an extension of time to provide the Office with submissions in support of the applicant’s case. 106. By email on 17 April 2008 the applicant’s solicitor was granted an extension of time to provide submissions. 107. By letter dated 24 April 2008 the First Assistant Commissioner provided LGAQ with a preliminary view in relation to certain aspects of the external review. LGAQ was invited to provide submissions to the Office by no later than 9 May 2008 if it did not accept the preliminary view. 108. By letters dated 24 April 2008 and 28 April 2008 the First Assistant Commissioner consulted with the CMC and various individuals in relation to certain aspects of the external review. The CMC and the individuals were invited to participate in the external review and to make additional submissions if they wished to object to release of the relevant information. 109. On 30 April 2008 one of those individuals contacted a staff member of the Office by telephone and advised that, in the circumstances, he did not object to release of the relevant information in accordance with the letter. 110. By letter dated 1 May 2008 the CMC advised that it wished to participate in the external review and did not object to the relevant information being released. 111. By letter dated 1 May 2008 the applicant’s solicitor provided submissions and documentation in support of the applicant’s case in response to the preliminary view. 112. By letter dated 20 May 2008 LGAQ advised that it did not accept parts of the preliminary view dated 24 April 2008 and provided submissions in support of its case. 113. By letter dated 23 May 2008 the First Assistant Commissioner communicated a further preliminary view to LGAQ and requested further submissions. LGAQ was invited to provide submissions to the Office if it did not accept the further preliminary view. 114. By letter dated 23 May 2008 the First Assistant Commissioner communicated a preliminary view to the applicant’s solicitor in relation to certain aspects of the external review. The applicant’s solicitor was invited to provide submissions in support of the applicant’s case if the applicant did not accept the preliminary view. 115. By letter dated 6 June 2008 the applicant’s solicitor advised that the applicant did not accept parts of the preliminary view and provided submissions and documentation in support of the applicant’s case. 116. By letter dated 11 June 2008 LGAQ advised the Office that it did not accept parts of the further preliminary view and provided submissions in support of its case. 117. By letter dated 12 June 2008 the First Assistant Commissioner provided the applicant’s solicitor with a preliminary view in relation to other aspects of the external review. The applicant’s solicitor was invited to provide submissions in support of the applicant’s case if the applicant did not accept the preliminary view. 118. On 13 June 2008 a staff member of the Office spoke with a staff member of the CMC to determine whether the CMC objected to the release of part of the matter in issue. That staff member advised that the CMC did not object to release of that information under the FOI Act. 119. By letter dated 23 June 2008 the applicant’s solicitor advised that the applicant did not accept part of the preliminary view and provided submissions in support of the applicant’s case. 120. By letter dated 29 July 2008 the Acting Assistant Commissioner provided the applicant’s solicitor with a preliminary view in relation to an aspect of the external review. The applicant’s solicitor was invited to provide submissions in support of the applicant’s case if the applicant did not accept the preliminary view. The Acting Assistant Commissioner advised the applicant’s solicitor that, unless she indicated otherwise by 12 August 2008, the Office would assume that the applicant accepted the preliminary view. 121. The applicant’s solicitor did not respond to the preliminary view letter dated 29 July 2008 and therefore it was assumed that the applicant accepted the preliminary view on that issue. 122. By letter dated 20 November 2008 the applicant’s solicitor was asked to confirm whether, in view of the stated purpose of the applicant’s external review application, the applicant wished to proceed with external review 210238. 123. By letter dated 20 November 2008 the applicant’s solicitor advised that the applicant wished to proceed with external review 210238. External review 210285 124. By letter dated 25 July 2007 the Office advised the applicant’s solicitor that DTC’s internal review decision would be reviewed. 125. By letter dated 25 July 2007 the Office advised DTC that the internal review decision would be reviewed and asked it to provide submissions in support of its decision. 126. By letter dated 15 August 2007 DTC provided the requested submissions. 127. By letter dated 7 November 2007 the Office asked DTC to forward a copy of the matter in issue to the Office. 128. By letter dated 22 November 2007 DTC provided the requested documents. 129. On 29 October 2008 a staff member of the Office telephoned DTC. DTC withdrew its claim under section 35 of the FOI Act but maintained its claim that the matter in issue is exempt from disclosure in its entirety under section 42(1)(ca) of the FOI Act. 130. By letter dated 29 October 2008 DTC provided a copy of Mr Gray’s submissions. 131. By letter dated 20 November 2008 the applicant’s solicitor was asked to confirm whether, in view of the stated purpose of the applicant’s external review application, the applicant wished to proceed with external review 210285. 132. By letter dated 20 November 2008 the applicant’s solicitor advised that the applicant wished to proceed with external review 210285. External review 210286 133. By letter dated 27 July 2007 the Office advised the applicant’s solicitor that WSC’s internal review decision would be reviewed. 134. By letter dated 27 July 2007 the Office advised WSC that the internal review decision would be reviewed and asked it to provide submissions in support of its decision. 135. By letter dated 8 August 2007 WSC provided the requested submissions. 136. By letter dated 7 November 2007 the Office asked WSC to forward a copy of the matter in issue to the Office. 137. By letter dated 19 November 2007 WSC provided the requested documents. 138. On 29 October 2008 a staff member of the Office telephoned WSC. WSC withdrew its claim under section 35 of the FOI Act but maintained its claim that the matter in issue is exempt from disclosure in its entirety under section 42(1)(ca) of the FOI Act. 139. By letter dated 20 November 2008 the applicant’s solicitor was asked to confirm whether, in view of the stated purpose of the applicant’s external review application, the applicant wished to proceed with external review 210286. 140. By letter dated 20 November 2008 the applicant’s solicitor advised that the applicant wished to proceed with external review 210286. Steps taken in relation to the question of the application of section 42(1)(ca) of the FOI Act in external reviews 210201, 210238, 210285 and 210286 141. By email on 23 October 2008 NSC provided the Office with a copy of a further FOI application made by Ms Scott. 142. On 27 October 2008 a staff member of the Office telephoned a staff member of NSC to confirm certain background events relevant to this review. 143. On 20 November 2008 a staff member of the Office telephoned Mr Gray to: • clarify submissions he had made to the Office in a previous external review involving the applicant • seek his permission to refer to those submissions in relation to external reviews 210201, 210238, 210285 and 210286 • invite him to provide further submissions in support of his concerns. Mr Gray provided submissions in support of his concerns during that telephone conversation. 144. On 4 December 2008 and at the request of the Office, Mr Gray met with the Acting Assistant Commissioner and another staff member of the Office. Mr Gray provided more detail on the previous submissions he had made to the Office. 145. On 17 December 2008 Mr Gray provided the Office with documents in support of his submissions to the Office. 146. By letter dated 19 December 2008 the applicant’s solicitor was provided with a preliminary view in relation to the application of section 42(1)(ca) of the FOI Act in external reviews 210201, 210238, 210285 and 210286. The preliminary view included the following attachments: • written submissions made by LGAQ, DTC and WSC • written submissions made by Mr Gray • examples of the applicant and people claiming to be her supporters having used public notices and the media to publicise their grievances with Mr Gray • print-outs from the website www.bunyawatch.com (Bunya Watch) • FOI applications made to various agencies. The applicant’s solicitor was afforded an opportunity to provide submissions in support of the applicant’s case by 19 January 2009 if the applicant did not accept the preliminary view. 147. By letter dated 7 January 2009 the applicant’s solicitor requested an extension of time to provide submissions in support of the applicant’s case. 148. By letter dated 12 January 2009 the applicant’s solicitor was given an extension of time in which to provide submissions. 149. By letter dated 27 February 2009 the applicant’s solicitor provided submissions in response to the preliminary view and various documents in support of the applicant’s case. 150. By email on 12 March 2009 NSC provided the Office with a copy of the decision dated 12 November 2008 which was issued to Ms Susan Scott in response to her recent FOI application to NSC (which is not subject to external review at this time). 151. On 18 March 2009 NSC provided the Office with a copy of the report broadcast on A Current Affair relating to the Termination. 152. By letter dated 18 March 2009 the Office wrote to the applicant’s solicitor and invited her to provide further submissions on behalf of her client in relation to two issues relevant to the reviews. 153. On 23 March 2009 a staff member of the Office telephoned Mr Gray to clarify certain information he had provided to this Office. 154. On 23 March 200, a staff member of the Office made enquiries with the CMC in relation to a previous FOI application by the applicant. 155. On 25 March 2009 a staff member of this Office made further enquiries with NSC in relation to information Mr Gray provided to the Office. 156. By letter dated 26 March 2009 the applicant’s solicitor provided further submissions and supporting documentation in support of her client’s case. 157. On 27 March 2009, NSC provided further information relevant to these reviews. 158. The following material was taken into account in making this decision: • the applicant’s FOI applications dated 30 May 2006,[8] 22 March 2007[9] and 23 March 2007[10] and the undated FOI application faxed to DTC on 25 March 2008[11] • the considered decision of LGAQ dated 28 May 2007,[12] the internal review decision of DTC dated 4 July 2007[13] and the internal review decision of WSC dated 20 June 2007[14] and the submissions made by NSC by letter dated 17 April 2007[15] • the correspondence and submissions provided to the Office by the respondent agencies throughout the course of the external reviews • file notes of conversations between staff members of the Office and the respondent agencies • the correspondence, submissions and supporting documents provided to the Office by the applicant’s solicitor throughout the course of the external reviews, including her submissions dated 27 February 2009 and 26 March 2009 • information provided by individuals consulted in relation to release of documents to the applicant throughout the course of the reviews • the submissions provided to the Office by Mr Gray throughout the course of the external reviews and supporting documents (including the submissions provided to the Office by Mr Gray in external review 210240 as referred to in the decision of Sheridan and South Burnett Regional Council[16]) • file notes of conversations between staff members of the Office and Mr Gray • the four associated external review applications before the Office made by Ms Scott • examples of the applicant and people claiming to be her supporters having used public notices and the media to publicise their grievances with Mr Gray • print-outs from Bunya Watch referred to in this decision • the report from A Current Affair relating to the Termination • the information provided by the CMC and the former Murgon Shire Council (MSC) (now South Burnett Regional Council) • the various FOI applications made by the applicant and other associated people • the matter in issue • relevant case law and previous decisions of the Information Commissioner • relevant provisions of the FOI Act. Issue for determination 159. In light of all the associated external review applications, a threshold question to be answered in these external reviews is whether disclosure of the matter in issue in these reviews could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation. Matter in issue 160. The remaining matter in issue in these reviews (Matter in Issue) is set out below. External review 210201 161. In external review 210201, the remaining Matter in Issue in relation to the refusal of access issues is: Item Document/s sought In relation to Shane Gray: 3 [Shane Gray’s] contract of employment as CEO for NSC 5 Shane Gray’s delegations as CEO, including financial delegations 9 letters of complaint concerning the library dating from November 2005 In relation to Michael Hunter: 1 [Michael Hunter’s] resume 2 references supporting his application for (re)employment with the NSC 5 documents in respect of the incident filed by Julie Sheehan 6 [Michael Hunter’s] performance reviews In relation to Iris Crumpton: 1 all contracts of employment in respect of her employment with the library including her recent appointment to 5 days per week 4 [Iris Crumpton’s] resume In relation to Kathy Cope: 1 the memo [Kathy Cope] wrote to all Council staff requesting their signature to a public notice supporting the CEO published in April 2006 2 documented responses, or emails relating to the memo 162. In external review 210201, the remaining Matter in Issue in relation to the sufficiency of search issues relates to the following items of the FOI application: Item Document/s sought In relation to Shane Gray: 1 [Shane Gray’s] application for the position of CEO, NSC 4 [Shane Gray’s] resume 6 letters/memos to the ASU in respect of Leigh Sheridan’s grievance and employment 7 letters/memos to and from Assure Corporate in respect of Leigh Sheridan’s grievance, including the Jacklin report 8 all memos to and from the Mayor in respect of Leigh Sheridan’s employment, grievance and proposed termination 12 staff meeting minutes in respect of the termination of Leigh Sheridan’s employment 16 all documentation relating to verbal reports made to Council about Leigh Sheridan at Council meetings 19 internal memos, emails or documentation sent from Shane Gray to all and/or any Councillors concerning Leigh Sheridan 20 Shane Gray’s performance reviews 21 emails sent to Shane Gray from nscnanango@yahoo.com 22 emails sent to Mr Gray by Audrey Sampson and Iris Crumpton relating to Leigh Sheridan, Shane Gray’s responses thereto 23 documentation of Council’s authorisation to Shane Gray to use a solicitor to sue Nola Boddington 24 tax invoices from Edge Wood Solicitors 30 all documents, emails, memos and briefings sent to and from the Mayor in relation to Leigh Sheridan In relation to Michael Hunter: 3 briefings and memos to the CEO and/or the Mayor and to Council in respect of Mr Hunter’s complaint to police alleging malicious damage to his property circa 12/13 December 2005 7 emails sent to Michael Hunter from Audrey Sampson and Iris Crumpton regarding Leigh Sheridan, his responses thereto 8 emails sent to Michael Hunter from nscnanango@yahoo.com In relation to Iris Crumpton: 2 [Mrs Crumpton’s] traineeship In relation to Kathy Cope: 3 the tax invoice in respect of the public notice 4 payment details and the receipt in respect of the payment of the public notice External review 210238 163. In relation to external review 210238, the remaining Matter in Issue in relation to the refusal of access issues is: Item Document/s sought 8 letter from LGAQ to the CMC dated 4 April 2007 10 draft investigation report by Gabrielle Walsh dated August 2006 164. In external review 210238, the remaining Matter in Issue in relation to the sufficiency of search issues relates to the following items of the FOI application: Item Document/s sought 2 investigation plan relating to the complaint lodged by Leigh Sheridan on 17 March 2006 3 file notes relating to Leigh Sheridan and NSC 4 running sheet/log of the investigation 9 copy of all documentation including correspondence (letters, emails, faxes, verbal reports) to Local Government Workcare in relation to Leigh Sheridan 12 copies of the minutes of meetings attended by LGAQ Liaison Officer held by the CMC in 2005, 2006 and 2007 External review 210285 165. The remaining Matter in Issue in relation to the refusal of access issues is 231 pages (essentially comprising Mr Gray’s personnel file) External review 210286 166. The remaining Matter in Issue in relation to the refusal of access issues is 112 pages (essentially comprising Mr Gray’s personnel file). The law Section 42(1)(ca) of the FOI Act 167. Section 42(1)(ca) of the FOI Act provides: [17] 42 Matter relating to law enforcement or public safety (1) Matter is exempt if its disclosure could reasonably be expected to— ... (ca) result in a person being subjected to a serious act of harassment or intimidation. Legislative history of section 42(1)(ca) of the FOI Act 168. Section 42(1)(ca) of the FOI Act is a relatively new exemption provision inserted into the FOI Act by the Freedom of Information and Other Legislation Amendment Act 2005 with commencement on 31 May 2005. There is no equivalent provision in other Australian jurisdictions, the United Kingdom or Canada, interpretation of which might provide guidance regarding the provision. 169. Section 42(1)(ca) of the FOI Act was enacted in response to Report No 32 of the Legal, Constitutional and Administrative Review Committee (LCARC Report).[18] 170. The LCARC Report referred to section 42(1)(c) of the FOI Act and noted that:[19] 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. 171. The LCARC Report also stated:[20] 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. 172. The LCARC Report contained the following recommendation:[21] 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. 173. In the explanatory notes to the Freedom of Information and Other Legislation Amendment Bill, section 42(1)(ca) of the FOI Act was described as follows:[22] Clause 24 amends section 42 to create a new exemption to prevent disclosure where it is reasonably expected that such disclosure could subject a person to serious acts of harassment or intimidation. Such harassment or intimidation would be a consequence of, for example, the applicant having knowledge of the content of the information or of the provider of the information. For example, potential disclosure of information provided by a victim about the offence, upon the application of an offender, could constitute harassment or intimidation. Harassment or intimidation includes, for example, the threat of violence. This implements LCARC finding 177. Interpretation of section 42(1)(ca) of the FOI Act 174. 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). 175. Consistent with Parliament’s intention expressed in section 4(6) of the FOI Act, section 42(1)(ca) of the FOI Act must be interpreted in a way that best achieves the purpose of the FOI Act[23] 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.[24] 176. Section 4(1) of the FOI Act recognises that the community has a right to access information held by the Queensland government. However, sections 4(2)-(5) of the FOI Act provide that the right of access to documents under the FOI Act is subject to a balancing of competing public interests. Accordingly, section 42(1)(ca) should be interpreted in a way that extends as far as possible the right of the community to access information held by agencies whilst recognising that section 42(1)(ca) is one of the limited exceptions that may apply because disclosure ‘could be contrary to the public interest’ as it ‘would have a prejudicial effect’ on ‘essential public interests’ or on ‘the private or business affairs of members of the community about whom information is collected and held by government.’ 177. Accordingly, in interpreting section 42(1)(ca) of the FOI Act it is necessary to consider any ‘essential public interests’ and ‘private or business interests’ that, absent the provision, may be prejudiced by disclosure of documents through the right of access under section 21 of the FOI Act. 178. The LCARC Report specifically addresses the public interest in ensuring that people are not deterred from providing information to investigative authorities and similarly, that professionals are not deterred from providing full and frank reports to agencies through concern that disclosure could lead to serious harassment or intimidation.[25] The Committee agreed that potential harm to an individual justifies non-disclosure. 179. In addition to the public interests identified by LCARC, section 42(1)(ca) also works to protect the public interest in disclosure not having a prejudicial effect on the private or business affairs or individuals. 180. Though the term ‘personal affairs’ appears throughout the FOI Act, the term ‘private affairs’ does not otherwise appear. 181. In ABC v Lenah Game Meats Pty Ltd[26] 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. 182. In accordance with section 4(6) of the FOI Act, section 42(1)(ca) of the FOI Act may be interpreted as a limited exception to the right of access which allows non-disclosure of information or professional advice provided to an agency where that disclosure could reasonably be expected to result in serious harassment or intimidation of person/s. Such disclosure would therefore be contrary to the public interest in the supply of this information as well as the public interest in protecting such individuals from conduct that would prejudice their private affairs. 183. Section 42(1)(ca) of the FOI Act must be interpreted in the context of the FOI Act as a whole. 184. Paragraph (ca) was inserted into subsection 42(1) of the FOI Act by an amending Act which also inserted section 96A into the FOI Act. 185. Under section 96A of the FOI Act, the Information Commissioner may declare a person a vexatious applicant if the Commissioner is satisfied that the person has made repeated applications under the FOI Act and those applications ‘involve an abuse of the right of access, amendment or review’ under the FOI Act. Section 96A(4) gives an example of conduct which amounts to an abuse of the right of access, amendment or review: For subsection (3)(b), repeated applications involve an abuse of the right of access, amendment or review if, for example, the applications were made for the purpose, or have had the effect, of – (a) harassing or intimidating an individual or an employee or employees of the agency or agencies; or (b) unreasonably interfering with the operations of the agency or agencies. 186. Considered together, the amending provisions in relation to sections 96A and 42(1)(ca) reflect Parliament’s intent to limit, prevent or terminate access applications which are improper or amount to abuse of the rights conferred under the FOI Act. 187. In considering the FOI Act as a whole, the following observations can be made about the operation of section 42(1)(ca): a) The conduct contemplated in section 42(1)(ca) is more ‘serious’ than some conduct that may be contemplated by section 96A(3)(b). b) Some degree of harassment or intimidation is contemplated as permissible before the right to access documents under the FOI Act is removed. c) The subjective purpose of the applicant is not a relevant consideration. d) Section 42(1)(ca) may apply in respect of a single access application, that is, neither the application nor the applicant need be characterised as vexatious for the provision to apply. e) Under section 42(1)(ca) the exemption may be available where it is reasonably expected that disclosure will result in a single serious act of harassment rather than ‘repeated attacks’ or ‘persistent disturbances’ which may be a requirement under section 96A of the FOI Act. 188. There are no definitions of the words or phrases contained in section 42(1)(ca) in either the FOI Act or the Acts Interpretation Act 1954. Therefore, in accordance with the rules of statutory interpretation, this decision gives effect to the ordinary meaning of those words, except where there is relevant interpretation. ‘Could reasonably be expected to’ 189. In Attorney-General v Cockcroft,[27] (Cockcroft) which dealt with the interpretation of the phrase ‘could reasonably be expected to prejudice the future supply of information’ in the context of the section 43(1)(c)(ii) (business affairs) exemption contained in the Commonwealth FOI Act, Bowen CJ and Beaumont J said:[28] 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). 190. The Justices’ interpretation of the phrase ‘could reasonably be expected to’ and the proposed line of inquiry, while made in the context of the business affairs exemption contained in Commonwealth FOI legislation, is relevant in the context of the exemption contained in section 42(1)(ca) of the FOI Act. 191. Accordingly, the phrase ‘could reasonably be expected to’ in this context requires a consideration of whether the expectation that disclosure of the Matter in Issue could result in a serious act of harassment or intimidation is reasonably based. 192. 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.[29] 193. Depending on the circumstances of the particular review, a range of factors may be relevant in determining whether an act could reasonably be expected to occur. These factors may include, but are not limited to: • past conduct or a pattern of previous conduct • the nature of the relevant matter in issue • the nature of the relationship between the parties and/or third parties • relevant contextual and/or cultural factors. ‘Harassment’ 194. The plain meaning of the word ‘harass’, as defined in the Macquarie Dictionary[30] includes: to trouble by repeated attacks, ... to disturb persistently; torment ‘Intimidation’ 195. The plain meaning of the word ‘intimidate’,[31] 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’ 196. Section 42(1)(ca) of the FOI Act requires that an anticipated act of harassment or intimidation be serious. 197. The plain meaning of the word ‘serious’,[32] includes: giving cause for apprehension; critical and in the New Shorter Oxford Dictionary (4th Edition) includes: having (potentially) important, esp. undesired, consequences; giving cause for concern. 198. As I have noted above, the definition of ‘harassment’ refers to persistent or repeated conduct. However, I consider that section 42(1)(ca) of the FOI Act can apply where what is expected to result from disclosure is a single act of serious harassment and it is not necessary for me to consider whether disclosure of the Matter in Issue could reasonably be expected to result in more than one act of serious harassment. 199. Therefore, I am satisfied that a ‘serious act of harassment’ in the context of section 42(1)(ca) of the FOI Act means an action that attacks, disturbs or torments a person and that causes concern or apprehension or has undesired consequences. 200. Accordingly, • Acts which induce fear or force a person into some action by inducing fear or apprehension are acts of intimidation. • Acts of intimidation which have undesired consequences or cause concern and/or apprehension are serious acts of intimidation. • Acts which persistently trouble, disturb or torment a person are acts of harassment. • Acts of harassment which have undesired consequences or cause concern and/or apprehension are serious acts of harassment. How relevant information is considered 201. The question of whether disclosing the Matter in Issue in these reviews could reasonably be expected to result in a serious act of harassment or intimidation should be considered objectively, in light of all relevant information, including information from and/or about the claimed source of harassment or intimidation.[33] 202. Section 42(1)(ca) of the FOI Act does not require a causal link to be drawn between a specific person and the conduct; nor does it require the conduct to be that of the applicant. Submissions and relevant information Submissions by the respondent agencies 203. The submissions made by LGAQ, DTC and WTC to the Office in relation to the application of section 42(1)(ca) of the FOI Act can be summarised as follows: • The potential risk to the ongoing welfare of employees of NSC outweighs the subjective assessment adopted by the Office of the evidence and whether the risk is real or perceived, its potential for harm to their health and safety rests in the minds of the employees (not the Office). • The release of certain information that might lead to harassment has the potential to cause unnecessary stress and anxiety to NSC employees. The relevant employees have not sought to be involved in this matter but have been forced to endure this matter as a result of their being asked to contribute to the good governance of NSC through their participation in an investigation. • LGAQ refers to the following as the evidence it relies on to support its claim for exemption: o statements by Mr Gray in relation to the assault which was reported to police and the ongoing harassment he has endured in relation to this matter o the report on the alleged threat supplied by the acting librarian o the continuing campaign in the media and electronically against NSC representatives o reported damage to public property. • Anyone who was seen to be involved in any activity that might be seen as detrimental to the applicant was personally targeted. • LGAQ contends that the person who is subject to the behaviour is best positioned to determine whether the threat to their safety is serious or trivial as that person has to live and work in that particular environment and different people have different tolerance levels for such matters. • Care must be taken by any third party in determining whether a threat to another person should be constituted as serious or not, as it is not the assessor who has to live with the result and is not in a position to assess the culture, tolerance or behavioural standards that apply in any particular but remote environment. 204. LGAQ is of the view that the behaviour listed above cannot be construed any way other than as an intention to intimidate. 205. In its submissions dated 15 August 2007, DTC states that: Mr Gray detailed a long history of the applicant’s nuisance actions and behaviours that he stated had led to his decision to relocate his family from Nanango ... in an effort to improve their personal safety and wellbeing. Specific alleged actions and behaviours of the applicant and her supporters towards Mr Gray and his staff at Nanango Shire Council include: • A threat made against Mr Gray’s children with reference to the applicant from an unknown caller • Repeated telephone calls from the applicant and her supporters • Damage to individual’s property involved in the issue • Persistent innuendo and defamation in relation to Mr Gray and his staff published on a public discussion page hosted on the www.bunyawatch.com website. • Numerous formal and informal requests from the applicant, her solicitor and supporters to view files held by Nanango Shire Council, Mr Gray, all staff involved in the applicant’s employment as well as the previous employers of Mr Gray and his staff • Numerous challenges and/or FOI’s lodged on behalf of the applicant in relation to decisions by CMC, QIRC, AIRC, LGAQ, QCOMP and LGW. Information provided by Mr Gray 206. In telephone conversations with a staff member of the Office and in a meeting with two staff members of the Office on 4 December 2008, Mr Gray provided submissions which can be summarised as follows. a) Mr Gray relocated his family from Nanango shortly after the Termination purely because of the incidents associated with the Termination. b) The incidents have caused significant stress to him and his family and have impacted on his personal financial circumstances and career. c) After the Termination, people were driving past his residence at night and yelling obscenities relating to the applicant. This continued for around two or three months. d) On at least one occasion, Mr Gray was followed by a supporter of the applicant while driving his car and, in the context of the other incidents, this made him feel anxious. e) Mr Gray received around half a dozen phone calls on his work mobile phone and home phone between the hours of midnight and 3am. Mr Gray’s work mobile phone number was not publicly available. All of those phone calls made reference to the applicant. One of the callers said something like ‘You’ll get what you deserve for what you did to Leigh Sheridan’. Mr Gray started receiving these calls around one or two months after the Termination and he received more calls after any significant decision was made relating to the applicant. Mr Gray reported a number of these calls to police. f) Around the time of the Termination, Mr Gray received a phone call from an anonymous caller while at work. The caller made a threat against Mr Gray’s children with reference to the applicant. Mr Gray reported the matter to the police. g) The applicant and a number of people claiming to be her supporters appeared on A Current Affair and discussed the Termination and Mr Gray. h) Approximately six to eight weeks after the Termination, Mr Gray was shoulder charged by a man in the street in the presence of his children. The man made an obscene comment to Mr Gray’s children about Mr Gray with reference to the applicant. Mr Gray had never seen the man before. i) Mr Gray has observed that staff of NSC have become visibly upset during the processing of the FOI applications relating to the applicant and in the context of the circumstances described above. Mr Gray remains concerned for the emotional well being of some NSC employees as a result of the incidents surrounding the Termination. j) Damage was done to NSC wheelie bins located around 200 metres from the applicant’s residence around the time of the CMC Complaint. The wheelie bins had offensive comments written on each face including the lid (in the form of homosexual slurs) using the names of two NSC employees who were involved in the CMC Complaint. k) Other NSC officers have received threatening phone calls and some have taken periods of stress leave as a result of the incidents surrounding the Termination. l) When information is released to the applicant or people claiming to be her supporters, the information is used to make new FOI applications. There have been numerous FOI applications made to NSC seeking information in relation to Mr Gray, including seeking information from his previous employers. m) Since the Termination, each year on his birthday, Ms Scott has sent a card to Mr Gray expressing a sentiment to the effect that she wishes him ‘all he deserves’. Mr Gray considers the cards are linked with the applicant (for example one card has a picture of a frog on the cover and the frog is a common theme related to the applicant). Ms Scott’s name and address are written on the back of the envelopes. 207. Mr Gray also provided submissions in external review 210240 (which are set out in the decision Sheridan and South Burnett Regional Council).[34] With those submissions, Mr Gray provided: • examples of the applicant and people claiming to be her supporters having used public notices and the media to publicise their grievances with him • print-outs from Bunya Watch. Information contained on Bunya Watch 208. The applicant describes Bunya Watch as: [35] ... an environmental action site. The Mission Statement of Bunya Watch is “showing the world what is really happening in the South Burnett and the Bunya Mountains area”. To date the site has had 97 661 visitors. The “Bunya Chatter” page has a number of topics that are discussed and includes comments on matters involving the former Nanango Shire Council and the current South Burnett Regional Council (SBRC). The issues discussed are mainly environmental, social and political...’ 209. An anonymous posting on Bunya Watch from 11 April 2007 states in part: i have been asked by Leigh to let you all know she hasn’t given up ... she has asked that bunyawatchers stick with her. Also she needs help to keep the pressure on. Don’t be afraid to call the mongrels that did this to her. night time is best. especially the ceo. 210. A further undated posting from ‘observer’ states: Keep up the FOI’s and phone calls as it is starting to get to them. Leigh will have her day and it will serve them right. 211. A posting titled ‘Re: Freedom of Information Mockery in NSC’ by an anonymous person on 21 April 2007 provides: i have an idea, lets call a public meeting, get dorothy pratt to chair it and ask tarong, feedlotowners, council and bunyawatchers including susan, leigh, pam, godbee, newson ....to debate the whole us versus them conspiracy theory ... i for one would like to hear all about the knowledge of the bunyawatchers as they destroy the credibility of the bastards ... 212. The following postings on Bunya Watch are examples of people claiming to be the applicant’s supporters using threatening language to publicly discuss their negative views of Mr Gray and other employees of NSC: • An undated posting: What would you do?? You trained someone and that person then stabbed you in the back, and pressed until you were fired, simply because they wanted your job?? Lucky Nanango has a water shortage, otherwise some concrete boots may be on the shopping list! • An undated posting from ‘Darling Jim’ about Michael Hunter: I believe that he is known in some circles as “The Weed”. Suits him. Needs spraying. • A posting dated 15 January 2007 from ‘a sad ratepayer’: Mr Gray, if you are so well liked and confident of your position, a true test would be for you to throw open your door and invite those to your abode to discuss their concerns. Only joking, as if the people of Nanango Shire knew where you hide in Kingaroy, they would storm your front lawn like the US marines did at Omaha beach and we all know what happened there. 213. In a number of postings on Bunya Watch, people claiming to be the applicant’s supporters use insulting language to publicly discuss their negative views of Mr Gray and other employees of NSC by, for example, comparing Mr Gray to Adolf Hitler[36] and referring to NSC employees as ‘mongrels’,[37] ‘wankers’,[38] ‘dickheads’,[39] ‘despicable creatures’,[40] and ‘bastards’.[41] 214. The following postings on Bunya Watch are examples of people claiming to be the applicant’s supporters using insulting and derogatory language to publicly discuss their negative views of Mr Gray and other employees of NSC: • A posting on 8 January 2007 from ‘ex library user’: ... Iris, the pathetic and jealous person who had a “history” with the ceo while they were both still at Murgon Council (along with the other slime weed) Micheal Hunter... • A posting on 11 January 2007 from ‘Hijau’: Yeah Leigh, give it a go. I’d love to see the look on scumbag-gray’s face when you told him his contract is not being re-newed because of his attitude and unprofessionalism, Maybe you could flush out a few more of the bludgers as well... • A posting on 14 January 2007 from ‘Darling Jim’: Couldn’t agree more about snivelling suckhold iris. My God it’s sickening to watch. Dump her gray or she will drag you down. But then that might be a good thing, afterall! • A posting on 15 January 2007 from ‘Darling Jim’: Does that mean Michael (slimebag) Hunter would walk out too? Or should I say “ooze out”. That I would have to see. What a pathetic slithery little piece of crap he is. • A posting from 18 January 2007 from ‘A Hole’: It seems Iris is being blamed for the demise of Leigh Sheridan. Are you sure it was all Iris and she wasn’t under instructions from the ceo. If you can’t find Iris in the library I have heard she can be found in an Adult Shop. Is she picking up a bucket supply of ky jelly for the ceo so he can shaft us. Obviously for-play is not his forte. As appearances go you would swear he was a rock-ape. Sorry animal lovers. • An anonymous posting from 18 January 2007: ky jelly and iris hmmm is it true she enjoys sex parties? could this be rumor no ? for capt canary • A posting on 19 January 2007 from ‘Hijau’: And WHAT is going on here now at Nanango? Even an arrogant airheaded wanker like gray must realise that iris is a liability to him. Hope she drags him down with her! We would be ecstatic to be rid of the pair of them. “Go, in God’s name go and let us be rid of the lot of your perfidious works” (Oliver Cromwell 1650). • A posting on 17 April 2007 from ‘Pam’: ... What a disgraceful clown Reg was-IS. ... By the by, has anyone checked out the size of the CEO lately? He looks like a bloated, ugly toad. When did he become so hideous? The corruption from within is obvious without. • A posting on 18 April 2007 from ‘Darling Jim’: That’s because he IS a fat ugly toad, wrong, make that a hideous toad. Are they blaming Leigh for all this? No? It’s a wonder. About time we had a cleanout. Get rid of: 1) the clown (reg) 2) the hideous, never wrong toad (s gray) 3) the fool (m hunter) 4) the half-wit (iris) 5) & other assorted arse lickers in (as some-one said) bullying castle. Start fresh with GOOD & HONEST people who have the welfare of their ratepayers at heart. Can we? WILL we? soon! • An undated posting from ‘Hijau’: You are the one who should grow up, mr/mrs/ms head-in-sand council a-licker. The case of Mrs Sheridan can be summed up thus: 1) someone wanted her job (which I believe she was very good at). 2) they and others within the nsc bullied and harassed her for over a year. 3) when she complained (as was her right and within council’s policy) she was sacked. Where is the truth and justice in that? I believe that you are probably a nsc plant or one of the bullies or their friends. Remember this “The mills of God grind slowly but they grind exceedingly fine” Information from the report on A Current Affair 215. A report was televised on the current affairs program A Current Affair after the Termination. The applicant, the applicant’s solicitor and a number of people claiming to be supporters of the applicant were interviewed for the report. 216. The report indicated that Ms Scott and three other individuals who claim to be supporters of the applicant had started a petition for Mr Gray to be sacked. Information from other agencies 217. By letters dated 22 March 2007, the applicant made FOI applications to the CMC and MSC. 218. The CMC issued a decision to the applicant dated 11 July 2007 and deferred access to parts of the requested documents. The CMC has advised the Office that the applicant did not request the documents to which access was deferred at the completion of the process. 219. The FOI application to MSC was subject to external review.[42] On 23 June 2008, the Office issued a decision to the applicant and decided that a number of documents were not exempt under the FOI Act and were to be released to the applicant. By letter dated 23 June 2008, the applicant’s solicitor was advised to contact MSC to make arrangements to access the documents to be released. The Office has been advised that the applicant has not collected those documents. Other information 220. Of concern is that at least one other probative source of information has not been prepared to participate and be identified in these external review proceedings because of fear of further serious acts of harassment and intimidation from people claiming to be the applicant’s supporters. The applicant’s submissions 221. By letter dated 27 February 2009 the applicant’s solicitor provided submissions and supporting documents in response to the preliminary view letter dated 19 December 2008 on behalf of the applicant. I have summarised those submissions for convenience under a number of sub-headings and address them below. Submissions by the respondent agencies 222. The applicant was provided with a copy of the submissions made by the respondent agencies in relation to section 42(1)(ca) of the FOI Act. These are summarised at paragraphs 203 - 205 above. 223. In relation to the submissions made by LGAQ, the applicant submits:[43] • The claims are lacking in particularity thus making it difficult for the applicant to adequately respond and should not be given any weight on external review. • The applicant is unaware of and has not seen any documentation in relation to the assault referred to in the submissions. • Individuals seen to be supportive of the applicant were also targeted and the applicant has provided a statement from one of her supporters for consideration by the Office (although she asks that the statement not be disclosed to other participants in the review as she alleges Mr Gray has previously behaved in a threatening way towards this individual).[44] • LGAQ has made its assessment based on evidence provided by Mr Gray but the evidence is not sufficiently particularised nor is it appended to the submissions. LGAQ have not sought submissions from the applicant and as such the assessment is open to criticism for its basic lack of adherence to any principles of natural justice not to mention its lack of factual basis. • The view of LGAQ appears to be based wholly and solely on the evidence of Mr Gray and the alleged anecdotal assertions made by unknown individuals. At no point has the applicant been asked to provide submissions or rebut any of these allegations that are unparticularised and lacking in substance. 224. In relation to the submissions made by DTC, the applicant submits:[45] • Mr Gray has deliberately lied to prejudice DTC and WSC against her and thus prevent her accessing the documents that she requested. • She did not threaten nor did she arrange to threaten Mr Gray and/or his children. She finds it abhorrent that Mr Gray would have this view of her and appalled that he would make this accusation without even a skerrick of evidence to substantiate his claims. • She has never telephoned Mr Gray and would never consider telephoning Mr Gray. • She is not responsible for the content published on Bunya Watch. • Mr Gray made a number of deliberate misrepresentations and provides, as an example, her belief that Mr Gray in fact moved his family from Nanango prior to the Termination (and not after as he submits). • DTC adopted Mr Gray’s submissions without making enquiries with her, suggesting apprehended bias, if not actual bias on the part of the relevant DTC officer. • The photographs of the wheelie bins that Mr Gray provided to DTC with his submissions are unintelligible. Information provided to the Office by Mr Gray 225. The applicant makes a range of complaints about the information Mr Gray provided to the Office and submits that: • Mr Gray has not provided sufficient evidence to substantiate his baseless, spurious allegations against her and this evidence appears to be hearsay and anecdotal in nature and lacking a factual basis. It would be unlikely to stand up in a court of law[46] and as a result, less weight should be allocated to the information he provided to the Office.[47] • There are grave implications for democracy when career government officers like Mr Gray seek exemption from their responsibilities under the FOI Act by resorting to unsubstantiated allegations, misleading representations and personal pleas made during private interviews with members of the Office.[48] • The applicant asks a series of questions about the evidence provided by Mr Gray and provides examples of the types of evidence that should be obtained by the Office from Mr Gray. For example:[49] In relation to the obscenities allegation, what evidence did Mr Gray provide to your Office to substantiate the allegations against my client? What obscenities were yelled at Mr Gray? Has he got any recordings of these obscenities? Has he kept a log of when these alleged incidents occurred? Has Mr Gray made any complaints to the Police about these alleged incidents? If so my client has not been interviewed by the Kingaroy police. This office has not received any correspondence from Mr Gray in relation to this allegation and this is the first instance that my client has become aware that Mr Gray holds her responsible for these alleged incidents. • It is arguable that the veracity or accuracy of the incidents as described has not been sufficiently tested before it is relied upon to support an adverse finding and the applicant invites me to weigh the submissions very carefully before providing a decision in these reviews.[50] 226. The applicant also makes the following submissions in relation to Mr Gray’s motivation for objecting to disclosure of the Matter in Issue: • Mr Gray has made prejudicial statements to paint the applicant in the worst possible light and prevent her from accessing documents that have been legally requested.[51] • There is something sinister in [the respondent agencies’] collective and identical complaint to your Office. It raises the possibility that Mr Gray has manipulated these agencies in order to advance a grievance against my client’s use of the FOI Act. It suggests that Mr Gray is the author of a studied and deliberate attempt to injure my client’s rights under the FOI Act.[52] • The underlying reason that Mr Gray does not want documents released to the applicant is that he is aware that there is information contained in those documents that would be useful to the applicant in terms of any legal recourse left to her and he has used every possible means at his disposal to avoid providing those documents to the applicant.[53] • Mr Gray is a critical witness in the applicant’s personal injuries action against NSC and a former employee of NSC. He has a powerful interest in ensuring that documents which might embarrass him and NSC are not disclosed. There are a number of important decisions on employer liability which have been determined on the basis of disclosures and admissions set out in documents held by the defendant employer. The Office should be mindful of the motives of organisations seeking to obstruct a citizen’s right to know.[54] Involvement in the alleged incidents 227. In response to the information provided by Mr Gray to the Office, the applicant submits: • The preliminary view provided to the applicant by the Office purports to establish a link between her and the alleged conduct[55] and the Office assumes, prejudicially, that the applicant is guilty of the unsubstantiated incidents of harassment and/or intimidation referred to by Mr Gray, which, she submits, raises a serious apprehension of bias on the part of the Office.[56] • It appears that the applicant has not been afforded natural justice and that the conduct of the Office suggests that the Office has ‘pre-judged’ the applicant’s culpability and finds her guilty of the allegations made against her by Mr Gray.[57] The applicant submits that the preliminary view was based solely on the submissions of the respondent agencies and Mr Gray and did not give any consideration to any submissions she might have wished to make.[58] • That the applicable evidence rule is ‘... that an administrative decision must be based upon logical proof of evidentiary material. Investigators and decision makers should not base their decisions on mere speculation or suspicion. Rather, an investigator or decision maker should be able to clearly point to the evidence on which the inference or determination is based’ [59] • The applicant then submits that in determining whether or not an allegation has been proven in this decision, the finding must be based on logically probative evidence and a higher standard of proof is required, that is, the principle from Briginshaw v Briginshaw.[60] • The applicant refers to the following explanation of the Briginshaw principle:[61] It is relevant to note the standard of proof required to establish dishonesty or professional incompetence on the plaintiff’s part. While the civil standard applies, it has been recognized by the courts that the graver the allegation the greater should be the strictness of proof required, with regard also to the gravity of the consequences flowing from a particular finding. • There is insufficient evidence to demonstrate ‘the causal nexus advocated by the Commissioner’.[62] • It is unfair for the Office to hold the applicant accountable for the actions of others, notwithstanding that those individuals have not been identified nor been provided with an opportunity to respond themselves to the allegations.[63] 228. The applicant also states that she: • did not threaten nor arrange to threaten Mr Gray or his children[64] • has never telephoned Mr Gray and would not consider doing so[65] • is not responsible for any of the content published on Bunya Watch[66] • cannot comment on when Mr Gray relocated from Nanango[67] and believes that he moved his family from Nanango prior to the Termination[68] and suggests it may have been for the purpose of ‘furthering his career in local government foreshadowed by the proposed Council amalgamations’[69] • has not driven past Mr Gray’s residence and does not know where he resides[70] • has never yelled obscenities at Mr Gray and has never encouraged anyone to do so[71] • has never contacted Mr Gray on either his mobile phone or house phone and has never encouraged anyone else to do so[72] (but notes that his mobile phone number is publicly available) • had nothing to do with the alleged act of physical violence[73] • does not own a wheelie bin and considers what other constituents wish to express on their wheelie bins is a matter for them[74] • has never sent Mr Gray a birthday card.[75] 229. The applicant submitted that: • She was interviewed for A Current Affair and was also contacted by a number of other current affairs programs. She states it was a legitimate news story as there was great public interest in the issue of people being arbitrarily sacked after the Howard government brought in its new Workplace legislation. The sacking was published in a variety of media.[76] • She placed a paid public notice in the South Burnett Times thanking people for their support and attempted to have it published in the Country Focus also but the owner refused to publish it.[77] • She made a number of FOI applications, but at all times has adhered to the tenets of the FOI Act.[78] 230. The applicant submits that the experience has caused her significant stress and has impacted on her personal and financial circumstances and her career[79] and notes that she has personal experience of the meaning of the words ‘harassment’ and ‘intimidation’ from her employment at NSC during the period that Mr Gray was CEO.[80] 231. The applicant also states that individuals who were seen to be supportive of her were targeted,[81] although she does not indicate who targeted those individuals. Bunya Watch 232. In relation to the Bunya Watch postings, the applicant submits: • Bunya Watch is neither created, orchestrated, nor moderated by the applicant.[82] • The applicant did not authorise the postings which are referred to in the preliminary view letter and does not know who made them.[83] • The applicant does not consider herself a ‘bunyawatcher’.[84] • Mr Gray has deliberately provided a random selection of uncomplimentary postings from Bunya Watch. He has not included the previous or following postings so the context of the postings is unclear.[85] Mr Gray has not included any postings of a defamatory nature made against other posters of material on Bunya Watch.[86] • The issues discussed on Bunya Watch have placed sections of the community in opposition to NSC. It would seem inevitable that the injustice committed against the applicant by NSC and Mr Gray would attract strong attention from the individuals who watch and post on Bunya Watch. That other individuals choose to do this does not make the applicant responsible for the fact that these individuals are choosing to exercise what they perceive as their right to free speech.[87] • The postings on Bunya Watch are nothing extraordinary and postings of a similar nature can be located on other blog sites. Mr Gray was a public figure and staff members of NSC are public servants. By virtue of their employment with NSC, their actions are the subject of public comment in a variety of media. This is part of the territory of being a public official.[88] The individuals have made postings on Bunya Watch as an exercise in their right to free speech.[89] • One would assume that if Mr Gray found this material to be as offensive and as intimidatory as he claims, he would have instructed his solicitors to email the moderator of Bunya Watch and request the immediate removal of the offending material. Alternatively, Mr Gray had the option of placing a public notice in the paper in relation to same. [90] 233. In relation to the Bunya Watch posting referred to at paragraph 209 above, by letter dated 26 March 2009, the applicant made submissions which can be summarised as follows: • It does not appear that anyone has made a posting agreeing with the contents of the anonymous posting ‘go leigh go’, nor do there appear to be any postings from anyone saying that they have acted on the urgings of the anonymous post. • There is no substance to the contention that the applicant is the author of the post or that she authorised its contents. The applicant denies any knowledge of the author, the post or its contents and has confirmed that she has never telephoned or contacted Mr Gray nor instructed, suggested, incited or conspired with third parties with a view to telephoning or contacting Mr Gray in a way which he would experience as harassing. The applicant is not the author of the anonymous post and does not know who is the anonymous author of the post. FOI applications 234. The applicant makes the following submissions in relation to the FOI applications: • The applicant has had to make repeated FOI applications to attempt to acquire documentation which the agencies in question have refused to supply.[91] • The applicant admits that her FOI applications are detailed and that similar requests have been lodged with other agencies. She also submits that she has requested employment records concerning Mr Gray from his various employers.[92] • In addition to the 23 FOI applications that the Office is aware of, the applicant has also made FOI applications to the State Library of Queensland, the Department of Education, the Endeavour Foundation and WorkCover Qld.[93] • The applicant submits that she is not a vexatious applicant and submits she has had to break her FOI applications down into a series of requests so that the agency in question would process it and not refuse to deal with it under section 29(1) of the FOI Act.[94] 235. The applicant makes the following submissions in relation to her reasons for making the FOI applications: • The applicant does not have an issue with Mr Gray personally. She seeks accountability through the FOI Act for a range of documents relating to decisions and conduct which resulted in the applicant’s dismissal from a position she had held for 15 years. It is her right to do so.[95] • NSC did not comply with the obligation of disclosure in the AIRC proceedings and as a result, the applicant lodged an FOI application to try and obtain the documents in the event that NSC did not disclose them.