Datasets:

pinkieseb

/

auslegalcorpus

like 2

queensland

court_judgement

Queensland Information Commissioner 1993-

Boulton and Whitsunday Regional Council [2008] QICmr 13 (30 June 2008)

Boulton and Whitsunday Regional Council [2008] QICmr 13 (30 June 2008) Office of the Information Commissioner Decision and Reasons for Decision Application Number: 210258 Applicant: Mr William-Graham Boulton Respondent: Whitsunday Regional Council Decision Date: 30 June 2008 Catchwords: FREEDOM OF INFORMATION – section 46(1)(a) of the Freedom of Information Act 1992 (Qld) – whether disclosure of document would found an action for breach of confidence – whether iniquity exception applies Contents REASONS FOR DECISION Summary 1. On the information available to me, I am satisfied that the document to which the applicant seeks access is exempt from disclosure under section 46(1)(a) of the Freedom of Information Act 1992 (Qld) (FOI Act). Background 2. By application dated 26 February 2007, the applicant applied to the Whitsunday Regional Council[1] (Council) for access to: ‘...a copy of the Infrastructure Agreement between Whitsunday Shire Council and F.K.P./Carmist in the matter of proposed Outrigger Resort development on public land (foreshore carpark at Airlie Beach).’ 3. By letters dated 23 March 2007 and 5 April 2007, Mr Andrew Ireland, Council’s Executive Manager Corporate and Community Services, advised the applicant that Council refused access to the relevant infrastructure agreement and accompanying schedules (Agreement) on the basis of the objections to release lodged by the other parties to the Agreement.[2] 4. By letter dated 24 April 2007, the applicant applied for internal review of Mr Ireland’s decision. 5. By letter dated 14 June 2007, Council wrote to the applicant acknowledging receipt of the application for internal review. 6. An internal review decision was not made by Council within the statutory timeframe provided by the FOI Act. 7. By letter dated 25 June 2007[3], the applicant sought external review of the Council’s deemed decision. Decision under review 8. The decision under review is Council’s deemed affirmation of Mr Ireland’s decision (referred to above). Steps taken in the external review process 9. By letter dated 25 July 2007, this Office wrote to Council to obtain a copy of the Agreement claimed to be exempt by Council. 10. By letter dated 14 August 2007, Council (through its solicitors) provided this Office with a copy of the Agreement. 11. In August and September 2007, a staff member of this Office had various telephone discussions with representatives of the parties to the Agreement in relation to the possible informal resolution of this matter. 12. By letter dated 1 October 2007, the Acting Information Commissioner communicated a preliminary view to the applicant that: • the parties to the Agreement continued to object to its disclosure on the basis that they were bound by the terms of the Agreement to maintain its confidentiality • the Agreement qualified for exemption from disclosure under section 46(1)(a) of the FOI Act. 13. By letter dated 14 October 2007[4], the applicant: • advised that he did not accept the preliminary view set out in the letter dated 1 October 2007 • alleged bias in respect of the decision maker • provided this Office with submissions and documents in support of his case.[5] 14. By letter dated 8 November 2007, the Acting Information Commissioner wrote to the applicant in response to the matters raised in the submission dated 14 October 2007. 15. By letter dated 18 November 2007, the applicant again advised this Office that he did not accept the previous preliminary view and provided further submissions, a sworn affidavit and other documents in support of his case. 16. I assumed carriage of this matter on 7 January 2008. 17. By letter dated 27 March 2008[6], the applicant: • enquired about the delay in progress of the external review • advised of the withdrawal of the relevant development application and the amalgamation of Council with the Bowen Shire Council. 18. By letter dated 3 April 2008, I wrote to the applicant to advise that I would consider the matters raised in his letter of 27 March 2008. 19. In April 2008, staff members of this Office contacted the parties to the Agreement to again canvas the possibility of informally resolving this matter. 20. By letter dated 28 April 2008, I informed the applicant that informal resolution was not able to be reached and that I would proceed to form a preliminary view in respect of the application of the FOI Act to the Agreement. 21. By letter dated 26 May 2008[7], the applicant provided further submissions and documentary evidence in support of his case. 22. By letter dated 5 June 2008, I communicated a preliminary view to the applicant that the Agreement was exempt from disclosure in its entirety under section 46(1)(a) of the FOI Act. 23. By facsimile dated 18 June 2008, the applicant: • advised that he did not accept the preliminary view set out in the letter dated 5 June 2008 • made submissions in relation to the ‘public interest’ by reference to issues raised in ‘The Right to Information’ report (FOI Report)[8] • requested that I carry out an investigation into ‘a corporate entity of doubtful original and validity’ • sought an extension of time in which to provide further submissions to enable him to review various authorities and properly consider the FOI Report in its entirety. 