[96] • The applicant made a number of FOI applications to a number of agencies to attempt to access the documentation necessary for her to explore her legal avenues[97] and she initially wanted the documents to assess their potential as evidence in any possible legal proceedings that she may have recourse to. It is now coming up to the third year and she still does not have the documents that she requested. Her legal options are disappearing.[98] • The applicant has requested employment histories for a number of reasons, amongst them to ascertain whether particular individuals hold the particular qualifications necessary to make managerial decisions. The applicant has also explored the possibility that this has happened to other individuals.[99] The applicant has been trying to discover if Mr Gray is manifesting a pattern of behaviour and the most logical way to ascertain this is to request Mr Gray’s personnel file from his previous employers. That Mr Gray has seen this as harassment is indicative to the applicant that there may be documents in Mr Gray’s personnel file that would support the applicant’s hypothesis.[100] • The applicant also requests these documents for closure, so that she may have some kind of understanding as to how her ‘15 year unblemished career as Council Librarian could have ended in such an undignified and personally shameful manner as her being sacked’. [101] • ‘... at no point have the various FOI applications that have been lodged ... been for the purpose to ‘torment and wear staff of an Agency down’, and quite simply it is ludicrous to think so. Indeed, I am disturbed by the fact that a former high-ranking government officer would offer that interpretation of what can only be described as my client’s attempts to use statutory rights to obtain accountability and explanations from documents held by government.’ [102] 236. The applicant makes allegations about the motivations of NSC staff and Mr Gray in the processing of the FOI applications: • NSC through Shane Gray (as principal FOI officer) has deliberately attempted to prevent the applicant from accessing documents that should be provided by the auspices of the FOI Act.[103] • NSC’s conduct in managing its FOI obligations suggests it holds the Act in contempt.[104] NSC officers have failed to disclose documents under the FOI Act which suggests a policy of active non-compliance adopted by NSC in response to its statutory obligations.[105] • From Mr Gray’s reaction, the applicant can only conclude that there is something in Mr Gray’s personnel file that would support the applicant’s allegations against him.[106] • Not only did the applicant’s FOI applications fail to receive acknowledgment, but the ‘timelines set out under the statute disappeared for months without explanation’.[107] • The first response of the respondent agencies has been to resort to the exemption section of the FOI Act for the express purpose of obstructing, denying, refusing and justifying their concerted non-compliance with the FOI Act.[108] ‘Documents which should ordinarily have been found were said not to exist, or could not be found (not in the care custody or control of Council), or were the private affairs of people who were clearly acting in an official capacity when those documents were generated. In short, these agencies who now seek to exempt themselves from the operation of the Act do so because they disrespect the statutory obligations cast upon them by the State. For these reasons, my client rejects outright your assertion that her FOI applications are an abuse of access rights’.[109] • Mr Gray has been derelict in his duty of care to his staff if he has subjected them to the ‘trauma’ of receiving FOI applications for the applicant. The applicant is of the understanding that only Mr Gray and Ms Frank were privy to the complete FOI application process. The applicant understands that the parties named as subject matter should be consulted as part of the third-party process but fails to see how the FOI applications should result in staff members becoming visibly upset and that it is an extraordinary reaction. The applicant asks what is hidden in these documents to provide such extreme reactions. The applicant is particularly concerned to discover that Mr Hunter had some involvement in the processing of the applicant’s early FOI applications and submits that Mr Hunter and Ms Frank did not have a delegation to process the FOI applications.[110] • ‘... at no point have these applications been made with a view to harass or intimidate anyone and my client does not understand why her applications have been perceived in such a manner. My client can only speculate that there are documents contained within her application that would support her position and that that is the underlying reason for Mr Gray’s extreme reaction in refusing access to my client’.[111] • The conduct of the respondents needs to be examined and carefully considered in my final ‘cogitations’, in particular, the significant reluctance they have individually and collectively brought to the task of complying with their obligations under the FOI Act.[112] Likely effect of disclosure 237. In relation to the likely effect of disclosure, the applicant submits: • It is equally likely that there will not be a serious act of harassment or intimidation if the Matter in Issue is disclosed. ‘.. Mr Gray has enacted this provision of the Act because it paints my client in the worst possible light and it has been encumbent on my client to provide evidence of her innocence, which has been difficult given the unparticularised and ambiguous nature of the allegations made against her. By virtue of this provision, the FOI Act virtually ensures that the documents requested will never be provided to my client. My client does not regard this as being either fair or balanced...’[113] • If the applicant was provided with the documents that she has requested access to, she would not need to lodge further FOI applications and finally the matter would be laid to rest.[114] • ‘... whilst it might be reasonable to conclude that further FOI applications might be lodged, my client invites the Commissioner to consider that if the documents requested are supplied, there is no need to lodge further FOI applications. Owing to the comprehensive nature of the already lodged FOI applications, my client does not consider that there is a need to lodge further FOI applications as she has requested every document that she thought might be relevant.’[115] • If the documents negate any theories that the applicant is currently exploring, providing this documentation to the applicant would be one way to ensure that she need not make further use of the FOI Act with further FOI applications.[116] Information from other agencies 238. The applicant has not collected documents released to her in accordance with a decision of the CMC and a decision of the Office in relation to FOI applications dated 22 March 2007. The applicant was asked for submissions as to why I should not consider that there is an adverse inference in the applicant’s failure to access documents, that the primary purpose of the FOI applications was in fact to wear the agencies down. By letter dated 26 March 2009 the applicant provided the following submissions: • The applicant’s solicitor wrongly assumed the documents would be posted to her in due course. • The applicant’s solicitor received the correspondence notifying her to collect the documents whilst she was in the process of relocating offices. The correspondence was filed with the intention of actioning it following the move to the new location but it was inadvertently not placed on a bring up system. • Relocation logistics involved the usual co-ordination issues and involved a substantial amount of disruption to IT and communication facilities which took nearly six weeks to resolve. In that period of time, there were a number of deadlines involving other clients which required immediate action. • The applicant’s solicitor has now written to both agencies seeking delivery of the documents. Findings 239. During the course of these external reviews, I have carefully considered the information provided by the respondent agencies, the applicant, Mr Gray, information from associated external reviews and exempt matter. Where considered necessary, the Office asked Mr Gray to provide further details and documents in support of his concerns. Staff members of the Office also met with Mr Gray to further clarify his submissions. Staff of the Office independently verified those of Mr Gray’s submissions where it was possible to do so. Mr Gray’s submissions are generally consistent with information contained in matter that I consider is exempt from disclosure. In light of the fact that the Information Commissioner is not bound by the rules of evidence and may inform himself or herself on any matter in any way the Information Commissioner considers appropriate, I consider the information before me is sufficient to enable a proper consideration of the matters and on that basis I do not accept the applicant’s submissions that the information provided to the Office by Mr Gray should not be relied upon. 240. On the information available to me, I am satisfied that: a) Mr Gray, as CEO of NSC was responsible for management decisions with which the applicant did not agree and was responsible for the decision to terminate the applicant’s employment. b) A number of employees of NSC were in some way associated with processes that led to the Termination or subsequent events. c) The personal and employment related affairs of each of these employees have been the subject of various FOI applications made by the applicant and people claiming to be her supporters. d) The applicant and/or people claiming to be her supporters were and remain highly aggrieved by Mr Gray’s decisions despite the applicant exercising her legal rights with respect to those disputes in various forums. e) Some or all of the incidents, acts of harassment or intimidation by people claiming to be supporters of the applicant as described in submissions did occur and were directly related to the Termination. In particular I am inclined to accept Mr Gray’s version of events that: • a threat was made by an unknown caller against Mr Gray’s children with reference to the applicant • Mr Gray has received repeated telephone calls at night at his home from people claiming to be the applicant’s supporters • Mr Gray was subject, in the presence of his children, to an act of physical violence and a comment was made with reference to the applicant. f) Mr Gray has relocated his family from Nanango as a result of the events. g) The applicant and people claiming to be her supporters have directly or indirectly used a petition, the internet, public notices and the media to publicise their grievances with Mr Gray. h) Bunya Watch has been used by people claiming to be the applicant’s supporters as a forum to publicly discuss their negative views of Mr Gray and other employees of NSC. Some of the postings use threatening and insulting language. i) The applicant, Ms Scott and another person have made 23 FOI applications[117] to agencies where Mr Gray has been employed and other agencies concerning: • the personal and employment affairs of employees associated with the Termination • Mr Gray’s decision-making • the Grievance • the AIRC proceedings • the Termination • the CMC Complaint. 241. On the basis of Mr Gray’s submissions and Ms Scott’s admission that she sent them, I find that Mr Gray received a malicious birthday card each year from Ms Scott since the Termination. 242. On the basis of Mr Gray’s submissions and verbal verification by the FOI decision maker in these reviews, I find that NSC staff involved in processing the FOI applications have become visibly upset when receiving FOI applications from the applicant and Ms Scott. 243. On the basis of Mr Gray’s submissions and verification by way of legible photographs, I find that offensive comments about two NSC employees who were involved in the Termination and the CMC Complaint were painted onto NSC wheelie bins. 244. The applicant submits that Mr Gray provided information to DTC directly accusing her of certain alleged events. Given the phrasing used in DTC’s submissions, the applicant’s conclusion is understandable. I have however reviewed a DTC file note recording the information Mr Gray provided to DTC by telephone. The information provided by Mr Gray recorded in that file note does not attribute any responsibility to the applicant in relation to the reported incidents. I am satisfied that this aspect of the information DTC provided to the Office does not accurately reflect the information provided by Mr Gray to DTC. The information Mr Gray provided to DTC is consistent with the information he provided to the Office. 245. Throughout her submissions the applicant implies that Mr Gray is personally involved in the FOI process and suggests that he is attempting to frustrate the purpose of the FOI Act and injure her rights under the FOI Act because he has something to hide and is embarrassed by the content of the requested documents. 246. It would be unacceptable for an agency not to meet its statutory obligations because the content of the documents may embarrass it or staff. There is nothing in the deliberations of the FOI decision makers to suggest that this irrelevant factor was taken into account by them and it is not a factor taken into account in this review. 247. While I note that the applicant does not accept the veracity of the information provided by Mr Gray, there is nothing in the applicant’s submissions that suggests that the information provided by Mr Gray is unreliable or that the information he has provided is inaccurate. 248. I refer to the applicant’s submission that she has not been afforded natural justice and that the Office has ‘pre-judged’ her culpability by finding her guilty of the allegations made by Mr Gray. 249. The applicant has not been accused of any criminal wrongdoing by any person. At no stage has that proposition been considered or put to the applicant by the Office. My findings do suggest, however, that unidentified people claiming to be supporters of the applicant, are responsible for some of the acts. 250. The applicant asserts that a higher standard of proof is required in respect of allegations of criminal conduct by her, relying on the Briginshaw principle. Although no standard of proof is prescribed for findings of fact, it would be neither reasonable nor logical to conclude that an event occurred if, on the evidence, it was more likely than not that the event did not occur. It follows that, generally speaking, findings of fact should be based on the balance of probabilities. Where an alleged event is inherently unlikely, then logically the evidence required to persuade a decision-maker that the event occurred will be of a higher order than for an event that is more inherently likely. 251. If it were necessary to make findings as to whether or not either applicant had engaged in criminal conduct, the evidence to support such a finding would require a higher threshold and be more rigorously examined. Such findings are not necessary and have not been made in this decision. It follows that the Briginshaw principle has no application to the findings of fact in this decision. 252. In relation to the applicant’s submission that she has not been afforded natural justice, to ensure procedural fairness, the applicant was provided with a preliminary view which set out in detail the factors that would be taken into account in any decision. The applicant was afforded the opportunity to provide submissions to the Office in support of her case and in response to the information provided by Mr Gray. As a result, the applicant provided extensive submissions and supporting documents which I have considered. The applicant’s contention that the forming of a preliminary view raises a serious apprehension of bias is incorrect. The presentation of a preliminary view is a step often and properly taken to clarify issues and test possible conclusions.[118] 253. As noted above, it is not necessary for me to find that all the past conduct is that of the applicant in considering the application of section 42(1)(ca) of the FOI Act in these reviews or to make a finding as to who posted each of the relevant entries on Bunya Watch or who may have prompted or carried out each of the acts. It is the cumulative effect and the ongoing, sequential and encouraging (though not necessarily orchestrated) nature of some of those acts by the applicant and people claiming to be the applicant’s supporters that is of concern and is the subject of my findings in this decision. 254. I am cognisant that a possible result of the application of section 42(1)(ca) of the FOI Act is the potential for third parties, over which an applicant may exercise little or no control, to put into jeopardy an applicant’s access rights. However, an overriding public interest contemplated by Parliament was the protection of individuals from serious acts of intimidation and harassment. 255. I generally accept the applicant’s submissions that she has not been involved in many of the acts that Mr Gray described. The applicant has made numerous FOI applications, appeared on A Current Affair in relation to the Termination and placed a paid public notice in the South Burnett Times. Alone, none of these acts can be considered acts of harassment or intimidation. 256. In her submissions, the applicant denies any personal knowledge of most of the events reported by Mr Gray. It follows that the applicant is unable to provide any relevant evidence as to those events. The fact that the events are unknown to the applicant does not make it more likely that the events did not occur or that Mr Gray’s information about the events is unreliable. Contrary to the applicant’s contention, I am not prevented from accepting information provided by Mr Gray merely because it is not verified or accepted by the applicant. This is particularly so where the information is not within the applicant’s knowledge. 257. The acceptance of information which cannot be confirmed or contradicted by an applicant, is not a basis for apprehending prejudice on the part of a decision-maker. The information provided by Mr Gray has been tested by requests for further details and particulars. I have found that information to be consistent with and to some extent corroborated by independent evidence in the form of the postings on Bunya Watch and that contained in exempt material. 258. The applicant submits that Mr Gray has made a deliberate misrepresentation to the Office in stating that his mobile phone number is not publicly available.[119] In support of her case, the applicant provided a document printed from the internet on 29 January 2009 where Mr Gray is listed as the Interim CEO. Mr Gray has advised a staff member of the Office that at the time he was receiving the calls at night, his mobile phone number was only available to staff of NSC or to people he gave his business card to but that it was not available to the public generally. 259. The applicant submits that, although she cannot comment with accuracy about when Mr Gray chose to relocate from Nanango, she suggests that it was prior to the Termination and for the purpose of furthering his career. Mr Gray has confirmed that he relocated from Nanango shortly after the Termination, purely because of the incidents surrounding the Termination (including the threatening phone call) and his relocation was unrelated to any interest in furthering his career. Serious acts of harassment and intimidation 260. To reach a decision on whether the requirements of the exemption provision are made out, it is unnecessary for me to make a finding with respect to each and every past act of alleged harassment and intimidation. However, it is necessary for me to consider whether it is reasonable to expect that disclosure of the information sought could result in a person being subjected to a serious act of harassment or intimidation. 261. Mr Gray has pointed to a number of incidents which in my view amount to serious acts of harassment and/or intimidation of Mr Gray and/or NSC staff. These include: • his receipt of a threatening telephone call • the act of physical violence • numerous postings on Bunya Watch • multiple FOI applications in the context of the above. 262. These incidents are dealt with in more detail under the corresponding headings below. Threatening phone call and act of physical violence 263. The threatening phone call and the act of physical violence are acts of intimidation. These acts have caused Mr Gray a level of concern and apprehension sufficient for him to relocate his family from Nanango. I am satisfied that these acts amount to serious acts of intimidation. Bunya Watch postings 264. I accept the applicant’s submissions that she is not responsible for creating, orchestrating nor moderating Bunya Watch or for all of the postings on that website. These propositions were never considered or put to the applicant by the Office. 265. However the Office provided the applicant with a copy of a posting dated 13 January 2008 posted by one S. H. Scott. That posting contained details of the response NSC gave to the author’s FOI application and contained the following comment: ONE of my FOI requests to NSC was for a full and proper accounting of just what it had cost us ratepayers to implement the CEO’s campaign to replace our former librarian of 15 years excellent service with his “very good friend”. ... It is also interesting to note that the Local Government Act and NSC’s Local Laws both insist that these expenses are outside the “Normal day-to-day matters of Councils delegation to the CEO, and therefore must be authorised by the FULL Council” – There is No record of this in any of the NSCs minutes. Does this mean that we can expect Reimbursement of these questionable expenditures and supposedly made on our behalf, rather than favouritism benefiting an acknowledged “very good friend” 266. On the basis of the detailed knowledge about the FOI application held by the author, I find that the person posting this comment was Ms Scott. I also find that the comment contains an unsubstantiated allegation that Mr Gray acted unlawfully. 267. I acknowledge the applicant’s submissions that: • The Termination and related matters have attracted strong attention from the individuals who watch and post on Bunya Watch. • By virtue of their employment with NSC, the actions of NSC officers are the subject of public comment in a variety of media and that this is part of the territory of being a public official. 268. Bunya Watch has been used as a public forum in which site users have discussed and commented on Mr Gray and other NSC officers in insulting and threatening language and prompted others to ‘keep up the pressure’. There are instances in which the language used to describe officers involved in the Termination on Bunya Watch (for example, ‘mongrels’ and ‘bastards’) is aggressive and derogatory. 269. The criticism and derision of Mr Gray and other NSC officers on Bunya Watch takes the form of personal attacks and is not confined to matters relating to the substantive workplace issues involving the applicant. The threats made in some of the postings in my view go further than an acceptable level in the ‘rough and tumble’ of public debate. 270. The context of the postings, that is, the discussion threads which show the postings before and after the cited postings, does not in my view change the characterisation I have given to those postings that have been selected as examples. In any context, the postings identified in this decision are aggressive and derogatory. 271. I accept the applicant’s submission that being subject to community action and public comment in the media and other forums is an accepted part of public administration for many public officials and more importantly exemplifies the shared value of freedom of expression and in some cases the implied constitutional freedom of freedom of political communication. However I am of the view that Mr Gray has been subject to a campaign of ongoing harassment and denigration by virtue of his employment with NSC which goes beyond what is reasonable and acceptable in the circumstances. 272. I am satisfied that: • Many past Bunya Watch postings publicly deride Mr Gray and others and may have effected their reputations. • The personal nature of the criticism of Mr Gray and others and the aggressive and threatening tone of them goes beyond what is reasonably acceptable in the public discussion of public officials and matters of public interest. • The postings on Bunya Watch have persisted over a period of time and included relatively recent entries.[120] • Some of the postings contain threats directed at staff associated with the Termination. • Some entries encourage and have already led to further entries and other harassing and intimidating conduct. • The postings have given Mr Gray and undoubtedly others, cause for concern. 273. Accordingly, I consider the numerous postings on Bunya Watch directed at Mr Gray and other employees associated with the Termination to be serious acts of harassment because they comprise attacks which have disturbed and tormented the subject of the attack and given cause for concern or apprehension. FOI applications 274. The applicant has made FOI applications to NSC, WSC, DTC, LGAQ, the CMC, MSC, the State Library of Queensland, the Department of Education, the Endeavour Foundation and WorkCover Qld. 275. In relation to the FOI applications, the applicant states she is not a vexatious applicant and has been forced to make her FOI applications as a series of requests because if she had lodged one application requesting access to everything she wanted, it would have been rejected on the grounds that it would involve an unreasonable use of the agency’s resources. 276. The proposition that the applicant is vexatious was not put to the applicant in the preliminary view letter and no finding to that effect is made in this decision. 277. The applicant has submitted that the respondent agencies are ‘guilty of concerted non-compliance’ with the FOI Act and that she has had to make repeated FOI applications to attempt to acquire documentation which the agencies in question have refused to supply. 278. I do not accept the applicant’s submission that she has had to make repeated FOI applications to attempt to acquire documentation which the agencies in question have refused to supply for two reasons. Firstly, where an applicant does not agree with an agency’s decision to refuse access to documents under the FOI Act, the FOI Act provides the applicant with rights of review. Secondly, the FOI applications made to LGAQ, DTC and WSC were all made in March 2007, prior to the applicant seeking review of NSC’s deemed decision in external review 210201. 279. The applicant’s first FOI application with NSC dated 30 May 2006 contained a request for 54 separate categories of documents. NSC did not refuse to deal with the FOI application on the basis that it would involve an unreasonable use of NSC’s resources. NSC did not issue a decision within the statutory time frame. Prior to requesting external review, the applicant lodged two further FOI applications dated 23 March 2007 and 30 March 2007 with NSC. 280. In relation to the applicant’s other three FOI applications the subject of these reviews, the respondent agencies did not refuse to deal with the FOI applications on the basis that they would involve an unreasonable use of resources. 281. I note that the decision by LGAQ was issued a matter of days outside the statutory timeframe. The FOI Act contemplates this situation and LGAQ issued a ‘considered decision’ before the applicant exercised her right to external review.[121] Similarly the initial decisions by DTC[122] and WSC[123] were issued only a few days outside the statutory timeframe and the internal review decisions were issued within time. Amendments were made to the FOI Act in 2007 to allow agencies to continue dealing with an application after the lapsing of the timeframe and this is what LGAQ, DTC and WSC have done. Therefore I do not accept the applicant’s suggestion that the respondent agencies are guilty of ‘concerted non-compliance’ with the FOI Act in a procedural sense. 282. The applicant alleges that NSC through Mr Gray (as principal FOI officer) has deliberately attempted to prevent the applicant from accessing documents that should be provided under the auspices of the FOI Act [124] and suggests that: • other NSC officers were involved in processing the FOI applications and did not have delegated decision making power in accordance with the FOI Act • the respondent agencies have resorted to the exemption sections of the FOI Act for the express purpose of obstructing, denying, refusing and justifying their concerted non-compliance with the FOI Act • refused the applicant access to documents by saying the documents could not be found or were exempt. 283. With respect to the first dot point, NSC was deemed to have refused access by the FOI Act when it failed to make a decision within the statutory timeframe. No decision making power was exercised by any NSC officer. There is therefore no factual basis for this supposition. 284. With respect to the second dot point, DTC and WSC utilised the same exemption provisions in their decision after submissions from Mr Gray. LGAQ also utilised the section 42(1)(ca) exemption. The question of whether or not each agency had justification to apply the exemptions is a question to be determined on review. The applicant has exercised her review rights. 285. With respect to the third dot point, in the reviews subject of this decision, LGAQ was the only agency to refuse access to documents on the basis the documents did not exist. It made that decision with respect to certain documents, while also releasing other documents to the applicant. This aspect of LGAQ’s decision is considered in this decision under the heading ‘Sufficiency of search’. I note that the applicant was provided with a preliminary view on the issue of the sufficiency of LGAQ’s searches and was invited to provide submissions in support of her case on this issue for consideration by the Office. 286. The applicant claims that she does not have an issue with Mr Gray personally and has made the FOI applications for the following reasons: • to seek accountability and explanations through the FOI Act by requesting a range of documents relating to decisions and conduct which resulted in the Termination • to explore her legal avenues and assess the potential to use the documents as evidence in any possible legal proceedings that she may have recourse to • to ascertain whether particular individuals hold the particular qualifications necessary to make managerial decisions • to determine whether similar things have happened to other individuals • to discover if Mr Gray is manifesting a pattern of behaviour • for closure. 287. While I accept that these are the reasons for the applicant’s FOI applications, and while the motivation of FOI applicants is irrelevant in making decisions with respect to them, consideration of the applicant’s FOI applications and submissions shows that the applicant is also utilising FOI laws to investigate the performance and/or conduct of Mr Gray and other staff involved in the Termination on the off chance those records show any prejudicial information about them. For example, the applicant requests access to ‘Shane Gray’s performance reviews’[125] and a ‘copy of Michael Hunter’s work diary 2000, 2004, 2005, 2006, 2007’. [126] 288. Risk and performance management are important to the public service being managed in an ethical, efficient, effective and economical way. Formal mechanisms are in place to protect workers from unfair treatment in these processes. There is an essential public interest in ensuring that managers are not deterred from carrying out this aspect of their duty by being subject to multiple FOI applications from members of the community conducting their own investigations into personnel to attempt to uncover information that points to wrongdoing or poor performance and which is essentially unrelated to the merits of the decision by which they are aggrieved. There are appropriate authorities to impartially deal with such concerns circumventing the need for citizens to take matters into their own hands. 289. While the applicant’s requests largely relate to Mr Gray in his professional capacity, many of the requested documents contain information relating to the personal affairs of Mr Gray and other NSC officers. For example, the applicant seeks access to: • time sheets and pay slips for a number of NSC officers who were in some way involved in the Termination or subsequent events • Mr Gray’s superannuation beneficiary forms, which clearly do not relate to Mr Gray as a manager.[127] 290. My consideration of the use of the FOI applications in the application of section 42(1)(ca) of the FOI Act relates to the nature and effect of all the FOI applications, not just the applicant’s, on Mr Gray and other officers of NSC. In this regard, it is relevant for me to consider the 23 FOI applications made by the associated people, not just those the applicant has made. 291. Section 21 of the FOI Act gives a person a legal right (subject to the provisions of the FOI Act) to access documents of an agency and to have access to information held by Queensland government. In decision-making, my role is to ensure that a person’s right to access information is extended as far as possible, in accordance with the FOI Act. In that regard, FOI laws may be legitimately used by an individual to try to uncover a reason, other than the one given to them by government, for a decision affecting them. I also have a duty, in accordance with section 4(6) of the FOI Act, when interpreting the provisions of the FOI Act, to identify and consider any prejudicial effect that disclosure of the information may have by reason of the right of access under the FOI Act. As a result, the right to access information can be fettered in certain circumstances as discussed at paragraphs 176 - 182 above. 292. Parliament recognises that the public interest is served by enhancing government’s accountability and keeping the community informed of government’s operations, including the rules and practices followed by government in its dealings with members of the community.[128] Parliament also recognises that there are limited exceptions to a person’s legal right of access to information. While multiple FOI applications by various individuals will not always constitute an abuse of access rights, Parliament considered through the amendments discussed above that access rights may be fettered in certain circumstances where harassment and/or intimidation could reasonably be expected to occur. 293. In Australian Competition and Consumer Commission v Maritime Union of Australia,[129] Hill J considered the meaning of ‘undue harassment or coercion’ in the context of section 60 of the Trade Practices Act 1974 (Cth). His Honour said:[130] 60. The word “harassment” in my view connotes conduct which can be less serious than conduct which amounts to coercion. The word “harassment” means in the present context persistent disturbance or torment. In the case of a person employed to recover money owing to others, as was the first respondent in McCaskey, it can extend to cases where there are frequent unwelcome approaches requesting payment of a debt. However, such unwelcome approaches would not constitute undue harassment, at least where the demands made are legitimate and reasonably made. On the other hand where the frequency, nature or content of such communications is such that they are calculated to intimidate or demoralise, tire out or exhaust a debtor, rather than merely to convey the demand for recovery, the conduct will constitute undue harassment: see per French J in McCaskey at [48]. Generally it can be said that a person will be harassed by another when the former is troubled repeatedly by the latter. The reasonableness of the conduct will be relevant to whether what is harassment constitutes undue harassment. Like French J in McCaskey at [47] I get little assistance from cases in the context of sexual harassment where the word has almost taken on a technical meaning. [my emphasis] 294. The processing of a high volume of FOI applications or FOI applications that seek access to a large range of documents may be considered an annoyance or inconvenience for some agencies. However, an act of annoyance or inconvenience does not amount to a serious act of harassment or intimidation and it would be inappropriate to apply section 42(1)(ca) of the FOI Act in that circumstance. As indicated earlier, it is apparent that section 42(1)(ca) of the FOI Act contemplates that some degree of inconvenience, annoyance and even a certain level of harassment should be tolerated before a curtailment of access rights is considered. 295. The applicant submits that her FOI applications have not been for the purpose of harassing, intimidating, tormenting or wearing down anyone and she does not understand how the FOI applications have been perceived in this manner. [131] Although the applicant asserts that it was not her intention or purpose to torment or wear down NSC staff by making numerous FOI applications, I am satisfied that this has resulted from the combined effect of the repeated and persistent use of FOI applications by the applicant and associated people. This is an undesirable consequence and one that might lead to the application of section 42(1(ca) of the FOI Act. 296. The Bunya Watch posting referred to at paragraph 210 above suggests that the people claiming to be supporters of the applicant understand the FOI applications are being used as a tool to wear staff of NSC down. Such a characterisation is reasonable. Only three people have made FOI applications to NSC in relation to the Termination and related events – the applicant, Ms Scott and one other associate. Having accepted the applicant’s submission that she did not authorise this posting or know who posted it,[132] these circumstances tend to suggest that: • either one of those three applicants may be responsible for the Bunya Watch posting referred to at paragraph 210 above or alternatively, information provided by one of those individuals led to the posting by another • information about the processing of the FOI applications is being shared by one of those individuals with a supporter who is responsible for the postings. 297. The 23 FOI applications from the applicant, Ms Scott and another associated person all concern similar matter: the personal and employment affairs of employees associated with the Termination, Mr Gray’s decision-making, the Grievance and AIRC proceedings, the Termination and the CMC Complaint. The most recent FOI application was made by Ms Scott on 19 September 2008 to NSC. The Office is not aware of the content of the four FOI applications the applicant has made additional to the 23 FOI applications considered in this decision. 298. Many of the FOI applications run to several pages of detailed requests for documents. In a number of instances, repeated requests have been made by the applicant, Ms Scott and another associated person to NSC for similar documents. There have also been requests made to different agencies for the same documents/types of documents. A number of requests seek Mr Gray’s employment records from his employers prior to NSC. 299. These FOI applications and their subsequent external reviews conducted in relation to FOI applications by the applicant and Ms Scott have required and would continue to require the significant involvement of Mr Gray, the agencies and a number of NSC officers. 300. Because of the volume, pattern of requests, the encouragement of the making of FOI applications on Bunya Watch, the posting of information obtained under the FOI Act on Bunya Watch and the fact that the applicant and Ms Scott are known to each other, I am satisfied that the FOI applications are associated with each other and that, despite any other legitimate purpose they may serve, they have resulted in the wearing down of the staff of the agencies and the staff involved in the Termination. The FOI applications themselves became persistent or repeated conduct with undesirable consequences. For example, staff of NSC involved in the processing of the FOI applications have been visibly upset. 301. I note that the applicant also made FOI applications to the CMC and MSC which relate to Mr Gray’s employment affairs and the CMC Complaint; categories of documents that I consider are exempt from disclosure under section 42(1)(ca) of the FOI Act for the reasons set out in this decision. In these matters the applicant failed to exercise her right of access to documents the agencies were prepared to release. Despite the reasons given by the applicant’s solicitor for failing to access the documents and, in consideration of the reason put forward for the applications,[133] the failure suggests the FOI applications did not have a serious purpose or value. 302. In the context of the other acts of intimidation which have occurred, it would not be unreasonable for NSC staff to see the FOI applications as another vehicle through which they are being harassed. For these reasons I am satisfied that the FOI applications made to date constitute serious acts of harassment. 303. In some instances, I also consider that serious acts of harassment or intimidation including further FOI applications and/or postings on Bunya Watch have occurred as a result of: • an agency’s refusal to grant the applicant or Ms Scott access to documents under the FOI Act • the disclosure of documents under the FOI Act. 304. An example of an agency’s refusal to grant the applicant or Ms Scott access to documents under the FOI Act resulting in further FOI Applications is as follows: • By letter dated 30 May 2006, the applicant requested access to ‘the memo [Kathy Cope] wrote to all Council staff requesting their signature to a public notice supporting the Chief Executive Officer published in April 2006’ and ‘documented responses or emails relating to the memo’. By letter dated 17 April 2007, NSC advised the applicant that access to the requested documents was refused under the FOI Act. • By letter dated 12 June 2007, the applicant again sought access to the ‘email from Kathy Cope dated 31.03.07 sent at 11.05 am with attachment’. • By letter dated 7 September 2007, Ms Scott sought access to the ‘email Kathy Cope sent to council staff members on 31st March 2006 at 11:05 am in relation to a proposed public notice, which was later published in the South Burnett Times’. 305. An example of the disclosure of documents under the FOI Act leading to the posting of information on Bunya Watch is as follows: • Ms Scott posted information on Bunya Watch in relation to the expenses that NSC has incurred in relation to the Termination and related matters.[134] This information was contained in documents released under the FOI Act. In commenting on the information, Ms Scott publicly insinuates that Mr Gray has acted outside his lawful authority. 306. An example of the disclosure of documents under the FOI Act leading to a further FOI application is as follows: • In an FOI application dated 2 July 2007, Ms Scott requested access to a ‘copy of the library policy for Nanango Shire introduced 17th May 2005 with the added PLS suggestions (as stated on page 1 of 4 – “Notes compiled by Audrey and Iris following CLS training in Brisbane 11 to 17 July 2005” – and also numbered 000022 in documents obtained from you under FOI’ [my emphasis]. Could disclosure of the Matter in Issue reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation? 307. Under the above sub-heading ‘Serious acts of harassment and intimidation’, I have found there to have been past acts of serious harassment and intimidation related to the Termination against Mr Gray and staff of NSC. I consider the past occurrences of serious acts of harassment and intimidation alone provide a reasonable basis for Mr Gray and the staff of NSC to expect to be subjected to a further serious act of harassment or intimidation. However, for matter to be exempt under section 42(1)(ca) of the FOI Act, I must be satisfied that the disclosure of the Matter in Issue could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation. 308. In these reviews, I consider the following factors relevant to determining that issue: • the nature of the relevant Matter in Issue • the likely effect of disclosure of the Matter in Issue • the past conduct of people claiming to be the applicant’s supporters • the nature of the relationship between the parties and/or third parties. Nature of the Matter in Issue and likely effect of disclosure 309. The applicant submits: • It is equally likely that there will not be a serious act of harassment or intimidation if the Matter in Issue is disclosed. • If she is provided with the documents that she has requested access to, she would not need to lodge further FOI applications and finally the matter could be laid to rest as she has requested every document that she thought might be relevant. • If the documents negate any theories that the applicant is currently exploring, providing the Matter in Issue to her would be one way to ensure that she need not make further use of the FOI Act with further FOI applications. 310. Throughout the course of these reviews the applicant raised numerous sufficiency of search issues and, in many instances, the respondent agencies claimed the requested documents were unlocatable or nonexistent. In some instances, the respondent agencies have claimed documents are exempt from disclosure under other provisions of the FOI Act. Therefore, even if section 42(1)(ca) of the FOI Act was not applicable to the Matter in Issue in these reviews, the Office would still have to determine the other issues and there is no certainty that the applicant would be provided with all the documents she requested. 311. I am mindful of the fact that disclosure under the FOI Act is, minimally, disclosure to the applicant. Once information is disclosed, there is no way of controlling the ultimate extent of the disclosure. While the disclosure of information under the FOI Act is not always to be regarded as disclosure to the world,[135] I am reminded of this possibility by: • the recent publication on Bunya Watch of selected excerpts of a decision of the Information Commissioner concerning a related external review application involving the applicant[136] • Ms Scott posting information she obtained under the FOI Act on Bunya Watch in relation to costs associated with the Termination.[137] 312. As explained above, Ms Scott has made a serious allegation against Mr Gray in a public forum based on supposition in the context of her posting information obtained under the FOI Act. It is reasonable to expect she will do so again. I consider the release of even innocuous information to the applicant is likely to be shared with Ms Scott and/or other people claiming to be supporters of the applicant. It is likely that further postings will be made on Bunya Watch. The further dissemination of the information is likely to result in further acts of serious harassment and/or intimidation against Mr Gray or staff of NSC, namely further FOI applications and postings on Bunya Watch. 313. The Matter in Issue in each external review concerns the matters related to the Termination, including the personal and employment affairs of people involved in the Termination, and more particularly work processes/decision-making involving Mr Gray. The categories of documents sought by the applicant in these reviews fall into the same categories of documents sought in the other associated FOI applications. 314. The previous disclosure of documents falling within these categories has resulted in serious acts of harassment and intimidation, being further FOI applications and the use of public forums to personally denigrate Mr Gray and/or NSC officers, examples of which are set out at paragraphs 305 - 306 above. 315. Further FOI applications and further use of public forums will involve Mr Gray and officers of NSC in further consultation in relation to the administration of the FOI Act, and are likely to involve further adverse publicity giving them cause for concern - an undesirable consequence of the FOI applications. 316. A significant amount of the information sought about Mr Gray concerns his former places of employment. In view of the nature of the discussion on Bunya Watch, that is, participants encouraging one another to contribute further ‘information’ to the discussion as a means of further publicly deriding Mr Gray and others, I consider that disclosure of even innocuous information may be used by Bunya Watch participants to further this end. Past conduct 317. As expressed earlier, I consider that Mr Gray and other employees involved in the Termination have been subjected to serious acts of harassment and intimidation in the past and these acts have all been linked to the Termination. Though past conduct is not necessarily indicative of future conduct, I consider in these reviews it provides a reasonable basis to expect that further serious acts of harassment or intimidation could reasonably be expected to occur. Some of the serious acts of harassment or intimidation that have occurred in the past have resulted from the disclosure of matter that falls within the same categories as the Matter in Issue in these reviews. Nature of the relationship between the parties 318. Based on the applicant’s submissions, I consider that the applicant remains highly aggrieved by Mr Gray’s decisions and has made various allegations about him including: • speculating that there is something in Mr Gray’s personnel file that supports her views about him[138] • that he has deliberately lied to and manipulated the respondent agencies to prejudice them against her[139] • that he has made misleading representations to the Office[140] • that she has experienced intimidation and harassment from her employment at NSC during the time Mr Gray was CEO which has resulted in a personal injuries claim against NSC.[141] 319. As explained above, I also consider the people claiming to be the applicant’s supporters remain highly aggrieved by Mr Gray’s decisions and have been actively involved in expressing their negative views about Mr Gray and officers of NSC in public forums. 320. While I accept the applicant’s submissions that she has not been involved in any way with the physical acts of violence and intimidation directed at Mr Gray by some of the other people claiming to be her supporters, the applicant has engaged in her own acts of harassment by making repeated and numerous FOI applications for documents which may assist in her personal investigation into the performance and/or conduct of Mr Gray and other staff involved in the Termination and which are largely unrelated to the substantive merit of Mr Gray’s decisions in relation to her. 321. The applicant’s FOI applications, like the associated FOI applications, are aimed at ‘investigating’ the staff of NSC involved in the Termination. 322. The personalised nature of the Bunya Watch entries, the threatening phone call and the act of physical violence suggest that the conduct which amounts to serious acts of harassment and/or intimidation is not directly linked to any objective assessment of the substantive merit of the decisions in relation to the Termination or a respect for the rule of law which provides appropriate avenues of redress for the applicant. 323. Therefore, on the information available to me, I am satisfied that: • Disclosure of the Matter in Issue in these reviews could reasonably be expected to result in further FOI applications by the applicant and people claiming to be her supporters. • The further FOI applications would themselves be acts of serious harassment. • Disclosure of the Matter in Issue in these reviews could reasonably be expected to result in further public vilification of Mr Gray and other people by people claiming to be the applicant’s supporters. • Any further public vilification would constitute acts of serious harassment and/or intimidation. • Disclosure of the Matter in Issue in these reviews could reasonably be expected to result in a serious act of physical violence, threats or other acts of intimidation in relation to Mr Gray and staff of NSC. 324. Accordingly, I am satisfied that the Matter in Issue is exempt from disclosure in its entirety under section 42(1)(ca) of the FOI Act. Sufficiency of search 325. Section 29(4) of the FOI Act provides: 29 Refusal to deal with application—agency’s or Minister’s functions ... (4) If— (a) an application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and (b) it appears to the agency or Minister that all of the documents to which the application relates are exempt documents; the agency or Minister may refuse to deal with the application without having identified any or all of the documents 326. On the information currently available to me, I am satisfied that the documents the applicant claims have not been located by the respondent agencies concern: • Mr Gray’s decision-making • the Grievance & the AIRC proceedings • the Termination • the CMC Complaint • the employment or personal affairs of employees associated with the Termination, including Mr Gray. 327. This matter, if it exists, falls within the classes of matter that I consider could reasonably be expected to result in a person being subjected to a serious act of harassment and/or intimidation if disclosed. I am satisfied that this matter, if it exists, is exempt under section 42(1)(ca) of the FOI Act and therefore the documents to which the applicant’s sufficiency of search concerns pertain are exempt documents. 328. On this basis I am satisfied that I should, under section 29(4) of the FOI Act, decline to deal with these parts of the external review applications without directing NSC to undertake further searches. DECISION 329. For the reasons set out above, I: • set aside the deemed decision of NSC in external review 210201 • vary the considered decision of LGAQ dated 28 May 2007 in external review 210238 • vary the internal review decision of DTC dated 4 July 2007 in external review 210285 • vary the internal review decision of WSC dated 20 June 2007 in external review 210286 by deciding: • the remaining Matter in Issue in each of these reviews qualifies for exemption from disclosure under section 42(1)(ca) of the FOI Act • to refuse to deal with the sufficiency of search issues under section 29(4) of the FOI Act, on the basis that it appears to me that any further documents responsive to the FOI applications qualify for exemption under section 42(1)(ca) of the FOI Act. ________________________ Julie Kinross Acting Information Commissioner Date: 9 April 2009 [1] External reviews 210240, 210241, 210330, 210318, 210377 and 210323.[2] Section 72 of the FOI Act.[3] (Unreported, Queensland Information Commissioner, 23 June 2008). [4] Section 27(5) of the FOI Act. [5] Section 27B(4) of the FOI Act.[6] As above. [7] As above. [8] External review 210201. [9] External review 210238. [10] External review 210286. [11] External review 210285. [12] External review 210238.[13] External review 210285. [14] External review 210286.[15] External review 210201. [16] (Unreported, Queensland Information Commissioner, 23 June 2008). [17] Section 42(1) of the FOI Act is subject to section 42(2) which provides that matter is not exempt under subsection (1) if it consists of matter described in paragraph (a) of subsection (2), unless its disclosure would, on balance, be in the public interest. I am satisfied that the Matter in Issue is not of a type described in paragraph (a) and therefore subsection (2) of section 42 does not apply in this matter. [18] Legal, Constitutional and Administrative Review Committee, Freedom of Information in Queensland, December 2001, Report No 32. [19] At page 203.[20] At page 204. [21] Committee finding 177 – recommendation, at page 204. [22] At page 14. [23] Section 14A(1) of the Acts Interpretation Act 1954. [24] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381. [25] Section 42(1)(ca) of the FOI Act does not contain a public interest test, however, the public interest considerations discussed above are relevant to how section 42(1)(ca) of the FOI Act is interpreted. [26] (2001) 208 CLR 199 at 226.[27] [1986] FCA 35; (1986) 64 ALR 97. [28] Cockcroft, at 106. [29] Cockcroft, at 106.[30] Macquarie Dictionary Online (Fourth Edition) www.macquariedictionary.com.au.[31] As above. [32] As above. [33] 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.[34] (Unreported, Queensland Information Commissioner, 23 June 2008). [35] At page 30. [36] Posting 15 January 2007.[37] Posting 6 January 2007 from ‘Hijau’ and anonymous posting on 11 April 2007.[38] Posting 17 January 2007 from ‘Spotted Dog’ and posting on 8 March 2007 from ‘Hijau’.[39] Posting 18 December 2006.[40] Posting 8 March 2007 from ‘Hijau’.[41] Anonymous posting 21 April 2007. [42] External review 210240. [43] At pages 20 – 22. [44] At page 48. [45] At pages 22 – 23. [46] At page 33. [47] At page 41. [48] At page 32. [49] At page 26. [50] At page 19. [51] At page 34. [52] At page 44. [53] At page 46. [54] At page 18. [55] At page 19. [56] At page 35. [57] At page 37. [58] At page 38. [59] At page 38. [60] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw). [61] At page 38 referring to the decision of the Supreme Court of New South Wales in P.J. Vickers v Conveyancers Licensing Committee No. 030064/94 [1995] NSWSC 60 (6 October 1995).[62] At page 45. [63] At page 44. [64] At pages 22 and 34. [65] At pages 22 and 34. [66] At pages 23, 43 and 45. [67] At page 24. [68] At page 22. [69] At page 24. [70] At page 26. [71] At page 26. [72] At pages 27 and 35.[73] At pages 27 and 34. [74] At page 27. [75] At page 34. [76] At page 27. [77] At page 34. [78] At page 35. [79] At page 24. [80] At page 19. [81] At page 20. [82] At pages 30 and 37. [83] At pages 31, 32 , 33, 37 and 45. [84] At page 31. [85] At pages 24 and 30. [86] At page 31. [87] At page 30. [88] At page 37. [89] At page 45.[90] At page 31. [91] At pages 38 – 39. [92] At page 40. [93] At page 35. [94] At pages 17 – 18 and 33. [95] At page 32. [96] At page 12. [97] At page 17 and 33.[98] At page 28. [99] At page 28. [100] At page 40. [101] At page 28. [102] At pages 38 – 39. [103] At page 17. [104] At pages 38 – 39. [105] At page 4. [106] At page 28. [107] At page 38. [108] At page 18. [109] At pages 38 – 39. [110] At page 29. [111] At page 40. [112] At page 19. [113] At page 46. [114] At page 42. [115] At page 42. [116] At pages 38 – 39. [117] The applicant advised the Office that an additional four FOI applications have been made (bringing the total to 27 FOI applications) however the Office is only aware of the content of 23 of those applications and therefore this decision refers only to the 23. [118] Community Care Inc v Taylor [2007] QSC 148 at [21]. [119] At page 27. [120] The most recent entry relating to the applicant and Mr Gray is the posting by S. H. Scott dated 4 July 2008. [121] See paragraph 42 for decision outcome. [122] See paragraph 45 for decision outcome. [123] See paragraph 50 for decision outcome. [124] At page 17. [125] FOI application dated 30 May 2006. [126] FOI application dated 30 March 2007. [127] FOI application dated 23 March 2007. [128] Section 4(2) of the FOI Act.[129] [2001] FCA 1549; 114 FCR 472. [130] At paragraph 60. [131] At pages 38 – 40. [133] For example, for the applicant to explore her legal options and to assess the potential of the documents as evidence in any possible legal proceedings that she may have recourse to.[134] Bunya Watch posting dated 13 January 2008.[135] Victoria Police v Marke [2008] VSCA 218.[136] External review 210240. [137] Posting by S.H. Scott on 13 January 2008. [138] At pages 28 and 40.[139] At pages 22 – 23 and 44. [140] At page 32. [141] At page 19.

queensland

court_judgement

Queensland Information Commissioner 1993-

Usher & Department of Natural Resources and Mines [2014] QICmr 51 (19 December 2014)

Usher & Department of Natural Resources and Mines [2014] QICmr 51 (19 December 2014) Last Updated: 26 May 2015 Decision and Reasons for Decision Citation: Usher and Department of Natural Resources and Mines [2014] QICmr 51 (19 December 2014) Application Number: 311909 Applicants: Usher Respondent: Department of Natural Resources and Mines Decision Date: 19 December 2014 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – NONEXISTENT OR UNLOCATABLE DOCUMENTS – information relating to valuations of a residential property – applicants contend further relevant documents exist – whether there are reasonable grounds to be satisfied that documents do not exist – whether all reasonable steps have been taken to locate documents – whether access to documents can be refused – sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicants applied to the Department of Natural Resources and Mines (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for information relating to valuations of their residential property (Property). The Department located 31 pages relevant to the access application and granted the applicants access to 29 full pages and 2 pages with only signatures deleted. The applicants applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision on the basis that the Department had not located all relevant documents. For the reasons set out below, I vary the Department’s decision[1] and find that access to the documents sought on external review may be refused under section 47(3)(e) of the RTI Act as I am satisfied that: the Department has taken all reasonable steps to locate relevant documents that should be in its possession; and there are reasonable grounds to be satisfied that the remaining documents sought by the applicants do not exist.[2] Background In May 2013, the applicants lodged an objection to the Property’s land valuation dated 1 October 2012 with the Valuer-General (Objection). The Valuer-General assessed the Objection and decided that the valuation amount would remain unaltered. The applicants subsequently appealed that decision to the Land Court of Queensland. Significant procedural steps relating to the access application and external review are set out in the Appendix. Reviewable decision The decision under review is the Department’s decision dated 6 January 2014. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including in the footnotes and Appendix). Issue for determination The issue for determination in this review is whether access to the documents sought by the applicants on external review may be refused under section 47(3)(e) of the RTI Act on the basis that the requested information is nonexistent or unlocatable as set out in section 52 of the RTI Act. Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[3] However, this right is subject to other provisions of the RTI Act including the grounds on which an agency may refuse access to documents.[4] Access to a document may be refused if the document is nonexistent or unlocatable.[5] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist (for example, where it was never created). 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 the document cannot be found. The RTI Act is silent on how an agency can be satisfied that a document does not exist. However, the Information Commissioner has 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: [6] the administrative arrangements of government the agency’s structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including, but not exclusive to, its information management 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. By considering the above factors, an agency may decide that a particular document was not created because, for example, the agency’s recordkeeping processes do not require creation of the document. Where circumstances to account for a nonexistent document are adequately explained, it will not be necessary for the agency to conduct searches. If however, searches are relied on to conclude a document is nonexistent, the agency must demonstrate that it has taken all reasonable steps to locate the documents.[7] Whether all reasonable steps have been taken to locate documents will depend on the circumstances of each case. However, this will be informed by the key factors listed above, particularly the agency’s recordkeeping and document retention practices and procedures. On external review, the respondent agency has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[8] However, if an applicant contends that all relevant documents have not been located, there is a practical onus on the applicant to provide reasonable grounds to believe that the agency has not discharged the obligation to locate all relevant documents. Findings What are the terms of the access application? The terms of an access application set the parameters for an agency’s search efforts and therefore, are of primary importance in any sufficiency of search review. In this instance, the terms of the access application were convoluted and difficult to comprehend.[9] This made it difficult for both the Department and OIC to define the precise scope of the application – to ascertain with certainty exactly what documentary information it was to which the applicants sought to obtain access. Undertaking this task was made no easier by the applicants, who when asked by the Department and OIC to assist in clarifying their request sought instead to enlarge the scope of the application,[10] or introduce further details which only compounded the initial confusion.[11] On external review, OIC ascertained that the applicants were concerned that the Department had not located documents: showing valuation calculations relating to the Property (Part 1) showing the meaning of various codes (eg. SMA and S/C) used in the released documents (Part 2); and relating to the Objection and the Valuer-General’s decision on the Objection (Part 3). To the extent possible, given the difficulties outlined at paragraph 15 above, I consider below whether these documents fall within the scope of the original application and whether the Department has taken all reasonable steps to locate documents of that description. Part 1: calculation documents Before discussing this part of the applicants’ request, it is useful to briefly outline the Department’s valuation role and methods. The Valuer-General provides statutory land valuations for all rateable properties in Queensland in accordance with the Land Valuation Act 2010 (Qld). The way in which these valuations are computed was canvassed by the Department in various submissions[12] which accord with the following excerpts from the Department’s Statutory Valuation Procedures and Practices manual:[13] The annual valuation process employs mass appraisal methodology, which is an effective and legitimate method for the creation of new values in an efficient and timely manner. ... The Act requires the Valuer-General to make a valuation... as at a set valuation day or date of valuation. The Act further requires that a valuation record be amended or created in particular circumstances. The Valuer-General has the legislative authority to amend, create or cancel a valuation, and this action is called a maintenance valuation. ... A statutory valuation, similar to a market valuation, is arrived at through the application of sales evidence that is reflective of the market as at the applicable date of valuation or day of valuation. An annual valuation will, by necessity, use mass appraisal techniques to derive a valuation while a maintenance valuation will be individually assessed as at the time of the relevant action. Similarly, objections and appeals are targeted at individual valuations. ... Annual valuations are derived by the application of market based movements (known as factors) to the existing valuations of groupings of similar properties known as sub market areas. The market movements or factors are supported by the valuation of benchmark properties, which are representative valuations within each sub market area. [my emphasis] In summary terms, OIC understands[14] the valuation process to operate as follows: each year, a factor (eg. a percentage increase/decrease) is calculated for a particular area, based on certain key sales data this factor is then applied to the previous year’s valuation amounts for all properties in the area, ie. adjusting them all by the same percentage increase or decrease maintenance valuations may occur outside the annual revaluation process where properties are subject to certain events, eg. subdivision; and manual adjustments may be made to a specific property at the time of annual revaluation. In short, then, what generally occurs is that the Department undertakes a blanket or ‘mass appraisal’ calculation across a given area, using certain broad data points. This generates a percentage factor, which is then applied to the existing valuations of individual properties within the ‘mass valued’ area, so as to arrive at an updated valuation. The Department disclosed 31 pages of information to the applicants concerning the valuation of the Property. These pages show basic property information and the change in valuations over approximately 10 years. The released information also included a record of a Maintenance valuation in 2003, when the property was reconfigured. The applicants, however, are not satisfied with this released information. Firstly, they contend that the Department has not identified all information concerning the valuation of the Property. I have dealt with that issue at paragraphs 26 to 30 below. Secondly, the applicants argue that the Department ought also have searched for, and dealt with, information relating to the ‘mass appraisal’ process. In this latter regard, the applicants argue that as the mass appraisal calculations are subsequently applied to their Property, they fall within the scope[15]f their application.15 The Department submits that the scope of the original application does not extend to mass a[16]raisal calculations.16 The core of this latter issue is whether documents relating to the ‘mass appraisal’ process can be said to fall within the scope of the applicants’ access application. If yes, then the Department cannot be said to have discharged the obligation incumbent on it to identify and deal with all responsive documents concerning this part of the applicants’ application. If no, then the Department will bear no search obligations as regards this information; such obligations having never been triggered, for the simple reason that relevant information was never actually requested in the applicants’ access application. Having considered the terms of the access application, and the applicants’ submissions on external review, I am satisfied that the mass appraisal documents are not within the scope of this review, for the simple reason that this information was not requested in the access application. The applicants relevantly requested information as it related to the valuation of their Property, not the general valuation process. Guided by the terms of the access application, the Department, as noted, located and dealt with 31 pages containing just that information – information concerning the valuation of the Property. Valuation information that does not directly concern the Property – such as, for example, valuation information concerning neighbouring properties, or the generalised mass appraisal process – does not comprise information concerning the Property. It therefore falls outside the scope of the access application. The Department, accordingly, was under no obligation to search for nor deal with it in dealing with the access application, and it is not in issue in this review. I have informed the applicants that they may reapply to the Department for access to these mass appraisal documents (ie. documents that show how the factor is calculated for a particular area, rather than a specific property) under the RTI Act.[17] However, I am satisfied that the scope of the original application does not extend to the mass appraisal documents. The remaining question to be determined in Part 1 of this decision, therefore, is whether all reasonable steps have been taken to locate documents showing calculations specific to the applicants’ Property, ie. records of the application of the factor to the Property for annual valuations and any manual or maintenance adjustments. (The Objection documents, which are also specific to the Property, are considered at Part 3 below). The Department submits that:[18] all documents relating to the applicants’ specific Property are contained in its primary database, Queensland Valuation and Sales Database (QVAS), and have been provided to the applicants (eg. full property history documents) while some valuers make notes while in the field, there is no requirement to do so and no relevant documents relating specifically to the Property exist in this case; and the Department does not retain detailed notes or calculations of the type envisaged by the applicants for a residential property of this type. The Department has also provided OIC with a signed certification that all relevant searches were conducted.[19] There is nothing before me to cause me to doubt the veracity of this certification, and I accept it as accurate. As for manual adjustments, there is no reasonable basis to expect documents concerning any such adjustments exist. This is because the specific field in QVAS to be completed where manual adjustments are undertaken (labelled ‘Manual Adj At Reval’) is marked ‘No’ in all of the QVAS Property history documents.[20] There is nothing before me to suggest that these negative entries are anything other than accurate, which I consider permits the conclusion no manual adjustments were conducted and, consequently, no documents concerning such adjustments created. Taking into account the: extent and nature of the information that has been located by the Department and released to the applicant Department’s submissions about the mass appraisal system and the type of documents usually generated in relation to specific properties searches conducted by the Department signed certification provided to OIC by a senior Departmental officer; and negative entries in the QVAS fields concerning manual adjustments. I am satisfied that the Department has taken all reasonable steps to locate documents showing calculations specific to the applicants’ Property, and/or that reasonable grounds exist to be satisfied no further documents exist. Access may therefore be refused on this basis.[21] Prior to concluding this part of my reasons, I note for the sake of completeness the applicants’ submission[22] that, as a matter of government accountability, residents should be able to find out how valuations for their properties are calculated as they are used for revenue generation purposes by applicable authorities (e.g. local governments or the Office of State Revenue).[23] I do not disagree. However, the issue I am presently called to determine is not whether the balance of the public interest favours release of mass appraisal information, but simply whether the Department has taken all reasonable steps to locate information as actually requested by the applicants, ie. information falling within the scope of the access application. If the Department has searched for, and dealt with, all such documents, then it has discharged its search obligations under the RTI Act and nothing further can be required of it. If it is the case that an applicant desires information additional to that requested in their access application, the applicant must, as noted above, lodge a fresh application to that effect. In this case, for the reasons explained above, I am satisfied that the Department has located all responsive calculation documents, all of which it has disclosed. Part 2: documents showing the meaning of various codes The Department released 31 pages of printouts from QVAS which show the Property history. The applicants queried the meaning of various codes appearing in the printouts (eg. SMA and S/C) and submitted that this indicated the existence of further documents, such as a QVAS manual. In an effort to assist the applicants, OIC made enquiries of the Department. A senior member of the valuation team of the Department explained that: he is not aware of any manual explaining the various codes used in QVAS the codes are generally a matter of industry knowledge; and the codes may also be verbally explained during on-the-job training.[24] I accept the above explanation, and consider it sufficient to dispose of the applicants’ contention as to the existence of documents explaining the meaning of relevant codes, such as a training manual. Importantly, even if such a manual did exist, it would not, for reasons analogous to those set out at paragraph 24 above, comprise a document falling within the scope of the applicants’ access application. This is because any such manual or other information explaining the meaning of industry-wide codes would comprise generalised information, and not information specifically relating to the applicants’ Property; the latter being the only information captured by the applicant’s access application, as properly construed. In any event, even if my conclusions as to the scope of the access application were incorrect, I am nevertheless content that there are reasonable grounds to be satisfied no such manual nor explanatory materials exist in the Department’s possession or under its control. As set out at paragraph 10 above, where circumstances to account for a nonexistent document are adequately explained, it will not be necessary for an agency to conduct searches. A senior member of the QVAS valuation team with considerable knowledge and experience has given direct evidence to the effect that the Department holds no manual explaining codes or abbreviations used in QVAS nor any other documents of this kind. As noted, I accept this evidence, which would provide a reasonable basis for me to be satisfied such documents do[25]ot exist.25 I note, however, that the Department informally provided explanations for all codes queried by the applicants in the course of [26]e review.26 Part 3: documents relating to the Objection process The applicants requested all documents relating to the Objection. The Department submits that it retains the following types of documents in relation to an objection:[27] the Objection an Assessment of Objection for Defects Form[28] a Valuer Action Sheet a Decision by Delegate; and the Decision. The applicants did not seek access to the Objection itself.[29] The Assessment of Objection for Defects Form was located and released on external review.[30] The Valuer Action Sheet and Decision by Delegate were part of the original documents released to the applicants.[31] The Decision had already been released to the applicants in response to the Objection and was frequently referred to by the applicants, who were clearly in possession of a copy.[32] The specific sufficiency of search concern raised by the applicants related to a reference in the Decision on Objection to an ‘appropriate allowance’.[33] The applicants’ Objection submitted that various adverse impacts had not been taken into account in the valuation.[34] The Department’s decision on the Objection was that ‘An appropriate allowance has already been made in the valuation for the disabilities as identified in the grounds of objection and no further change in the valuation has been made.’ [my emphasis] OIC made enquiries with the Department about the ‘appropriate allowance’ referred to in the Decision on Objection and any documents showing how it was calculated. A senior member of the valuation team explained that:[35] The site valuation of this property compared to similarly sized nearby properties suggest allowances have been made by Departmental valuers in the past. With regard to the 1 October 2012 site valuation, [a Senior Valuer] has maintained relativity in values which reflects appropriate allowances, and therefore made no specific additional allowances within the 1 October 2012 valuation. Whilst [a Senior Valuer] can identify the history of change in values (already supplied), he does not have direct knowledge of how previous valuers calculated their valuation nor the quantum or methodology for individual allowances made for the variety of issues raised by Mr Usher. Our valuers when considering the site value for a parcel of land have regard to all issues that might suggest to a prudent purchaser that the issues are such that would materially affect the price paid for the land on the day of valuation. In this case, our valuers, experienced in these assessments would consider the obvious issues associated with traffic and associated noise; parking restriction (if any). [my emphasis] The Department’s submission indicates that the ‘appropriate allowance’ referred to in the Decision on Objection was calculated at some earlier point, but either there was no note taken of how it was calculated, or the Department is not now able to locate the document. While the Department’s publications clearly indicate that certain constraints on use are taken into consideration in reaching a valuation,[36] it does not necessarily follow that there is an itemised list made of the dollar amounts attributed to each of the adverse impacts for every property in Queensland. It was clear throughout the review that the valuation process was not as exact a science as the applicants thought it should be. However: it is not within the Information Commissioner’s jurisdiction under the RTI Act to consider the Department’s processes in undertaking the valuation and objection process the Department’s submissions about the massed approach adopted as a result of the large amount of properties to be valued and the finite resources available is consistent with the searches indicating no documents showing an appropriate allowance exist; and there is no evidence before me to suggest that the Department has provided misleading information to OIC on external review. On the basis of the Department’s explanation, and taking into consideration the knowledge and experience of the officers who provided the submissions, I consider there is a reasonable basis to be satisfied that a document showing the ‘appropriate allowance’ does not exist and access may therefore be refused.[37] DECISION For the reasons set out above, I vary the decision under review and find that: the Department has taken all reasonable steps to locate the Part 1 documents showing valuation calculations specific to the Property the Part 2 documents do not fall within the scope of the access application, and, in any event, there are reasonable grounds to be satisfied that both these and the Part 3 documents do not exist; and therefore access to any further documents may be refused under sections 47(3)(e) and 52(1) of the RTI Act on the basis that they are nonexistent or unlocatable. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ JS Mead Right to Information Commissioner Date: 19 December 2014 APPENDIX Significant procedural steps Date Event 30 October 2013 The Department received an access application under the Information Privacy Act 2009 (Qld) (IP Act). 8 November 2013 The Department advised the applicants that the access application was not limited to personal information and therefore, was not an application that could be made under the IP Act. The Department invited the applicants to respond by 22 November 2013. 20 November 2013 The applicants confirmed they wished to proceed under the RTI Act and ‘decided to vary and extend the scope and amend’ their original application, changing it from approximately two paragraphs of written information to almost two pages of typed information. 25 November 2013 The applicants paid the application fee. 26 November 2013 The Department issued a noncompliance notice on the basis that sections 24(2)(b), (d) and (e) of the RTI Act had not been satisfied. 28 November 2013 The applicants emailed the Department in response to its noncompliance notice. 3 December 2013 The Department requested the applicants agree to a condensed scope so that the application could be processed. 4 December 2013 The applicants responded to the Department with a further amended scope. The access application was accepted by the Department. 6 January 2014 The Department issued its decision under the RTI Act. 3 February 2014 The applicants applied to OIC for external review. 4 February 2014 OIC requested a number of procedural documents from the Department. 4 February 2014 The Department provided the requested documents to OIC. 7 February 2014 Mr Usher and an OIC staff member discussed the terms of the access application and external review application. 11 February 2014 The applicants provided OIC with a copy of the Objection and made further submissions about the information sought. 13 February 2014 OIC notified the applicants and the Department that OIC had accepted the external review application. In the letter to the applicants, OIC confirmed that ‘The agreed scope of your access application is set out on pages 2 and 3 of the Department’s decision.’ 17 February 2014 The applicants provided OIC with a copy of the Notice of Decision on Objection. 27 February 2014 The Department provided OIC with background information about the processing of the application and searches conducted and requested to speak with a valuer. 28 February 2014 In a telephone conversation, OIC encouraged Mr Usher to seek information through the concurrent Land Court process. 6 March 2014 OIC obtained information from a senior member of the valuation team concerning its valuation and record-keeping practices. 10 March 2014 The applicants provided a further submission to the OIC raising concerns about the meaning of abbreviations used in the released documents. 14 March 2014 OIC obtained further information from the Department concerning its valuation and record-keeping practices. The Department conducted a further search of QVAS for documents relating to the Objection and located one additional document. 20 March 2014 The Department confirmed to OIC that it was agreeable to release of the additional document. 28 March 2014 OIC wrote to the Department formally requesting release of the additional document and conveyed a preliminary view to the applicants. 9 April 2014 The applicants received a copy of the additional document. 14 April 2014 The applicants provided a written submission objecting to OIC’s preliminary view. 8 May 2014 OIC conveyed a second preliminary view to the applicants. 15 May 2014 The applicants applied for an extension of time in which to provide a response to the second preliminary view. OIC granted an extension until 23 May 2014 for a response. 23 May 2014 The applicants provided a further submission responding to the second preliminary view. 25 May 2014 The applicants made a minor amendment to the submission received 23 May 2014. 11 July 2014 OIC obtained information from a senior member of the valuation team concerning its valuation and record-keeping practices. 15 July 2014 The applicants provided further information to OIC. 18 July 2014 The applicants provided further information to OIC. 6 August 2014 OIC requested further information from the Department. 18 September 2014 The Department provided OIC with further information about its valuation and record-keeping practices. 3 October 2014 OIC requested further information from the Department about the objection process and the Department responded. 10 October 2014 OIC conveyed a third preliminary view to the applicants. 28 October 2014 The applicants provided a written submission objecting to OIC’s preliminary view. 18 November 2014 The applicants provided a further written submission objecting to OIC’s preliminary view. [1] During the external review, the Department located one further relevant document and provided a copy of this document to the applicants, subject to the deletion of a signature. [2] Sections 47(3)(e) and 52(1)(a) of the RTI Act.[3] Section 23 of the RTI Act.[4] As set out in section 47 of the RTI Act.[5] Sections 47(3)(e) and 52 of the RTI Act.[6] PDE and The University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE). 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; see Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010). [7] PDE at [49] and [53]. See also section 130(2) of the RTI Act.[8] Section 87 of the RTI Act. [9] The access application was couched in relatively wordy terms, and framed in five parts, most of which were then further broken down into complex subparagraphs.[10] The ‘terms of an application will set the parameters for an agency’s search efforts... an applicant cannot unilaterally expand the terms of an application’: 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)1 QAR 491.[11] Indeed, so complex was the wording of the access application, the Department originally issued the applicants with a non-compliance notice on the basis that it did not provide sufficient information concerning the document to enable a responsible officer of the agency to identify the documents sought (section 24(2)(b) of the RTI Act). The Department, in my view, would have been quite justified in reaching a noncompliance decision on this basis. Nevertheless, after fruitlessly attempting to have the applicants’ clarify their request, the Department eventually decided to accept the application. While this was done in good faith and in accordance with the objectives of the RTI Act, it made OIC’s task on external review difficult, obliging us to consider as ‘processable’ patently indecipherable parts of the application, in addition to those parts that were more clearly made out. I should note, however, that OIC did during the course of this review contemplate adopting the Department’s initial approach under section 33(5) of the RTI Act. Ultimately, however, OIC elected not to pursue this course of action as the vast majority of external reviews are resolved through cooperation of the parties. OIC was therefore hopeful of being able to negotiate productively with both the applicants and the Department, so as to reach an informal resolution of the matter.[12] Telephone conversations dated 6 March 2014, 14 March 2014, 11 July 2014 and submission dated 18 September 2014.[13] Parts 1.4, 1.5. 3.2, 8.4 and the introduction to part 8 of the Department’s Statutory Valuation Procedures and Practices under the Land Valuation Act 2010 (April 2011). [14] An understanding based on the Department’s submissions and Statutory Valuation Procedures and Practices manual. [15] Submission dated 28 October 2014.[16] Letter dated 18 September 2014.[17] The Department will still need to make an assessment of whether any relevant grounds of refusal under the RTI Act apply to these mass appraisal documents.[18] Telephone conversation with OIC dated 14 March 2014 and letter dated 18 September 2014.[19] Signed and dated 11 September 2014.[20] Part of the original documents released to the applicants.[21] Sections 47(3)(e) and 52 of the RTI Act.[22] Application for external review dated 3 February 2014.[23] Part 1.1 of the Department’s Statutory Valuation Procedures and Practices manual.[24] Telephone conversation with OIC on 11 July 2014.[25] Sections 47(3)(e) and 52(1)(a) of the RTI Act.[26] This was communicated to the applicants by way of a letter dated 10 October 2014.[27] Telephone call with OIC on 14 March 2014.[28] Also referred to as a ‘Properly Made Report’.[29] Applicants’ email to the Department dated 4 December 2013.[30] As confirmed in letters to the applicants and the Department dated 28 March 2014.[31] Pages 1 to 2 of the released documents. [32] Dated 31 July 2013.[33] Applicants’ emails to the Department dated 20 and 28 November 2013, applicants’ conversation with OIC on 7 February 2014, applicants’ email to OIC dated 11 February 2014.[34] Applicants’ submission dated 14 February 2014.[35] Department’s submission dated 3 October 2014.[36] The Department’s website provides: ‘When determining statutory land values, our valuers:... take into account physical attributes and constraints on use of the land’ (http://www.qld.gov.au/environment/land/title/valuation/considerations/ accessed 16 December 2014) and ‘Why your neighbour's valuation may be different to yours... Your neighbour's land may have different physical characteristics that affect its value. For example, your neighbour's land might have poorer views, steeper topography or inferior access’ (http://www.qld.gov.au/environment/land/title/valuation/variation/ accessed 18 December 2014). See also part 9.5.1.2 of the Department’s Statutory Valuation Procedures and Practices under the Land Valuation Act 2010 (April 2011).[37] Sections 47(3)(e) and 52 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Grimley and Department of Mines and Energy [1999] QICmr 16 (2 August 1999)

Grimley and Department of Mines and Energy [1999] QICmr 16 (2 August 1999) Grimley and Department of Mines & Energy (S 129/98, 2 August 1999, 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 6 May 1998, the applicant applied to the Department of Mines and Energy (the Department) for access under the FOI Act to a number of documents, including "[t]he 'Schedule of Accidents' held in the minutes of meetings of the Electrical Industry Safety Advisory Committee since 1st July 1995 to this present date". By letter dated 1 July 1998, Ms P Ashe, the Department's FOI decision-maker, informed the applicant that she had determined that the Schedule of Accidents (the Schedule) - described as document 37, and consisting of 57 pages - should be disclosed in part only, subject to the deletion of information which Ms Ashe had determined was exempt from disclosure under s.44(1) of the FOI Act. The Schedule contains a record of accidents in Queensland relating to electric power or electrical contractors, which resulted in injury or death. Information about each accident is set out in four columns which record: Number Date Whether fatal or non-fatal, plus nameof injured employee and of employer An account of the accident Each page of the Schedule records entries for, on average, three or four accidents, covering a period from January 1995 to March 1998. The matter which Ms Ashe determined was exempt under s.44(1) consisted of "the names of members of the community and the names of deceased persons". Access was, however, granted to information in the first two columns, and information in the final column recording accounts of accidents. On 21 July 1998, the applicant sought internal review of Ms Ashe's decision, challenging the 'sufficiency of search' by the Department for documents falling within the terms of his access application. By letter dated 30 July 1998, the applicant informed the Department that he also wished to apply for internal review of Ms Ashe's decision that the names of employees which appeared in the Schedule were exempt from disclosure to the applicant, stating that "I require the employees names in order to indicate the safety records of individual organisations to appropriate authorities". By letter dated 5 August 1998, Mr Rowan Hindley, the Acting Manager, Executive Support Unit, informed the applicant that he had decided to disclose a number of additional documents to the applicant, but that he had decided to uphold Ms Ashe's decision with respect to the names of employees in the Schedule. By letter dated 22 August 1998, the applicant applied to me for review, under Part 5 of the FOI Act, of Mr Hindley's decision with respect to matter claimed to be exempt in the Schedule, and also raised a 'sufficiency of search' issue. The applicant stated, however, that his letter dated 30 July 1998, expanding his application for internal review, should have requested access to the names of employers, not of employees, which was a typographical error. (The Department had deleted the names of employers from the Schedule, as well as the names of employees.) The applicant stated that he had subsequently pointed this error out to Mr Hindley, and that Mr Hindley had declined to alter his decision. My Office subsequently confirmed with the applicant that he sought access to the names of employers, and did not wish to press for access to the names of employees. External review process The Department was requested to provide this Office with a copy of the matter in issue, and with details of any searches which had been undertaken to locate the additional documents which the applicant contended should be in the possession of the Department. The Department forwarded copies of relevant documents to my Office under cover of a letter dated 7 September 1998, including a copy of a letter dated 31 August 1998 from Mr Hindley to the applicant, explaining that the documents which the applicant believed had not been located and dealt with in the course of his FOI access application either did not exist, or were not received by the Department until after that FOI access application was made, and therefore fell outside the scope of that access application. The applicant was subsequently informed that I had no jurisdiction in relation to documents which fell outside the scope of his FOI access application dated 6 May 1998. The applicant informed my Office that he accepted that the additional documents fell outside the scope of that access application, and that he would pursue access to them by other means. That left in issue in this review only the names of employers in the Schedule. On considering the Schedule, I formed the preliminary view that disclosure of any part of the Schedule that would identify an employee as having been injured or killed would disclose information concerning that employee's personal affairs, and that this would extend not only to the names of employees who were injured or killed but also to the names of self-employed contractors. It was my preliminary view that such matter qualified for exemption from disclosure to the applicant under s.44(1). The applicant was informed of my preliminary view and advised my staff that he accepted that view with respect to the names of self-employed contractors, and did not seek access to that matter. The matter remaining in issue in this review therefore comprises the names of private firms or companies, and of electricity authorities, who were the employers of persons injured or killed in the electrical accidents listed in the Schedule. I will provide the Department with a copy of the Schedule with the matter remaining in issue marked on it. By letter dated 7 June 1999, I informed the Department of my preliminary view that the matter remaining in issue was not exempt from disclosure to the applicant. The Department advised my Office, by letter dated 22 June 1999, that it did not accept my preliminary view, stating that: In the normal course of events, I would agree with your interpretation of s.44(1) of the Freedom of Information Act 1992 (FOI Act). However, I am sure you are aware of the tragedy and sensitivity which surrounds this case. I support strongly Mr Robert Nelson's contention in his letter to you dated 7 September 1998 [forwarding copies of relevant documents to this Office] that:- "....if the name of the employer organisation was not exempted, it would be possible to identify the deceased person and that disclosure of personal affairs might lead to attempts to contact the next of kin of the deceased." It is the strong belief of the departmental officers involved in this matter, that release of further information to the applicant could lead to further distress being suffered by individuals whose loss has been great, already. Application of s.44(1) of the FOI Act Section 44(1) of the FOI Act provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. In applying s.44(1) of the FOI Act, one must first consider whether disclosure of the matter in issue would disclose information that is properly to be characterised as information concerning the personal affairs of a person. If that requirement is satisfied, a prima facie public interest favouring non-disclosure is established, and the matter in issue will be exempt, unless there exist public interest considerations favouring disclosure which outweigh all identifiable public interest considerations favouring non-disclosure, so as to warrant a finding that disclosure of the matter in issue would, on balance, be in the public interest. In 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. The matter remaining in issue comprises the names of employers of persons involved in accidents in the course of their work for those employers. Some of the employers are large organisations. Some of them may be relatively small. Disclosure of the names of employers would not, by itself, disclose anything about individual employees who have been injured or killed. What it might enable the applicant to do (and this is what the Department has expressed concern about) is to make enquiries of individual employers which might lead to the applicant being able to establish the identities of such employees. However, the responses of employers in any case would be a matter for them. In a number of exemption provisions in the FOI Act, Parliament has adopted a test requiring consideration of whether certain prejudicial effects "could reasonably be expected to ..." arise. However, when applying s.44(1) my decision must be based on whether disclosure of the matter in issue would disclose information concerning the personal affairs of persons other than the applicant for access. I have found, in a number of previous decisions, that matter which does not specifically name a person can nevertheless be capable of identifying a specific person to the applicant seeking access to that information (for example, information which the applicant would know that only one person could have provided to the agency). However, I do not accept that the matter remaining in issue in this case is matter of a kind which is capable, in itself, of revealing anything concerning the personal affairs of any of the employees named in the Schedule. The mere disclosure of names of employers would not disclose any information concerning the personal affairs of employees. That matter therefore does not qualify for exemption from disclosure under s.44(1) of the FOI Act. DECISION I vary the decision under review (being the decision of Mr Hindley dated 5 August 1998), by finding that the matter remaining in issue (identified at paragraph 15 above) is not exempt from disclosure under s.44(1) of the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

East and Environmental Protection Agency [2001] QICmr 13 (15 June 2001)

East and Environmental Protection Agency [2001] QICmr 13 (15 June 2001) East and Environmental Protection Agency (S 85/98, 15 June 2001, 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.- 2. These paragraphs deleted. REASONS FOR DECISION Background The applicant, Mr East, is a former staff member of the Environmental Protection Agency (the EPA). Another staff member of the EPA (the complainant) expressed concerns about the applicant's performance of his employment duties insofar as it related to her. This ultimately led to the institution of a stage 3 grievance investigation, which was conducted by Ms J Stevens of the EPA and Mr G Francis of Francis Consulting Pty Ltd. The investigators ultimately recommended that no action be taken against the applicant in respect of the grievance, and no action was taken. By letter dated 3 December 1997, the applicant applied to the EPA, under the FOI Act, for access to all documents relating to the allegations and investigation. By letter dated 27 February 1998, Ms M Sanderson, the Acting FOI Co-ordinator, informed the applicant that 509 folios and 3 audio tapes had been identified as falling within the terms of his FOI access application. Ms Sanderson decided that 61 folios and 2 audio tapes were fully exempt, and a further 41 folios were partially exempt, under s.40(c), s.44(1) and/or s.46(1)(b) of the FOI Act (meaning that some 407 folios and one audio tape were available for disclosure in full, and 41 folios were available for disclosure in part). By an undated letter received by the EPA on 25 March 1998, the applicant sought internal review of the exemption claims. By letter dated 6 April 1998, Mr Arnott, Director (Business Support Services), informed the applicant of his internal review decision, which slightly varied Ms Sanderson's initial decision by permitting disclosure of some additional information, but confirmed her decision that 60 folios and 2 audio tapes were fully exempt, and a further 38 folios were partially exempt, under s.40(c), s.44(1) and s.46(1)(b) of the FOI Act. By an undated letter received in my office on 4 June 1998, the applicant applied to me for review, under Part 5 of the FOI Act, of Mr Arnott's decision. External review process By letter dated 5 June 1998, the Deputy Information Commissioner referred the EPA to s.15 and s.16 of the Public Service Regulation 1997 Qld (the Regulation), as then in force (those provisions have recently been amended, with effect from 6 April 2001) and to my comments in Re Holt and Education Queensland [1998] QICmr 4; (1998) 4 QAR 310 at paragraphs 51-53. The Deputy Information Commissioner indicated that the reasoning disclosed in both the initial access decision and the internal review decision appeared to be flawed, given that neither decision took into account the legal effect of s.15 and s.16 of the Regulation. He continued: Both the initial decision and the internal review decision placed much reliance on the Information Commissioner's decision in Re McCann and Queensland Police Service [(1998) [1997] QICmr 10; 4 QAR 30]. However, uniformed police officers are not subject to the application of the Public Service Regulation, while the Department of Environment is. It seems to me to be difficult to argue that disclosure of documents to the applicant would have a substantial adverse effect on the management of the Department's personnel, if the Department is obliged to show those documents to the applicant under the terms of legislative provisions that form part of the specific legislative framework pursuant to which the Department must manage its personnel. It may be that the question of Mr East obtaining access to most of the documents he seeks does not need to be considered under the FOI Act. I have written to him suggesting that he make a formal request to inspect the documents he seeks under s.16 of the Public Service Regulation. I have indicated that this office will deal with the question of whether Mr East is entitled to obtain access, under the FOI Act, to any documents which Mr East is unable to obtain by exercising the right conferred on him by s.16 of the Public Service Regulation. Section 44(1) of the FOI Act would still be capable of applying to any matter in issue which solely concerns the personal affairs of persons other than Mr East. Mr East did make an application, under s.16(2) of the Regulation, to inspect the records relating to the grievance. That application was refused by the Acting Director, Corporate Development, who, in a letter to Mr East dated 24 December 1998, said: The information you request is not held on your personal file. The documents you seek are broader and relate to all material gathered in the course of the investigation of the ... grievance. Consequently, on a literal interpretation of this subsection, I do not believe it is possible to release the documents you have requested. With respect, these comments were insupportable. At that time, s.16(2) of the Regulation provided: (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. This provision imposed no requirement that the departmental records that an employee sought to inspect must be held on that employee's personal file: cf. my comments in Re Chambers and Department of Families, Youth and Community Care; Gribaudo [1999] QICmr 1; (1999) 5 QAR 16 at paragraph 9. On a literal interpretation (or any other lawful approach to statutory construction) of s.16(2) of the Regulation, departmental records concerning a grievance in which Mr East was the subject of complaint must have answered the statutory description of being departmental records about the employee (i.e., Mr East). Mr East therefore had a statutory entitlement to inspect them at a time and place convenient to the department. Mr East requested a reconsideration of this decision. After some delay, he received a letter dated 19 March 1999 from the Director-General of the EPA, refusing Mr East's request. The Director-General's stated reason for doing so was that he was not prepared to disclose information gathered in relation to grievances where that information was given and received in confidence and release could cause detriment to others. I merely observe that the Regulation provided for no such exception to the statutory entitlement conferred on public service employees by s.16(2) of the Regulation. Faced with the stance adopted by the EPA, Mr East decided to pursue his application for review under Part 5 of the FOI Act. Copies of the documents to which the EPA had refused Mr East access, under the FOI Act, were obtained and examined. In several telephone discussions with staff of my office during the course of this review, and by letter dated 7 February 2000, the applicant indicated, for the purposes of this review, that he was no longer pursuing access to information which would identify a third party, or which concerned the personal affairs of any other individual. The applicant accepted that substantial portions of the transcript of an audio tape of an interview with a third party information provider, contained matter which concerned the personal affairs of, or would identify, the third party information provider. These concessions by the applicant have meant that a small number of documents which the EPA had previously agreed to disclose subject to the deletion of matter of the type described above, are no longer in issue. I have attached to these reasons for decision a schedule of the documents which contain the matter remaining in issue. Matter in those documents which is no longer in issue in this external review has been identified in letters to the EPA dated 16 February 2000 and 15 June 2001. Following an examination of the matter remaining in issue, I wrote to the EPA on 23 September 1999 conveying my preliminary views on the issues raised in this review. Enclosed with that letter was a copy of my decision in Re Chambers. By letter dated 28 October 1999, Mr B Carbon, the Director-General of the EPA, informed me that he did not accept my preliminary views, and lodged a submission in support of the EPA's case for exemption. A copy of that submission was provided to the applicant. By letter dated 16 November 1999, the applicant lodged a short response. I have taken into account the following material in making my determination in this review: the contents of the documents containing the matter in issue; applicant's initial access application dated 3 December 1997; initial access decision dated 27 February 1998; applicant's undated internal review application (received 25 March 1998); internal review decision dated 6 April 1998; applicant's undated application for external review (received 4 June 1998); EPA's submission dated 28 October 1999; and applicant's letter in response dated 16 November 1999. The small amount of matter which Mr Arnott decided was exempt under s.44(1) of the FOI Act is no longer in issue in this review, so I will not deal further with that exemption provision in my reasons for decision. Mr Arnott also decided that handwritten notes made by the complainant in September 1996, and the letter initiating the stage 3 grievance process (including attachments), were wholly exempt under s.46(1)(b) of the FOI Act. I will consider the application of s.46(1)(b) before proceeding to consider the application of s.40(c), which Mr Arnott decided applied to all of the matter remaining in issue. Application of s.46(1)(b) of the FOI Act Section 46(1)(b) of the FOI Act provides: 46.(1) Matter is exempt if — ... (b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest. In Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (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. Information of a confidential nature The bulk of the matter in issue relates to, or was considered in the course of, the stage 3 grievance process. The applicant has been given access to material concerning the earlier stages, and to parts of the stage 3 grievance report. He has therefore been made aware of the general nature of the grievances raised by the complainant, and the investigations that took place in the course of the stage 3 process. The attachments to the complainant's letter initiating the stage 3 grievance process include a considerable history of events leading up to that time. The applicant would clearly be aware of many of the events in which he was involved, and of the complaints raised by the complainant on earlier occasions. It is therefore difficult to see how such matter could be said to be information of a confidential nature, as against the applicant. Nevertheless, for the purposes of my analysis, I will consider the question of communication in confidence as it relates to all of the matter. Communicated in confidence At pp.338-339 (paragraph 152) of Re "B", I made the following comments with respect to requirement (b) above: 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. In his letter dated 28 October 1999, Mr Carbon stated that "assurances of confidence were given or implied". There is no evidence before me that any express assurance as to confidentiality was sought by or given to any person who gave information in the course of the investigation. Given the onus that lies on the EPA under s.81 of the FOI Act, I find that there was no express assurance of confidentiality. Indeed, I consider that a blanket promise of confidentiality ought not properly to have been given, for the reasons I stated at paragraph 17 of Re Chambers: 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. An examination of the relevant circumstances attending the communication of information may support a finding that there existed an implicit mutual understanding between the supplier and the recipient that the information supplied would be treated in confidence. However, a fundamental obstacle to such a finding in this case was the existence of statutory provisions, binding on the EPA, which required the disclosure to the applicant of the documents in issue. The text of s.16(2) of the Regulation is set out in paragraph 9 above. Section 15(1) of the Regulation relevantly provided: Particular documents to be noted by employee before being placed on departmental records. 15.(1) The employing authority must ensure that a report, correspondence item or any other document about a public service employee's performance that could reasonably be considered to be detrimental to the employee's interests, is not placed on a departmental record unless— (a) the employee has initialled the document or, if the employee refuses to initial it, the refusal is noted on the record; and (b) the employee has been given— (i) a copy of the document; and (ii) the opportunity to respond in writing to its contents within 14 days after receiving the copy. ... The precursors to s.15 and s.16 of the Regulation were s.99(1) and s.103 of the Public Service Management and Employment Regulation 1988 Qld (the PSME Regulation), 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. Access to officer’s file 103.(1) At a time and place convenient to the department, an officer shall be permitted to peruse any departmental file or record held on the officer. (2) The officer shall not be entitled to remove from that file or record any papers contained in it but shall be entitled to obtain a copy of it. In Re Holt, I said, at paragraphs 49-50: 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. ... 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. Disclosure under s.103 of the PSME Regulation was required only when an officer elected to exercise the entitlement conferred by s.103. An equitable obligation of confidence 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. Unless and until the equitable obligation has been overridden in that way, it must still be given effect to in the application of s.46(1)(a) of the FOI Act. The applicant formally sought access to all of the documents in issue under s.16 of the Regulation while he was a public service employee. That application was refused by the EPA and, as I have indicated above, I consider that the EPA had no proper legal basis for doing so. (I should point out that s.16 of the Regulation confers legal rights that are distinct from the legal rights conferred by the FOI Act. The fact that an FOI access application is being processed affords no legal basis for refusing to comply with a valid application under s.16 of the Regulation. In a review under Part 5 of the FOI Act, I do not have jurisdiction to make an order or decision in aid of enforcement of the statutory entitlement which Mr East had as a public service employee, pursuant to s.16 of the Regulation. Nevertheless, it is appropriate for me to consider the application of s.16 of the Regulation, and the other provisions set out above, insofar as their application is relevant to the application of exemption provisions under the FOI Act.) For the reasons stated in paragraphs 9-11 above, I am satisfied that, when the applicant sought access under s.16 of the Regulation, the EPA was bound, at a time and place convenient to it, to allow the applicant to inspect the matter in issue. I am also satisfied that the documents fulfilled the criteria under s.99(1) of the PSME Regulation, or s.15 of the Regulation (depending on the time they were placed on the files of the EPA), to cast a statutory obligation on the EPA which required it (prior to placing the documents on files of the EPA) to give the applicant copies of the documents in issue. Common elements of both provisions were that a document must be about or concern the officer's performance, and that the document could reasonably be considered to be detrimental to the officer's interests. I am satisfied that each of the documents containing matter in issue concerns, or is about, the applicant's work performance. They concern the grievance lodged by the complainant about the applicant's working relationship with her. The applicant's performance of his employment duties was the focus of the grievance. I am also satisfied that, given the negative comments contained in them, they each, at the time they were placed on EPA files, must reasonably have been considered to be detrimental to the applicant's interests as an employee. Section 15(1) of the Regulation required disclosure before a document was placed on a "departmental record". However, s.99 of the PSME Regulation was more restrictive, referring to "any official files or records relating to" the officer . In Re Chambers, at paragraph 20, I stated that, while there could be some difficulties in delineating the precise scope of that phrase, I had 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. At paragraphs 20 and 21, I continued: ...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. 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. I am satisfied that any implicit mutual understanding of confidentiality that could be established as between the EPA and individuals who supplied information for the purposes of the grievance investigation was over-ridden by these statutory disclosure provisions, which required disclosure of the matter in issue to the applicant. This must have been the case with respect to any of the information in issue supplied for the purposes of the grievance process. This will be a relevant consideration in dealing with the contention by the EPA that all of the matter in issue is exempt under s.40(c) of the FOI Act. However, with respect to s.46(1)(b), the EPA has only contended that handwritten notes of the complainant made in September 1996, and the letter initiating the stage 3 grievance process (with attachments), are exempt under s.46(1)(b). Even if the legislative provisions discussed above had not mandated disclosure, there is insufficient material before me to satisfy me that a mutual understanding of confidential treatment, as against the applicant, could be inferred from the circumstances surrounding the supply of information for the purpose of pursuing a grievance against the applicant. The complainant must have anticipated that, in order to progress the grievance, it would be necessary to put her complaints to the applicant, in order to allow him to respond. There was clearly a long history of dispute between the applicant and the complainant, and issues arising between the applicant and the complainant had been aired in the previous grievance stages. I find that the complainant, and the employees of the EPA who received information from the complainant on behalf of the EPA, must reasonably have anticipated that the matters she raised would be put to the applicant. The bulk of the handwritten notes made in September 1996 record a conversation between the complainant and a member of the public (the third party). While the third party was obviously concerned at the possibility of becoming involved in the dispute, I consider that the third party must reasonably have expected that any comments made to the complainant concerning the applicant might well be raised, either directly with the applicant, or with EPA management (and passed on by EPA management to the applicant). The information that the third party provided was obviously of such a nature that it would require some action by the complainant or by EPA management. I am not satisfied that, even if the legislative provisions discussed above had not been in force, the circumstances attending the communication of the information in question could support a finding that there existed implicit mutual understandings that information supplied by the third party to the complainant, and by the complainant to the EPA, would be treated in confidence as against the applicant. I find that none of the matter in issue was communicated in confidence, for the purposes of s.46(1)(b) of the FOI Act. Prejudice to future supply of information Although it is not strictly necessary for me to do so, given my finding above, 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 information to initiate a grievance process and support the complaint. I do not consider that a significant number of people in the position of the complainant would be less likely to initiate grievance processes if the grounds for grievance were disclosed to the subject of the grievance complaint. It is surely only logical that a part of the grievance process is to put the grievances to the subject of complaint in order to allow them to be addressed, either by way of correcting behaviour or rebutting the concerns raised. Nor is the limited information provided by other staff members of such sensitivity that its disclosure could reasonably be expected to prejudice the future supply of information. I find that none of the matter in issue qualifies for exemption from disclosure to the applicant under s.46(1) of the FOI Act. Application of s.40(c) of the FOI Act The EPA claims that all of the matter remaining in issue is exempt under s.40(c) 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; or unless disclosure would, on balance, be in the public interest. I 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. 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). 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. 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. I am satisfied that the grievance proceeding comprised an aspect of the management by the EPA of its personnel. Substantial adverse effect In his submission dated 28 October 1999, Mr Carbon said: There are sometimes circumstances where, despite the best of intentions, a learned interpretation of the rules produces an answer which is wrong. In the circumstances where the rules and what is right are in conflict, we should choose what is right. ... The case we have is one of a series of exchanges between people who did not like each other, but were obliged to work in close proximity. ... ... ... I see no reason to place any of the material on file, nor to distribute it. I see no public nor private good can come from releasing any of it to anyone. ... There was a complaint, the parties had their say, the grievance was decided, and it should be over. The release of presently confidential information can only lead to further bad feelings with whatever consequences. ... ... It is clear that some parties were justifiably frightened, to the point that they did not wish to be involved in the grievance matter at all, and others were particularly uneasy about being caught in the middle of workplace conflict. It is also clear that there would be detriment to those parties if information which they had given in confidence and we had agreed to treat confidentially were released. I believe that there needs to be sensible interpretation to material given in confidence. ... I have been advised that throughout a four year period serious management problems existed because of this matter. There was extreme concern, animosity and anxiety between individuals and workgroups. Many of the officers involved do the same or related work within small work units and need to rely on the assistance of others and trust each other. It has taken many months to try to restore the efficiency of the work unit which had years of diminished efficiency. Wounds are now starting to heal. This agency cannot afford a repeat of the previous situation which I believe would be likely to occur if the documents were even partially released. This is so of all the documents .... Management staff have informed me that it would not be possible to release anything meaningful from those documents without disclosing personal details and the identities of those mentioned. It is definitely not in the public interest to continually pursue an issue which should have been ended long ago. I have some sympathy for the views expressed by Mr Carbon on two counts. Firstly, the regulations I have discussed above were, in my view, too broad and unqualified in their terms, and liable to produce unsatisfactory and anomalous results in certain circumstances. At paragraph 26 of Re Chambers, I said: 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 ... . ...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." (Sections 15 and 16 of the Regulation have since been amended in a manner that removes most of the concerns I had with the provisions, but not in a manner that would prevent Mr East, if he were still a public service employee, from exercising an entitlement to inspect the matter in issue. The new provisions would permit the employing agency to delay access to an employee record for up to 6 months after the record comes into the employing agency's possession, but not to refuse inspection.) Secondly, I appreciate that it sometimes happens that compliance with a binding legal obligation does not appear to afford the most just and/or expedient way of managing a seemingly intractable personnel management problem. However, it is a fundamental obligation of government agencies and officials to comply with the law. Failure to do so tends to erode the moral authority of government agencies and officials to perform one of the primary functions of the executive branch of government, i.e., enforcing compliance by citizens with laws enacted by Parliament according to Parliament's view of what will best serve the wider public interest. Moreover, when a citizen brings a dispute before a court or tribunal (as Mr East has done in this case), the citizen is entitled to expect that the court or tribunal will administer justice according to law, not according to subjective notions of what justice requires in a particular case, in disregard of the law. In this case, the applicant has (pursuant to s.21 of the FOI Act) a right to obtain access to the documents he requested from the EPA, except to the extent that they comprise exempt matter, and the EPA has the legal onus of establishing that matter in issue is exempt matter. The EPA has expressed concern that disclosure could result in: prejudice to the future supply of information in grievance cases; damage to the relationship of trust between managers and staff; and disharmony in the workplace. I noted above that I do not consider that disclosure could reasonably be expected to inhibit aggrieved staff from coming forward or, given the nature of the information supplied by other staff, from providing like information in the future. Given that there is no evidence of assurances of confidentiality having been given by the investigators or EPA management, I do not see a basis on which disclosure would result in any loss of faith with management. The potential for disharmony in the workplace would also appear to have largely dissipated, given that the applicant is no longer a staff member. For these reasons, I am not satisfied that disclosure, at this time, of the matter remaining in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by the EPA of its personnel. In any event, a fundamental obstacle to the application of s.40(c) in this case is that the legislative provisions discussed above formed part of the legislative framework for personnel management and assessment under which the EPA was obliged to operate. I cannot accept that disclosure to the applicant, under the FOI Act, of information that the EPA was required to disclose to the applicant under regulations which governed the performance of its personnel management functions, could reasonably be expected to have a substantial adverse effect on the management or assessment by the EPA of its personnel. I find that the matter in issue is not exempt from disclosure to the applicant under s.40(c) of the FOI Act. DECISION For the reasons given above, I set aside the decision under review (being the decision of Mr Arnott on behalf of the EPA dated 6 April 1999). In substitution for it, I decide that the matter remaining in issue does not qualify for exemption from disclosure to the applicant under the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Swales and Department of Health [2011] QICmr 6 (9 March 2011)

Swales and Department of Health [2011] QICmr 6 (9 March 2011) Last Updated: 7 April 2011 Decision and Reasons for Decision Application Number: 310156 Applicant: Swales Respondent: Department of Health Decision Date: 9 March 2011 Catchwords: RIGHT TO INFORMATION ACT – Grounds on which access may be refused – section 47 of the Right to Information Act 2009 (Qld) – whether disclosure of the information would, on balance, be contrary to the public interest in accordance with section 49 of the Right to Information Act 2009 (Qld) – medical records of Applicant’s deceased daughter Contents REASONS FOR DECISION Summary The applicant is seeking access to her deceased adult daughter’s full and complete medical records which are held by the Princess Alexandra Hospital (PA Hospital), under the Right to Information Act 2009 (RTI Act). By decision dated 18 March 2010, the applicant was granted access to 20 pages and refused access to 1083 pages under section 47(3)(b) of the RTI Act (Decision) on the basis that disclosure would, on balance, be contrary to public interest under section 49 of the RTI Act. During the course of this external review, the Department of Health (also known as Queensland Health) (QH) agreed to release all but two full pages and parts of four pages to the applicant (the Remaining Information).[1] The applicant submits that the Remaining Information should be released to her in full. Having reviewed the Remaining Information, I am satisfied that QH is entitled to refuse the applicant access to the Remaining Information on the basis that disclosure would, on balance, be contrary to public interest under section 49 of the RTI Act. Reviewable decision The decision under review is the Decision of QH dated 18 March 2010. Background Significant procedural steps are set out in the Appendix. Evidence relied upon In making this decision, I have taken the following into account: the Access Application, Decision and External Review Application submissions provided by the applicant file notes of telephone conversations between OIC staff and the applicant file notes of telephone conversations and correspondence between OIC staff and QH 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. 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 public interest. In determining whether disclosure of the Remaining Information would, on balance, be contrary to public interest I must: identify and disregard irrelevant factors identify factors favouring disclosure of the information in the public interest identify factors favouring 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. Findings Irrelevant factors No irrelevant factors have been identified. Factors in favour of disclosure QH has identified the following factors as favouring disclosure of the information in the public interest: the applicant’s general right to seek access to documents held by QH; and the applicant’s public interest in accessing information contained in records held by the PA Hospital. In addition to the above factors, a further factor in favour of disclosure is: the information is the personal information of an individual who is deceased (the deceased person) and the applicant is an eligible family member of the deceased person. In this case, I am satisfied that: the medical records comprise the personal information of the applicant’s adult deceased daughter; and the applicant is the deceased person’s mother and is an eligible family member.[2] Factors in favour of non-disclosure QH has identified the following factors in favour of nondisclosure: the information concerns personal information about another person an individual’s personal information is a private concern, communication of which is generally only the prerogative of the individual rather than the government disclosure of the information could reasonably be expected to prejudice the protection of an individual’s right to privacy; and the person cited in the documents has not been able to authorise the release of their personal information. In addition to the factors favouring nondisclosure identified by QH, I have identified the following factor favouring nondisclosure: the information is the personal information of an individual who is deceased (the deceased person), 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. I have also identified the following factor favouring nondisclosure because of public interest harm in disclosure: disclosure of the information could reasonably be expected to cause a public interest harm if disclosure would disclose personal information of a person, whether living or dead. Applying the factors identified In this case, the applicant is an eligible family member of the deceased person. As a result, there is a public interest factor in favour of disclosure of most of the Remaining Information. However, where disclosure of the information could reasonably be expected to impact on the deceased person’s privacy if the deceased person were alive, this will also give rise to a factor favouring nondisclosure.[3] An individual’s medical records contain sensitive information. There is generally a very strong public interest in protecting an individual’s right to privacy by not disclosing their medical records under the RTI Act.[4] The Information Commissioner has previously recognised that in certain circumstances the privacy interest of the individual who the medical records concern, may be reduced. In Re Summers and Cairns District Health Service[5] the Information Commissioner recognised that the following points (as demonstrated by the applicant) may be relevant in determining the extent to which the privacy interest in a person’s medical records may be diminished: evidence of involvement in care extent of knowledge of medical history/incident; and evidence of special dependence/relationship. Having regard to the commentary in Summers, I consider that the following facts are relevant in this case: the applicant and her family knew about her daughter’s medical condition and were involved in her care, particularly as her condition deteriorated the applicant stated that her daughter had intended to make an application for her medical records as she wanted her family to have them but due to her sudden deterioration, this was not done the applicant has stated that Logan Hospital released her daughter’s entire medical record to the family; and the applicant has stated that her daughter’s medical record would be used in the event that any of her other children, or their children, are diagnosed with the same medical condition as her daughter. I am therefore satisfied that if the applicant’s daughter were still alive, that her privacy interest would be substantially diminished in relation to her medical information vis-à-vis her mother, particularly because of her mother’s detailed knowledge of, and involvement in, her care. In relation to most of the Remaining Information, it is comprised of discussions of a personal nature that do not touch upon the medical condition for which the applicant’s daughter was being treated. Most of the Remaining Information instead discloses the applicant’s daughter’s thoughts and feelings and there is no information before me to indicate that she discussed this information with the applicant. On this basis, I am satisfied that disclosure of the Remaining Information to the applicant could reasonably be expected to impact on the deceased’s privacy if she were alive. Accordingly, this is a relevant factor favouring nondisclosure of the Remaining Information. In addition, some of the Remaining Information is also inextricably intertwined with the personal information of another person who is alive. 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.’[6] I am satisfied that the personal information of the other person, which is contained in the Remaining Information, clearly identifies who the other person is. I am also satisfied that if the Remaining Information was to be released to the applicant, it could reasonably be expected to prejudice the other persons right to privacy. Accordingly, this is a factor favouring nondisclosure of the Remaining Information. Balancing the public interest In balancing the competing public interest factors, I find that: in relation to most of the Remaining Information: ○ the applicant is an eligible family member who has applied for access to the medical records of a deceased person ○ the information relates to the applicant’s daughter’s thoughts and feelings revealed in discussions that do not touch on the medical condition for which she was being treated ○ there is no evidence to indicate that these thoughts and feelings were shared with the applicant or other members of the family; and ○ if the information was disclosed, it could reasonably be expected to impact on her privacy if she were alive. in relation to some of the Remaining Information: ○ it contains the personal information of another person who can be identified from the information ○ disclosure of the information would disclose personal information of that other person; and ○ there is a strong privacy interest in protecting the other persons right to privacy. Accordingly, on balance the public interest factors in favour of nondisclosure in relation to the Remaining Information outweigh the public interest factors in favour of disclosure. DECISION I vary the decision under review by finding that access to the Remaining Information should be refused on the basis that disclosure would be contrary to the public interest under section 47(3)(b) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ Clare Smith Right to Information Commissioner Date: 9 March 2011 Appendix Significant procedural steps By letter dated 15 January 2010, the applicant applied to the Princess Alexandra Hospital for access to ‘a full and complete copy of all my daughters’ medical records. I am her mother.’ (Access Application). By letter dated 18 March 2010, the applicant was granted access to 20 pages and refused access to 1083 pages in accordance with section 47(3)(b) of the RTI Act (Decision).[7] On 22 March 2010, the Office of the Information Commissioner (the Office) received an email from the applicant seeking external review of the Decision to refuse access to the information in issue (External Review Application). The applicant made the following submission in her External Review Application: I don’t see why a person can make a decision on my daughters Medical Records. Donna Pottinger did not know who my daughter was, she would not know what my daughter was like or what she went through or what her wishes were. I cared for my daughter from the first moment of her illness and right up to the moment of her death, I was with my daughter [when] she passed away. My daughter ... and I had discussed getting a complete copy of all her medical records from both the P.A. Hospital and the Logan Hospital, the Logan Hospital supplied me with a complete copy of everything they had of [my daughter’s] medical record, which was not a lot they held nothing back, but the P.A. Hospital have held back on everything that would be of relevant help to her brothers and sisters if they came down with this disease. The only thing that the P.A. Hospital has sent me are discharge summaries that we already have a few nursing notes and medication sheets all of which we already have. I don’t see why a person who had nothing to do with my daughter has the right to view her medical records and her family does not. Donna Pottinger says it would be an unwanted invasion of her privacy, but by Donna Pottinger reading my daughters medical records I consider that an invasion of my daughters privacy. Donna Pottinger goes on to say “I have also considered that the disclosure of documents under the RTI Act is considered to be “release to the world” at large and there would be no control over the use of this personal information about Ms Swales. I consider her reading my daughters records as just that. What is stopping Donna Pottinger discussing my daughters information with who she likes now that she has read the records. The information contained in my [daughter’s] medical records is for the use only if they are needed how is that release of information to the world. The information contained in [my daughter’s medical records] is only to be used if we need it in the future for one of her 6 siblings or for their children. I cared for [my daughter], I bathed her, I sat with her through the night I did all I could for my daughter, I love my daughter and would never do anything with the information contained in her medical records that would ever hurt her. The medical records are something that [my daughter] wanted her family to have. [My daughter] was going to apply for a complete copy of her medical records, unfortunately she got to sick to quickly and we lost her ... I am asking for her complete medical records to be released to me her mother so that in the event that something happen[s] to one of her 2 brothers or her 4 sisters. By letters dated 9 April 2010, the Office informed the applicant and QH that the External Review Application had been accepted for review. By letter dated 13 April 2010, QH provided a copy of the information in issue. In a telephone conversation on 15 September 2010, this Office provided QH with a preliminary view in an attempt to informally resolve this review. By letter dated 23 November 2010, following further discussions with QH, a written preliminary view was forwarded to QH expressing the view that all but the following information (the Remaining Information) could be released to the applicant: pages 232 and 233 of Volume 3 the Social Work Entry on page 256 of Volume 3 the entry at the very bottom of page 10 of Volume 4 the ‘comments/notes’ section of page 27 of Volume 4; and one sentence in the ‘comments/notes’ section of page 62 of Volume 4. By email dated 23 November 2010, QH agreed with the written preliminary view and agreed to release the further information to the applicant with the exception of the Remaining Information. By letter dated 29 November 2010, the applicant was informed that QH had agreed to release all but the Remaining Information to her. By email dated 29 November 2010, the applicant submitted as follows: ...I want to know why this information has been withheld from us is there something to hide in these particular notes. I am asking you to reconsider your decision. We feel that as these are our daughters notes we have a right as her parents to see them. I wish to know everything good or bad that is contained in her hospital records as I have the same disease that ultimately claimed her life and [my daughter] has 6 siblings. If even one piece of information contained in the withheld information had the chance to save even one of them and they were your children would you not want that information. If it was your family in the same situation would you not want what we are asking for. I love my daughter very much and I was there holding her hands ... when she passed away ... I miss her every second of everyday and I always will, she was my baby girl and my heart has a big hole that only a person who has lost a child could understand, I have now lost 4 children [my daughter], a set of twin boys and my youngest son’s twin. Please I am asking you to please reconsider your decision to with hold any information from us.” On 5 January 2011, the applicant made further submissions to this Office during a telephone conversation. The submissions were confirmed in an email to the applicant as follows: her daughter wanted her to have a complete copy of her medical records but fell ill very suddenly before she could make an access application herself Logan Hospital provided a full copy of their medical records, so the PA Hospital should also be able to do so the QH employees who processed her Access Application invaded her daughter’s privacy when they viewed the information. On this basis, the information is no longer private and can be released to her it is wrong if QH employee’s (that is, people who did not know her daughter) can view her daughter’s thoughts and feelings, but family members cannot; and the information would be precious to her, whatever the nature of the thoughts and feelings of her daughter it records.[1] See Appendix at paragraph 8.[2] ‘Eligible family member’ is defined in schedule 6 of the RTI Act.[3] Schedule 4, part 3, item 5 of the RTI Act. [4] See also schedule 4, part 3, item 3 and schedule 4 part 4 section 6 of the RTI Act. [5] (1997) 3 QAR 497 at paragraph 19.[6] See section 12 of the IP Act.[7] The Decision maker was Donna Pottinger of the Princess Alexandra Hospital.

queensland

court_judgement

Queensland Information Commissioner 1993-

BHP Coal Pty Ltd & Ors and Department of Employment, Economic Development and Innovation [2011] QICmr 25 (22 June 2011)

BHP Coal Pty Ltd & Ors and Department of Employment, Economic Development and Innovation [2011] QICmr 25 (22 June 2011) Last Updated: 8 September 2011 Decision and Reasons for Decision Application Numbers: 210949, 210950, 210951 Applicants: BHP Queensland Coal Investments Pty Ltd QCT Resources Pty Ltd BHP Coal Pty Ltd QCT Mining Pty Ltd Mitsubishi Developments Pty Ltd QCT Investment Pty Ltd Umal Consolidated Pty Ltd Respondent: Department of Employment, Economic Development and Innovation Third Party: Cherwell Creek Coal Pty Ltd Decision Date: 22 June 2011 Catchwords: FREEDOM OF INFORMATION – REFUSAL OF ACCESS – EXEMPT MATTER – MATTER DISCLOSURE OF WHICH WOULD FOUND AN ACTION FOR BREACH OF CONFIDENCE – applicant seeking access to information lodged under coal exploration permit – whether parts of the information were communicated in confidence – whether the information is exempt under section 46(1)(a) of the Freedom of Information Act 1992 (Qld) FREEDOM OF INFORMATION – REFUSAL OF ACCESS – EXEMPT MATTER – MATTER RELATING TO TRADE SECRETS, BUSINESS AFFAIRS AND RESEARCH – applicant seeking access to information lodged under coal exploration permit – whether disclosure would disclose trade secrets of an agency or another person – whether the information is exempt under section 45(1)(a) of the Freedom of Information Act 1992 (Qld) FREEDOM OF INFORMATION – REFUSAL OF ACCESS – EXEMPT MATTER – MATTER RELATING TO TRADE SECRETS, BUSINESS AFFAIRS AND RESEARCH – applicant seeking access to information lodged under coal exploration permit – whether disclosure would disclose information that has a commercial value to an agency or another person – whether disclosure could reasonably be expected to destroy or diminish the commercial value of the information – whether the information is exempt under section 45(1)(b) of the Freedom of Information Act 1992 (Qld) FREEDOM OF INFORMATION – REFUSAL OF ACCESS – EXEMPT MATTER – MATTER RELATING TO TRADE SECRETS, BUSINESS AFFAIRS AND RESEARCH – applicant seeking access to information lodged under coal exploration permit – whether disclosure would disclose information concerning the business, professional, commercial or financial affairs of an agency or another person – whether disclosure could reasonably be expected to have an adverse effect on those affairs or prejudice the future supply of such information to government – whether the information is exempt under section 45(1)(c) of the Freedom of Information Act 1992 (Qld) FREEDOM OF INFORMATION – REFUSAL OF ACCESS – EXEMPT MATTER - DOCUMENTS AVAILABLE UNDER ANOTHER ENACTMENT OR ARRANGEMENTS MADE BY AGENCY – whether applicant can access documents sought through disclosure process in court proceedings – whether access can be refused under section 22(a) of the Freedom of Information Act 1992 (Qld) Contents REASONS FOR DECISION Summary The applicants made three applications[1] under the Freedom of Information Act 1992 (Qld) (FOI Act) for access to the following documents held by the Department of Mines and Energy which subsequently became part of the Department of Employment, Economic Development and Innovation (which I will refer to collectively as the Department):[2] documents identified as a result of electronic searches for the words ‘Cherwell Creek Coal Pty Ltd’, ‘QCoal Pty Ltd’, ‘Christopher Wallin’ or ‘Chris Wallin’ (except for those on the Department’s legal services files)[3] specified types of documents related to Exploration Permit for Coal No. 545 (EPC 545), application for Mineral Development Licence No. 364 (MDLA 364) and Mineral Development Licence No. 366 (MDLA 366);[4] and further documents related to EPC 545 and correspondence between the Department and either Cherwell Creek Coal Pty Ltd (CCC) or QCoal Pty Ltd.[5] The Department granted access to various documents and refused access to others on the basis that: the documents were subject to legal professional privilege;[6] or their disclosure would disclose information of a commercial nature, the disclosure of which could reasonably be expected to have an adverse affect on the business affairs of CCC.[7] The applicants sought internal review of the Department’s decisions. In its internal review decisions,[8] the Department granted access to further documents, but otherwise affirmed its initial decisions. During the course of this review, the applicants accepted the preliminary view that documents which the Department claimed were subject to legal professional privilege were exempt on that basis, reducing the number of documents in issue. The only remaining documents sought by the applicants comprise the following[9] which were lodged by CCC with the Department: progress reports EN954: 53, 55; EN 955: 1-21, 23-44, 45-58, 59-73, 89-96 and EN958: 28 (Progress Reports) expenditure statements EN954: 54, 56, 73, 119 and EN958: 29 (Expenditure Statements); and miscellaneous documents EN954: 17-20, 29-30, 52, 76-78, 79-80, 81, 85-87, 104 (Miscellaneous Documents). After carefully considering all of the information before me, I am satisfied that: the Expenditure Statements are exempt from disclosure under section 46(1)(a) of the FOI Act [10] the Progress Reports are not exempt from disclosure under section 46(1)(a) of the FOI Act the drilling data contained in the Progress Reports is not exempt from disclosure under section 45(1)(a) or 45(1)(b) of the FOI Act;[11] and the Progress Reports and Miscellaneous Documents are not exempt from disclosure under section 45(1)(c) of the FOI Act.[12] Background The unique circumstances of a tenure dispute between the applicants and CCC are relevant to this decision. Details of this dispute are set out in decisions of the Land Court.[13] Relevant aspects of the dispute are summarised below: The applicants were granted Special Lease 12/42239 (SL12/42239) in 1979 and Mining Lease 1775 (ML 1775) in 1984 (on which the Peak Downs Coal Mine is located). CCC was initially granted EPC 545 in 1994. In 2003, that EPC was renewed for nine years from 1996 to 2005. In 2005 and 2007, further renewals were granted. In 2006, CCC applied for MDLA 364 and MDLA 366 over parts of EPC 545. The applicants contend that EPC 545 was not validly granted and have disputed each of the renewals. Part of CCC’s EPC 545 overlapped part of the applicants’ SL12/42239 on which the applicants’ mining infrastructure for ML1775 is located. The applicants proposed a major expansion of the Peak Downs Mine and investigated development of a new mine, with land held by CCC under EPC 545 regarded as the optimal location for the new mine’s infrastructure. The Mineral Resources (Peak Downs Mine) Amendment Act 2008 (Qld) (Amendment Act) inserted Part 18A (sections 722A-722G) into the Mineral Resources Act 1989 (Qld) (MR Act) to resolve the dispute. Part 18A renews EPC 545 up to 9 May 2008,[14] ends EPC 545 on that date, and rejects the applications for MDLA 364 and MDLA 366 from that date. CCC has commenced proceedings against the applicants in the Land Court pursuant to section 722G of the MR Act for compensation for loss of its opportunity to commercialise the coal resource in the area subject to its application for MDLA 364. Those proceedings remain on foot. Decisions under review The decisions under review are the Department’s three internal review decisions,[15] insofar as those decisions found that relevant documents were exempt from disclosure under section 45(1)(c) of the FOI Act. Steps taken in the external review process Significant procedural steps are set out in the appendix to this decision. The following summary of steps taken during this external review is sufficient for the purposes of these reasons. Having examined the relevant information and following the informal resolution of certain preliminary matters, I wrote to both the Department and solicitors for CCC[16] setting out the preliminary view that none of the remaining documents qualified for exemption under section 45(1)(c) of the FOI Act. CCC advised that it did not accept the preliminary view and provided submissions in support of its case,[17] including its objection to disclosure of some information under sections 45(1)(a) and 45(1)(b) of the FOI Act. The Department advised that it accepted the preliminary view, thereby withdrawing any claim that the documents were exempt from disclosure under section 45(1)(c) of the FOI Act. Submissions lodged by the Department[18] and the applicants[19] revealed the existence and operation of the ‘Guidelines for the Submission of Digital Company Reports – QDEX – Queensland Digital Exploration Reports System’ (QDEX Guidelines). The QDEX Guidelines: regulate the lodgement of reports and documentation by tenement holders under the MR Act include provisions as to the confidentiality of material lodged by tenement holders; and set out the circumstances in which certain documents are placed on ‘open file’, that is, made publicly accessible. A further review of the remaining information was undertaken by the OIC to establish whether some documents may have been submitted to the Department by CCC in accordance with the QDEX Guidelines and its provisions as to confidentiality, that is, in circumstances giving rise to a mutual understanding of confidence so as to found a claim for exemption under section 46(1)(a) of the FOI Act. By letter dated 24 November 2010, I wrote to the applicants’ solicitors advising the preliminary view that some of the information sought qualified for exemption from disclosure under section 46(1)(a) of the FOI Act as its disclosure would found an action for breach of confidence.[20] By letter dated 10 December 2010, the applicants’ solicitors advised that the applicants did not accept that preliminary view and provided submissions in support of their case. Further inquiries were made with the Department.[21] As some of the documents were lodged with the Department prior to the commencement of the QDEX Guidelines, the Department was asked to: identify any relevant policy or conditions which preceded the QDEX Guidelines (which, as I understand, came into force in 2004); and clarify the operation of the QDEX Guidelines and their application to the documents relevant to this review. The Department supplied further information including the reporting requirements and conditions which preceded the QDEX Guidelines (General Conditions).[22] Consideration of this additional information and the applicants’ submissions dated 10 December 2010 caused me to further consider the application of section 46(1)(a) of the FOI Act to the information sought. By letter dated 4 May 2011, I wrote to both the Department and solicitors for CCC: reiterating the preliminary view that none of the relevant information qualified for exemption under section 45(1)(c) of the FOI Act; and setting out the preliminary view that particular documents lodged in accordance with the QDEX Guidelines or the General Conditions did not qualify for exemption under section 46(1)(a) of the FOI Act. The Department accepted the preliminary view in relation to the application of section 46(1)(a) of the FOI Act,[23] which, combined with its acceptance of the earlier preliminary view, means that the Department no longer claims that any of the remaining documents qualify for exemption under the FOI Act. By letter dated 24 May 2011, CCC advised that the preliminary view regarding the application of section 46(1)(a) of the FOI Act was not accepted and lodged submissions in support of its case. By letter dated 26 May 2011, these submissions were provided to the applicants’ solicitors and final submissions were received from the applicants by letter dated 1 June 2011. Evidence considered In reaching this decision, I have taken the following matters into account: the applicants’ access applications to the Department and applications for internal and external review the Department’s decisions the applicants’ submissions CCC’s submissions information provided by the Department (including relevant reporting frameworks) file notes of relevant telephone conversations between OIC staff and the parties the remaining documents sought by the applicants; and relevant provisions of the FOI Act, relevant case law and previous decisions of the Information Commissioner as identified. Issues in this review In summary, CCC objects to the disclosure of: all Progress Reports and Expenditure Statements, on the basis that this information qualifies for exemption under section 46(1)(a) of the FOI Act geological and drilling data contained within several nominated Progress Reports, on the basis that this information qualifies for exemption under section 45(1)(a) or, in the alternative, section 45(1)(b) of the FOI Act; and all of the Progress Reports, Expenditure Statements and Miscellaneous Documents on the basis that this information qualifies for exemption under section 45(1)(c) of the FOI Act. Accordingly, it is necessary for me to consider the application of: section 46(1)(a) of the FOI Act to the Progress Reports and Expenditure Statements[24] section 45(1)(a) and 45(1)(b) of the FOI Act to parts of the Progress Reports; and section 45(1)(c) of the FOI Act to all of the remaining documents. I will examine the effect of the Amendment Act prior to considering the application of each exemption provision claimed by CCC. Effect of the Amendment Act On 9 May 2008, the Amendment Act was passed effecting amendments to the MR Act. Section 722B of the MR Act (as inserted by the Amendment Act) allowed for a renewal of EPC 545 for a further two years, however, that renewal was limited to land other than land subject to MDLA 364, MDLA 366 and the areas of land where there was an overlap between SL12/42239 and EPC 545 (Excluded Land). Under the Amendment Act, the Excluded Land was: excluded by statute from CCC’s renewed EPC 545 (with the effect that CCC lost the opportunity to commercialise the coal resource in that area); and ‘made available’[25] to the applicants to permit them to lodge an application for a mining lease.[26] In other words, the practical effect of the Amendment Act was to grant CCC a renewal of EPC 545, but to substantially curtail the ‘scope’ of that tenement by excising the Excluded Land from it. To assess the exemption claims raised by CCC, it is necessary to identify what information (if any) in the remaining documents relates to land: over which CCC continues to hold an interest (that is, land to which the ‘truncated’ EPC 545 continues to apply); and excluded from EPC 545 by the passage of the Amendment Act (that is, information relating to the Excluded Land which has now been ‘made available’ to the applicants). The applicants submit that the relevant documents lodged by CCC with the Department are likely to relate only to land that is no longer subject to EPC 545,[27] that is, to Excluded Land. In support of this submission, the applicants refer to the second reading speech delivered by the then Minister for Natural Resources during debate on the Amendment Bill, in which he stated that: ‘...[a]s far as the Department is currently aware, [CCC] has only drilled in the area subject to the application for Mineral Development License 364.’[28] CCC contends that the information sought by the applicants relates to land over which EPC 545 continues to apply.[29] In my letter to CCC dated 4 May 2011, I: invited CCC to clearly identify any information which relates to land still subject to EPC 545 pointed out that there was nothing before me to call into question the Minister’s statement that CCC’s relevant drilling only occurred in a particular area, apart from CCC’s bare assertions to the contrary; and explained that as the Department had withdrawn its claim for exemption, the practical onus for demonstrating a case for exemption fell to CCC. I reiterated this view in a further letter to CCC dated 18 May 2011. Despite these requests, CCC has not identified any specific information in the remaining documents which relates to land still subject to EPC 545. Accordingly, in the absence of any material contradicting the Minister’s second reading speech, I have proceeded on the basis that: CCC’s relevant drilling activity only occurred on Excluded Land (that is, on land excised from EPC 545 by the passage of the Amendment Act); and none of the information contained in the Progress Reports, Expenditure Statements and Miscellaneous Documents relates to land which is still the subject of EPC 545. Section 46(1)(a) of the FOI Act Information is exempt if its disclosure would found an action for breach of confidence.[30] To found an action for breach of confidence, each of the following requirements must be met:[31] the information must be capable of being specifically identifiable as information that is secret, rather than generally availableb) the information must have the ‘necessary quality of confidence’ the 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. [32] The issue for determination is whether the Progress Reports and Expenditure Statements qualify for exemption from disclosure under section 46(1)(a) of the FOI Act, given the context in which this information was supplied to the Department by CCC. Progress Reports and Expenditure Statements comprise information that holders of mining tenements are required to submit to the Department. The reporting frameworks which govern submission of this information to the Department are set out in: the General Conditions, which applied to EPC 545 from the time of grant up until 2004; and the QDEX Guidelines, which came into effect in 2004 and have continued in effect since that time.[33] Each of these reporting frameworks requires tenement holders to submit information including periodic progress reports and expenditure statements to the Department. It was in accordance with these obligations that the Progress Reports and Expenditure Statements were supplied to the Department by CCC.[34] Additionally, each reporting framework contains certain stipulations as to confidentiality of information supplied by tenement holders. As the Progress Reports and Expenditure Statements are afforded differing levels of confidentiality under the reporting frameworks, I will consider each category of information separately. Progress Reports First, I will consider whether the Progress Reports qualify for exemption from disclosure under section 46(1)(a) of the FOI Act. The General Conditions relevantly provide that ‘... Six-monthly [progress] reports remain confidential during the currency of the tenure...’.[35] The QDEX Guidelines relevantly provide: Introduction ... From January 1st 2004, the Department of Mines and Energy has required all reports to be submitted in digital form. ... ... All reports become publicly available ... via QDEX once any specified period of confidentiality expires. This varies with the type of report and tenure, and whether or not there are subsequent tenures for the same area – see ... Confidentiality below. ... 2 Confidentiality Reports and data are required in order that the Department can build up comprehensive databases of exploration data, and make those data bases available to the exploration industry. However, reports and data remain confidential under certain circumstances and these are as follows. 2.1 Mineral exploration reports Reports remain confidential during the currency of the tenure for which they are submitted ... The confidentiality of reports is retained if subsequent tenure is granted ... and these reports remain confidential until this subsequent tenure is surrendered or expired. ... In applying the requirements to establish exemption,[36] it is often the third requirement (that is, whether the circumstances of communication created an equitable obligation of confidence) which is material to determining whether information qualifies for exemption under section 46(1)(a) of the FOI Act. Accordingly, I will consider this requirement first. In assessing whether the third requirement is satisfied, it is necessary to look at all the relevant circumstances in which the information was received to determine whether the party receiving the information is bound by an obligation of confidence. Relevant circumstances include: the nature of the relationship between the parties the nature and sensitivity of the information; and the circumstances of the communication.[37] With respect to the reporting frameworks, I note that: the General Conditions provide that reports will remain confidential during the ‘currency’ of the underlying tenure; and the QDEX Guidelines provide that reports will remain confidential, but only until such time as the underlying tenure is relinquished or expires. After carefully considering all of the relevant information before me, I am satisfied that: The Progress Reports were lodged by CCC with the Department in accordance with either the QDEX Guidelines or the General Conditions and their obligations as to confidentiality. These obligations were conditional – that is, the Progress Reports would only be held confidentially by the Department for the period during which CCC held the underlying tenure over relevant land. Given the passage of the Amendment Act[38] and the limited renewal of EPC 545, it is no longer reasonable to expect that any confidentiality is maintained in the Progress Reports, given the condition upon which the Department’s obligation of confidence depended[39] is no longer met. Given the effect of the Amendment Act and my earlier findings,[40] it would now be unreasonable to enforce an obligation of confidence against the Department which is charged with ensuring the efficient administration of the statutory regime for natural resource exploration and exploitation prescribed by the MR Act,[41] of which circulation of relevant information (subject to limited restrictions) is a key aspect. CCC submits that the applicants seek access to the Progress Reports for the purpose of ‘Land Court proceedings’[42] and therefore, underlying public policy considerations comprise an ‘irrelevant consideration in this case’.[43] I do not accept this contention. It is well established that the motives of a particular applicant for seeking access to certain documents are to be disregarded in determining whether those documents can be disclosed or not.[44] Section 21 of the FOI Act confers a ‘legally enforceable right’ to be given access under the FOI Act to any document of an agency,[45] without requiring justification or explanation from an applicant. Further, in determining whether the circumstances of communication created an equitable obligation of confidence, it is necessary to take into account all relevant circumstances. On the information available to me and for the reasons set out above, I am satisfied that the effect of the Amendment Act, the content of the QDEX Guidelines and General Conditions, and public policy underpinning these reporting frameworks, are relevant considerations in the circumstances of this case. For the reasons set out above, I find that: the Department no longer owes an obligation of confidence in respect of the Progress Reports[46] requirement c) is not satisfied in the current circumstances; and as the requirements for exemption under section 46(1)(a) of the FOI Act are cumulative, the Progress Reports do not qualify for exemption from disclosure under section 46(1)(a) of the FOI Act as their disclosure would not found an action for breach of confidence. [47] Expenditure Statements Next I will consider whether the Expenditure Statements qualify for exemption from disclosure under section 46(1)(a) of the FOI Act. With respect to requirements a) and b) for exemption from disclosure, and after carefully reviewing all of the relevant information before me, I am satisfied that: the Expenditure Statements comprise specifically identifiable information and possess the ‘necessary quality of confidence’;[48] and requirements a) and b) are therefore made out in the current circumstances. With respect to requirement c) for exemption from disclosure, I note that some of the Expenditure Statements were submitted to the Department under the General Conditions and others were lodged after the commencement of the QDEX Guidelines. Accordingly, I will examine the application of requirement c) to each category in turn, taking into account the different reporting frameworks. Expenditure Statements lodged under the QDEX Guidelines Two Expenditure Statements (comprising folios EN954 71[49] and EN954 119[50]) were lodged after the commencement of the QDEX Guidelines. Specifically with respect to expenditure statements, the QDEX Guidelines provide that: ‘[t]his statement will remain confidential and will not be stored in QDEX.’[51] The terms of the QDEX Guidelines are clear. The Department undertakes to hold expenditure statements in confidence for perpetuity. In my view, this is sufficient to: demonstrate a mutual understanding of ongoing confidence; and satisfy requirement c) for exemption from disclosure under section 46(1)(a) of the FOI Act. However, I note that by email dated 23 March 2011, the Department advised[52] that: ‘It is the department's policy to maintain the confidentiality of these documents until such time as an exploration permit is relinquished. ...’ If the Department’s statement above were accepted, it would be arguable that any obligation of confidentiality that may have applied to the Expenditure Statements is no longer relevant, for reasons similar to those outlined above in relation to the Progress Reports. In this respect, CCC submits[53] that the Department’s email statement should not be accepted as a correct statement of policy or practice as: CCC’s own experience with the Department is that expenditure statements are in practice held in absolute confidence – consistent with the QDEX Guidelines - and are not moved to ‘open file’. The relevant statement from the Department is ‘confusing and vague’ and should be read as a general reference to Departmental practice in relation to Progress Reports, not as a specific comment on the treatment of QDEX Guidelines. The terms of the QDEX Guidelines are clear and unequivocal, form the express basis on which entities such as CCC submit information to the Department, and should be preferred in construing the circumstances of communication of expenditure statements, particularly considering that, were the Department actually moving expenditure statements to ‘open file’ as intimated, it would be in clear breach of its own policy. After careful consideration of this point, I accept CCC’s submissions on the following basis: The QDEX Guidelines unequivocally state that expenditure statements will not be moved to ‘open file’, that is, that they will be held by the Department in ongoing confidence, regardless of the status of the underlying tenure. The Department’s apparently contradictory statement should at best be seen as a general statement of position about reporting generally (the substance of which, as I understand, is achieved through lodgement of Progress Reports), rather than expenditure statements specifically. The general statement by the Department is not a direct response to the question asked (that is, the rationale for the perpetual confidentiality afforded expenditure statements). A more direct response to this question from a particular Departmental officer followed the general statement, and was to the effect ‘... that the confidentiality period for “expenditure”has been carried over from different documents and guidelines for years’.[54] In any event, even if the Department’s general statement does refer to expenditure statements, I do not consider it can be sustained in view of the QDEX Guidelines. Entities such as CCC are entitled to rely upon the undertakings given in the QDEX Guidelines, and as there is no evidence before me to suggest that any of the expenditure statements have been moved to open file or otherwise made publicly accessible, I consider that these express stipulations as to confidentiality give rise to an ongoing equitable obligation of confidence binding the Department. On this basis, I find that requirement c) for exemption from disclosure is satisfied in respect of the Expenditure Statements lodged under the QDEX Guidelines. Expenditure Statements lodged under the General Conditions Three Expenditure Statements (comprising folios EN958 29, EN954 56 and EN954 54)[55] were lodged prior to the commencement of the QDEX Guidelines.[56] These documents are therefore subject to the General Conditions which required permit holders to lodge six monthly reports (including an expenditure statement) with the Department. Relevantly, I note that the only express provision as to confidentiality in the General Conditions refers to Progress Reports as set out in paragraph 43 of this decision. This earlier reporting framework is silent on the treatment of expenditure statements, which may arguably be interpreted to mean that these documents were bound up within the rubric of ‘six monthly reporting’ and subject to the same limited obligation of confidentiality as relevant Progress Reports. Certainly, when this possible interpretation was put to the Department,[57] its response was simply to accept the preliminary view based on this interpretation.[58] CCC did not accept the view and made submissions[59] in support of its case including that: ... 9. Under the General Conditions (which applied before QDEX), the position was no different. 10. Expenditure statements were not part of the main six-monthly report (see section 2.12 of the Guidelines and Appendix "Coal"). The Appendix "Coal" provides that "six monthly reports remain confidential during the currency of the tenure or consequent tenures", with no similar tenure limitation for Expenditure statements. 11. Again, our client's instructions are that the Department practice was not to release expenditure statements. ... After careful consideration of this point, I accept CCC’s submissions on the following basis: The General Conditions distinguish between six-monthly reports and expenditure statements,[60] and it is only the six-monthly reports which are subject to limited obligations of confidence (consistent with the limited undertakings given in the QDEX Guidelines). I also note the advice of: the Departmental officer to the effect that the confidentiality period for ‘expenditure’ has essentially been in effect ‘for years’; and another Departmental officer (with long-standing experience in the relevant area) who subsequently corroborated the earlier expenditure advice[61] by confirming that expenditure statements have never been placed on ‘open file’. This advice from Departmental officers is consistent with CCC’s uncontested statement as to its experience of the Department’s practice under the General Conditions, that is, that expenditure statements are not made publicly accessible. This interpretation is also consistent with the General Conditions’ caution that expenditure statements not be included with Progress Reports which would at some point in time enter the public domain, presumably to avoid the risk of expenditure information being made inadvertently publicly available. On the basis of the matters set out above, I am satisfied that: the Expenditure Statements lodged under the General Conditions were submitted on the understanding they would be held confidentially in perpetuity, an understanding arising from long-standing Departmental practice (which has subsequently found explicit expression in the later QDEX Guidelines)[62] these Expenditure Statements were communicated in circumstances giving rise to an equitable obligation of confidence binding the Department to hold these documents confidentially; and requirement c) for exemption from disclosure is satisfied in respect of the Expenditure Statements lodged under the General Conditions. With respect to requirement d) for exemption from disclosure, I am satisfied that: CCC clearly objects to disclosure of the Expenditure Statements disclosure would therefore constitute an unauthorised use of this information; and requirement d) for exemption from disclosure is satisfied in respect of the Expenditure Statements. For the reasons set out above and as all requirements for exemption are satisfied, I find that the Expenditure Statements (lodged under the General Conditions or the QDEX Guidelines) qualify for exemption from disclosure under section 46(1)(a) of the FOI Act. Section 45(1)(a) of the FOI Act CCC submits that the following parts of various Progress Reports (Drilling Data) comprise trade secrets and qualify for exemption from disclosure under section 45(1)(a) of the FOI Act: ...information as to: (a) the amount, type and location of exploration drilling within EPC545; (b) the geology of the coal resource within EPC545 including: the type of coal resource, including its qualities (such as ash levels and specific energy);2. the amount, location and dimensions of the coal resource.[63] Information is exempt if its disclosure would disclose trade secrets of an agency or another person.[64] I note that a trade secret has been said to comprise ‘any formula, pattern or device or compilation of information which gives an advantage over competitors who do not know or use it’.[65] Matters which may be relevant to the determination of this point include:[66] the extent to which the information is known outside of the relevant business the extent to which it is known by employees and others involved in the business the extent of measures taken by the business to guard the secrecy of the information the value of the information to the business and its competitors the amount of effort or money expended in developing the information the ease or difficulty with which the information could be properly acquired or duplicated by others the necessity for secrecy, including the taking of appropriate steps to confine dissemination of the relevant information to those who need to know for the purposes of the business, or to persons pledged to observe confidentiality some information, originally secret, may lose its secret character with the passage of time whether relevant information is used in, or useable in, a trade or business and would be to the advantage of trade rivals to obtain; and trade secrets can include not only secret formulae for the manufacture of products, but also information concerning customers and their needs. Submissions CCC submits that: the Drilling Data is confidential and is not known outside CCC, other than within the Department to whom it was provided in accordance with mandatory reporting obligations the relevant information is kept secret by CCC and the passage of time has not diminished its secrecy the information is of value to CCC CCC incurred significant expense and expended considerable effort in acquiring the information; and the information is technical in nature, and cannot be easily acquired or duplicated by third parties, who would benefit were the information to be disclosed under the FOI Act. Findings After careful consideration of the matters set out above and the content of the Drilling Data, I do not accept CCC’s submissions on the following basis: The Drilling Data comprises information about drilling outcomes and the geological composition of coal deposits within land which CCC is, as a consequence of the Amendment Act, no longer entitled to work.[67] Therefore, the Drilling Data does not comprise a ‘formula, pattern, device or compilation’ of a kind that could be said to give CCC an advantage over competitors (and which, for example, could be transferred by CCC to another exploration area for application in fresh exploration efforts). While it may be arguable that the Drilling Data is the result of the application of such ‘formulae, patterns or compilations’ (for example, innovative exploration or drilling techniques), I am not satisfied that the information itself can be said to comprise a trade secret within the meaning of section 45(1)(a) of the FOI Act. In any event, while CCC may have expended ‘significant expense’ in acquiring the Drilling Data, and it may not be easily duplicated by third parties, it has now lost its secret character[68] given that the condition upon which the Department owed an obligation of confidentiality in respect of the Progress Reports (containing the Drilling Data), is no longer met.[69] For the reasons set out above, I find that the Drilling Data: cannot be regarded as a trade secret; and does not qualify for exemption from disclosure under section 45(1)(a) of the FOI Act. Section 45(1)(b) of the FOI Act In the alternative to its claim under section 45(1)(a) of the FOI Act,[70] CCC contends that the Drilling Data qualifies for exemption from disclosure under section 45(1)(b) of the FOI Act. Information is exempt if its disclosure would disclose information[71] that has a commercial value to an agency or another person and could reasonably be expected to destroy or diminish the commercial value of that information.[72] The following matters may be relevant to the determination of this point:[73] There are two possible interpretations of ‘commercial value’ in this context: Information has commercial value if it is valuable for the purposes of carrying on the commercial activity in which an agency or business is engaged, because it is important or essential to the profitability or viability of a continuing business operation, or a pending, one-off, commercial transaction. Information has commercial value if a genuine arms-length buyer is prepared to pay to obtain that information from the agency or person, such that the market value of the information would be destroyed or diminished if it could be obtained from a government agency under the FOI Act. The information must have a current commercial value at the time a decision is made as information which was once valuable may become aged or out-of-date such that it has no remaining commercial value. The fact that resources have been expended in producing information, or money has been expended in acquiring it, are factors that may be relevant to take into account in determining whether information has a commercial value for current purposes. There must be a reasonable basis, not just speculation, for expecting the commercial value of the information to be diminished by its disclosure. This could not be shown if the information was public knowledge or common knowledge among competitors in the relevant industry. The phrase ‘could reasonably be expected to’ as it appears in this context requires consideration as to whether the expectation that disclosure of the matter in issue could destroy or diminish the commercial value of the information is reasonably based.[74] Accordingly, the issues for determination are whether: the Drilling Data has commercial value within the meaning of section 45(1)(b) of the FOI Act, and if so, there exist grounds to support a reasonably based expectation that disclosure of the Drilling Data could destroy or diminish that value. Submissions CCC submits[75] that: ... The commercial value in the information is that it contains geological data, in particular information as to the coal resource in respect [of] the land within EPC545. The commercial value is inherent in the information and it is not dependant upon CCC’s ability (or otherwise) to commercialise the coal resource in the land which was the subject of MDLA364. The geological information extends to the areas within EPC545 just beyond MDLA364 and MDLA366. It is wrong to say...that the only exploration drilling conducted was within the land contained in MDLA364 and/or MDLA366. ... If the documents were released, the commercial value in the information would be destroyed, or at least significantly diminished, because parties would be unlikely to purchase or take a licence of the drilling data from CCC if that information is freely available at no charge. In that case, the value of CCC’s investment in the time, money, and effort expended in the obtaining and collating of drilling data will be destroyed or at least substantially diminished upon its disclosure. ...Potential third party acquirers would include third parties that may hold mining tenements over the land compromised in EPC545 or the owners of mining tenements that adjoin EPC 545 or other exploration companies. 27. The information is and remains valuable due to the fact that: (a) considerable cost and effort is required to produce the data and such costs and efforts may be avoided by acquiring the information from CCC; and (b) third parties have limited opportunity, by reason of the licensing requirements of the Mineral Resources Act 1989, to conduct their own exploration on the land within EPC545. ... In summary, to release the review documents to BHP would result in BHP obtaining for free information they would otherwise need to pay for...thereby subverting CCC’s right to commercialise it. CCC also submits that ‘...CCC has a statutory right of compensation...which would include compensation for the value of its drilling data’.[76] Findings After careful consideration of the matters set out above including the content of the relevant information, I am not satisfied that the Drilling Data (contained in the Progress Reports) has a current commercial value given that: it relates to land which is no longer subject to EPC 545[77] and is no longer subject to an ongoing obligation of confidentiality; and it may now be placed on open-file[78] by the Department (in accordance with relevant parts of the QDEX Guidelines and the General Conditions).[79] On this basis, I am not satisfied that the Drilling Data has a current commercial value to CCC for the purposes of carrying on its commercial activity, nor that a genuine arms-length buyer would be prepared to pay for information that is publicly accessible via QDEX. Given this finding, it is unnecessary to determine the effect of disclosure upon commercial value. However, I note CCC’s submission (which I accept) that it has a statutory right to seek compensation[80] for the loss of any relevant commercial opportunity (including compensation for the value of its drilling data), which is currently the subject of proceedings in the Land Court.[81] For the reasons set out above, I find that the Drilling Data: has no current commercial value within the meaning of section 45(1)(b) of the FOI Act as it is no longer subject to an obligation of confidentiality and may now be placed on open file by the Department (which I understand means to make information publicly accessible) in accordance with the QDEX Guidelines and the General Conditions; and does not qualify for exemption from disclosure under section 45(1)(b) of the FOI Act. Section 45(1)(c) of the FOI Act As noted earlier in this decision, the Department originally withheld the information sought by the applicants on the basis that it qualified for exemption under section 45(1)(c) of the FOI Act. The Department has since withdrawn that claim. However, CCC does not accept that the information does not qualify for exemption from disclosure on this basis. Accordingly, it is necessary to consider the application of this provision to the Progress Reports and Miscellaneous Documents (in their entirety) given my earlier finding that the Expenditure Reports qualify for exemption from disclosure.[82] Information is exempt if its disclosure would disclose information concerning the business, professional, 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 such information to government – unless its disclosure would, on balance, be in the public interest.[83] To found exemption on this basis, each of the following requirements must be met: [84] the information must concern the business, professional, commercial or financial affairs of an agency or person, including a companyb) disclosure of the information could reasonably be expected to have either of the following effects: i. an adverse effect on the business, professional, commercial or financial affairs of the agency or person, which the relevant information concerns; or prejudice the future supply of such information to government; andc) the weight of all identifiable public interest considerations against disclosure equals or outweighs that of all of all of the identifiable public interest considerations favouring disclosure. Submissions In summary, the applicants submit that: the relevant information relates only to land which was formerly the subject of MDLA 364 and MDLA 366 as a consequence of the Amendment Act, CCC has no continuing rights or entitlements to this land; and the information is therefore no longer of commercial value to CCC and cannot qualify for exemption under section 45(1)(c) of the FOI Act.[85] CCC submits that: [the relevant information includes] ... information relating to the drilling programs to be undertaken in each period and the money to be expended by CCC in undertaking that drilling. 31. This financial information, although historical, could be used by BHP or another third party buyer to value the drilling data and other geological information contained in the review documents. The disclosure of this financial information is therefore still of commercial value to CCC and therefore exempt under section 45(1) of the Act because the release of these documents would adversely affect CCC’s financial affairs by reducing its ability to commercialise the drilling data by negotiating a market price based on the data’s replacement costs (because the buyer would know the data’s historical cost to CCC).[86] Findings 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.[87] The Progress Reports and Miscellaneous Documents principally comprise information about CCC’s activities under EPC 545,[88] including details of drilling work undertaken, the specific Drilling Data discussed above, monies expended and proposals for future work and expenditure. There is also some information regarding CCC’s financial status at particular points in time. On the basis of the matters set out above, I am satisfied that: the information contained in the Progress Reports and Miscellaneous Documents concerns CCC’s business, professional, commercial or financial affairs; and the first requirement for exemption from disclosure is therefore satisfied. With respect to the second requirement for exemption, the phrase ‘adverse effect’ usually refers to the relevant entity being exposed to commercial disadvantage or competitive harm.[89] As set out above, the Progress Reports and Miscellaneous Documents contain information principally relating to activity (undertaken or proposed) in respect of land in which CCC no longer holds an interest given the passage and effect of the Amendment Act. There is also a limited amount of additional information (largely contained in the Miscellaneous Documents) which: concerns CCC’s general financial capability at given points in time; and comprises some routine covering correspondence. Having carefully considered the content of the Progress Reports and Miscellaneous Documents, the parties’ submissions and the matters set out above, I am unable to identify any commercial disadvantage or competitive harm that could reasonably be expected to flow to CCC from disclosure of the Progress Reports and Miscellaneous Documents, for the following reasons: The effect of the Amendment Act was to remove the Excluded Land from CCC’s renewed EPC 545[90] and make this land available[91] to the applicants to permit them to lodge an application for a mining lease.[92] The only parties who may now exploit or who otherwise stand to benefit from the information in the Progress Reports and Miscellaneous Documents are the applicants, who: will gain access to the Progress Reports once the Department places them on open file in accordance with its reporting frameworks (as the condition upon which the relevant obligation of confidentiality was based is no longer met, given the passage and effect of the Amendment Act); and are liable to compensate CCC in accordance with the statutory right conferred by the MR Act (for the loss of any relevant, quantified commercial opportunity) which is currently the subject of proceedings in the Land Court.[93] As for the limited material relating to CCC’s general financial capability and covering correspondence (contained in the Miscellaneous Documents), I can identify nothing in this information that could reasonably be expected to adversely impact upon CCC’s ongoing business, professional, commercial or financial affairs. The information regarding CCC’s general financial capability is now relatively dated, and merely comprises a positive third party opinion as to CCC’s financial capacity, while the covering correspondence is entirely innocuous. CCC does not suggest, and I do not accept that disclosure of the Progress Reports and Miscellaneous Documents could reasonably be expected to prejudice the future supply of such information to government, given that CCC was, as a permit holder under the MR Act, either under statutory obligation to supply the information, or required to do so if it wished to maintain that permit.[94] For the reasons set out above, I find that: disclosure of the Progress Reports and Miscellaneous Documents could not reasonably be expected to have an adverse effect on CCC’s business, professional, commercial or financial affairs nor would it prejudice the future supply of such information to government the second requirement for exemption is therefore not made out in the circumstances; and the Progress Reports and Miscellaneous Documents are not exempt from disclosure under section 45(1)(c) of the FOI Act.[95] Section 22 of the FOI Act CCC also submits that access to the relevant information should be refused under section 22(a) of the FOI Act as the applicants will gain access to this information by way of disclosure in other proceedings currently on foot. I note that the Department did not invoke the discretion under section 22(a) of the FOI Act in any of its relevant decisions. Section 22(a) of the FOI Act is not an exemption provision. Rather, it confers a discretion on an agency to refuse access to a document under the FOI Act, where an applicant can reasonably obtain access under another enactment.[96] I am not in a position to assess the accuracy of CCC’s contention but note the applicants’ submission that the use of documents obtained through disclosure are ‘subject to various limitations, including implied certain undertakings.’[97] Taking into account all of the relevant information before me (including relevant comments of the Information Commissioner[98]) and where the Department did not invoke the discretion in its decisions, I decline to exercise the discretion conferred by section 22(a) of the FOI Act in the circumstances of this case. DECISION I set aside the decisions under review and find that: the Expenditure Statements are exempt from disclosure under section 46(1)(a) of the FOI Act the Progress Reports are not exempt from disclosure under section 46(1)(a) of the FOI Act the Drilling Data contained in the Progress Reports is not exempt from disclosure under sections 45(1)(a) or 45(1)(b) of the FOI Act; and the Progress Reports and Miscellaneous Documents are not exempt from disclosure under section 45(1)(c) of the FOI Act. I have made this decision as a delegate of the Information Commissioner under section 90 of the FOI Act. ________________________ Assistant Commissioner Henry Date: 22 June 2011APPENDIX - SIGNIFICANT PROCEDURAL STEPS Date Event 23 February 2009 Applicants apply under the FOI Act to the Department for access to documents regarding the third party’s activities under EPC 545. 26 & 29 June 2009 Department refuses access to various documents under sections 43(1) and 45(1)(c) of the FOI Act. 24 July 2009 Applicants apply for internal review of Department’s initial decisions. 21 August 2009 Department’s internal review decisions grant access to additional documents, otherwise affirm initial decisions refusing access to some documents under sections 43(1) and 45(1)(c) of the FOI Act. 11 September 2009 Applicants apply for external review of Department’s decisions. 1 October 2009 OIC informs Department and applicants the external review applications have been accepted for review. 19 October 2009 Department supplies copies of documents to OIC. 30 November 2009 OIC requests submissions and further information from Department regarding application of sections 43(1) and 45(1)(c) of the FOI Act. 23 December 2009 Department provides further submissions and agrees to disclose various documents to applicants. 24 February 2010 OIC informs applicants of preliminary view that certain documents attract legal professional privilege and are therefore exempt under section 43(1) of the FOI Act. OIC expresses early view information relating to land still subject of EPC 545 as renewed by the Mineral Resources (Peak Downs Mine) Amendment Act 2008 (Qld) may qualify for exemption under section 45(1)(c) of the FOI Act. 8 March 2010 Applicants accept OIC early view and advise not pursuing information relating to land which is still the subject of EPC 545. 15 March 2010 OIC asks Department to clarify some legal professional privilege claims and clearly identify information said to relate to land still the subject of EPC 545. 29 March 2010 Department provides further information regarding legal professional privilege claims and agrees to disclose further documents. Department provides further information regarding claims for exemption under section 45(1)(c) of the FOI Act. 12 April 2010 OIC informs applicants of further preliminary view regarding application of section 43(1) of the FOI Act to relevant documents. OIC informs third party of preliminary view that certain documents do not qualify for exemption under the FOI Act. 14 April 2010 OIC informs applicants of further preliminary view that certain documents may qualify for exemption under section 45(1)(c) of the FOI Act. Applicants accept view regarding section 43(1) of the FOI Act. 22 April 2010 Third party informs OIC it does not accept preliminary view dated 12 April 2010 and objects to disclosure of relevant documents. 6 May 2010 Applicants provide further submissions. 17 May 2010 OIC officers meet with applicants’ representatives to further clarify issues relevant to FOI access applications. 3 June 2010 Applicants provide further submissions in support of case for access. 9 June 2010 OIC forwards applicants’ 3 June 2010 submissions to Department, advises preliminary view that information no longer the subject of EPC 545 is not exempt under section 45(1)(c) of the FOI Act. 23 June 2010 Department accepts OIC preliminary view dated 9 June 2010. 5 July 2010 OIC forwards applicants’ submissions dated 3 June 2010 and OIC letter to Department dated 9 June 2010 to third party. OIC informs third party of preliminary view that information does not qualify for exemption under section 45(1)(c) of the FOI Act 26 July 2010 Third party informs OIC it does not accept preliminary view dated 5 July 2010 and provides submissions in support of objections to disclosure under sections 45(1)(a), 45(1)(b) and 45(1)(c) of FOI Act. 4 August 2010 OIC forwards third party’s submissions dated 26 July 2010 to applicants, invites further submissions. 26 August 2010 Applicants provide further submissions in support of case for access. 6 October 2010 OIC asks Department for additional information related to QDEX Guidelines. 20 October 2010 Department provides further information and copy of QDEX Guidelines. 24 November 2010 OIC informs applicants of preliminary view that some information may qualify for exemption under section 46(1)(a) of the FOI Act. 13 December 2010 Applicants advise OIC they do not accept preliminary view as to the application of section 46(1)(a) of the FOI Act, provide submissions in support of case for access. 9 March 2011 OIC requests further information from Department regarding operation of QDEX Guidelines and its application. 23 March 2011 Department provides further information regarding operation of QDEX Guidelines. 30 March 2011 Departmental officer provides further information regarding dates of operation of QDEX Guidelines and predecessor ‘General Conditions’ in telephone conversation with OIC officer. 7 April 2011 Department provides copy of General Conditions. 4 May 2011 OIC informs Department and third party of preliminary view that relevant information does not qualify for exemption under section 46(1)(a) of the FOI Act. 17 May 2011 Third party requests extension of time to respond, seeks additional information and clarification of certain issues raised in OIC letter dated 4 May 2011. 18 May 2011 OIC grants extension of time, provides further information. 20 May 2011 Department advises accepts preliminary view dated 4 May 2011. 24 May 2011 Third party advises does not accept preliminary view dated 4 May 2011, provides further information in support of case. 25 May 2011 OIC forwards third party submissions dated 24 May 2011 to applicants, invites final submissions. 31 May 2011 Departmental officer provides further information regarding confidentiality of Expenditure Statements in telephone conversation with OIC officer. 1 June 2011 Applicants provide final submissions in support of case for access. [1] All of which are dealt with in this decision.[2] As a result of machinery of government changes after the State government election on 21 March 2009.[3] In the application that resulted in external review application 210949.[4] In the application that resulted in external review application 210950.[5] In the application that resulted in external review application 210951.[6] Thus qualifying for exemption under section 43(1) of the FOI Act.[7] Thus qualifying for exemption under section 45(1)(c) of the FOI Act.[8] Dated 21 and 24 August 2009.[9] Adopting the numbering used by the Department in its decisions.[10] As their disclosure would found an action for breach of confidence.[11] Additional grounds for exemption claimed by CCC in relation to some of the information.[12] The basis for exemption claimed by the Department in its internal review decisions.[13] See paragraphs 2-6 of Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors [2008] QLC 0216 and paragraphs 1-7 of BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd [2009] QLAC 0005.[14] The date on which Part 18A commenced.[15] One of which was made on 21 August 2009 and two of which were made on 24 August 2009.[16] By letters dated 9 June 2010 and 5 July 2010.[17] By letter dated 26 July 2010.[18] Letter dated 23 December 2009.[19] Letter dated 26 August 2010.[20] I also provided solicitors for the applicants with a copy of the QDEX Guidelines.[21] I refer to an email from OIC to the Department dated 9 March 2011 and a telephone conversation between a Departmental officer and an OIC officer on 30 March 2011.[22] Contained in a document entitled ‘Schedule of General Exclusions and Conditions – Exploration Permits Coal’, and relevant appendices to that document, ‘Department of Minerals and Energy Queensland – Guidelines for Submission of Mineral and Coal Exploration Reports’ and ‘Appendix (Coal) – Specific Requirements for the Submission of Coal Exploration Reports to the Queensland Department of Minerals and Energy' (collectively, the ‘General Conditions’).[23] By email dated 20 May 2011.[24] I have only considered the application of section 46(1)(a) of the FOI Act to the Expenditure Statements and Progress Reports, and not the Miscellaneous Documents. As noted, the Department did not rely on section 46(1)(a) at all in exempting information from disclosure. Rather, as explained in paragraphs 13 and 14, the possible application of section 46(1)(a) arose as a consequence of consideration of the potential relevance of the QDEX Guidelines. There is nothing before me, however, to suggest the Miscellaneous Documents were supplied under the QDEX Guidelines or predecessor General Conditions and their conditions as to confidentiality. This was noted in my letter to the solicitors for CCC dated 4 May 2011. They did not, in subsequent correspondence, raise any claim for exemption under section 46(1)(a) regarding the Miscellaneous Documents (CCC’s objections to disclosure of the Miscellaneous Documents have been consistently framed in the language of section 45(1)(c) of the FOI Act – eg. CCC letter dated 22 April 2010 and letter dated 26 July 2010). [25] In the words of the then Minister for Natural Resources.[26] Hansard, 15 April 2008, p. 960.[27] For example, applicants’ submissions dated 26 August 2010.[28] Hansard, 15 April 2008, p 960.[29] Paragraphs 8 and 22 of CCC’s submissions dated 26 July 2010.[30] Section 46(1)(a) of the FOI Act. [31] Re “B” and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (Re “B”).[32] To establish exemption from disclosure under section 46(1)(a) of the FOI Act, it is also necessary to identify a hypothetical plaintiff to found an action for breach of confidence (Re “B” at 44). In this case, CCC would be the hypothetical plaintiff with necessary standing to enforce an obligation of confidence owed to it.[33] Subject to periodic revision.[34] The following Progress Reports and Expenditure Statements were lodged, as I understand under the General Conditions: Six Monthly Exploration Progress Report for Six Months ended 28 February 1996, dated July 1996 (folios EN955 89-96); Annual Reports for the Years ended 31 August 2001, 31 August 2001 and 31 August 2003 (folios EN958 28, EN954 55 and EN954 53 respectively); Expenditure Statements for the 12 months ending 31 August 2001, 2002 and 2003 – folios EN958 29, EN954 56 and EN954 54 respectively). Progress Reports and Expenditure Statements lodged under the QDEX Guidelines are as follows - Annual Report for the 12 Monthly Period ended 31 August 2004 (EN955 45-58); Annual Report for the 12 Monthly Period ended 31 August 2005 (EN955 59-73); Annual Report for the 12 Monthly Period ended 31 August 2006 (EN955 23-44); Annual Report for the 12 Monthly Period ended 31 August 2007 (EN955 1-21); Expenditure Statements for 12 months ending 30 August 2004 and 30 August 2005 (EN954 71 and 119 respectively).[35] General Conditions, ‘Appendix (Coal)’ p.1. [36] See paragraph 35 of this decision.[37] Re “B” at pp.314-316, paragraph 82. See also paragraph 85 of Re “B” which relevantly extracts the following statement of Lord Denning MR in Dunford & Elliott Ltd v Johnson & Firth Brown Ltd [1978] FSR 143 at 148: “If the stipulation for confidence was unreasonable at the time of making it; or if it was reasonable at the beginning, but afterwards, in the course of subsequent happening, it becomes unreasonable that it should be enforced; then the courts will decline to enforce it ...”.[38] The Amendment Act expressly provides for the part renewal only of EPC 545. Regardless of the language used (surrender, expiry, relinquishment), the practical effect of the Amendment Act was that CCC’s interest in the Excluded Land ended as a consequence of the limited renewal. [39] CCC’s interest in relevant parts of EPC 545.[40] As set out in paragraph 33 of this decision. In summary, that CCC’s relevant drilling activity only occurred on Excluded Land (that is, on land excised from EPC 545 by the passage of the Amendment Act) and therefore, none of the information sought by the applicants relates to land which is still the subject of EPC 545.[41] See section 141(1)(f) of the MR Act.[42] Presumably the compensation proceedings CCC have a statutory right to pursue.[43] CCC submissions dated 24 May 2011.[44] State of Queensland v Albietz [1996] 1 Qd R 215, at p.222.[45] Except only to the extent the document is comprised of exempt matter under one of the exemption provisions in the FOI Act, or that it falls within another of the exceptions to the right of access provided for in the FOI Act.[46] As CCC’s underlying tenure in relation to the Excluded Land (excised from EPC 545) is no longer current and therefore, the information contained in the Progress Reports and Expenditure Statements does not relate to land which is still the subject of EPC 545. [47] I have not canvassed the submissions of the parties on the application of section 46(1)(a) of the FOI Act to the Progress Reports. While the applicants’ submissions (contained in letters from its solicitors dated 13 December 2010 and 1 June 2011) stressed the view that the Amendment Act had effected a ‘relinquishment by statute’, the essence of the reasoning was not informed to any significant degree by those submissions. CCC’s submissions focussed on the application of section 46(1)(a) of the FOI Act to the Expenditure Statements.[48]In accordance with the considerations identified by the Information Commissioner in Re “B”, at paragraph 71.[49] Expenditure Statement for 12 months ending 30 August 2004.[50] Expenditure Statement for 12 months ending 30 August 2005.[51] See section 7.2 Expenditure Statement in the QDEX Guidelines.[52] In response to an OIC enquiry about the rationale for this ongoing undertaking as to confidence.[53] CCC Submissions dated 24 May 2011.[54] Departmental email dated 23 March 2011.[55] Expenditure Statements ending 31 August 2001, 2002, 2003.[56] The applicants originally contended that as these documents predated QDEX, there appeared to be no conditions as to confidentiality which could be said to cover them (applicants’ submissions dated 13 December 2010). As noted, subsequent inquiries disclosed the existence of the General Conditions which were provided to the applicants’ solicitors under cover of my letter dated 26 May 2011.[57] By letter dated 4 May 2011.[58] See Department’s email dated 20 May 2011.[59] Submissions dated 24 May 2011.[60] Clause 2.12 of the General Conditions requires a ‘statement of expenditure...in a separate document’; the Appendix to the General Conditions (entitled ‘Specific Requirements for Submission of Coal Exploration Reports to the Queensland Department of Minerals and Energy’) expressly provides that ‘expenditure statements must not be incorporated in the body of the main report’.[61] In a telephone conversation on 31 May 2011, the file note of which I have had regard.[62] In making these findings, I am conscious of the Department’s general acceptance of the earlier preliminary view that section 46(1) of the FOI Act may not apply to these documents. However, given the clear and specific statements from experienced Departmental officers as to the confidential treatment of expenditure statements by the Department, I consider it reasonable in the circumstances to prefer this specific evidence over a general statement. I also note that the applicants’ submissions in this context do not contain anything to dissuade me from the view outlined above. Their original submissions highlighted the ‘statutory relinquishment’ effected by the Amendment Act, and were apposite in considering the conditional assurances of confidentiality afforded the Progress Reports. These submissions also queried whether documents lodged prior to the QDEX Guidelines enjoyed any confidentiality, a point which was subsequently addressed by the identification of the General Conditions. The applicants’ final submissions also contained a general contention that as EPC 545 is ‘no longer current...any documents remaining in issue cannot, on any view, now qualify for exemption under section 46(1) of the FOI Act.’ As explained above, the currency of EPC 545 is relevant only in considering the confidentiality of the Progress Reports, subject as they were, to conditional assurances of confidentiality. The currency of a particular tenure has no bearing on the confidentiality afforded to expenditure statements, which is, and has been (for the relevant periods in question) unconditional and perpetual. [63] Submissions dated 26 July 2010.[64] Section 45(1)(a) of the FOI Act. [65] See Cannon and Australian Quality Egg Farms Limited (Cannon) [1994] QICmr 9; (1994) 1 QAR 491 (Cannon) at paragraph 43, citing the American Restatement of the Law of Torts (1939, Volume 4 para 757) which was referred to by Gowan J in Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VicRp 7; [1967] VR 37. [66] See Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 241; (1992) 108 ALR 163, Davies, Wilcox and Einfeld JJ at page 172, and Cannon at paragraphs 42-49.[67] Noting my discussion of and findings as to the effect of the Amendment Act at paragraphs 25-33.[68] And may now be placed on open file by the Department (which I understand means to make information publicly accessible) in accordance with the QDEX Guidelines and the General Conditions.[69] See the detailed discussions of the Effect of the Amendment Act at paragraphs 25–33 and the Progress Reports at paragraphs 42-52 of this decision. [70] It should be noted that sections 45(1)(a), 45(1)(b) and 45(1)(c) of the FOI Act comprise three discrete exemption provisions, and that information cannot ordinarily be exempt under more than one of the section 45(1) exemptions: Cannon, at paragraph 66.[71] Other than trade secrets.[72] Section 45(1)(b) of the FOI Act.[73] See Cannon at paragraphs 51-60. [74] Applying the observations of Bowen CJ and Beaumont J in Attorney-General v Cockroft [1986] FCA 35; (1986) 64 ALR 97, in interpreting section 43(1)(c)(ii) (business affairs exemption) contained in the Commonwealth Freedom of Information Act 1982 (at 106).[75] In its letter dated 26 July 2010.[76] Submissions dated 26 July 2010.[77] Given the passage and effect of the Amendment Act which excised the Excluded Land from EPC 545. [78] Which I understand means to make information publicly accessible.[79] See paragraphs 25-33 and 42-52 of this decision.[80] As enshrined in the MR Act.[81] See paragraph 8 of this decision.[82] Under section 46(1)(a) of the FOI Act.[83] Section 45(1)(c) of the FOI Act.[84] See paragraphs 67–88 of Cannon. [85] Submissions dated 3 June 2010.[86] Submissions dated 26 July 2010.[87] See paragraph 67 of Cannon.[88] Which was an exploration permit granted to CCC to enable it to attempt to locate economic deposits of coal.[89] See generally Cannon, at paragraphs 82-84.[90] With the effect that CCC lost the opportunity to commercialise any coal resource in that area.[91] In the words of the then Minister for Natural Resources.[92] Hansard, 15 April 2008, p. 960.[93] See paragraph 8 of this decision.[94] In this regard, I note the Information Commissioner’s observations that ‘[w]here persons are under an obligation to continue to supply such ... information (e.g. ...where there is a statutory power to compel the disclosure of the information) or 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. (Cannon, at paragraph 85, citing earlier comments in Re “B” regarding the application of section 46(1)(b) of the FOI Act.)Environmental Protection Agency[95] As the requirements are cumulative, it is unnecessary in the current circumstances to consider the third requirement.[96] Whether or not the access is subject to a fee or charge. I note that the discretion conferred on an agency by section 22 is able to be exercised by the Information Commissioner (or delegate) in a review under Part 5 of the FOI Act, by virtue of s.88(1)(b) of the FOI Act. [97] Submissions dated 26 August 2010.[98] Including in “J” and Queensland Police Service [1995] QICmr 8; (1995) 2 QAR 516, paragraphs 26-27. This case considered an earlier formulation of section 22(a), however the Information Commissioner’s comments remain relevant.

queensland

court_judgement

Queensland Information Commissioner 1993-

W52 and Crime and Corruption Commission [2021] QICmr 57 (28 October 2021)

W52 and Crime and Corruption Commission [2021] QICmr 57 (28 October 2021) W52 and Crime and Corruption Commission [2021] QICmr 57 (28 October 2021) Last Updated: 29 August 2022 Decision and Reasons for Decision Citation: W52 and Crime and Corruption Commission [2021] QICmr 57 (28 October 2021) Application Number: 316000 Applicant: W52  Respondent: Crime and Corruption Commission Decision Date: 28 October 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - LEGAL PROFESSIONAL PRIVILEGE - in-house legal advice and assistance - whether information would be privileged from production in a legal proceeding - 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 7 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - INVESTIGATION BY PRESCRIBED CRIME BODY - investigation information - information obtained, used or prepared for an investigation by a prescribed crime body or another agency in performing the prescribed functions of the prescribed crime body - service delivery complaint information ancillary to investigation by a prescribed crime body - 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(4) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Crime and Corruption Commission (CCC) under the Information Privacy Act 2009 (Qld) (IP Act) for access to: All documents including correspondence, diary notes and electronic database references (for example, showing date of receipt or creation of document and location) regarding my complaint of 16 Jan 2018, and my follow-up correspondence of 2 May 2018. The scope of this request should be interpreted to include correspondence with other agencies or myself regarding these matters. The two letters of complaint, addressed to Mr MacSporran, were originally sent to the CCC by post. CCC should have the hard copies. I also request an image that has been taken of the front page of the hard copy of each of the two said letters of complaint. [Applicant’s emphasis] Correspondence was then exchanged between the applicant and the CCC over a period of more than three months concerning the scope of the application and procedural issues and questions raised by the applicant. The applicant made complaints about the CCC’s handling of his application. Eventually, the CCC gave the applicant an access decision[2] under the IP Act in response to the following scope:[3] Two letters of complaint (dated 16 January 2018 and 2 May 2018) were forwarded by post to the CCC, addressed to Mr MacSporran QC as the CCC Chairperson. Except where stated below, this request does not include any email correspondence with CCC sent by or to myself. Any disclosure includes - copies of the front page of the hard copy version of these two letters. (2 items) - all documents, in whole or part, consistent with an IP application, including correspondence, diary notes and electronic database entries (excluding filing references) which discuss or are in relation to the complaint correspondence from myself dated 16 January 2018 and 2 May 2018, and this includes correspondence with external agencies. (n [sic] items) - the CCC filing references and locations (or email account names) of 4 emails that were sent by myself to the CCC on the dates of 28 May 2018, 10 December 2018 and 27 February 2019 where the email subject line is i) ‘Missing Correspondence’ (and minor email variations Fw: Re:) and ii) ‘Correspondence Resend’. This includes the original 4 emails and Commission emails which forward the originals. Each disclosure item should indicate whether the attachments were present. (4 known items). I also restrict this search to a maximum of 8 items – 2 per email. - the CCC filing references and locations of the original hard copy letters and all paper copies of the said letters that were made by officers of the Commission. This is limited to 5 reference/location pairs total but it priorities [sic] the Integrity Services Unit, Office of Exec. Director Corruption and Office of the Chairperson. Lowest priority is the office of the CEO and this reference/location pair may be excluded if there are at least 5 other matches, unless the original hard copies are held there which makes it the top priority match. (5 items). The CCC identified 184 responsive documents. It decided to give the applicant full access to 15 documents, partial access to 7 documents, and to refuse access to 162 documents.[4] The applicant applied[5] to the Office of the Information Commissioner (OIC) for external review of the CCC’s decision. For the reasons set out below, I affirm the CCC’s decision to refuse access to the information in issue 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). Reviewable decision The decision under review is the CCC’s decision dated 18 March 2021. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). Significant procedural steps relating to this review are set out in the Appendix. Application of the Human Rights Act 9. I have had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive 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 IP Act and RTI Act.[7] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[8] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[9] Information in issue During the course of the review, the CCC decided to give the applicant access to an additional four documents.[10] The information remaining in issue comprises the documents to which the CCC refused access, either fully or in part. The CCC decided that this information was exempt pursuant to: schedule 3, section 7 of the RTI Act because it qualified for legal professional privilege (LPP Information);[11] or schedule 3, section 10(4) of the RTI Act because it was information obtained, used or prepared for an investigation by a prescribed crime body in the performance of the crime body’s prescribed functions (Investigation Information).[12] Issue for determination The issue for determination is whether access to the LPP Information and Investigation Information may be refused on the basis that it is exempt information under schedule 3 of the RTI Act. Before addressing this issue, I will firstly address procedural concerns and complaints made by the applicant during the review.External review process and complaints made by the applicant Following a review of the refused information, the CCC’s decision, and the material provided by the applicant in support of his application for review, the Right to Information Commissioner (RTIC) wrote to the applicant[13] to communicate a preliminary view that there existed grounds for refusing access to the information in issue. The issues to be determined, as identified by the RTIC following a preliminary assessment, were explained to the applicant. If he did not accept the RTIC’s preliminary view, the applicant was invited to provide a written submission in support of his case for disclosure. However, rather than responding to the issues for determination as set out in the RTIC’s letter, the applicant raised a long series of procedural issues, complaints and questions over the following three months, including sending a number of emails directly to the Information Commissioner (IC) in which he demanded that the IC take over conduct of the review because he was not satisfied that ‘Federal Law’ was being applied, particularly ‘the Doctrine of Natural Justice and procedural fairness’.[14] He demanded that the IC confirm that OIC was required to comply with various laws when conducting a review:[15] ... That allows me to ask you the key question about the Office of the Independent [sic] Commissioner. I have been given cause on many, many occasions, including in this case [1] and in the last case (315704) to doubt that the functioning of the Office of the Independent [sic] Commissioner is founded in Australian Law. That's really shocking for a public service agency. This conduct is paid for by taxpayers. I therefore ask you the following key question : Q1. As CEO of the OIC, could you please confirm that the OIC formally recognises any of the following as applicable law for your agency : Australian Federal Law Australian Common Law The Doctrine of Natural Justice Procedural Fairness I see this as the make or break question for yourself, being the leader of the agency. The circumstances presented in OIC cases demand that there is a positive answer to this question. If you again conduct yourself as though the circumstances presented have not arisen, where the correspondence disagrees with you, you are breaching Federal Law as well as several Acts of the Queensland Parliament. For example, each agency CEO is required to be Honest and Fair whilst also acting in the Public Interest and with Integrity. That's Queensland Legislation [2]. I could also cite the ethical Code of Conduct. You appear to be failing at the most basic level, demolishing the various Acts, as is your second-in-command. The evidence is there. ... References 1. Recent examples of the Right to Information Commissioner being caught acting unlawfully 26th July 2021 at 3:49pm - email 'Application No. 316000', addressed to [the RTIC]: "Lawyers should act lawfully. I've noted this before. I now extend it : Lawyers should understand the law. " This point had been made in case 315704 as well (on 7th June 2021). 2. Public Service Act 2008 ... "26 Work performance and personal conduct principles (1) In recognition that public service employment involves a public trust, a public service employee’s work performance and personal conduct must be directed towards— (a) achieving excellence in service delivery; and ... (g) carrying out duties impartially and with integrity; and (h) acting honestly, fairly and in the public interest; and ... [Applicant’s emphasis] The applicant made allegations of misconduct against the RTIC, apparently arising out of the preliminary view letter, and complained about OIC’s processes and procedures in this review. He also continued to complain about the conduct by OIC of a previous review that had been finalised by way of a formal decision. It is clear from the applicant’s persistent engagement with OIC that he is dissatisfied with OIC’s responses to his numerous emails. He continues to assert that he has been denied procedural farness in this review (and in his previous review) and that OIC has not complied with other, generally unspecified legal obligations in conducting the review. I have considered the complaints raised by the applicant during the course of the review and reject them as without substance. I am satisfied that OIC responded in a timely and appropriate manner to all issues that the applicant raised about the conduct of the review. I am further satisfied that OIC has complied with its obligation to afford the applicant procedural fairness in respect of the issues for determination in this review. Those issues were explained to him, and he was granted a number of extensions of time to provide a submission in support of his position regarding those issues. To the extent that any of his emails address the issues for determination, I will discuss them below. I reject the applicant’s allegation of misconduct against the RTIC as without substance. I note that the IC also considered and rejected the applicant’s allegation during the course of the review.[16] He appears to base this allegation on the fact that he disagrees with the preliminary view expressed by the RTIC in the letter dated 20 July 2021 and that he considers that the law has been misapplied. I will discuss this further below. Upon advising the applicant that I would now be the decision-maker in this review due to the RTIC’s extended absence from the office, the applicant requested that I provide him with my own preliminary view and an opportunity to comment upon it.[17] If I refused his request, he demanded that the case be ‘escalated’ to the IC: ... Allowing me an opportunity to comment on your own preliminary view ought to be possible but if you cannot agree to allow me that then I now escalate the case to [the IC]. As you may read in the file, one of my major concerns was that the previous preliminary view would be converted to a final view, inclusive of the various known legal errors. Those errors were basic ones, appearing to show a desire by the OIC not to apply the IP Act and/or RTI Act in full. Since those Acts are central to the work of the OIC, a failure to support them in a preliminary view document, done as an accident, would be implausible. That leaves failure to support the Acts by design. This is removal of the OIC external review, in practice. Please confirm that you will allow me an opportunity to comment on your own preliminary view as the next step. If that's not possible I provisionally escalate this case to the CEO now, with the case OPEN. (I note that this situation mirrors closely what happened in case 315704. The case was closed.) I emphasise that we must have procedural fairness since it is applicable law in the OIC, deriving from Common Law. Lawyers in public service agencies are expected to apply applicable law. [Applicant’s emphasis] I responded by email on 17 September 2021, advising the applicant that I had not yet had an opportunity to review the matter but that if, following my review, I formed a view that was adverse to his interests and that involved the application of provisions of the RTI or IP Acts that the RTIC had not already communicated to him, I would give him an opportunity to comment in response, in accordance with the requirements of procedural fairness. The applicant responded again:[18] Thank you for your email dated 17th Sep 2021, copied below for context. The assurance that you provide is welcome but it still permits the case to be closed improperly in a large number of ways. This is suspicious and not what I had expected. I therefore clarify and notify my revised position : Once you have reviewed the case documents, whatever action you plan to take next should be deferred until you have provided me with an indication of your planned action. At that point I will assess whether any legislation has been breached (or possibly breached), not just the IP Act and RTI Act. I reserve the right to escalate the case to the CEO in an OPEN state. I note that the CEO has not yet confirmed that the Common Law of Australia is respected within the OIC. This is very concerning. That could remove the OIC, in effect, removing statutory services. If you cannot agree with the line in bold, please let me know. That's all I need from you at the moment. If the answer is 'No' (communicated or not) then this case is escalated to [the Information Commissioner], effective immediately. I actually suspect that it is, based on your statement below. [Applicant’s emphasis] I then conducted a review of the information in issue, the decision under review, the material provided by the applicant in support of his application for external review, and his subsequent emails. By email on 18 October 2021, I advised the applicant that I had formed the preliminary view that access to the information in issue may be refused under schedule 3, sections 7 and/or 10(4) of the RTI Act. The application of these provisions had already been explained in the RTIC’s preliminary view letter. I therefore gave the applicant a final opportunity to provide a submission that addressed the application of these exemption provision to the information in issue. The applicant responded on 22 October 2021 in an email addressed to the IC and sent to the IC’s direct email address, and copied to the Clerk of the Parliament and the Secretary of the Committee of the Legislative Assembly. He complained that OIC had apparently ignored the submissions he had made about receiving partial access to documents with exempt information deleted. I will discuss this issue below. The applicant also queried whether the RTIC and I had been ‘driven’ or ‘directed’ to ‘mishandle [his] case’ and requested that another decision-maker be appointed to this review. He also again requested that the IC confirm that OIC ‘formally recognises any of the following as applicable law for your agency: Australian Federal Law, Australian Common Law, The Doctrine of Natural Justice and Procedural Fairness’. The IC responded by email on 25 October 2021, advising the applicant that he had already received a response regarding the issues he had raised about receiving partial access to documents; procedural unfairness; and other procedural issues. The IC also advised that she did not propose to make the alternative arrangements that the applicant had requested. In summary, I am satisfied that the applicant has been afforded procedural fairness; that he has been treated fairly in the conduct of the review; that he has been given a reasonable opportunity to provide a submission about the issues identified for determination; and that the review has been conducted in the ordinary manner. Exempt information – legal professional privilege Relevant law Schedule 3 of the RTI Act specifies the types of information Parliament has determined are exempt because release would be contrary to the public interest.[19] Relevantly, information is exempt information if it would be privileged from production in a legal proceeding on the ground of legal professional privilege.[20] This exemption reflects the requirements for establishing legal professional privilege at common law.[21] Establishing whether legal professional privilege applies to information at common law requires that the information must comprise a communication: made in the course of a lawyer-client relationship that was and remains confidential; and which was made for the dominant purpose of seeking or providing legal advice or for use in existing or reasonably anticipated legal proceedings.[22] When each of these requirements is met, legal professional privilege is established.[23] Finding I have considered the LPP Information. I am satisfied that the communications in question are confidential communications between legal officers of the CCC, or between legal officers and other staff of the CCC, made for the dominant purpose of seeking or providing legal advice or assistance to the CCC. I am satisfied that a lawyer/client relationship existed in respect of the relevant communications, and that the officers providing legal advice and assistance were employed by the CCC as lawyers and were of a sufficiently independent character.[24] There is nothing before me to suggest that any qualification or exception to privilege applies. The applicant has provided no submissions in support of an argument that privilege does not apply to the relevant information. As such, I find that access to the LPP Information may be refused on the grounds that it would be privileged from production in a legal proceeding and is therefore exempt information under section 67(1) of the IP Act, and sections 47(3)(a), 48 and schedule 3, section 7 of the RTI Act. Exempt information – the Prescribed Crime Body Exemption Relevant law Another category of exempt information is that contained in schedule 3, section 10(4) of the RTI Act (Prescribed Crime Body Exemption), being information obtained, used or prepared for an investigation by a prescribed crime body or another agency, during its performance of a prescribed function of the prescribed crime body. The application of the Prescribed Crime Body Exemption was explained in detail in Cronin and Crime and Corruption Commission.[25] I note that the CCC also discussed its application in detail in its decision.[26] Findings Was the information obtained, used or prepared by the CCC for an investigation conducted by the CCC in performing its prescribed functions? Yes. I am satisfied, firstly, that the CCC is a ‘prescribed crime body’ pursuant to the definition contained in schedule 3, section 10(9) of the RTI Act. I am further satisfied that the Investigation Information was obtained, used or prepared[27] for an investigation by the CCC in the performance of its prescribed functions.[28] That is, it was obtained, used or prepared by the CCC in the course of investigating - examining, considering, or dealing with[29] - the applicant’s corruption complaint about the Queensland Building and Construction Commission (and its responsible Minister) (QBCC). I note that some of the Investigation Information concerns associated complaints that the applicant made to the CCC about the conduct of CCC officers in dealing with his complaint about the QBCC. These are in the nature of service delivery complaints. I have considered whether these service delivery complaints can properly be regarded as information obtained, used or prepared for an investigation by the CCC in the course of it performing its corruption function. I am of the view that the applicant’s complaints about the CCC were incidental to, and inextricably linked with, his corruption complaint about the QBCC. That is, it was not possible for the CCC to consider the complaints made against it, without also giving further consideration to, or re-visiting, the applicant’s complaints about the QBCC. Upon receipt of the complaint against CCC officers, the CCC’s Chief Executive Officer was required to review the CCC’s handling of the corruption complaint against the QBCC with a view to determining whether a suspicion was raised that the conduct of CCC officers involved, or may have involved, improper conduct.[30] This was not a separate investigation, but a determination made incidental to the CCC’s handling of the corruption complaint made against the QBCC.[31] Accordingly, I am satisfied that the Investigation Information was obtained, used or prepared by the CCC for an investigation by the CCC in performing a prescribed function and therefore qualifies as exempt information under schedule 3, section 10(4) of the RTI Act. Does the exception contained in schedule 3, section 10(6) of the RTI Act apply? No. The exception will apply if: the investigation has been finalised; and the information is about the applicant. The CCC has confirmed that the relevant investigation has been finalised. However, I am not satisfied that the Investigation Information can properly be regarded as being ‘about’ the applicant. The word ‘about’ is a ‘non-technical term defined according to its natural and ordinary meaning’.[32] The IC has decided that the word ‘about’ is to be construed so as to give effect to the intention of the exception: to enable persons the subject of an investigation to obtain access to information about the investigation once it is finalised.[33] The effect of this construction is that, while an investigation may be the direct result of an applicant’s complaint, this does not mean that resulting investigation documents will be ‘about’ that applicant for the purpose of the exception to the Prescribed Crime Body Exemption (even allowing for incidental references to a complainant applicant).[34] For example, in G8KPL2, OIC found that an investigation report, while created as a result of the applicant's complaint, was not about the applicant but was instead about the persons who were the subject of the allegations and related Crime and Misconduct Commission investigation. Similarly, in Cameron and Queensland Police Service,[35] OIC found that while the investigation reports and investigatory materials ‘came into existence as the result of the applicant's actions in...making...complaints’ about public officials, the information was not about the applicant.[36] In each case, the thrust or substance of the relevant information was found to concern – be ‘about’ – those officials who were the subjects of the complaints and resulting investigations. Applying the above principles, I am satisfied that the Investigation Information is properly characterised as information about the various subjects of the applicant’s complaints, and not the applicant. While the documents in question may have been obtained or created as a consequence of complaints made by the applicant, the substance of the information they contain concerns – is ‘about’ – those persons who were the subject of the complaints and the investigations that followed. The Investigation Information therefore does not fall within the exception to the Prescribed Crime Body Exemption contained in schedule 3, section 10(6) of the RTI Act. Conclusion In these circumstances, I find that the exception in schedule 3, section 10(6) of the RTI Act does not apply and the Investigation Information may be refused on the grounds that it is exempt information under section 67(1) of the IP Act, and sections 47(3)(a), 48 and schedule 3, section 10(4) of the RTI Act. The applicant’s submissions To the extent that the applicant made relevant submissions about the application of the IP Act to the information in issue, those submissions are directed to his argument that documents should be released to him in a redacted form. In this regard, the applicant’s submissions erroneously refer to section 74 of the RTI Act. As his application was made under the IP Act, the correct and corresponding provision is section 89 of the IP Act. The applicant complained to the IC that this issue had not been addressed in the RTIC’s preliminary view letter:[37] ...Your response today shows, again, that instead of using your training to help customers understand their rights, you are using them to conceal that information and use deceptions to help back up the first act. You are also attempting to present a conclusion as something much more solid i.e. as conclusion that is supported by reasoning. Of course, where you supply reasoning, it can be examined and, as necessary, challenged. Conversely, where no reasons have been supplied, all that remains is an opinion. That is what you have presented and asked me to deal with. On many occasions, opinion is simply not good enough, for example regarding the extent of law. Notably, your Deputy has failed to recognise the extent of law in the preliminary view document. In law the RTI Act makes a provision for supplying 'documents in issue' to the applicant in a redacted form - this is provided within s.74 of the Act. However, using the pretence that s.74 does not exist (since it is not discussed in the preliminary view document at all) the Deputy has proposed that none of the information in any of the documents in issue should be disclosed. That is the Deputy's preliminary view and it's in writing. I hold that an inaccuracy regarding a point of law should not be present in any preliminary view document. That's because the law is clear. Moreover, a customer of the OIC may not have read the RTI Act. Therefore, where an OIC officer attempts to vary the Act, in practice, it may not be noticed by the customer. For the OIC officer, who has legal training, this absolutely is an abuse of office. That is sufficient cause for the officer to be removed from the case but I don't see this being confirmed. The CEO is resisting this, even now, hoping not to be required to process the case personally, or have another senior officer process it (another reputation tarnished). And if that preliminary view document is not challenged today, it becomes the final view, including the legal errors. That's stunning, given the legal expertise that is present in the OIC. That would be an improper outcome and it would be founded upon a failure of a qualified lawyer to uphold the RTI Act. To be clear, this is legislation that is central to the function of the OIC, so it isn't being done accidentally. One can only wonder at the motivation here. The whole purpose of the agency appears to have been subverted by those who are running it. The evidence is there. Please check my concern that s.74 is not discussed. ... [Applicant’s emphasis] The applicant repeated his complaint in his email to the IC on 22 October 2021, following my email to him advising that I had formed the preliminary view that access to all information in issue may be refused because it is exempt information: ... The case handler appears to be ignoring the submission made on 10th Sep 2021 (as well as earlier correspondence) in order to pretend that there is no critical education issue. That's dishonest. It's also causing me a detriment and, further, it provides a favour to the agency in question (which is the corruption watchdog). I trust that you are familiar with s.92A of the Criminal Code Act 1899. Going further, where a criminal act has been performed by a public officer this means that all of the requirements of s.15 of the Crime and Corruption Act 2001 have been met. I could therefore refer the said conduct to the corruption watchdog. However, an obvious conflict of interests arises. Why should the watchdog support my suspicion of corrupt conduct against a public official who is helping the same agency to keep certain of its information secret ? How would you suggest that I have the alleged conduct dealt with to the full extent of the law ? That's a genuine question. It does seem proper to at least seek your opinion on that. Moving on, what is this critical education issue ? It's about the right of a member of the public to receive a document in redacted form. It appears that the OIC does not wish to help me in any way at all to understand how I should exercise that right. Although I have received information which may (it's not clear) skirt around the issue [2] I am left in the dark how I should exercise that right. Whenever I mention this right, which seems to arise from s.74 of the RTI Act, the OIC clams up. I note that s.74 was quoted on 10th Sep 2021 if you would like to scroll down. I'm not sure that I've ever seen a letter or email from OIC which discusses s.74, no matter how many times I raise it. As mentioned, the most recent example was my submission dated 10th Sep 2021. It's about four paragraphs long commencing : "As you can see, I have only had time to address one issue which arises from the preliminary view document but it probably is the most significant one. I look forward to you agreeing with me that s.74 of the RTI Act does exist, does apply and that redacted forms of the documents in issue can be supplied to myself. " I note that the lack of time issue was mentioned again. The OIC is specifically invited to agree or disagree with my understanding of the Act. It is critical information. If the OIC had desired to behave impartially it may have responded to myself with a statement such as this : 'the Act does not work that way in spite of how it is written. In order to receive redacted documents, what you must do is X, Y and Z.' Let's be clear again : if the OIC made a clarifying statement, that would give me chance to receive redacted documents. However, it looks like the present case handler (as well as the last) does not wish to risk that happening. In response to my submission on 10th Sep 2021 the handler has sought to do the following : - receipt a different email, unrelated to the case - defer dealing with the submission (OIC email dated 15 Sep 2021) - defer dealing with the submission again (OIC email dated 17 Sep 2021) - wait a month - operate as though the submission was never made (OIC email dated 18 Oct 2021) Perhaps the case handler believed that I would forget that I had been forced to make a limited submission under great duress. This is astonishing but completely visible. The email sent on 18th Oct 2021 - is standalone i.e. no prior emails are attached, - it references the officer's own two emails by date - my recent submission is not mentioned by date or at all as a submission - the content of the submission is not dealt with either (again there's no mention of s.74) - there's even an implication that I have allowed 2 months to pass without making a submission All of this is deception and dishonesty. The Acting RTI Commissioner is not going to process case 316000 to a proper outcome. There may have been criminal and corrupt conduct. As I move to conclude this email, it's important for me to say what I would like you to do as the CEO. One question has already arisen (as above) : How would you suggest that I have the alleged conduct dealt with to the full extent of the law ? Please answer that question. Please appoint another case handler (which, from my perspective, could be yourself). Please make it a priority that I receive clear advice that allows me to fairly pursue my request to receive redacted documents from the agency. I consider this to be basic information that should be available to anyone making an application under the IP Act or RTI Act. For example, is s.74 of the RTI Act dependent upon some other section of the Act (one that is not actually mentioned in s.74) ? Please answer the following question (now raised with yourself, I believe, for the seventh time). I'll simply quote from 10th Sep 2021 : "... As CEO of the OIC, could you please confirm that the OIC formally recognises any of the following as applicable law for your agency : Australian Federal Law Australian Common Law The Doctrine of Natural Justice Procedural Fairness I see this as the make or break question for yourself, being the leader of the agency. " I look forward to case 316000 being put back on track with an impartial, honest case handler. The OIC may need to consider whether it intends to operate lawfully in the future. That's not asking too much in my view. [Applicant’s emphasis] The applicant’s submissions evidence a misunderstanding about the operation of the relevant provisions of the IP Act. Section 89 of the IP Act requires access to be given to a document with exempt information deleted if it is practicable to do so. Section 90 of the IP Act requires access to be given to a document with contrary to public interest information deleted if it is practicable to do so. These provisions apply when some information in a document is exempt information or contrary to public interest information, but the rest of the information in the document is not. However, here the RTIC had expressed a preliminary view that access to all information may be refused because it is either exempt information and/or contrary to the public interest information. Subsequently, I expressed a preliminary view that access to all information may be refused because it is exempt information. This remains my position, as set out at paragraphs 26 to 49 above. As neither the RTIC nor I identified any information during the course of the review to which we considered access should not be refused, the application of sections 89 and 90 of the IP Act, in terms of the possibility of giving the applicant partial access to any document, did not arise for consideration. This was explained to the applicant by the RTIC in an email on 5 August 2021 and was reiterated by the IC in emails on 19 and 20 August 2021. Decision I affirm the decision under review by finding that: the LPP Information is exempt information under section 67(1) of the IP Act and sections 47(3)(a), 48 and schedule 3, section 7 of the RTI Act; and the Investigation Information is exempt information under section 67(1) of the IP Act and sections 47(3)(a), 48 and schedule 3, section 10(4) of the RTI Act. Access to this information may therefore be refused under 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: 28 October 2021 APPENDIX Significant procedural steps Date Event 9 April 2021 OIC received applicant’s external review application. OIC requested preliminary documents from CCC. 13 April 2021 OIC confirmed receipt of application to the applicant. 16 April 2021 OIC received the preliminary documents from CCC. 17 May 2021 OIC advised the applicant his application was accepted. OIC advised CCC the application had been accepted and requested the information in issue be provided. 28 May 2021 CCC requested an extension to provide the information in issue. 1 June 2021 CCC was granted an extension to provide the information in issue. 7 June 2021 OIC received the information in issue from CCC. 16 June 2021 OIC requested further clarification from CCC. 16 July 2021 OIC received the requested correspondence from CCC. 20 July 2021 OIC issued a preliminary view to the applicant. 26 July 2021 OIC received an email from the applicant requesting an extension to respond to the preliminary view. 27 July 2021 CCC confirmed release of documents to the applicant. 28 July 2021 OIC granted the applicant an extension to respond to the preliminary view. 2 August 2021 OIC issued further clarification to the applicant. OIC received an email from the applicant. 4 August 2021 OIC issued a response to the applicant. OIC received an email from the applicant. 5 August 2021 OIC issued a response to the applicant. 9 August 2021 OIC received an email from the applicant. 10 August 2021 OIC issued a response to the applicant. 12 August 2021 OIC received an email from the applicant. OIC issued a response to the applicant. 19 August 2021 OIC received an email from the applicant. OIC issued a response to the applicant. OIC received a further email from the applicant requesting another extension to respond to the preliminary view. 20 August 2021 OIC issued a response to the applicant and granted an extension. OIC received an email from the applicant. 23 August 2021 OIC issued a response to the applicant. OIC received an email from the applicant. 25 August 2021 OIC received an email from the applicant requesting another extension to respond to the preliminary view. 26 August 2021 OIC issued a response to the applicant and granted a final extension. OIC received an email from the applicant. 2 September 2021 OIC received an email from the applicant. OIC issued a response to the applicant. 3 September 2021 OIC received an email from the applicant. 7 September 2021 OIC received an email from the applicant. 8 September 2021 OIC issued a response to the applicant. OIC issued a further response to the applicant. OIC received an email from the applicant. 9 September 2021 OIC received an email from the applicant requesting another extension to respond to the preliminary view. 10 September 2021 OIC issued a response to the applicant, refusing a further extension of time. OIC received a response from the applicant. 14 September 2021 OIC received a response from the applicant. 15 September 2021 OIC issued an update to the applicant. 16 September 2021 OIC received a response from the applicant. 17 September 2021 OIC issued an update to the applicant. 22 September 2021 OIC received an email from the applicant. 18 October 2021 OIC issued a preliminary view to the applicant. 22 October 2021 OIC received a response from the applicant. 25 October 2021 OIC issued a response to the applicant. [1] Application dated 30 November 2020.[2] Dated 18 March 2021. [3] As set out in the CCC’s decision. [4] Access to four documents was refused on the basis that they were copies of documents already considered: documents 87, 227, 254 and 255. [5] On 9 April 2021. [6] Section 21 of the HR Act. [7] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111]. [8] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [9] XYZ at [573]. [10] Documents 146, 149, 159 and 175 with deletion of some personal/irrelevant information. [11] Documents 1 - 3, 5 - 15, 18 - 20, 108 (part), 112 - 117, 120 - 127, 129, 130 - 132, 134 - 137, 139 and 140.[12] Documents 16 (part), 22, 25, 39, 40, 42, 43, 44, 46, 47 (part), 59, 64, 66, 77, 85, 86, 88 - 92, 93 (part), 94 - 97, 101, 103 - 107, 108 (part), 157, 163, 164, 170, 174, 176, 181, 183, 187, 188, 190 - 206, 208 - 213, 215 - 226, 228 - 231, 235, 236, 238 - 243, 245 - 247, 249 - 253, 256, 261, 262 (part), 263 - 266, 268, 269 (part), 270, 271 (part), and 272 - 277. [13] Letter dated 20 July 2021.[14] See the applicant’s emails of 26 July 2021 (responded to on 28 July 2021), 2 August 2021 (responded to on 4 August 2021), 4 August 2021 (responded to on 5 August 2021), 9 August 2021 (responded to on 10 August 2021), 12 August 2021 (responded to on 12 August 2021), 19 August 2021 (responded to on 19 August 2021), 19 August 2021 (second email) (responded to on 20 August 2021), 20 August 2021 (responded to on 23 August 2021), 23 August 2021 and 25 August 2021 (responded to on 26 August 2021), 26 August 2021 and 2 September 2021 (responded to on 2 September 2021), 3 September 2021 and 7 September 2021 (responded to by both the IC and RTIC on 8 September 2021), 8 and 9 September 2021 (responded to on 10 September 2021), 10 and 14 September 2021 (responded to on 15 September 2021), 16 September 2021 (responded to on 17 September 2021), 22 September 2021 (responded to on 18 October 2021), and 22 October 2021 (responded to on 25 October 2021). [15] Email of 20 August 2021. [16] IC’s email of 20 August 2021. [17] Applicant’s email of 16 September 2021. [18] Email of 22 September 2021. [19] Section 67(1) of the IP Act provides that an agency or Minister may refuse access in the same way and to the same extent as under section 47 of the RTI Act. Section 47(3)(a) allows refusal of access to exempt information. Section 48(2) provides that schedule 3 sets out the types of information the disclosure of which Parliament has considered would, on balance, be contrary to the public interest. [20] Schedule 3, section 7 of the RTI Act.[21] The doctrine of legal professional privilege is both a rule of evidence and a common law right. The High Court in Daniels Corporation International Pty Ltd v Australian and Consumer Commissioner [2002] HCA 49; (2002) 213 CLR 543 (Daniels) at [9] relevantly noted ‘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’ (footnotes omitted). See also Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [111] (Esso). [22] Esso and Daniels.[23] However, qualifications and exceptions to privilege (such as waiver and improper purpose) may, in particular circumstances, affect the question of whether information attracts or remains subject to it, and therefore is exempt under the RTI Act.[24] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54. [25] [2017] QICmr 13 (6 April 2017). [26] See pages 5 to 9 of the Statement of Reasons attached to the CCC’s decision which set out the relevant provisions and statutory definitions, as well as relevant excerpts from previous OIC decisions. [27] The terms ‘obtained, used or prepared’ are not defined in the RTI Act or the Acts Interpretation Act 1954 (Qld), and so are to be given their ordinary meaning.[28] Prescribed functions are defined in schedule 3, section 10(9) of the RTI Act as the CCC’s crime, intelligence and corruption functions. [29] The term ‘investigation’ as used in the Prescribed Crime Body Exemption has been defined expansively, and includes the mere examination or consideration of information (paraphrasing the definition of ‘investigate’ contained in schedule 2 to the Crime and Corruption Act 2001 (Qld) (CC Act).[30] Section 329(1) of the CC Act. [31] In assessing a complaint about suspected improper conduct of CCC officers, the Chief Executive Officer is acting under the CCC’s power in section 174 of the CC Act to do all things necessary or convenient to be done for or in connection with, or reasonably incidental to, the performance of its functions. [32] Darlington v Office of the Information Commissioner & Queensland Police Service [2015] QCATA 167 at [52]. Relevantly - ‘of; concerning; in regard to’: Macquarie Dictionary Online, http://macquariedictionary.com.au (accessed 27 October 2021). [33] See OIC’s discussion of the Second Reading Speech and Explanatory Memorandum relating to the legislation which inserted the equivalent provision into the repealed Freedom of Information Act 1992 (Qld) in G8KPL2 and the Department of Health (Unreported, Queensland Information Commissioner, 31 January 2011) (G8KPL2) at [29]-[30].[34] G8KPL2 at [27] to [32].[35] (Unreported, Queensland Information Commissioner, 7 August 2012) (Cameron).[36] Cameron at [31], repeating the Right to Information Commissioner’s similar observation in G8KPL2 (at [32]). [37] See the applicant’s email of 10 September 2021.

queensland

court_judgement

Queensland Information Commissioner 1993-

Price and Local Government Association of Queensland Inc. [2001] QICmr 16 (29 June 2001)

Price and Local Government Association of Queensland Inc. [2001] QICmr 16 (29 June 2001) Price and Local Government Association of Queensland Inc. (S 111/01, 29 June 2001, Deputy Information Commissioner) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.-2. These paragraphs deleted. REASONS FOR DECISION Background By letter dated 10 May 2001, the applicant (Mr Price) made an FOI access application to the LGAQ in the following terms: I make a new FOI application for all documents of your agency related to myself, my family and/or my property etc that is held by your agency and solicitors, who are common with and/or collectively common etc, to your members such as, the Gatton Shire Council and the Laidley and Esk and Toowoomba Shire Councils. I submit that as your agency is made up in part by the Gatton Shire Council etc then I may access all documents related to myself that are documents that have passed to and from the law firm King & Co and any part of your organisation or parts of your organisation. ... I do not believe that you can refuse to produce all documents related to myself etc related to your agents. If it takes part transfers then so be it, you have no way out. By letter dated 14 May 2001, the Executive Director of the LGAQ informed Mr Price that: ... this agency does not hold any other documents related to yourself, your family or your property, that have not already been addressed in my responses to your previous Freedom of Information Requests (your Application Nos. FOI 11.02.2000; FOI 11.12.2000; FOI 10.04.2001). By letter dated 16 May 2001, Mr Price applied for review, under Part 5 of the FOI Act, of the LGAQ's decision dated 14 May 2001. External review process In his application for external review, Mr Price stated that he believed the LGAQ "has missed the legal points in regards just what documents have been applied for...". Mr Price also made the following submission: The different Shire Councils and Aboriginal Councils which make up the LGAQ are the employers of such agencies as King & Co. Such a make up is legally different in law to King & Co. representing different firms [sic] in the normal sense. In a letter to Mr Price dated 18 May 2001, I drew his attention to the terms of s.77(1) of the FOI Act (which are reproduced at paragraph 12 below), and said: On the basis of my preliminary assessment of your application for review dated 16 May 2001, and the decision dated 14 May 2001 by the [LGAQ], I consider that your application for review is vexatious, misconceived and lacking in substance. I will briefly state my reasons for holding that view and I will then give you the opportunity to provide me with a written submission and/or documentary evidence which might persuade me not to exercise the power under s.77(1) of the FOI Act so as to refuse to deal with your application for review of the LGAQ's decision dated 14 May 2001. Your application for external review dated 16 May 2001 relates to your FOI access application to the LGAQ dated 10 May 2001. (You also referred in your letter dated 16 May 2001 to your FOI access application to the LGAQ dated 10 April 2001. However, the access application dated 10 April 2001 is already the subject of external review: my reference S 108/01.) Your FOI access application to the LGAQ dated 10 May 2001 was for "all documents of your agency related to myself, my family and or my property etc that is held by your agency and solicitors...". The relevant time period for documents that would be responsive to the terms of your FOI access application is 11 April 2001 to 10 May 2001 inclusive (since external review S 108/01 accounts for the time period prior to 10 April 2001). The LGAQ, in its decision dated 14 May 2001, has informed you that the LGAQ "does not hold any other documents related to yourself, your family or your property, that have not already been addressed in ... responses to your previous Freedom of Information Requests...". From the information available to me from dealing with your series of review applications involving the LGAQ, I have no reason to doubt that that is the case. I then referred to Mr Price's submission (set out at paragraph 6 above) and continued: ..., I understand you to be suggesting that your FOI access application to the LGAQ should include (in addition to documents held by King & Co. that came from and/or were sent to the LGAQ) documents held by King & Co. (concerning yourself, your family and your property) that have come from and/or were sent to any other Council that is a member of the LGAQ. If so, then, with respect, it is you, rather than the LGAQ, who has misapprehended the correct legal position on this occasion. While many local government authorities in Queensland are members of the LGAQ, the LGAQ is a distinct legal entity, and a distinct agency for the purposes of the FOI Act, in its own right. An FOI access application lodged with the LGAQ may request documents in the possession or control of the LGAQ (and that may extend to particular documents in the possession of a firm of solicitors retained by the LGAQ, if the legal ownership of those documents vests in the LGAQ according to the principles explained in Re Price and Nominal Defendant [1999] QICmr 3; (1999) 5 QAR 80), but it cannot extend to documents in the possession or control of the local government authorities who are members of the LGAQ (or to documents in the possession of a firm of solicitors retained by any of those local government authorities) because they are distinct legal entities, and distinct agencies for the purposes of the FOI Act. To suggest that it does would be as absurd as suggesting that an FOI access application lodged with the Queensland Law Society Inc extends to all responsive documents held by all practising solicitors in Queensland, because all practising solicitors are members of the Queensland Law Society Inc. When King & Co. act as solicitors for the LGAQ, that firm enters into a distinct lawyer-client relationship with the LGAQ, and when King & Co act as solicitors for different local government authorities, the firm enters into a distinct lawyer-client relationship with each local government authority. If your purpose is to seek access to documents held by King & Co. that relate to a matter in which that firm has been retained to advise or represent a particular local government authority, you must make the relevant FOI access application to the particular local government authority (whereupon the principles explained in Re Price and Nominal Defendant should be applied in determining whether any documents in the possession of King & Co. are documents in which legal ownership vests in the particular local government authority, and, if so, whether they are exempt from disclosure under s.43(1) of the FOI Act or other exemption provisions). I concluded my letter to Mr Price (dated 18 May 2001) by advising that, unless Mr Price was able to provide me by 31 May 2001 with a written submission and/or documentary evidence which might persuade me not to exercise the power conferred by s.77(1) of the FOI Act, I did not propose to further consider his application for external review. In a telephone call to this office on 30 May 2001, Mr Price requested an extension of time to 18 June 2001 for lodging his written submission. In a return telephone call to Mr Price (on 30 May 2001), a member of my staff informed Mr Price that an extension of time to 18 June 2001 was granted, but that no further extensions of time beyond 18 June 2001 would be allowed. On 18 June 2001, Mr Price sent a letter to my office with a header containing the reference nos for this application for review. However, the contents of that letter included little of relevance to the issue I had raised in my letter dated 18 May 2001, or to this external review generally. Mr Price ended the letter with a request that I "not require any submissions until late August". By letter dated 19 June 2001, I informed Mr Price that his request for an extension of time until late August was refused. I reminded Mr Price that he had previously been informed that no further extensions of time beyond 18 June 2001 would be allowed. Application of s.77(1) of the FOI Act Section 77(1) of the FOI Act provides: 77.(1) The commissioner may decide not to review, or not to review further, a decision in relation to which an application has been made under section 73 if the commissioner is satisfied that the application is frivolous, vexatious, misconceived or lacking in substance. I accept Mr Hallam's statement that the LGAQ has no new documents that came into its possession or control between 10 April 2001 (the date of Mr Price's prior application to the LGAQ) and 10 May 2001 (the cut off date for Mr Price's FOI access application dated 10 May 2001), that are responsive to the terms of Mr Price's FOI access application dated 10 May 2001. 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. 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). 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. 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. In Mr Price's letter dated 18 June 2001, he asserted that the LGAQ's failure to part transfer his FOI access application, despite his requiring that the LGAQ do so, is a breach of the FOI Act by the LGAQ. That is an incorrect assertion on Mr Price's part. Section 26 of the FOI Act clearly sets out the basis on which a transfer of an FOI access application between agencies may occur. An agency has a discretion to seek to transfer an FOI access application to another agency, and the potential receiving agency is entitled to refuse consent to the transfer. An access applicant under the FOI Act has no legal entitlement to require one agency to transfer an FOI access application to another agency or agencies. Moreover, a refusal by an agency to transfer an FOI access application is not a decision in respect of which an aggrieved applicant is entitled to seek review by the Information Commissioner: see s.71 of the FOI Act. There is nothing in Mr Price's letters dated 18 June 2001 and 20 June 2001 amounting to a legal point of substance that might warrant reconsideration of my statement (in my letter to Mr Price dated 18 May 2001 - reproduced at paragraph 8 above) of the correct legal position as to the status of the LGAQ, and its member Councils, as distinct legal entities for the purposes of the FOI Act. I am satisfied that Mr Price's application for review dated 16 May 2001, in respect of Mr Hallam's decision on behalf of the LGAQ dated 14 May 2001, is vexatious, misconceived and lacking in substance. DECISION In accordance with s.77(1) of the FOI Act, I decide not to review further the decision (i.e., the LGAQ's decision dated 14 May 2001) in relation to which Mr Price's application for review dated 16 May 2001 has been made, because I am satisfied that that application is vexatious, misconceived, and lacking in substance.

queensland

court_judgement

Queensland Information Commissioner 1993-

Ubaldi and Department of Health [1999] QICmr 15 (17 June 1999)

Grimley and Department of Mines and Energy [1999] QICmr 15 (2 August 1999) Grimley and Department of Mines & Energy (S 129/98, 2 August 1999, 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 6 May 1998, the applicant applied to the Department of Mines and Energy (the Department) for access under the FOI Act to a number of documents, including "[t]he 'Schedule of Accidents' held in the minutes of meetings of the Electrical Industry Safety Advisory Committee since 1st July 1995 to this present date". By letter dated 1 July 1998, Ms P Ashe, the Department's FOI decision-maker, informed the applicant that she had determined that the Schedule of Accidents (the Schedule) - described as document 37, and consisting of 57 pages - should be disclosed in part only, subject to the deletion of information which Ms Ashe had determined was exempt from disclosure under s.44(1) of the FOI Act. The Schedule contains a record of accidents in Queensland relating to electric power or electrical contractors, which resulted in injury or death. Information about each accident is set out in four columns which record: Number Date Whether fatal or non-fatal, plus nameof injured employee and of employer An account of the accident Each page of the Schedule records entries for, on average, three or four accidents, covering a period from January 1995 to March 1998. The matter which Ms Ashe determined was exempt under s.44(1) consisted of "the names of members of the community and the names of deceased persons". Access was, however, granted to information in the first two columns, and information in the final column recording accounts of accidents. On 21 July 1998, the applicant sought internal review of Ms Ashe's decision, challenging the 'sufficiency of search' by the Department for documents falling within the terms of his access application. By letter dated 30 July 1998, the applicant informed the Department that he also wished to apply for internal review of Ms Ashe's decision that the names of employees which appeared in the Schedule were exempt from disclosure to the applicant, stating that "I require the employees names in order to indicate the safety records of individual organisations to appropriate authorities". By letter dated 5 August 1998, Mr Rowan Hindley, the Acting Manager, Executive Support Unit, informed the applicant that he had decided to disclose a number of additional documents to the applicant, but that he had decided to uphold Ms Ashe's decision with respect to the names of employees in the Schedule. By letter dated 22 August 1998, the applicant applied to me for review, under Part 5 of the FOI Act, of Mr Hindley's decision with respect to matter claimed to be exempt in the Schedule, and also raised a 'sufficiency of search' issue. The applicant stated, however, that his letter dated 30 July 1998, expanding his application for internal review, should have requested access to the names of employers, not of employees, which was a typographical error. (The Department had deleted the names of employers from the Schedule, as well as the names of employees.) The applicant stated that he had subsequently pointed this error out to Mr Hindley, and that Mr Hindley had declined to alter his decision. My Office subsequently confirmed with the applicant that he sought access to the names of employers, and did not wish to press for access to the names of employees. External review process The Department was requested to provide this Office with a copy of the matter in issue, and with details of any searches which had been undertaken to locate the additional documents which the applicant contended should be in the possession of the Department. The Department forwarded copies of relevant documents to my Office under cover of a letter dated 7 September 1998, including a copy of a letter dated 31 August 1998 from Mr Hindley to the applicant, explaining that the documents which the applicant believed had not been located and dealt with in the course of his FOI access application either did not exist, or were not received by the Department until after that FOI access application was made, and therefore fell outside the scope of that access application. The applicant was subsequently informed that I had no jurisdiction in relation to documents which fell outside the scope of his FOI access application dated 6 May 1998. The applicant informed my Office that he accepted that the additional documents fell outside the scope of that access application, and that he would pursue access to them by other means. That left in issue in this review only the names of employers in the Schedule. On considering the Schedule, I formed the preliminary view that disclosure of any part of the Schedule that would identify an employee as having been injured or killed would disclose information concerning that employee's personal affairs, and that this would extend not only to the names of employees who were injured or killed but also to the names of self-employed contractors. It was my preliminary view that such matter qualified for exemption from disclosure to the applicant under s.44(1). The applicant was informed of my preliminary view and advised my staff that he accepted that view with respect to the names of self-employed contractors, and did not seek access to that matter. The matter remaining in issue in this review therefore comprises the names of private firms or companies, and of electricity authorities, who were the employers of persons injured or killed in the electrical accidents listed in the Schedule. I will provide the Department with a copy of the Schedule with the matter remaining in issue marked on it. By letter dated 7 June 1999, I informed the Department of my preliminary view that the matter remaining in issue was not exempt from disclosure to the applicant. The Department advised my Office, by letter dated 22 June 1999, that it did not accept my preliminary view, stating that: In the normal course of events, I would agree with your interpretation of s.44(1) of the Freedom of Information Act 1992 (FOI Act). However, I am sure you are aware of the tragedy and sensitivity which surrounds this case. I support strongly Mr Robert Nelson's contention in his letter to you dated 7 September 1998 [forwarding copies of relevant documents to this Office] that:- "....if the name of the employer organisation was not exempted, it would be possible to identify the deceased person and that disclosure of personal affairs might lead to attempts to contact the next of kin of the deceased." It is the strong belief of the departmental officers involved in this matter, that release of further information to the applicant could lead to further distress being suffered by individuals whose loss has been great, already. Application of s.44(1) of the FOI Act Section 44(1) of the FOI Act provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. In applying s.44(1) of the FOI Act, one must first consider whether disclosure of the matter in issue would disclose information that is properly to be characterised as information concerning the personal affairs of a person. If that requirement is satisfied, a prima facie public interest favouring non-disclosure is established, and the matter in issue will be exempt, unless there exist public interest considerations favouring disclosure which outweigh all identifiable public interest considerations favouring non-disclosure, so as to warrant a finding that disclosure of the matter in issue would, on balance, be in the public interest. In 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. The matter remaining in issue comprises the names of employers of persons involved in accidents in the course of their work for those employers. Some of the employers are large organisations. Some of them may be relatively small. Disclosure of the names of employers would not, by itself, disclose anything about individual employees who have been injured or killed. What it might enable the applicant to do (and this is what the Department has expressed concern about) is to make enquiries of individual employers which might lead to the applicant being able to establish the identities of such employees. However, the responses of employers in any case would be a matter for them. In a number of exemption provisions in the FOI Act, Parliament has adopted a test requiring consideration of whether certain prejudicial effects "could reasonably be expected to ..." arise. However, when applying s.44(1) my decision must be based on whether disclosure of the matter in issue would disclose information concerning the personal affairs of persons other than the applicant for access. I have found, in a number of previous decisions, that matter which does not specifically name a person can nevertheless be capable of identifying a specific person to the applicant seeking access to that information (for example, information which the applicant would know that only one person could have provided to the agency). However, I do not accept that the matter remaining in issue in this case is matter of a kind which is capable, in itself, of revealing anything concerning the personal affairs of any of the employees named in the Schedule. The mere disclosure of names of employers would not disclose any information concerning the personal affairs of employees. That matter therefore does not qualify for exemption from disclosure under s.44(1) of the FOI Act. DECISION I vary the decision under review (being the decision of Mr Hindley dated 5 August 1998), by finding that the matter remaining in issue (identified at paragraph 15 above) is not exempt from disclosure under s.44(1) of the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Henderson and Department of Justice and Attorney-General [2011] QICmr 7 (14 March 2011)

Henderson and Department of Justice and Attorney-General [2011] QICmr 7 (14 March 2011) Last Updated: 7 April 2011 Decision and Reasons for Decision Application Number: 310061 Applicant: Henderson Respondent: Department of Justice and Attorney-General Decision Date: 14 March 2011 Catchwords: RIGHT TO INFORMATION – APPLICATION FOR ACCESS TO INFORMATION – REFUSAL OF ACCESS – NON-EXISTENT DOCUMENTS – applicant seeks access to documents concerning third party correspondence– applicant contends additional information should exist – whether there are reasonable grounds for agency to be satisfied that documents do not exist – whether agency has taken all reasonable steps to locate the documents - whether access to documents can be refused under sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) Contents REASONS FOR DECISION Summary The applicant seeks access to certain documents of the Office of the Legal Friend (OLF), Office of the Adult Guardian (OAG) and the Guardianship and Administration Tribunal (GAAT) under the Right to Information Act 2009 (Qld) (RTI Act). The application was processed by the Department of Justice and Attorney-General (DJAG) as the Department responsible for these three entities. DJAG initially released 52 documents to the applicant and refused access to 454 folios. During the course of this external review, DJAG agreed to release the additional 454 folios to the applicant. The applicant has been provided with copies of all documents located and DJAG’s relevant submission including 4 pages of attachments detailing the searches undertaken. The applicant submits that DJAG has not located all relevant communications with third parties including the Public Trust Office. Having considered the submissions and evidence before me, I am satisfied that: DJAG conducted comprehensive searches and has taken all reasonable steps to locate additional documents there are reasonable grounds to be satisfied that no additional documents exist, and access to additional documents can be refused under sections 47(3)(e) and 52(1)(a) of the RTI Act. Reviewable decision The decision under review is DJAG’s initial decision dated 1 December 2009. Relevant evidence In making this decision, I have taken the following into account: the applicant’s applications and supporting material DJAG’s considered decision file notes of telephone conversations between staff of this Office and DJAG correspondence from the applicant and DJAG relevant provisions of the RTI Act previous decisions of the Information Commissioner of Queensland as identified in this decision. Background In his external review application, the applicant states that: ... ... the bases of my application for external review are: (a) The interpretation and conclusion of the decision maker under the head Previous Application for same documents ... ...[and] (b) Sufficiency of searchThe documents disclosed do not include details of all communications with third parties, including the Public Trust Office. ... Point (a) was resolved with DJAG agreeing to release 454 additional documents. The applicant submits that point (b) is not resolved by this further release. On this basis, sufficiency of search remains an issue for determination in this review. In external reviews involving sufficiency of search issues, it is important to identify the documents which an applicant considers have not been located at the outset of the review. This is particularly so this Office can ensure that any further searches it asks an agency to conduct are directed to appropriate areas. As the external review application does not provide detailed information about the information which the applicant claims has not been located, the applicant was asked to provide submissions: identifying the particular documents which the applicant says have not been located setting out the grounds on which the applicant’s contention that additional documents should have been located are based. In response to this request, the applicant raised concerns about the onus in sufficiency of search matters and indicated that it should rest with the relevant agency. I confirm that generally, it is the agency which 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.[1] However, I also note that the Information Commissioner can reasonably request a participant to provide assistance in relation to a review, even where the participant does not have the onus under section 87 of the RTI Act.[2] The applicant has not provided this Office with any specific information of the type requested. Applicant’s submissions In summary, the applicant submits that: not all responsive documents have been located, and without sworn statutory declarations setting out the searches conducted by relevant agencies, he does not accept that the searches conducted are sufficient. DJAG submissions Given the issues in this review, this Office asked DJAG to provide details of: locations that were searched for documents reasons those locations were chosen search terms used in any electronic databases, and if no further documents can be located, an explanation as to why no further documents exist. In its submission[3] in response, DJAG provided 4 pages of attachments detailing the searches conducted and advised that: ... Searches for relevant documents Given the terms of the applicant’s access application, a search request was initially issued to the Office of the Adult Guardian. As disclosed in the Department’s decision, an OAG officer responded as follows: I have inquired from the OAG data base as well as from an officer who was employed here when the Office of the Adult Guardian came into being in 2000. There is no record of a file of any kind for [the third party] which indicated that the Adult Guardian was never appointed as a guardian for him nor was there an investigation in regard to [the third party]. The files from the legal friend did not come across to the Office of the Adult Guardian. GAAT may have a better idea as to where they went. A further search request was issued to the GAAT (selected for searches given the terms of the applicant’s access application). The A/Principal Registrar Tribunals responded to this request, supplying the Department’s RTI & Privacy Unit with documents contained on GAAT file no. 608 relating to [the third party], entitled ‘Part B – Hearings’. The decision-maker made enquiries as to the possible existence of further responsive documents by email ... to the A/Registrar, GAAT. ... These further enquiries disclosed the existence of the 454 documents contained on ‘Part A’ of GAAT file no. 608. The documents contained on the entire GAAT file consist of a considerable amount of documentation created or received by the IDCCQ [Intellectually Disabled citizens Council of Queensland], the Legal Friend [OLF], court documentation, and correspondence. Once part A had been located and reviewed, there did not appear to be anything suggesting the existence of further potential responsive documents. Sufficiency of searches 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. I note that section 47(3)(e) of the RTI Act provides that access to a document may be refused because the document is nonexistent or unlocatable and section 52 of the RTI Act sets out when a document is nonexistent or unlocatable. The Information Commissioner considered sufficiency of search in PDE and the University of Queensland[4] (PDE). Although this decision concerned section 28A of the now repealed Freedom of Information Act 1992 (Qld), the requirements of that section are replicated in section 52 of the RTI Act and on this basis the reasoning in PDE is relevant to this review. In PDE, the Information Commissioner explained 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. Section 52(1)(a) of the RTI Act is silent on the issue of how an agency is to satisfy itself that a document does not exist. However, where searches are used to substantiate a conclusion that there are reasonable grounds to be satisfied that the document does not exist, the agency must take all reasonable steps to locate the documents sought.[5] As DJAG undertook searches in order to satisfy itself that further relevant documents do not exist, it is necessary to ask the following questions: has DJAG taken all reasonable steps to locate additional documents, and are there reasonable grounds for DJAG to be satisfied that no additional documents exist. Has DJAG taken all reasonable steps to locate additional documents? The applicant seeks certain documents of the OLF, the OAG and the GAAT. In summary, I note that DJAG has undertaken the following searches: upon receipt of the access application, DJAG requested the OAG undertake searches for responsive documents – OAG located no relevant OAG documents and advised that the Adult Guardian was never appointed as guardian for the relevant third party following searches undertaken by OAG, DJAG requested the GAAT undertake searches – GAAT located one responsive file, titled ‘Part B’ and following further enquiries by DJAG as to the existence of a corresponding ‘Part A’ to that file, a file titled ‘Part A’ was located.[6] I also note that the GAAT files provided to the applicant contain a significant number of documents including: documents of the OLF (which is no longer in existence) documents of the IDCCQ court documentation, and correspondence with third parties. On the basis of the matters set out in this decision and in the absence of specific information regarding the documents which the applicant states have not been located, I am satisfied that: in determining where and which searches to undertake, DJAG has appropriately taken into account the relevant factors set out in PDE including: the nature of the government activity to which the application relates the structure, functions, responsibilities and information management arrangements of relevant entities including an entity which no longer exists (OLF) DJAG requested comprehensive searches from relevant entities and areas, and DJAG has taken all reasonable steps to locate additional documents. Are there reasonable grounds for DJAG to be satisfied that no additional documents exist? I have carefully considered all of the submissions and evidence before me. In respect of whether there are reasonable grounds for DJAG to be satisfied that no additional documents exist, I note that: DJAG has provided explanations for the non-existence of additional documents sought by the applicant, for example there are no reasonable grounds to expect that additional OAG documents exist, as it appears the Adult Guardian was never appointed as guardian for the relevant third party (whose affairs are the subject of the application) it is evident that DJAG’s continued enquires as to the location of files that appeared to be missing, resulted in further documents being located by GAAT which have been provided to the applicant and which include relevant documents of the OLF (which is no longer in existence), the IDCCQ, court documents and correspondence with third parties as sought by the applicant. Taking into account the significant number of documents located and provided to the applicant, the nature and content of those documents and the comprehensive nature of the searches conducted in response to the access application, I am also satisfied on the evidence before me that there are reasonable grounds for DJAG to be satisfied that no additional documents exist. With respect to the applicant’s assertion that statutory declarations are necessary to establish that the searches conducted are sufficient, I am satisfied that procedure on external review is within the discretion of the Information Commissioner[7] and in the circumstances of this review, it is unnecessary for DJAG to provide a statutory declaration containing the information already provided by way of submission and detailed annexure. DECISION I vary the decision under review and find that access can be refused to the additional documents sought under sections 47(3)(e) and 52(1)(a) of the RTI Act on the basis that such documents do not 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: 14 March 2011 [1] Section 87(1) of the RTI Act and the exception set out in section 87(2) of the RTI Act.[2] Section 96(2) of the RTI Act.[3] I note that by letter dated 4 August 2010, this Office provided the applicant with a copy of DJAG’s submission including 4 pages of attachments relevant to searches conducted.[4] (Unreported, Queensland Information Commissioner, 9 February 2009). [5] See PDE, particularly at paragraph 47.[6] I confirm that both Part A and Part B of the GAAT file have been provided to the applicant.[7] Section 95 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

GSA Industries (Aust) P_L and Brisbane City Council [1994] QICmr 20; (1994) 2 QAR 49 (25 August 1994)

GSA Industries (Aust) P/L and Brisbane City Council [1994] QICmr 20; (1994) 2 QAR 49 (25 August 1994) Last Updated: 28 February 2001 OFFICE OF THE INFORMATION ) L 9 of 1994COMMISSIONER (QLD) ) (Decision No. 94020) Participants: GSA INDUSTRIES (AUST) PTY LTD Applicant - and - BRISBANE CITY COUNCIL Respondent - and - GS TECHNOLOGY PTY LTD Third Party DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access - letters from solicitors for the third party to the respondent alleging infringement or prospective infringement of certain patent rights and copyrights asserted by the third party - whether exempt documents under s.43(1) of the Freedom of Information Act 1992 Qld - consideration of legal principles relating to third party communications and legal professional privilege.FREEDOM OF INFORMATION - whether documents in issue exempt under s.45(1)(a), s.45(1)(b) or s.45(1)(c) of the Freedom of Information Act 1992 Qld - whether prejudicial effects could reasonably be expected from disclosure under freedom of information legislation when relevant information is already available for public inspection through the Australian Patent Office.Freedom of Information Act 1992 Qld s. 43(1), s.45(1), s.45(1)(a), s.45(1)(b), s.45(1)(c), s.45(1)(c)(i), s.45(1)(c)(ii), s.72(1), s.83(3)Patents Act 1990 Cth s.200(2)Attorney General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; 61 ALJR 92; 69 ALR 31Cairns Port Authority and Department of Lands, Re (Information Commissioner Qld, Decision No. 94017, 11 August 1994, unreported)Cannon and Australian Quality Egg Farms Limited, Re (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported)Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; 51 ALJR 198; 11 ALR 577Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44Norman and Mulgrave Shire Council, Re (Information Commissioner Qld, Decision No. 94013, 28 June 1994, unreported) Pope and Queensland Health, Re (Information Commissioner Qld, Decision No. 94016, 18 July 1994, unreported)Smith and Administrative Services Department, Re (Information Commissioner Qld, Decision No. 93003, 30 June 1993; [1993] QICmr 3; (1993) 1 QAR 22)Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244; ATPR 40-121Wundowie Foundry Pty Ltd & Anor v Milson Foundry Pty Ltd & Anor [1993] FCA 422; (1993) 27 IPR 202 DECISIONI set aside that part of the decision under review (being the decision made on behalf of the respondent by Mr R N Metcalfe on 3 February 1994) which relates to the documents identified and described in paragraph 8 of my reasons for decision as documents 1, 2 3, 4, 5 and 6; and in substitution for it, I decide that those documents (with the exception of the amount of money which appears in the third line of the penultimate paragraph of document 4) are not exempt under the Freedom of Information Act 1992 Qld, and that the applicant is entitled to have access to them.Date of Decision: 25 August 1994...........................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS PageBackground 1 Application of s.43(1) 7 Application of s.45(1) 10 Conclusion 13 OFFICE OF THE INFORMATION ) L 9 of 1994COMMISSIONER (QLD) ) (Decision No. 94020) Participants: GSA INDUSTRIES (AUST) PTY LTD Applicant - and - BRISBANE CITY COUNCIL Respondent - and - GS TECHNOLOGY PTY LTD Third Party REASONS FOR DECISIONBackground1. The applicant, GSA Industries (Aust) Pty Ltd (GSA Industries), has applied under Part 5 of the Freedom of Information Act 1992 Qld (the FOI Act) for review by the Information Commissioner of the respondent's decision to refuse access to certain documents comprising tender documents lodged with the respondent for the supply of water meters, and also documents concerning some related matters.2. It appears that many local authorities are moving to charge ratepayers on a "user-pays" basis for consumption of water. Such a charging regime requires the installation of water meters, and the trend appears to have encouraged a growing and intensely competitive market for the supply of water meters to local authorities. The present case is one of three applications for review presently before me which relate to tenders for the supply of water meters.3. The applicant lodged an FOI access application on 3 December 1993 seeking: All documents between: 1) Russell Plastics Pty Ltd and/or GS Technology Pty Ltd and/or George Stack and/or any parties representing any of them AND 2) Brisbane City Council relating to Tender Nos. R55/92/93 and R22/93/94 including documents dealing with claims or prospect of litigation in respect of Australian Patent Application No. 85236/91 and Divisional Petty Application No. 44897/93 and in particular letters from Smits Leslie Barwick to Brisbane City Council dated 3 September 1993 and 15 November 1993.4. By letter dated 3 February 1994, the then principal officer of the Brisbane City Council (the Council), Mr R N Metcalfe, decided to allow access to some of the requested documents, but refused access to other documents and parts of documents, relying upon s.43(1) (the legal professional privilege exemption) of the FOI Act in respect of a small number of documents, and s.45(1)(b) and s.45(1)(c) of the FOI Act in respect of the balance. GSA Industries applied for external review of Mr Metcalfe's decision, under Part 5 of the FOI Act, by letter dated 24 February 1994. GSA Industries was entitled to proceed directly to external review because Mr Metcalfe was the principal officer of the Council (see s.73(3) of the FOI Act). GS Technology Pty Ltd (GS Technology), having been alerted to the application for review, applied under s.78 of the FOI Act to be a participant in the review, and its application to be a participant was granted. 5. The documents and parts of documents claimed by the Council to be exempt, have been obtained and examined. They appear to fall into two broad categories. The first category comprises documents lodged with the Council by the third party, GS Technology, as part of its tender documentation for Contract No. R55/92/93 and for Contract No. R22/93/94, including routine follow-up inquiries by the Council seeking clarification of details of the tenders submitted, and responses by GS Technology to those inquiries. The second category comprises letters from Messrs Smits Leslie Barwick (a firm of solicitors acting on behalf of GS Technology) to the Council concerning alleged infringement of certain patent rights and copyrights to which GS Technology claims entitlement, and other documents related to that issue.6. The two categories of documents raise different sets of issues. The first category raises issues in common with two related applications for review presently before me, which have arisen out of the same round of Brisbane City Council tenders, and I propose to deal with those common issues together, at a later date, if attempts to negotiate a resolution between the respective participants should ultimately prove unsuccessful. I propose in this decision to deal only with documents falling into the second category identified above.7. The documents which fall into the second category were examined for the purpose of making a preliminary assessment as to whether the claimed exemption provisions appeared to have been properly applied. As a result of that examination, the Deputy Information Commissioner formed the preliminary view that five documents appeared to have been wrongly claimed to be exempt under s.43(1) of the FOI Act, and that parts of a sixth document had been claimed to be exempt under s.45(1)(b) or s.45(1)(c) of the FOI Act in circumstances where the bulk of the information claimed to be exempt appeared to be information in the public domain. On 15 June 1994, the Deputy Information Commissioner wrote to both the respondent and GS Technology identifying those six documents, explaining why he had formed the preliminary view that the documents did not appear to qualify for exemption on the basis claimed in the respondent's decision letter of 3 February 1994, and inviting responses (see paragraphs 10 and 11 below).8. I will refer to those six documents, for the purposes of this decision, as the documents in issue. I have numbered them 1 to 6 as below, for ease of reference, and they can be described as follows:BCC File No. (8)243/98-50/92/93(P2)Document 1: Letter dated 3 September 1993 from Smits Leslie Barwick, Solicitors, to the Lord Mayor, Brisbane City Council, on the subject "GS Technology Pty Ltd -Tender for supply of water meter assemblies".Document 2: Letter dated 10 September 1993 from Smits Leslie Barwick, Solicitors, to the Executive Officer to the Lord Mayor, Brisbane City Council, on the subject "GS Technology Pty Ltd - Tender for supply of water meter assembles - Contract No. R55/92/93".Document 3: Letter dated 27 September 1993 from Smits Leslie Barwick, Solicitors, to Mr R N Metcalfe, Town Clerk, Brisbane City Council, on the subject "GS Technology Pty Ltd - Water meters assembly contract - R 55/92/93".BCC File No. (0)243/98-22/93/94Document 4: Letter dated 15 November 1993 from Smits Leslie Barwick, Solicitors, to the Lord Mayor, Brisbane City Council, on the subject "GS Technology Pty Ltd -Tender for supply of water meter assemblies".Document 5: The attachment to document 4, being a copy of a letter dated 12 November 1993 from Pizzey & Company, Patent Attorneys, to GS Technology.Document 6: Parts of the record of interview between Mr G Bellingham of the Council, and Mr G Stack (the managing director of GS Technology) and Mr J Pizzey (a patent attorney) comprised in folios 77-82 of BCC File No. (0)243/98-22/93/94.9. The respondent had decided that each of documents 1, 2, 3, 4 and 5 was exempt under s.43(1) of the FOI Act. Exemption under s.45(1)(b) or s.45(1)(c) was also claimed in respect of document 1, although it was not clear from the respondent's decision letter whether this claim was made in respect of all or only some parts of document 1, and if the latter, which parts. Document 6 was claimed to be exempt under s.45(1)(b) or s.45(1)(c). 10. The Deputy Information Commissioner's letter to the respondent dated 15 June 1994 (a copy of which was also forwarded to GS Technology) set out a detailed explanation of the basis on which the Deputy Information Commissioner had formed the preliminary view that documents 1, 2, 3, 4 and 5 were not subject to legal professional privilege, and hence not exempt under s.43(1) of the FOI Act. The letter then continued: 20. Section 45(1)(b) and/or s.45(1)(c) are claimed to apply to document 1 but with no clear indication of precisely which information in document 1 is said to be covered. I propose now to give you and GS Technology (to whom I will also forward a copy of this letter) the opportunity to specify what parts of document 1 are claimed to be exempt under s.45(1)(b) or s.45(1)(c) and explain to me the precise basis of the claim for exemption, having regard to the principles as to the interpretation and application of s.45(1)(b) and s.45(1)(c) which are set out in the Information Commissioner's reasons for decision in Re Cannon and Australian Quality Egg Farms Limited (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported). I ask that careful consideration be given as to whether the information that might be thought to be commercially sensitive is in fact already in the public domain, e.g. because it can be obtained by 'reverse engineering' of products that are available in the market place, or because it is available for inspection by interested persons through the Australian Patent Office, having formed part of the information lodged by GS Technology in connection with its Australian Patent Application No. 85236/91 or Divisional Petty Application No. 44897/93. As is made clear by the authorities referred to in Re Cannon, if information is already in the public domain, or is a matter of common knowledge in the relevant industry, it is extremely difficult (if not impossible) to establish any basis on which the judgment can be made that disclosure of that information under the FOI Act could reasonably be expected to have the prejudicial effects which would justify exemption under s.45(1)(b) or s.45(1)(c). 21. These considerations would appear to also be relevant to document 6, and again I ask that the parts of document 6 claimed to be exempt under s.45(1)(b) or s.45(1)(c) be clearly specified, and the precise basis of the claim for exemption be explained, having regard to the principles set out in Re Cannon. 22. I request that you give detailed consideration to the preliminary views set out in this letter and advise me as soon as practicable, but in any event no later than 1 July 1994: (a) whether or not you accept my preliminary views that documents 1, 2, 3, 4 and 5 are not exempt under s.43(1) of the FOI Act; and (b) precisely which parts (if any) of documents 1 and 6 you claim to be exempt under s.45(1)(b) or s.45(1)(c) of the FOI Act (as requested above, please also explain the precise basis of the claim for exemption); and (c) consequently which of (or which parts of) documents 1, 2, 3, 4, 5 and 6 you are prepared to release to the applicant. 23. If you wish to contend that documents 1, 2, 3, 4, 5 and 6 are exempt under s.43(1), s.45(1), or any other provisions of the FOI Act, I am now extending to you the opportunity to lodge evidence and/or a written submission in support of your case. Any evidence should be lodged in the form of sworn affidavits or statutory declarations which annex as exhibits any relevant documentary evidence. Your evidence should aim to establish the material facts which you say bring documents 1, 2, 3, 4, 5 and 6 within the exemption provisions which you rely upon. 24. Any written submissions should set out: (a) the material facts and circumstances; and (b) any legal arguments: on which you rely to support your case for exemption. The following remarks are not intended to limit the scope of any submission you wish to make, but it would be of great assistance if your submission could be organised so that it: (a) identifies the material facts said to be established by the evidence filed on your behalf, or said to be established from (or by reasonable inference from) the contents of the relevant documents in issue; and (b) demonstrates how each element of the exemption provision(s) relied upon is said to be satisfied; and (c) (where an exemption provision contains a public interest balancing test) identifies the relevant public interest considerations and explains why those favouring non-disclosure are said to outweigh those favouring disclosure. ... 26. I direct that you provide any evidence and any written submission which you wish to rely on as soon as practicable, but in any event, no later than 8 July 1994.11. The Deputy Information Commissioner also wrote to GS Technology on 15 June 1994 in the following terms: I have enclosed for your reference a copy of my letter of even date to the Brisbane City Council which sets out my preliminary views in respect of certain documents in issue. I have enclosed, for ease of reference, copies of documents 1, 2, 3, 4, 5 and 6 as referred to in the enclosed letter. I ask that you give careful consideration to the views expressed in the enclosed letter concerning documents 1, 2, 3, 4, 5 and 6 (and if you wish, obtain legal advice) and inform me as soon as practicable, but in any event no later than 1 July 1994, whether or not you object to the applicant obtaining access to documents 1, 2, 3, 4, 5 and 6. If there are parts only of those documents, to the disclosure of which you object, please specify what those parts are. Please note, however, that the applicant has an enforceable legal right to have access to the documents that are in the possession of the Brisbane City Council, except to the extent of any information contained in the documents which is exempt matter under one or more of the provisions of Part 3, Division 2 of the FOI Act. To save my reproducing them in this letter, would you please treat paragraphs 20 to 26 inclusive of my enclosed letter to the Council as applying, with any necessary modifications, to GS Technology Pty Ltd as a participant in this review, i.e. GS Technology Pty Ltd is also to comply with the requests and directions made in paragraphs 20 to 26 of the enclosed letter within the dates there specified.A copy of my reasons for decision in Re Cannon and Australian Quality Egg Farms Limited (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported) was also forwarded (as an attachment to the letter of 15 June 1994) to GS Technology for its assistance.12. The Council wrote to me on 1 July 1994 stating that, after consideration of the preliminary views expressed in the Deputy Information Commissioner's letter of 15 June 1994, the Council agreed with the conclusions there reached that s.43(1) of the FOI does not apply to documents 1, 2, 3, 4 and 5. The Council stated that it was prepared to release those documents to the applicant upon my authorisation to do so. The Council also indicated that it was likewise prepared to release document 6 in light of the considerations set out in the Deputy Information Commissioner's letter of 15 June 1994.13. GS Technology, on the other hand, notwithstanding that its managing director (Mr George Stack) had conferred by telephone with the Deputy Information Commissioner on 20 June 1994 to clarify aspects of the letters dated 15 June 1994, failed to inform me by 1 July 1994 whether or not it objected to the disclosure to the applicant of all or parts of documents 1, 2, 3, 4, 5 and 6. It also failed by 8 July 1994 to lodge any evidence or written submission in support of any claims that documents 1 to 6, or any parts thereof, comprised exempt matter under the FOI Act. On 15 July 1994, the Managing Director of GS Technology was requested by telephone to provide a written response to the letter of 15 June 1994. When no response had been received by 21 July 1994, a further telephone request to Mr Stack prompted a brief response received by facsimile transmission on that day. That facsimile transmission stated that GS Technology did not object to the release of document 6, but objected to the release of documents 1 to 5 inclusive. The facsimile transmission dated 21 July 1994 did not attempt to explain, or make out a case in support of, the claim for exemption, but merely asserted that documents 1 to 5 "refer to confidential company information for which exemption is claimed under s.45(1)". No attempt was made in that facsimile transmission to identify with precision any parts of documents 1 to 5 which were said to refer to confidential company information, nor to state which of the available exemptions in s.45(1)(a), s.45(1)(b) or s.45(1)(c) was said to apply to documents 1 to 5, or particular parts of them.14. The provisions of the FOI Act concerning the conduct of an external review, as contained in Part 5, Division 4 of the FOI Act, include the following: 72.(1) On a review under this Part - (a) the procedure to be followed is, subject to this Act, within the discretion of the Commissioner; and (b) proceedings are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Commissioner permits; and (c) the Commissioner is not bound by the rules of evidence and may inform himself or herself on any matter in any way the Commissioner considers appropriate. (2) The Commissioner may, during a review, give directions as to the procedure to be followed on the review.and 83. ... (3) In conducting a review, the Commissioner must - (a) adopt procedures that are fair, having regard to the obligations of the Commissioner under this Act; and (b) ensure that each participant has an opportunity to present the participant's views to the Commissioner; but subject to paragraph (a), it is not necessary for a participant to be given an opportunity to appear before the Commissioner.15. I am satisfied that although no evidence or detailed submission has been received from GS Technology in connection with the issues raised on this external review, GS Technology has been provided with a fair opportunity to present its views to me (even though it has not taken advantage of that opportunity), and that the requirements of s.83(3) of the FOI Act have been met in the circumstances of this case. 16. Neither the respondent nor GS Technology now claims that document 6 is exempt from disclosure under the FOI Act, and accordingly the applicant may be given access to document 6. Having examined documents 1, 2, 3, 4 and 5, I am satisfied that they are not exempt documents under the FOI Act (with the possible exception of one price quoted in document 4 as a modified tender price - see paragraph 40 below). Section 43(1) and s.45(1) have been suggested as possible bases for exemption of documents 1, 2, 3, 4 and 5, and I will briefly record my reasons for holding that neither s.43(1), nor any of the grounds of exemption in s.45(1), can apply to those documents.Application of s.43(1)17. 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. I have considered the application of s.43 in several prior decisions, notably 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 Re Norman and Mulgrave Shire Council (Information Commissioner Qld, Decision No. 94013, 28 June 1994, unreported), where the tests for determining whether legal professional privilege applies to lawyer-client communications are explained; see especially Re Smith at paragraph 82 (1 QAR at p.52) and following. In Re Norman (at paragraph 20), I pointed out that while the High Court cases referred to in Re Smith are authoritative as to those aspects of legal professional privilege which were in issue on the facts of each case, they did not purport to exhaustively state all aspects of legal professional privilege which have been accepted by Australian courts.19. None of documents 1, 2, 3, 4 and 5 is a communication between a practising solicitor or barrister and a client, so they do not qualify for consideration under the principles of legal professional privilege relating to lawyer-client communications. In certain circumstances, however, legal professional privilege may extend to third party communications, that is, communications between the client or the client's solicitor or barrister, and a third party who is not an agent of the client or the client's solicitor or barrister. In the context of documents 1, 2, 3 and 4, GS Technology is the client and the Council is a third party to which communications have been made by a firm of solicitors acting on behalf of GS Technology. Document 5 is a copy of a communication addressed to GS Technology from a firm of patent attorneys acting on behalf of GS Technology. 20. In Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244, Lockhart J held that legal professional privilege extends to communications and documents passing between the client's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. This principle was affirmed by Wood J in Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44, who also made it clear (at p.52) that (as is the case with lawyer-client communications) third party communications cannot qualify for a claim to legal professional privilege unless they are confidential and satisfy the sole purpose test (i.e. that the sole purpose for which a document was brought into existence was a purpose which satisfies the legal tests for attracting legal professional privilege - see Grant v Downs [1976] HCA 63; (1976) 135 CLR 674). That view is endorsed by the learned authors of Cross on Evidence (4th Aust Ed) at p.700.21. There is nothing on the face of documents 1, 2, 3 and 4 to indicate that they were intended to be confidential communications, nor, having regard to the nature of the material contained in them, do I consider that it is reasonable to infer that it could have been intended that the Council was not to communicate to the other business entities, against whom allegations of infringement of patent rights and/or copyrights were made (by the solicitors acting on behalf of GS Technology), the substance of the allegations made against them. Documents 1, 2, 3 and 4 seem to me to fall into a like category of documents to the one to which Dawson J referred in Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at p.496: ... a letter to the other side in litigation which is drafted in a solicitor's office may be privileged before it is sent because it may reveal confidential communications between the solicitor and his client. Once it is sent, however, it ceases to be confidential and there is no privilege in it, not because privilege in the document is waived, but because no privilege attaches to it. ... Legal professional privilege exists to secure confidentiality in communications between a legal adviser and his client but it can have no application in relation to a document the purpose of which is to communicate information to others.The primary purpose of these documents is to communicate information to the Council as to certain legal rights asserted by GS Technology.22. It is not clear to me that documents 1, 2, 3 and 4 can satisfy the requirement (for a third party communication to attract legal professional privilege) that a document must have been brought into existence at a time when relevant litigation had commenced or was reasonably anticipated. Assuming, however, that this could be demonstrated, documents 1, 2, 3 and 4 are not on their face capable of satisfying the requirement stated by Lockhart J in Sterling's case, i.e. that the documents were made or prepared for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. There is simply nothing on the face of those documents which is directed to the relevant purpose. In both documents 1 and 4 there is an explicit threat of litigation against the Council should it choose to adopt a particular course of action with respect to the award of a tender. The threat is a contingent one, and its predominant purpose seems to have been to attempt to influence a business decision to be made by the Council. 23. Even if it could be shown that documents 1, 2, 3 and 4 were directed to the relevant purpose referred to above, it appears from the face of the documents that they are incapable of satisfying the sole purpose requirement. The apparent purposes of document 1 are:(a) to make the Council aware of GS Technology's application for patent protection in respect of its claimed improvements to water meter assemblies;(b) to alert the Council to GS Technology's claims of infringement and prospective infringement of patent rights and/or copyrights asserted by GS Technology; and(c) as noted in the preceding paragraph, to attempt to influence a business decision to be made by the Council.24. The apparent purpose of documents 2 and 3 is to request the Council to retain (rather than dispose of) certain items which are assumed (by GS Technology and its solicitors) to be in the Council's possession.25. The apparent purposes of document 4 include those referred to in paragraph 23 above. Moreover, document 4 goes further than document 1 in that it also has the apparent purposes of:(a) seeking to persuade the Council that a competitor's product does not meet the Council's tender specifications in certain nominated respects; and(b) advising the Council that GS Technology is prepared to modify its tender previously submitted, in a particular respect, and seeking the Council's advice as to whether it is prepared to allow that modification.26. I am satisfied that documents 1, 2, 3 and 4 would not be privileged from production in a legal proceeding on the ground of legal professional privilege and hence that they are not exempt under s.43(1) of the FOI Act.27. Document 5 is a copy of a letter from Pizzey & Company, Patent Attorneys, to their client, GS Technology. No privilege exists at common law in respect of communications between a patent attorney and his or her client. Indeed, at common law, communications between a client and the client's solicitor who was also the client's patent attorney were not privileged if the solicitor received them in his or her capacity as a patent attorney (see Wundowie Foundry Pty Ltd & Anor v Milson Foundry Pty Ltd & Anor [1993] FCA 422; (1993) 27 IPR 202 at p.206). However, s.200(2) of the Patents Act 1990 Cth now provides that: (2) A communication between a patent attorney and his or her client, and any record or document made for the purposes of such a communication, are privileged to the same extent as a communication between a solicitor and his or her client.28. Section 43(1) of the FOI Act, however, refers only to legal professional privilege, and is not, in my opinion, to be interpreted as extending to the statutory privilege conferred by s.200(2) of the Patents Act, even though the scope of that statutory privilege is to be assessed by reference to the scope of legal professional privilege. In my opinion, document 5 is not eligible for consideration under the principles of legal professional privilege relating to lawyer-client communications. In case I am mistaken in that view, I should make it clear that I am satisfied in any event that document 5 would not be privileged even if it were a communication between a solicitor and his or her client, for the reason noted in paragraph 30 below (i.e. any privilege which might have attached to document 5 has been waived).29. It is possible that the original document, of which document 5 is a copy, might have been subject to legal professional privilege if it could be demonstrated that it was prepared for submission to GS Technology's solicitors, that litigation was commenced or was reasonably anticipated at the time of its creation, and that it was a confidential communication for the sole purpose of use in that litigation. (In this regard it is well-established that the question whether litigation is contemplated at the time a document is prepared is an objective one. It is necessary that circumstances be shown to exist, at the time, from which, objectively viewed, the court can subsequently conclude that litigation could reasonably be anticipated: Grant v Downs at p.682). In the absence of any evidence on these issues, it is open to infer from the timing of its creation, and the use that was made of it, that document 5 was prepared on 12 November 1993 for the purpose of being used as an attachment to document 4 (which was forwarded on 15 November 1993, i.e. three days later) so as to support the multiple purposes for which document 4 was created and communicated to the Council.30. In any event, the document which is subject to the FOI Act and is in issue in this review, is the copy document which is in the possession of the Council. Any privilege which may have attached to that copy has been waived through its intentional disclosure to the Council (see Attorney-General (NT) v Maurice at p.487 per Mason and Wilson JJ). The purpose of that intentional disclosure was to support the purposes for which document 4 (to which document 5 was an attachment) was forwarded to the Council. 31. The copy document (document 5) which is in the possession of the Council would not, in these circumstances, be privileged from production in a legal proceeding on the ground of legal professional privilege. Accordingly, I am satisfied that document 5 is not an exempt document under s.43(1) of the FOI Act.Application of s.45(1)32. 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.33. The separate grounds of exemption provided for in s.45(1)(a), s.45(1)(b) and s.45(1)(c) were analysed and explained in my reasons for decision in Re Cannon, and I have applied those principles to documents 1, 2, 3, 4 and 5.34. I am satisfied that there is no information contained in documents 1, 2, 3, 4 and 5 which is capable of being properly characterised as a trade secret for the purposes of s.45(1)(a) of the FOI Act, having regard to the criteria discussed in Re Cannon at paragraphs 42 to 49. GS Technology has lodged applications for patent protection (Australian Patent Application No. 85236/91 and Divisional Petty Patent Application No. 44897/93) in respect of those aspects of its water meter assemblies which it claims to be inventive. A patent is a temporary statutory monopoly of the right to exploit an invention (or to authorise another person to exploit that invention) granted to the patentee in return for the disclosure of the invention to the public in the form of a patent specification. Part of the rationale of the patent system (in addition to encouraging investment in research, and affording incentives to foster invention) is to encourage dissemination of the inventor's knowledge in order to facilitate its use by the public and prevent duplication of research (see R Dean, The Law of Trade Secrets, Law Book Co, 1990, at p.14 and pp.19-21).35. The applicant has forwarded to me copies of documents obtained from the Australian Patent Office (including specifications and provisional specifications lodged by Mr George Stack, the Managing Director of GS Technology, which are open to public inspection), and requested that I assess whether there can, in truth, be any commercial detriment flowing from disclosure under the FOI Act of the documents in issue, having regard to the information which is already in the public domain. Having examined the material which is available for public inspection by any interested person through the Australian Patent Office, I am satisfied that none of the information relating to innovative aspects of GS Technology's water meter assemblies which is contained in documents 1, 2, 3, 4 and 5, is secret information which might qualify for exemption under s.45(1)(a) of the FOI Act.36. Turning to s.45(1)(b) (and applying the principles discussed in Re Cannon at paragraphs 51 to 65, and in particular, those relating to the meaning of "commercial value" addressed at paragraphs 54-56), I am satisfied that the only information contained in documents 1, 2, 3, 4 and 5 which is capable of having a commercial value to GS Technology is the information relating to innovative aspects of GS Technology's water meter assemblies. The disclosure of that information under the FOI Act could not reasonably be expected to destroy or diminish its commercial value, because it is information which is already in the public domain, as explained in the preceding paragraph. Moreover, it appears from the face of the documents in issue that water meter assemblies of the kind marketed by GS Technology and its competitors can readily be obtained, and broken down and examined ("reverse-engineering"), to ascertain any details of inventiveness in design. (It would not therefore appear possible to keep any such details confidential for protection as a trade secret, once marketing commences, and this is presumably why GS Technology has sought protection through the patent system). In the circumstances, I am not satisfied that any information which is capable of being obtained through "reverse engineering" of water meter assemblies that are able to be procured by competitors, has a commercial value which could reasonably be expected to be destroyed or diminished by its disclosure under the FOI Act.37. The three elements which must be satisfied to establish that information is exempt matter under s.45(1)(c) of the FOI Act were analysed and explained at paragraphs 66 to 88 of Re Cannon. (For further illustrations of those principles, see Re Pope and Queensland Health (Information Commissioner Qld, Decision No. 94016, 18 July 1994, unreported) at paragraph 16 and following, and Re Cairns Port Authority and Department of Lands (Information Commissioner Qld, Decision No. 94017, 11 August 1994, unreported) at paragraphs 73-144). In this case, I am satisfied that the information in documents 1, 2, 3, 4 and 5 can properly be characterised as information concerning the business or commercial affairs of GS Technology for the purposes of s.45(1)(c)(i) of the FOI Act. I am not satisfied, however, that disclosure of the information in documents 1, 2, 3, 4 and 5 (with the possible exception of one item - see paragraph 40 below) could reasonably be expected to have an adverse effect on the business or commercial affairs of GS Technology.38. GS Technology has not taken up the opportunity afforded to it (see paragraphs 13-15 above) of supporting its claim for exemption by explaining the nature of any adverse effects which it asserts can reasonably be expected to follow from disclosure of the information in issue. I am unable to discern any such adverse effects. The disclosure under the FOI Act of information concerning innovative aspects of GS Technology's water meter assemblies could not reasonably be expected to have an adverse effect, because the information is already in the public domain, and available to any person sufficiently interested to obtain it, as explained above.39. Nor could GS Technology have reasonably expected or intended that the Council was not to communicate to its competitors, against whom allegations of infringement of patent rights and/or copyrights were made, the substance of the allegations made against them. (The applicant has in fact been so informed by the Council, and has provided me with copies of a letter dated 15 November 1993 to Mr George Stack concerning the allegations, and a reply from Smits Leslie Barwick dated 22 November 1993). I cannot discern any adverse effect to the business or commercial affairs of GS Technology which could reasonably be expected to follow from the disclosure under the FOI Act of information of that kind, since a business entity which makes allegations of that kind has to be prepared to support them, in any event (see, for example, Chapter 11, Part 3 of the Patents Act which deals with unjustified threats of infringement proceedings. Generally speaking, if a letter of demand does not produce undertakings that a competitor will cease any conduct alleged to infringe patent rights or copyrights, it is up to the person asserting infringement to take legal action to vindicate the rights asserted). Even if an adverse effect on the business or commercial affairs of GS Technology could be established, I am satisfied that the public interest in fair treatment of the competitors would require that allegations of that kind made against them be disclosed to them. Thus, in my opinion (on the application of the public interest balancing test incorporated within s.45(1)(c) of the FOI Act) disclosure of that information would on balance be in the public interest.40. The penultimate paragraph of document 4 contains a request to the Council that GS Technology be permitted to modify its previously submitted tender in respect of one item and quotes a price for that item. I consider that there is an arguable case that disclosure of the price could have an adverse effect on GS Technology's business or commercial affairs. The question of whether prices quoted in tenders are exempt from disclosure under the FOI Act is a major issue in respect of the first broad category of documents identified at paragraph 5 above, and I propose to defer consideration of the exempt status of the price quoted in document 4 until that issue is dealt with in respect of the tender documents proper. The applicant has written to me indicating that my proposed course of action in that regard is acceptable to it.41. I also note that documents 1, 2, 3, 4 and 5 comprise information that was not solicited by the Council, but forwarded on behalf of GS Technology with the object of furthering and/or protecting GS Technology's commercial interests, and obtaining some benefit or advantage which it sought from Council. There is no basis on which I could be satisfied that disclosure of that information could reasonably be expected to prejudice the future supply of such information to government, within the terms of s.45(1)(c)(ii) of the FOI Act.Conclusion42. I am satisfied that documents 1, 2, 3, 4 and 5 are not exempt documents under the FOI Act, with the possible exception of the price quoted in the penultimate paragraph of document 4, which price will be withheld from the applicant pending further consideration of whether it is exempt matter under the FOI Act. I have already noted in paragraph 16 above that neither the respondent nor GS Technology now claims that document 6 is exempt. It is appropriate, then, that I set aside that part of the decision, made on behalf of the respondent by Mr R N Metcalfe on 3 February 1994, which relates to documents 1, 2, 3, 4, 5 and 6 as identified and described in paragraph 8 above; and in substitution for it, I decide that those documents (with the exception of the price quoted in the penultimate paragraph of document 4) are not exempt documents under the FOI Act, and that the applicant is entitled to have access to them..............................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

DJ6G7Y and Queensland Police Service [2019] QICmr 4 (18 February 2019)

DJ6G7Y and Queensland Police Service [2019] QICmr 4 (18 February 2019) Last Updated: 22 February 2019 Decision and Reasons for Decision Citation: DJ6G7Y and Queensland Police Service [2019] QICmr 4 (18 February 2019) Application Number: 314248 Applicant: DJ6G7Y Respondent: Queensland Police Service Decision Date: 18 February 2019 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – NONEXISTENT DOCUMENTS – applicant contends that documents should exist in relation to a police operation the applicant believes occurred near their residence – whether agency has taken all reasonable steps to locate responsive 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) REASONS FOR DECISION Summary The applicant applied[1] to Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to information in the following terms: On [date supplied] at approximately 9.45am there was an operation directed at myself and involving the QPS. This included a police car with two officers in [address supplied] opposite [address supplied], an officer in a parked car outside [address supplied], an officer (the shooter) inside [address supplied] and two officers at the café next to the [business name supplied]. At approximately 5.00pm an officer attended [address supplied]. I require any and all information pertaining to this operation, including, but not restricted to, the identity of all officers and the organisations to which they belong, the justification for the operation and all protocols and directions issued. The reason for the officer’s attendance at [address supplied] at 5.00pm. In support of their application, the applicant also stated that they believed that, in connection with this operation, a police officer had spoken with a person (whom the applicant named) who lived at an address that the applicant supplied. In response, QPS advised the applicant that searches had been conducted for documents that responded to the terms of the application, and that no records had been located that referred to or related to the date and the various locations supplied by the applicant. QPS therefore decided[2] that the documents to which the applicant sought access did not exist. The applicant applied[3] to this Office (OIC) for review of QPS’s decision in the following terms: While the plain clothes officers may well have been a ‘third party’, the QPS were involved and there was a police squad car with two police officers stationed three doors away from my residence. There had been an alert issued that I had an homicidal intent. The occupant of ... [address supplied] (G-man) was ascertained to the most vulnerable as, although he is the instigator of this extraordinary persecution and denial of all human rights and civil liberties and several murder and framing attempts (with assistance from colleagues) of myself, he seems to have successfully orchestrated a ‘new investigation’ following the grievous assault of myself on [date supplied] – hence the disappearance of the recorded interview with Senior Sergeant [name supplied] at Police HQ on [date supplied] in which I complained of police corruption and harassment. This ‘new’ fake investigation suggests that I am the dangerous person and am fixated on him. He has arranged unprincipled and dishonest neighbours to provide false statements in this regard. The occupant of [address supplied] has been an enthusiastic supporter of this corruption. Therefore I would ask you to review why a police squad car was stationed a short distance away and what information was provided to the QPS. If you would disclose the identity of the plain clothes officers that would be most appreciated. For the reasons set out below, I affirm the decision made by QPS that the documents to which the applicant seeks access do not exist. Background Significant procedural steps taken by OIC in conducting this external review are set out in the Appendix to these reasons. In response to the applicant’s external review application, the Assistant Information Commissioner (AIC) wrote to the applicant[4] to advise that OIC was considering not dealing with the application under section 107(1)(a) of the IP Act on the basis that it was misconceived or lacking in substance. The AIC explained that it appeared that the applicant believed there had been a police operation directed at the applicant, and that the applicant was seeking confirmation from OIC of their suspicion and requesting that OIC inquire into, and provide details of, the operation. The AIC explained that an external review is concerned only with a review of a decision made by an agency about access to, or amendment of, information under the relevant legislation, and that OIC did not have a general jurisdiction to inquire into police operations in the way contemplated by the applicant. The AIC advised the applicant that the only possible issue which OIC could consider was the sufficiency of QPS’s searches for responsive documents, and noted that QPS had already informed the applicant that a search of its records had not found any reference to a police operation or incident near the applicant’s residence on the date supplied in the access application. If the applicant did not agree to withdraw the application for external review, the AIC invited the applicant to provide a submission in support of their case. The applicant responded by email dated 4 December 2018: Please review the decision on the basis of the insufficiency of the search. Logs have to exist for the presence of police near my home. Please ensure that the search includes all information and records, of any type whatsoever or format, of operation or alerts, even automated alerts, and any and all documents, logs, recordings, correspondence, surveillance reports, copies of my emails sent that day, particularly my email to Archbishop [name supplied] which I believe has been illegally intercepted, which exist in which the entire QPS are involved, including, but not limited to, the counter terrorism division and [name of police station supplied]. Please ensure the QPS’s search includes any and all information relating to the organisation to which the plain clothes officers involved were affiliated, whether QPS or any other agency, State or Federal. As the plain clothes officers/agents appropriated a [name of local business supplied] car, please ensure the search includes telephone calls and transcripts or any documentation at all relating to contact with [name of local business] on [date supplied]. Reviewable decision The decision under review is QPS’s decision dated 26 October 2018. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). Issue for determination 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 considering this issue, it is also necessary to determine whether QPS has taken all reasonable steps to locate documents responding to the application. Relevant law An agency may refuse access to documents which do not exist.[5] 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.[6] After considering these factors, an agency may determine that a particular documentwas 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. Findings In submissions dated 4 December 2018 (see paragraph 10 above), the applicant sets out why they consider there are reasonable grounds for believing that documents that respond to the terms of their access application ought to exist in the possession or under the control of QPS. The applicant believes that they saw police cars near their residence on a particular day, and that a police operation involving the applicant was being conducted. The applicant also believes that plain clothes police officers had ‘appropriated’ a car belonging to a local business and were also involved in the operation. In its decision, QPS had advised the applicant that searches of its records had failed to locate any records for the date, names and locations to which the applicant had referred in the access application. Following receipt of the applicant’s submission dated 4 December 2018, OIC asked QPS to provide further information about the particular searches undertaken.[7] By email dated 18 January 2019, QPS advised that searches of its QPRIME electronic database[8] had been carried out under the following search fields: the applicant’s name for any entries in relation to the date provided the applicant’s address for any entries in relation to the date provided a road named by the applicant for any entries in relation to the date provided various addresses in a street named by the applicant in relation to the date provided; and the name of the person referred to by the applicant in the access application as being a person residing at an address supplied by the applicant and with whom the applicant believes a police officer spoke on the date provided. I am satisfied that, given QPS’s usual record-keeping practices and procedures, it is reasonable to expect that QPRIME would be the repository for any responsive documents. I am further satisfied that the search fields used by QPS to search QPRIME were reasonable, based upon the information provided by the applicant, and were sufficient to capture any documents that existed in QPS’s possession or under its control in relation to the police presence or operation that the applicant alleges occurred near their residence on the date in question. The fact that those searches of QPRIME failed to locate any responsive documents gives rise to reasonable grounds for believing that the documents to which the applicant seeks access do not exist. As regards the applicant’s request for access to any emails sent on the date specified by the applicant, which the applicant believes were ‘illegally intercepted’ by QPS, including an email sent to an Archbishop, I am not satisfied, on the basis of the information provided by the applicant, that such documents, even if they existed, would fall within the terms of the access application. Furthermore, the applicant has provided no reasonable grounds for believing that such emails ought to exist in the possession or under the control of QPS, other than the applicant’s unsubstantiated allegation of illegal interception. In any event, it is reasonable to expect that the search of QPRIME that was conducted by QPS under the applicant’s name would have located any such documents. For these reasons, I am satisfied that QPS has taken all reasonable steps to locate documents in response to the applicant’s access application and access may be refused to the requested documents on the basis that they do not exist.[9] Decision I affirm QPS’s decision to refuse access to information 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 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. Louisa Lynch Right to Information CommissionerDate: 18 February 2019 APPENDIX Significant procedural steps Date Event 1 November 2018 Applicant applied to OIC for external review. 27 November 2018 OIC wrote to the applicant to discuss the application of section 107(1)(a) of the IP Act and invited a response. 4 December 2018 Applicant provided submissions in support of ‘sufficiency of search’ issues. OIC accepted application for review. 11 January 2019 OIC requested that QPS provide details of searches conducted. 18 January 2019 QPS provided details of searches conducted. [1] Application dated 21 September 2018. [2] Decision dated 26 October 2018. [3] Application dated 1 November 2018. [4] Letter dated 27 November 2018. [5] Section 67(1) of the IP Act and sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) (RTI Act). (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.)[6] 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.[7] By email dated 11 January 2019.[8] QPRIME – Queensland Police Records and Information Management Exchange – is the electronic database used by QPS to record complaints, incidents, investigations and various other police interactions with members of the public. [9] 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-

T19 and Queensland Police Service [2023] QICmr 2 (30 January 2023)

T19 and Queensland Police Service [2023] QICmr 2 (30 January 2023) Last Updated: 14 April 2023 Decision and Reasons for Decision Citation: T19 and Queensland Police Service [2023] QICmr 2 (30 January 2023) Application Number: 316728 Applicant: T19 Respondent: Queensland Police Service Decision Date: 30 January 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - INFORMATION AS TO EXISTENCE OF PARTICULAR DOCUMENTS - request for access to documents relating to potential allegations against the applicant - whether requested documents would comprise prescribed information - neither confirm nor deny - section 69 of the Information Privacy 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 documents relating to allegations that the applicant made threats to harm witnesses/judges in a case involving the applicant’s son (Requested Documents).[2] QPS decided[3] to neither confirm nor deny the existence of the Requested Documents, pursuant to section 69 of the IP Act. The applicant then applied[4] to the Office of the Information Commissioner (OIC) for external review of QPS’s decision. For the reasons set out below, I affirm QPS’s decision and find that QPS was entitled to neither confirm nor deny the existence of the Requested Documents.[5] Background Significant procedural steps relating to the external review are set out in the Appendix. Reviewable decision The decision under review is QPS’s decision dated 26 May 2022. Evidence considered Evidence, submissions, legislation and other material I have 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) (HR Act), in particular, the right of the applicant to seek and receive information.[6] I consider that a decision-maker will, when observing and applying the IP Act and Right to Information Act 2009 (Qld) (RTI Act), be ‘respecting and acting compatibly with’ these rights and others prescribed in the HR Act.[7] 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.[8] Issue for determination The issue for determination in this review is whether QPS may neither confirm nor deny the existence of the Requested Documents under section 69 of the IP Act. Relevant law Section 69 of the IP Act allows a decision-maker to neither confirm nor deny the existence of a document which, if it exists, would contain ‘prescribed information’. ‘Prescribed information’ is defined[9] as including exempt information.[10] The Information Commissioner has previously decided[11] that the neither confirm nor deny provision will apply where, due to the particular way the access application is framed, acknowledging the existence or non-existence of the requested information is liable to cause the very kind of detriment that the prescribed information provisions are intended to avoid. On external review, a ‘neither confirm nor deny’ response presents procedural challenges as the decision-maker is unable to confirm the existence of information. As the Information Commissioner explained in EST and Department of Family Services and Aboriginal and Islander Affairs:[12] In a review of an ordinary refusal of access decision, the applicant for access is necessarily disadvantaged, in the extent to which meaningful submissions can be made about the exempt status of matter in issue, by a lack of precise knowledge as to the nature of the matter in issue. That disadvantage is exacerbated in a review of a decision to invoke a ... "neither confirm or deny" response... The review must largely proceed in private between the Information Commissioner and the respondent ... Discussion The applicant submitted that the information should be accessible as ‘public access to government information is important in a healthy democracy’ and to deny access would be an abuse of process and a denial of natural justice.[13] As QPS’s decision contained limited information in support of its decision,[14] I requested additional submissions from QPS detailing the reasons for their decision to neither confirm or deny the existence of the Requested Documents. I have considered those additional submissions, together with the wording of the applicant’s access application and the applicant’s submissions. As noted in paragraph 1, the applicant seeks access to information concerning allegations made against him. Having considered the evidence before me, I am satisfied that if such documents existed with QPS, they would be classed as ‘intelligence holdings’ and would therefore comprise exempt information.[15] Intelligence holdings are intelligence logs/reports/submissions collected by QPS relating to criminal activity or suspected criminal activity. I am satisfied that the collection of information of this nature forms part of QPS’s methods and procedures for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law. I also am satisfied that, disclosure of this type of information (if it exists), would reasonably be expected to prejudice the effectiveness of QPS’s methods or procedures for investigating such an incident, by revealing any intelligence gathered by QPS (or, equally importantly, the lack of any intelligence gathered). In this case, merely revealing whether QPS holds such information will result in the prejudice to QPS’s methods. That is, by revealing whether any such threats have been detected by QPS or alternatively, whether any such threats made by the applicant have not been detected by QPS. Due to the specific type of information that the applicant seeks, I find that merely confirming or denying the existence of such information will prejudice QPS’s method of detecting and investigating such serious matters by revealing to the applicant whether QPS has any knowledge of any such threats that he may have made. On this basis, I am satisfied that, if the Requested Documents exist, they would comprise exempt information under schedule 3, section 10(1)(f) of the RTI Act. Accordingly, the Requested Documents would satisfy the definition of prescribed information under section 69 of the IP Act. Therefore, I am satisfied that section 69 of the IP Act applies and QPS is entitled to neither confirm nor deny the existence of the Requested Documents.DECISION For the reasons set out above, I find that QPS was entitled to neither confirm nor deny the existence of the Requested Documents pursuant to section 69 of the IP Act. I therefore affirm QPS’s decision. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.S MartinAssistant Information CommissionerDate: 30 January 2023 APPENDIX Significant procedural steps Date Event 29 May 2022 OIC received the application for external review. 30 May 2022 OIC requested preliminary documents from QPS. 7 June 2022 OIC received the preliminary documents from QPS. 12 July 2022 OIC advised the applicant and QPS that the external review application had been accepted. OIC requested a submission from QPS. 28 July 2022 QPS provided a submission to OIC. 12 August 2022 OIC requested further information from QPS. 29 August 2022 OIC received a response from QPS. 18 October 2022 OIC conveyed a preliminary view to the applicant. 19 October 2022 The applicant provided submissions, contesting OIC’s preliminary view. 1 December 2022 OIC provided the applicant and QPS with an update. [1] Access application dated 18 November 2021. [2] Date range between 2019-2021.[3] Decision dated 26 May 2022. [4] External review application dated 29 May 2022. [5] Under section 69 of the IP Act. [6] Section 21 of the HR Act.[7] 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].[8] 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). [9] In schedule 5 to the IP Act. [10] As mentioned in schedule 3, section 1,2,3,4,5, 9 or 10 of the RTI Act.[11] Tolone and Department of Police (Unreported, Queensland Information Commissioner, 9 October 2009) at [47]-[50], Phyland and Department of Police (Unreported, Queensland Information Commissioner, 31 August 2011) at [30] and Winchester and Queensland Police Service [2017] QICmr 56 (4 December 2017) at [16].[12] [1995] QICmr 20; (1995) 2 QAR 645 (Est) at [20]. [13] Submission dated 19 October 2022. [14] In accordance with section 69(2) of the IP Act. [15] Pursuant to schedule 3, section 10(1)(f) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

S12 and Department of Energy and Public Works [2023] QICmr 35 (18 July 2023)

S12 and Department of Energy and Public Works [2023] QICmr 35 (18 July 2023) Last Updated: 21 September 2023 Decision and Reasons for Decision Citation: S12 and Department of Energy and Public Works [2023] QICmr 35 (18 July 2023) Application Number: 317213 Applicant: S12 Respondent: Department of Energy and Public Works Decision Date: 18 July 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - DOCUMENTS NONEXISTENT OR UNLOCATABLE - whether access to requested documents may be refused on the basis they are nonexistent - whether agency has taken reasonable steps to establish that requested documents are nonexistent - sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Department of Energy and Public Works (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to documents between 1989 and January 2023 described as: [(neighbouring property)] The QBUILD drainage plans complying with the Code as per the Act for the current backyard drainage from the dwelling roof downpipes downstream to the point of discharge. The QBUILD drainage plans along the common boundary fence including the metal drain becoming concentrated groundwater into [applicant’s property] backyard under the fence. [(Part 1)] The septic system plans since [neighbouring property] was built 1989. The maintenance records for the septic system point of discharge. [(Part 2)] The Department decided[2] to refuse access to the requested documents under sections 47(3)(e) and 52(1)(a) of the RTI Act on the ground that they were nonexistent. The applicant applied[3] for internal review of the Department’s decision. In its internal review decision,[4] the Department released three documents[5] to the applicant in relation to Part 1 of the access application and upheld the original decision in relation to Part 2 of the access application The applicant applied[6] to the Office of the Information Commissioner (OIC) for external review of the Department’s internal review decision refusing access to documents responding to Part 2 of the access application. I affirm the decision under review by finding that access to the documents requested by the applicant at Part 2 of the access application may be refused under section 47(3)(e) and section 52(1)(a) of the RTI Act. Background The applicant has experienced ongoing drainage issues at her property which she contends is due to run-off/overflow from neighbouring properties. She has made a number of complaints to the Department and other government agencies about these issues over a number of years. Reviewable decision The decision under review is the Department’s internal review decision dated 20 March 2023. 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[7] to the extent that they are relevant to the issues for determination in this review. 11. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[8] I consider a decision-maker will be ‘respecting, and acting compatibly with’ that right, and others prescribed in the HR Act, when applying the law prescribed in the RTI Act and the Information Privacy Act 2009 (Qld).[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] Issue for determination The issue for determination is whether the Department was entitled to refuse access to the documents requested at Part 2 of the access application on the basis that they are nonexistent under section 52(1)(a) of the RTI Act. Relevant law The RTI Act permits an agency to refuse access to information where the requested information is nonexistent or unlocatable.[12] A document will be nonexistent if there are reasonable grounds to be satisfied it does not exist.[13] To be satisfied that a document does not exist, the Information Commissioner has previously had regard to various key factors including the agency’s record-keeping practices and procedures (including, but not limited to, its information management approaches).[14] By considering the relevant factors, the decision maker may conclude that a particular document was not created because, for example, the agency’s processes do not involve creating that specific document. In such instances, it is not necessary for the agency to search for the document. Rather, it is sufficient that the relevant circumstances to account for the nonexistent document are adequately explained by the agency. The Information Commissioner may also take into account the searches and inquiries conducted by an agency, in determining whether a document is nonexistent. The key question then is whether those searches and inquiries amount to ‘all reasonablesteps’.[15] What constitutes reasonable steps will vary from case to case as the search and inquiry process an agency will be required to undertake will depend on which of the key factors are most relevant in the particular circumstances. Such steps may include inquiries and searches of all relevant locations identified after consideration of relevant key factors.[16] Findings The Department provided[17] OIC with records of the searches conducted by QBuild, together with a Council Services plan for the neighbouring property. This information reveals that no documents were located regarding a septic system at the neighbouring property because it is connected to the sewer maintained by the local council and does not have a septic system. Given that the available information establishes that the neighbouring property does not have a septic system, I consider it follows that it is reasonable to find that no documents exist which relate to the applicant’s request for documents about a septic system at the neighbouring property. For the reasons explained above, I am satisfied that the Department has adequately explained why the documents sought by the applicant at Part 2 of the access application do not exist, and has taken all reasonable steps to establish the nonexistence of the documents.Decision I affirm the decision under review by finding that access to the documents requested by the applicant in Part 2 of the access application may be refused under section 47(3)(e) and section 52(1)(a) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Shiv MartinAssistant Information CommissionerDate: 18 July 2023 APPENDIX Significant procedural steps Date Event 30 March 2023 OIC received the application for external review. 31 March 2023 OIC received the preliminary documents from the Department. 11 May 2023 OIC wrote to the applicant about her application for external review. 12 May 2023 OIC received submissions from the applicant. 19 May 2023 OIC wrote to the applicant about her application for external review. 22 May 2023 OIC received submissions from the applicant. OIC wrote to the applicant about her application for external review. 23 May 2023 OIC received submissions from the applicant. 30 May 2023 OIC advised the parties that the application had been accepted and requested from the Department information about the searches conducted and a copy of the documents released to the applicant in accordance with the internal review decision. 2 June 2023 OIC received the requested information from the Department. 12 June 2023 OIC expressed a preliminary view to the applicant. 12 June 2023 OIC received submissions from the applicant. [1] On 13 January 2023.[2] Decision dated 20 February 2023.[3] On 20 and 23 February 2023.[4] Dated 20 March 2023.[5] Comprising: • a letter from the local council dated 7 June 2022 confirming works had been completed in accordance with the legislated drainage requirements • a revised plan for the neighbouring property regarding a spoon drain pit pump; and • a site plan for the neighbouring property.[6] On 30 March 2023.[7] Contained in the application for external review and in emails of 12, 22 and 23 May 2023 and 12 June 2023. [8] Section 21(2) 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]. OIC’s approach to the HR Act set out in this paragraph has recently been considered and endorsed by QCAT Judicial Member McGill in Lawrence v Queensland Police Service [2022] QCATA 134, noting that he saw ‘no reason to differ’ from our position ([23]).[10] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [11] XYZ at [573].[12] Sections 47(3)(e) and 52(1) of the RTI Act.[13] Section 52(1)(a) of the RTI Act. For example, a document has never been created.[14] Isles and Queensland Police Service [2018] QICmr 27 (7 June 2018) at [15] which adopted the Information Commissioner’s comments in PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE) at [27]-[28]. PDE addresses the application of section 28A of the now repealed FOI Act. Section 52 of the RTI Act is drafted in substantially the same terms as the provision considered in PDE and, therefore, the Information Commissioner’s findings in PDE are relevant. [15] As set out in PDE at [29].[16] As set out in PDE at [28].[17] On 2 June 2023.

queensland

court_judgement

Queensland Information Commissioner 1993-

CJR and Medical Board of Queensland [2009] QICmr 29 (13 May 2009)

CJR and Medical Board of Queensland [2009] QICmr 29 (13 May 2009) Office of the Information Commissioner Decision and Reasons for Decision Application Number: 210676 Applicant: CJR Respondent: Medical Board of Queensland Decision Date: 13 May 2009 Catchwords: FREEDOM OF INFORMATION – section 46(1)(b) of the Freedom of Information Act 1992 (Qld) – whether matter communicated in confidence – whether complainant’s identity is exempt Contents REASONS FOR DECISION Summary I find that the matter in issue in this review is exempt from disclosure under section 46(1)(b) of the Freedom of Information Act 1992 (Qld) (FOI Act). Background By letter dated 2 September 2008, the applicant applied to the Medical Board of Queensland (MBQ) for access to: ..the recent complaint made to the Medical Board about me. I also wish to obtain a copy of the minutes of the Fitness to Practice Committee meeting held on August 12th in relation to the complaint. On 17 October 2008, Mr V Catchpoole of MBQ advised the applicant that: 4 responsive folios had been located partial access was granted to 1 folio and access to the remaining 3 folios was denied as they qualified for exemption from disclosure under section 46(1)(b) of the FOI Act (Original Decision). By letter dated 22 October 2008, the applicant applied for internal review of Mr Catchpoole’s decision (Internal Review Application). By letter dated 20 November 2008, Ms K Pullsford advised the applicant that she had decided to affirm the Original Decision (Internal Review Decision). By letter dated 4 December 2008, the applicant applied, under Part 5 of the FOI Act, for external review of the Internal Review Decision (External Review Application). Decision under review The decision under review is the Internal Review Decision referred to at paragraph 5 above. Steps taken in the external review process By letter dated 10 December 2008, I asked MBQ to provide me with the documents which it claims are exempt. MBQ provided the requested documents and made further submissions in a letter dated 12 January 2009. By letter dated 1 April 2009 I advised the applicant of my preliminary view that the matter remaining in issue was exempt from disclosure under section 46(1)(b) of the FOI Act. I also asked the applicant to provide me with further submissions in support of his case by 17 April 2009 if the preliminary view was not accepted. By letter dated 7 April 2009, the applicant advised that he did not accept the preliminary view and provided further submissions in support of his case. Matter in issue The matter in issue in this review is as follows: file note dated 29 July 2008 (with the exception of a small amount of information which the MBQ is prepared to release) (folios 1-3) and segment of minutes of MBQ’s Health Assessment and Monitoring Committee dated 12 August 2008 (on folio 4) (Matter in Issue). Findings Section 46(1)(b) of the FOI Act Section 46(1)(b) of the FOI Act provides: 46 Matter communicated in confidence (1) Matter is exempt if— ... (b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest. Section 46(2) of the FOI Act Under section 46(2) of the FOI Act, if the information in issue consists of deliberative process matter[1] (under section 41(1)(a) of the FOI Act[2]), the information will not qualify for exemption from disclosure under section 46(1)(b) of the FOI Act. 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. Section 41(1)(a) of the FOI Act provides: 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 ... On the information available to me, I am satisfied that the application of section 46(1)(b) of the FOI Act to the Matter in Issue is not excluded by section 46(2) of the FOI Act as the Matter in Issue does not comprise deliberative process matter. Requirements for exemption under section 46(1)(b) Matter will be exempt from disclosure under section 46(1)(b) of the FOI Act if all four of the following requirements are met:[3] 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. I will consider each of these requirements below. a) Information of a confidential nature The Information Commissioner has stated that matters including the following are relevant in determining whether information is of a confidential nature or contains the necessary quality of confidence:[4] the basic requirement is inaccessibility it is not necessary to demonstrate absolute secrecy or inaccessibility secrecy may attach to a way in which publicly available information has been utilised the question of confidentiality is to be determined by assessing the substance of the information rather than by reference to any express marking of ‘confidential’ on a document confidentiality may be lost with the passage of time the confider’s own attitude and conduct toward preserving the secrecy of allegedly confidential information may be relevant to whether it should properly be characterised as confidential information. The content of the Matter in Issue can be described as follows: a file note of a telephone conversation in which concerns about the applicant’s health were raised with MBQ’s Health Assessment and Monitoring Unit a segment of information contained in the minutes of a meeting of the Health Assessment and Monitoring Committee and the identity of the person who raised the stated concerns. On the information available to me, I am satisfied that: the content of the Matter in Issue is not known to the applicant, nor is it commonly known the content of the Matter in Issue establishes that the clear intention of the parties to the relevant telephone conversation was that the information was provided on a confidential basis and that it should remain confidential. Accordingly, I am satisfied that the matter which comprises the Matter in Issue is of a confidential nature[5] and requirement a) of the test for exemption is satisfied. b) Communicated in confidence Whether this second requirement is satisfied is a question of fact to be determined by a consideration of all relevant circumstances including but not limited to: the nature of the relationship between the parties the nature and sensitivity of the information the circumstances relating to its communication[6]. The test inherent in the phrase "communicated in confidence" in section 46(1)(b) requires a decision-maker to be satisfied that a communication of confidential information has occurred in circumstances where the information supplier’s need or desire 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, giving rise to an express or implicit mutual understanding that the relevant information would be treated in confidence.[7] MBQ submits that the information provider sought and was given an assurance that their identity and so far as possible, the content of the complaint would be kept confidential. On the information available to me, it is clear that an understanding was reached by the parties to the relevant conversation that the information provided and the identity of the information provider would be kept confidential so far as was possible. I acknowledge that it is often necessary to provide information about the nature of a complaint to the subject of the complaint to enable that person to respond and that promises of confidentiality cannot always be upheld. However, in the circumstances, I am satisfied that: the specific concerns about the applicant’s health (which formed the basis of the complaint) were put to the applicant in order to allow him to respond this is not a case where it was necessary to reveal the identity of the complainant in order to properly investigate the matters raised. I have carefully considered the matter in issue and all of the relevant submissions. On the information available to me, I am satisfied that: the relevant information was communicated in circumstances in which both the supplier and recipient understood and accepted that the information was to be treated in confidence the matter in issue was communicated in confidence requirement b) of the test for exemption is satisfied. c) Disclosure could reasonably be expected to prejudice the future supply of such information Requirement (c) asks whether disclosing the Matter in Issue could reasonably be expected to prejudice the future supply of similar information to the MBQ. The phrase ‘could reasonably be expected to’ requires the decision maker applying section 46(1)(b) of the FOI Act to discriminate between: unreasonable expectations and reasonable expectations what is merely possible and expectations which are reasonably based.[8] MBQ submits that release of the Matter in Issue will prejudice the future supply of similar information to the Health Assessment and Monitoring (HAM) Program. The HAM Program assesses and monitors registrants who may suffer from an illness which impacts on their professional performance. The aim of the HAM Program is to have practitioners with an illness or impairment practice in such a way that neither patient nor practitioner is at risk. The HAM Program is separate from the Board’s disciplinary procedures, with the focus being on support and recovery for the medical practitioner[9]. In summary, MBQ submits that: it fulfils its statutory requirement to protect the public through the work carried out by the HAM program the success of the program relies on the willingness of people to notify MBQ of any concerns about the health of medical practitioners release of the Matter in Issue would deter people from providing important information about the health of medical practitioners and if people were deterred from providing information about concerns held about medical practitioners’ health, the efficacy of the HAM program would be at risk and the health and safety of patients would be jeopardized. I note that the Health Practitioners (Professional Standards) Act 1999 (Qld)[10] allows MBQ to request information to assist it in assessing whether registrants are impaired. It does not, however, allow MBQ to compel people to provide information. The system consequently relies on the free flow of voluntary information. In the circumstances, I am satisfied that it is reasonable to expect that release of the Matter in Issue would dissuade people from providing information to the board regarding concerns about the health of medical practitioners in the future. On this basis, I am satisfied that: disclosure of the matter in issue could reasonably be expected to prejudice the future supply of such information to MBQ and requirement c) of the test for exemption is satisfied. As a consequence of having satisfied requirements a), b) and c) of the test for exemption under section 46(1)(b) of the FOI Act, the matter in issue is prima facie exempt from disclosure, subject to the public interest balancing test which I will consider next. d) Public interest balancing test I must now determine whether there are sufficient public interest considerations favouring disclosure of the Matter in Issue to justify a finding that disclosure of the Matter in Issue is, on balance, in the public interest. Public interest considerations in favour of disclosure On the information available to me, the following public interest considerations favouring disclosure are relevant in the circumstances: accountability of government fair treatment of the individual. Accountability of government Facilitating the accountability of government is a public interest consideration recognised by section 4[11] of the FOI Act. The question in this case is whether disclosure of the matter in issue would actually enhance this public interest consideration. I accept that that there is a general public interest in enhancing the accountability of MBQ in respect of its actions taken in relation to monitoring the health and competence of its registrants under the HAM Program. In this respect, I note that the applicant has been provided with most of the minutes of the meeting of MBQ’s Health Assessment and Monitoring Committee at which the applicant’s case was discussed. These minutes set out the steps which were taken in relation to investigating the information received in relation to the applicant, as well as the documents it considered. On this basis, I am satisfied that: the applicant was provided with details of the manner in which MBQ dealt with the investigation this is not a case where access to the Matter in Issue, which identifies the person who raised the issue with MBQ, would materially enhance assessment of: the reasonableness of MBQ’s actions in response to the notification MBQ’s effectiveness in carrying out its investigations. On the basis of the matters set out above, I consider that this public interest consideration should be afforded little or no weight in the circumstances. Fair treatment of the individual In his letter dated 7 April 2009, the applicant submits that: the complaint was made to damage and defame the applicant the complainant was not acting in the public interest and abused the confidential process in order to defame the applicant in the circumstances, the identity of the complainant should be made known the subjects of complaints are offered no protection against malicious complainants. I accept that there is a public interest in the applicant being able to access information about concerns which have been raised regarding his health, and consequent ability to practice. However, on the information before me, I am satisfied that: the concerns raised about the applicant’s health were put to him as part of the HAM Program process the outcome of the process was not adverse to the applicant it was not necessary to provide the applicant with any further information in order to afford him procedural fairness in the circumstances. In respect of the applicant’s submission that the complaint made to MBQ was malicious and intended to damage and defame the applicant and it is therefore not in the public interest that the information provider be afforded the protection of anonymity, I note the Information Commissioner’s statement in McEniery and Medical Board of Queensland[12] that Australian law places great importance on encouraging the flow of information to law enforcement and regulatory agencies, even though this may lead to some people having to endure an agency investigation of false and malicious allegations. On the basis of the matters set out above, I consider that this public interest consideration should be afforded little or no weight in the circumstances. Public interest considerations in favour of non-disclosure Against considerations favouring disclosure of the Matter in Issue, I must balance considerations favouring non-disclosure which include: prejudice to future supply of like information if the Matter in Issue were disclosed disclosure of confidential information. I consider that there is a strong public interest in maintaining the efficacy of a program which allows people to raise concerns about the health of medical practitioners without fear of retribution or detriment to their personal or professional affairs. As set out above, the HAM Program relies on the voluntary provision of information for it to be effective and comply with its obligations under the Health Practitioners (Professional Standards) Act 2006 (Qld). As one of the objects of that Act is to protect the public by ensuring health care is delivered by registrants in a professional, safe and competent way, I consider the prejudice to the supply of relevant voluntary information if the Matter in Issue were disclosed, to be a public interest consideration which should be afforded significant weight in the circumstances. Given my findings that the public interest considerations favoring disclosure should be afforded little or no weight in the circumstances and that there is a strong public interest in maintaining the efficacy of a program which operates to protect the public, I am satisfied that: the weight of public interest considerations favoring non-disclosure outweighs those favoring disclosure requirement d) of the test for exemption is satisfied in the circumstances. On the basis of the matters set out above, I find that the Matter in Issue is exempt from disclosure under section 46(1)(b) of the FOI Act. DECISION I affirm the decision under review by deciding that the Matter in Issue is exempt from disclosure under section 46(1)(b) of the FOI Act. I have made this decision as a delegate of the Information Commissioner, under section 90 of the Freedom of Information Act 1992 (Qld). ________________________ F Henry Assistant Commissioner Date: 13 May 2009 Medical Board of Queensland [1] 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.[2] As communicated by a person/entity identified in section 46(2) of the FOI Act.[3] B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (B) at paragraphs 146 to 147.[4] B at paragraph 71. [5] In other words, it has the necessary quality of confidence.[6] Such as those referred to by a Full Court of the Federal Court of Australia in Re Smith Kline and French Laboratories (Aust) Limited and Ors ats Secretary, Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291 at paragraph 46 (see B at paragraph 82).[7] Re McCann and Queensland Police Service [1997] QICmr 10; (1997) 4 QAR 30 at paragraph 34.[8] B at paragraph 73.[9] Medical Board of Queensland, Doctor’s Health, <http://www.medicalboard.qld.gov.au/dr-health/index.html> , at 12 May 2009.[10] Section 270.[11] Object of Act and its achievement.[12] (1994) 1QAR 349 at paragraphs 56-64

queensland

court_judgement

Queensland Information Commissioner 1993-

Beilby and Brisbane City Council [2015] QICmr 1 (14 January 2015)

Beilby and Brisbane City Council [2015] QICmr 1 (14 January 2015) Last Updated: 26 May 2015 Decision and Reasons for Decision Citation: Beilby and Brisbane City Council [2015] QICmr 1 (14 January 2015) Application Number: 311884 Applicant: Beilby Respondent: Brisbane City Council Decision Date: 14 January 2015 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - cost estimate information - future drainage infrastructure and works - whether disclosure would prejudice Council’s deliberative processes - whether access to cost estimate information may be refused 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 Brisbane City Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to information about the tender process and construction of the Milton Backflow Prevention Device; Council’s Western Creek drainage investigations; and the applicant’s correspondence with Council on this topic. Council located 799 pages of information and decided to: release 174 full pages; and refuse access to parts of 37 pages and 588 full pages on the basis that some information was exempt[1] and disclosure of the remainder would, on balance, be contrary to the public interest, citing prejudice to (i) Council’s deliberative processes[2] and (ii) the business affairs of third parties.[3] Following negotiation with the parties on external review, Council agreed to release an additional 353 full pages and parts of 37 pages of information to the applicant, and the applicant accepted the removal of information from certain documents. As a result, the information remaining for consideration in this external review decision is parts of 10 pages and 9 full pages (Information in Issue).[4] For the reasons set out below, I affirm Council’s decision to refuse access to the Information in Issue and find that disclosure of the Information in Issue would, on balance, be contrary to the public interest under sections 47(3)(b) and 49 of the RTI Act. Background Significant procedural steps relating to the application and external review are set out in the Appendix to this decision. Reviewable Decision The decision under review is Council’s decision dated 19 December 2013.[5] Issue for Determination The issue for determination in this review is whether the disclosure of the Information in Issue would, on balance, be contrary to the public interest.[6] Information in Issue The Information in Issue in this review is contained within the following three documents (Beck Street documents): Beck Street Stormwater Drainage Modelling and Flood Mitigation Assessment Concept Design Report dated 28 September 2012, prepared by Aurecon Australia Pty Ltd (Aurecon) Beck Street Stormwater Drainage Modelling and Flood Mitigation Assessment Options Analysis Phase Report dated 28 September 2012, prepared by Aurecon; and Beck Street Flood Mitigation Report on Options and Benefits dated January 2011, prepared by Water Management City Design, Brisbane City Council. The Information in Issue comprises parts of 10 pages and 9 full pages in the Beck Street documents relating to costs estimates and associated information for several possible options to address flood mitigation in Beck Street. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). Relevant law Under the RTI Act, a person has a right to be given access to documents held by a Queensland government agency.[7] This right is however, subject to limitations including grounds on which access to information may be refused.[8] One ground for refusing access is where disclosure would, on balance, be contrary to the public interest.[9] 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.[10] The RTI Act lists factors which may be relevant to deciding the balance of the public interest[11] and sets out the following steps[12] for a decision-maker to take in deciding 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. Findings For the reasons set out below, I am satisfied that disclosing the Information in Issue would, on balance, be contrary to the public interest.[13] Irrelevant Factors I have examined the irrelevant factors in schedule 4, part 1 of the RTI Act and consider that none arise in the circumstances of this case. Factors favouring disclosure It will be in the public interest to disclose information where disclosure could reasonably be expected to enhance government’s accountability and/or reveal the reason for a government decision.[14] If disclosing information could reasonably be expected to contribute to positive and informed debate on matters of serious interest, this will also be a public interest factor in favour of disclosure.[15] Accountability The applicant considers that disclosure of the Information in Issue is in the public interest as it will facilitate ‘an increased transparency of government’.[16] The applicant’s submissions outline correspondence he has exchanged with Council about rectification of the stormwater system of the Western Creek catchment and submits ‘All efforts to get a detailed response since 2008 has been sidestepped by all parties involved ... One of the key reasons I do wish to seek these documents is to gain an insight into how seriously the Brisbane City Council is taking the issue of the lack of capacity of the stormwater system of the Western Creek catchment.’[17] For some time now,[18] Council has carried out investigations and commissioned expert reports about the drainage system of the Western Creek catchment and much of this information has been made publicly available by Council.[19] The Beck Street documents total 325 pages, of which Council has released 306 full pages and parts of 10 pages. Thus, a large amount of information has already been released to the applicant which provides insight into Council’s investigations into, and current options for, stormwater drainage/flood mitigation in Beck Street. The information not disclosed is confined to costs estimates and associated information and, although this information has not been disclosed, I consider that Council has discharged much of its obligations of accountability and transparency with regard to the Beck Street documents through the disclosures already made. For the above reasons, I find that the significant weight ordinarily attributable to this factor favouring disclosure is reduced in the circumstances of this review and I apportion low weight to the factor. Positive and informed debate The public interest will favour disclosure of information where it contributes to positive and informed debate on important issues or matters of serious interest.[20] Whilst I accept that drainage within the Western Creek catchment area is an important issue and/or matter of serious interest, particularly for the residents of the area, it is evident from the material before me in this review that Council is in an initial scoping phase of this part of its Western Creek catchment activities and is yet to make a decision on the options/recommendations before it.[21] Council’s submission to OIC dated 30 April 2014 indicates that once Council has made decisions about how to proceed with the Beck Street aspect of the Western Creek catchment issues and has selected its preferred options, there will be a consultation phase with the community. While disclosure of the Information in Issue may assist in informed debate, I consider that the information already released about drainage options in the Western Creek catchment, including Beck Street, provides the community with sufficient information about the matter. This in addition to the intended consultation phase go a long way to discharging the public interest in ensuring informed positive debate. For the above reasons, I find that the significant weight ordinarily attributable to this factor favouring disclosure is reduced in the circumstances of this review and I apportion low weight to the factor. Public safety The applicant submits[22] that there is an ‘ever present danger presented by this storm water system’ and therefore that disclosure of the Information in Issue could reasonably be expected to reveal measures relating to public safety.[23] There is evidence in the material before me and in publicly available information that Council is aware of this issue and has taken steps towards being informed of all available options to address the drainage issues within the Western Creek catchment area and, in particular, Beck Street. Public safety issues are of concern to the community because of the nature of their potential impact (ie. direct effect on citizens’ health and wellbeing). In this case, as discussed at paragraphs 19-20 above, the significant amount of information already released and publicly available shows the investigations and thus reveals the measures taken by Council in relation to public safety. Additionally, I consider that, as the nature of the Information in Issue is costs estimates and associated information, it has little value in an assessment of measures taken in relation to public safety. Given the large amount of information released to the applicant, the information publicly available and the nature of the Information in Issue, I attribute low weight to this public interest factor in favour of disclosure. Factors favouring nondisclosure Deliberative process The RTI Act recognises that there is a public interest in protecting information where disclosure could reasonably be expected to: (i) 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)[24]; and/or (ii) prejudice a deliberative process of government (Prejudice Factor).[25] 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’.[26] The Harm Factor will not apply: where the deliberative processes include public consultation and the public consultation has commenced;[27] or to the extent information consists of expert opinion or analysis (other than expert opinion or analysis commissioned in the course of, or for, the deliberative processes[28]) by a person recognised as an expert in the field of knowledge[29] to which the opinion or analysis relates.[30] Council submitted that disclosing the Information in Issue would reveal deliberative process information in relation to ‘future drainage works and projects and the formulation of its budget, including the anticipated timing of any such works and projects’ and would prejudice those processes as a final decision has not been made.[31] While I accept that the Information in Issue comprises expert opinion and/or analysis and was prepared by an expert in the relevant field,[32] I am satisfied that it was commissioned by Council for the purpose of its deliberative processes relating to flood mitigation in Beck Street and that therefore, the relevant exception to the Harm Factor does not apply. Currently, the Beck Street documents provide Council with a number of options to mitigate loss caused by large volumes of water in the area. As discussed in paragraph 23 above, Council has provided submissions to OIC which have informed OIC that this will be a lengthy project and it has not yet reached the decision stage, and therefore none of the options or recommendations have been released for public consultation.[33] For the reasons set out in paragraphs 34-35 above, I am satisfied that disclosing the Information in Issue would disclose deliberative process information relating to the Beck Street flood mitigation options and that therefore, the Harm Factor applies. Accordingly, I must now consider the extent of the public interest harm that could reasonably be expected to be caused to the relevant deliberative processes through disclosure. 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; and maintain the confidentiality of their deliberative process in some circumstances, particularly where those deliberative processes relate to ongoing negotiations.[34] On the basis that Council’s deliberations in relation to flood mitigation in Beck Street have not advanced beyond the investigations stage[35] and given Council’s advice to the applicant that ‘drainage works are prioritised citywide based on a cost-benefit analysis’ and that ‘the proposed drainage scheme is not anticipated to be commenced within the next 10 years’[36] I am satisfied that disclosing the Information in Issue could reasonably be expected to cause a moderate level of harm to Council’s deliberative processes as it would limit Council’s ability to proceed with its deliberations without interference. For these reasons I also consider that disclosure of the Information in Issue at this stage of Council’s deliberations could reasonably be expected to prejudice Council’s deliberative processes relating to drainage and stormwater management. In the circumstances, I consider the Prejudice Factor also carries moderate weight in favour of nondisclosure. Balancing the relevant public interest factors I consider the public interest factors in favour of disclosure of the Information in Issue, namely, enhancing Council’s accountability in relation to stormwater management and the public safety aspects of such and informed and positive public debate, carry low weight. Balanced against the factors favouring disclosure are the Harm Factor and the Prejudice Factor in favour of nondisclosure. These factors carry moderate weight. In the circumstances of this case, I find that the factors favouring nondisclosure outweigh the factors favouring disclosure and that therefore, disclosure of the Information in Issue would, on balance, be contrary to the public interest. DECISION For the reasons set out above, I affirm Council’s decision to refuse access to the Information in Issue and find that disclosure of the Information in Issue 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 145 of the RTI Act. ________________________ Assistant Information Commissioner Corby Date: 14 January 2015 APPENDIXSignificant procedural steps Date Event 6 November 2013 The applicant made an access application to Council. 19 December 2013 Council issued what it purported to be an ‘interim’ decision. Under the RTA Act, there is no provision dealing with a decision being issued in part. This decision meets the requirements under section 54(1)(a) of the RTI Act therefore this is the decision under review. Note - on 17 January 2014, Council issued what it purported to be the second part of its decision. Additional documents were released by Council with this letter. 6 January 2014 The applicant emailed Council with further information about the scope of his access application. 20 January 2014 OIC received the applicant’s application for external review. 21 January 2014 OIC requested Council provide a copy of the procedural documents and by return email, Council sent the requested information. 29 January 2014 OIC informed Council and the applicant that the external review application had been accepted and requested Council provide OIC a copy of the Documents in Issue. 5 February 2014 OIC received a copy of some of the Documents in Issue (the Beck Street documents). April 2014 Various communication with the Council and the applicant about the scope of the review and the Documents in Issue in this review. 14 May 2014 OIC received a copy of the remainder of the Documents in Issue from Council. 13 June 2014 OIC requested further information from Council about the status of the Beck Street stormwater drainage plans. 21 July 2014 OIC conveyed to the applicant a preliminary view via telephone that additional documents could be released; that OIC would be writing to Council to request submissions on this view and that OIC was still forming a view on the Beck Street documents. 15 September 2014 OIC provided Council and the applicant with an update on the status of the review. 16 October 2014 OIC conveyed a preliminary view to Council that disclosing some of the Documents in Issue would not, on balance, be contrary to the public interest. OIC invited Council to provide submissions in response by 31 October 2014 if it did not accept the preliminary view. OIC provided the applicant with an update on the status of the review. 28 October 2014 Council wrote to OIC seeking an extension of time to 19 November 2014 to respond to OIC’s preliminary view. OIC wrote to Council to give consent to the requested extension. 31 October 2014 OIC wrote to two third parties seeking their views about the disclosure of information under section 37 of the RTI Act. 11 November 2014 OIC received advice from one third party that they consented to the release of the information to the applicant by way of inspection only. 17 November 2014 OIC received advice from the other third party that it consented to disclose all information other than employee names and photographs. OIC informed the applicant of the outcome of the third party consultations and the applicant agreed to resolve the issues about these documents in accordance with the third parties’ conditional consent to disclosure. 19 November 2014 Council wrote to OIC informing OIC that it accepted OIC’s preliminary view with respect to some of the Documents in Issue however would take some more time to consider its position regarding the remaining Documents in Issue. 1 December 2014 OIC wrote to two third parties seeking their views about the disclosure of information under section 37 of the RTI Act. 2 December 2014 Council released additional information to the applicant. 3 December 2014 Council provided OIC with its response to the outstanding Documents in Issue and advised that it withdrew its objections to the disclosure of the remaining Documents in Issue, with the exception of the Information in Issue which is the subject of this decision. 4 December 2014 OIC received advice from one third party that it had no objection to the disclosure of the information. 10 December 2014 OIC requested Council release additional information to the applicant. 12 December 2014 Council released further information to the applicant. 23 December 2014 OIC received advice from the other third party that it had no objection to the disclosure of the information. Council released further information to the applicant. 24 December 2014 The applicant informed OIC that he sought access to the Information in Issue only. [1] Sections 47(3)(a) and 48, and schedule 3, section 8 of the RTI Act.[2] Sections 47(3)(b) and 49, and schedule 4, part 4, section 4 of the RTI Act.[3] Sections 47(3)(b) and 49, and schedule 4, part 4, section 7 of the RTI Act.[4] 390 additional pages (353 full pages and parts of 37 pages) were released to the applicant by Council during the external review and the applicant accepted OIC’s preliminary views, conveyed during telephone conversations on 5, 23 and 24 December 2014 and no longer pursues access to information about unsuccessful tenderers. See the Appendix for further information about the external review process. [5] Council issued what it purported to be an ‘interim’ decision. Under the RTI Act, there is no provision dealing with a decision being issued in part. This decision meets the requirements under section 54(1)(a) of the RTI Act and is therefore the decision under review. [6] Sections 47(3)(b) and 49 of the RTI Act.[7] Section 23 of the RTI Act.[8] As set out in section 47 of the RTI Act. [9] Section 47(3)(b) of the RTI Act. [10] 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).[11] In schedule 4 of the RTI Act. This is not an exhaustive list and therefore, other factors not listed in the schedule may be relevant in a particular case. [12] In section 49(3) of the RTI Act. [13] Sections 47(3)(b) and 49 of the RTI Act.[14] Schedule 4, part 2, item 1 of the RTI Act.[15] Schedule 4, part 2, item 2 of the RTI Act.[16] External review application dated 20 January 2013 [page 3].[17] External review application dated 20 January 2013 [page 3].[18] For example, dating as far back as 1998, Brisbane City Council prepared a report titled ‘Western Creek Milton, relief drainage investigation” [19] See, for example: https://pdonline.brisbane.qld.gov.au/masterviewUI/modules/ApplicationMaster/default.aspx?page=wrapper&key=A003707950 a http://www.brisbane.qld.gov.au/environment-waste/water/backflow [20] Schedule 4, part 2, item 2 of the RTI Act.[21] As per submissions made by Council to OIC on 30 April 2014 and 3 December 2014.[22] External review application dated 20 January 2013 [page 3].[23] Schedule 4, part 2, item 14 of the RTI Act.[24] Schedule 4, part 4, item 4 of the RTI Act. The interpretative note to this section gives the following example of the type of information covered by this section: ‘a document prepared to inform a decision by an agency about potential road routes, where disclosure of all potential routes, including those that are subsequently rejected, could have a negative impact on property values or cause community concern’. 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). [25] Schedule 4, part 3, item 20 of the RTI Act. [26] Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 (Eccleston) 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. [27] Schedule 4, part 4, section 4(2) of the RTI Act.[28] Mentioned in schedule 4, part 4, section 4(1) of the RTI Act. [29] In Cairns Port Authority and Department of Lands [1994] QICmr 17; (1994) 1 QAR 663 the Information Commissioner decided that for the purpose of the equivalent section 41(2)(c) of the repealed FOI Act, a person may be considered an expert in their relevant field if that person would be accepted by a court as qualified to give expert opinion evidence. In that case, the Information Commissioner also recognised at [49] that a person's seniority and experience will have a bearing on whether they would be an expert. [30] Schedule 4, part 4, section 4(3)(c) of the RTI Act.[31] Council’s submissions to OIC dated 3 December 2014. [32] The reports comprising the Information in Issue were prepared by Aurecon. According to its website, Aurecon ‘provides engineering, management and specialist technical services for public and private sector clients globally... A key specialisation is waterways and drainage - urban drainage systems, river and creek networks, hydrologic analysis, flood management, habitats’ see http://www.aurecongroup.com/en/markets/water.aspx. On the basis of this information, I am satisfied that the Information in Issue was prepared by an expert in the relevant field of knowledge. [33] Council’s submissions dated 17 January 2014, 30 April 2014 and 3 December 2014.[34] Metcalf at paragraph 47 in the context of considering the equivalent exemption in section 41(1) of the repealed FOI Act. In that case, the Information Commissioner found that disclosure of a Council report regarding potential landfill sites was exempt as it would prejudice Council’s deliberative processes. In considering relevant public interest factors, the Information Commissioner found that the prejudice to Council’s pre-decisional thinking carried significant weight in favour of nondisclosure. [35] As per Council’s submissions to OIC dated 30 April 2014 and 3 December 2014.[36] Letter from Brisbane City Council Mayor to applicant, dated 11 December 2013.

queensland

court_judgement

Queensland Information Commissioner 1993-

Collins and Department of Justice and Attorney-General [2012] QICmr 30 (4 June 2012)

Collins and Department of Justice and Attorney-General [2012] QICmr 30 (4 June 2012) Collins and Department of Justice and Attorney-General [2012] QICmr 30 (4 June 2012) Last Updated: 17 July 2012 Decision and Reasons for Decision Application Number: 310942 Applicant: Collins Respondent: Department of Justice and Attorney-General Decision Date: 4 June 2012 Catchwords: RIGHT TO INFORMATION – APPLICATION FOR ACCESS TO INFORMATION – REFUSAL OF ACCESS – Grounds on which access may be refused – section 47(3)(b) of the Right to Information Act 2009 (Qld) – information identifying individuals who raised concerns about a colleague in the workplace – disclosure would, on balance, be contrary to the public interest under section 49(1) of the Right to Information Act 2009 (Qld) Contents REASONS FOR DECISION Summary The applicant applied to the Department of Justice and Attorney-General (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for documents concerning a workplace investigation. The Department located a number of documents and provided partial access to some and full access to others. Relevantly, it deferred access to several documents due to third party objections. On 13 December 2011, the applicant sought internal review of the Department’s decision to refuse him access to portions of six pages subject to third party objections. The Department affirmed its decision on internal review.[1] The applicant now seeks external review of that decision. The information deleted from the six pages are the names and identifying information of individuals who raised concerns about the applicant’s workplace behaviour with management personnel (information in issue). Having considered the evidence before me, I am satisfied that disclosing the information in issue would, on balance, be contrary to the public interest. Reviewable decision The decision under review is the Department’s internal review decision of 11 January 2012. Evidence considered Evidence, submissions, legislation and other material that I have considered in reaching my decision is disclosed in these reasons (including footnotes and appendix). Relevant law Under section 23 of the RTI Act, a person has a right to be given access to documents of an agency. However, this right is subject to a number of exclusions and limitations, including grounds for refusal of access. These grounds are contained in section 47 of the RTI Act. 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:[2] 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. Findings Where does the balance of the public interest lie in this matter? I am satisfied that disclosure of the information in issue would, on balance, be contrary to the 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 of the documents After carefully considering all of the information before me, I am satisfied that the public interest factors favouring disclosure include that disclosure of the information in issue could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability[3] advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies;[4] and contribute to the administration of justice generally including procedural fairness.[5] I also agree with the applicant that some of the information in issue is his personal information, in that it discloses information or an opinion about him[6] and that this is a factor favouring disclosure.[7] However, this information is interwoven with the personal information of other people in such a way that it cannot be separated and is properly characterised as ‘mutual personal information’. As this information cannot be separated, the applicant’s personal information cannot be released without also releasing the personal information of others. Therefore this factor favouring disclosure should be given lesser weight. The applicant has argued that if he can obtain access to the information in issue, which discloses the identity of the individuals who made workplace complaints or concerns about him, he would be better able to test and respond to those complaints or concerns. In order words, disclosure of the information in issue could afford him procedural fairness. Specifically, the applicant has submitted: In the interests of Natural Justice I have the right to know who has made allegations against me so that I can refute the allegations. The Public Service Act 1998 does not provide employees with the right to anonymity when making a complaint against another employee.[8] [The RTI decision maker] claims that my request for disclosure would not be in the public’s interests. I am not a member of the public and members of the public service are not privileged to confidentiality when lodging complaints against their fellow workers. I can not see how releasing information gathered about me could affect the public. I find it disturbing that [the RTI decision maker] believes that people who are accused of wrongdoing have no right to know who their accuser is and what they are being accused of. That is not justice, defies the departments own policies of natural justice and does not promote a positive work culture. ... The views and opinions expressed by people who have made complaints to management against me are about me. ... I have evidence to suggest that the Management of [Department] had acted on these complaints and found me guilty without ever approaching me at the time to ask for my response to the allegations.[9] The applicant has been provided, in the documents released to him by the Department, information which discloses in general terms the nature of the concerns raised about him. The only information in the information in issue that has been withheld is information that would reveal the identity of the individuals who raised those concerns. I consider that the information already disclosed to the applicant discharges the public interest in procedural fairness in this case. I therefore give this factor favouring disclosure minimal weight. I also find that the information already disclosed to the applicant advances the public interest in government agencies being accountable for investigating allegations against staff. It also contributes towards advancing the fair treatment of individuals in their dealings with agencies. I find that disclosure of the information in issue, which is the personal information of third parties, would not further advance the public interest in government accountability nor would it further advance the fair treatment of individuals. I therefore also afford these two factors minimal weight. Factors favouring nondisclosure of the documents I have also carefully considered factors favouring nondisclosure. I am satisfied that the factors favouring nondisclosure include that disclosure of the information in issue could reasonably be expected to: prejudice the protection of an individual’s right to privacy[10] cause a public interest harm by disclosing the personal information of a person, whether living or dead;[11] and prejudice the management function of the Department.[12] The personal information contained in the information in issue consists of names of, and identifying information about individuals who raised concerns about the applicant’s workplace behaviour. This personal information is recorded in file notes and emails written by management personnel to document private discussions held by them with staff members. I find that releasing this information would be a disclosure of the personal information of the third parties, and could be reasonably expected to prejudice the protection of the third parties’ right to privacy. I place considerable weight on the protection of the personal information and right to privacy of the individuals whose identities are apparent from the information in issue. I find that releasing the identities of the individuals who raised these concerns could reasonably be expected to prejudice the management function of the Department. Disclosure could reasonably be expected to result in staff being reluctant to privately raise concerns about their colleagues with management personnel. To promote effective workplace management, it is important that employees be able to raise such concerns confidentially, so that workplace issues can be expeditiously addressed. I also find that disclosure of the information in issue could reasonably be expected to harm the Department’s management function because of the adverse effect its release may have on workplace relationships, particularly because the applicant continues to be employed at the same workplace . I therefore give this factor considerable weight. Balancing factors favouring disclosure and nondisclosure in the public interest I find that disclosure of the information in issue will do little to contribute to the administration of justice and procedural fairness or enhancement of government accountability and fair dealings with individuals in circumstances where the applicant already holds information about the concerns raised against him. Whereas, I find that the public interest in the protection of individuals’ privacy and the prejudice to the management function of the Department should be afforded significant weight. I therefore find that the factors favouring nondisclosure outweigh those favouring disclosure. Accordingly, I find that the disclosure of the information in issue would, on balance, be contrary to the public interest. DECISION I affirm the decision under review by finding that the Department is entitled to refuse access to the information in issue under section 47(3)(b) of the RTI Act on the basis that 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 Right to Information Act 2009 (Qld). ________________________ Louisa Lynch Acting Assistant Information Commissioner Date: 4 June 2012 APPENDIX Significant procedural steps Date Event 28 September 2011 Applicant applied to Department for access to all documents relating to a workplace complaint made by him. 6 December 2011 Department made a decision on the applicant’s request. 13 December 2011 Applicant applied to Department for internal review in relation to the Department’s decision to refuse access to parts of six identified pages. 11 January 2012 Department affirmed its earlier decision. 6 February 2012 Applicant applied to OIC for external review. 20 February 2012 Department provided OIC with information in issue. 13 March 2012 OIC provided oral preliminary view to applicant. 13 March 2012 Applicant provided submissions to OIC. 15 March 2012 Applicant provided further submissions to OIC. 20 April 2012 OIC provided written preliminary view to applicant. 8 May 2012 Applicant provided final submissions to OIC. [1] On 11 January 2012.[2] Section 49(3) of the RTI Act.[3] Schedule 4, part 2, item 1 of the RTI Act.[4] Schedule 4, part 2, item 10 of the RTI Act.[5] Schedule 4, part 2, item 16 of the RTI Act.[6] Section 12 of the Information Privacy Act 2009 (Qld). [7] Schedule 4, part 2, item 7 of the RTI Act.[8] Application for internal review dated 13 December 2011. [9] Application for external review dated 6 February 2012. [10] Schedule 4, part 3, item 3 of the RTI Act. [11] Schedule 4, part 4, item 6 of the RTI Act. [12] Schedule 4, part 3, item 19 of the RTI Act.