24. By letter dated 19 June 2008[9], I wrote to the applicant: • confirming the preliminary view that on the information available to me, disclosure of the Agreement would found an action for breach of confidence under section 46(1)(a) of the FOI Act • clarifying that as stated in the FOI Report, there is no public interest test to be applied in the application of section 46(1)(a) of the FOI Act, and advising that it is therefore not relevant to raise the issues of ‘public interest’ in the sense referred to in other parts of the FOI Report which in no way relate to the section 46(1)(a) exemption provision • advising that I have no jurisdiction to undertake the requested investigation of a corporate entity • providing the applicant with an extension of time in which to make further and final submissions to this Office after considering relevant authorities. 25. By facsimile dated 27 June 2008, the applicant provided the requested submissions including that: • he has been unable to properly respond to my letter of 19 June 2008 as he has been in Brisbane • this external review ‘falls within the present problem area identified in the [FOI Report], which has caused the recommendation for ... a privacy Commissioner and the upgrading of [this Office] ...’ • ‘[w]ould it not be reasonable that [the] preliminary view be tempered by knowledge that in terms of the [FOI Report], [the Agreement] would in all probability, be accessible once the [FOI Report] is acted upon? ... based upon the subjective aspect (i.e. opinion factor) of interpretation of Sec 46(1)(a) of the current act.’ • he has ‘no doubt that a change in mindset will occur within your office in terms of the coming ‘right to know’ concept and the enlightenment regarding the term ‘public interest’ being reference in fact, to the people collectively from whom all power and authority emanates – a fact which presently seems to be ignored.’ • the preliminary view does not reflect the FOI Report’s recommendation that this Office be the ‘champion of FOI’ • specifically, the preliminary view in respect of section 46(1)(a) of the FOI Act which requires determination of whether disclosure of the Agreement would found an action for breach of confidence does not place me in the category of ‘champion of FOI’ • an action for breach of confidence would: o in itself bring the issue into the public domain, therefore there is ‘... some element of doubt that disclosure would found an action for breach of confidence ...’ o ‘be tantamount to agreement to release the supposed confidential information’ • he is ‘at a decided disadvantage in the matter of meeting of minds regarding this issue, as [he does not] have access to the contents of the [FOI] report’ however he concedes that he would agree with my interpretation of section 46(1)(a) of the FOI Act if the section used the words may or could as opposed to would • he is not in a position to judge whether there is a clearly identifiable plaintiff as that party ‘is unknown and unidentified’ to him • he is not convinced that the iniquity exemption does not apply, ‘since the profound secrecy surrounding all aspects of the document may well suggest nefarious activity by one or more of the parties.’ • my ‘presumption that Australia is [a] common law jurisdiction ... is incorrect ... [as] our courts operate in admiralty jurisdiction ... under roman law ...’. 26. In making my decision in this matter, I have taken the following into consideration: • applicant's FOI application to Council dated 26 February 2007 • Mr Ireland’s initial decision dated 23 March 2007 and 5 April 2007 • applicant’s internal review application dated 24 April 2007 • applicant’s external review application dated 25 June 2007 • applicant’s submissions dated 14 October 2007 (including the attachments) • applicant’s affidavit sworn 17 November 2007 • applicant’s submissions dated 18 November 2007 (including the attachments) • letter from the Department of Public Works dated 22 November 2007 • applicant’s letter dated 27 March 2008 (including the attachments) • applicant’s letter dated 29 May 2008 (including the attachments) • applicant’s submissions dated 18 June 2008 (including the attachments) • applicant’s submissions dated 27 June 2008 • the documents which the applicant seeks access to, including attachments • relevant legislation, cases and previous decisions of this Office. Matter in issue 27. The matter in issue in this review comprises the Agreement. Issue on external review 28. The issue on external review is whether disclosure of the Agreement would found an action for breach of confidence under section 46(1)(a) of the FOI Act. Findings Section 46(1)(a) of the FOI Act 29. Section 46(1) of the FOI Act provides that: 46 Matter communicated in confidence (1) Matter is exempt if - (a) its disclosure would found an action for breach of confidence Application of section 46(1)(a) of the FOI Act 30. The Information Commissioner set out the correct approach to the interpretation and application of section 46(1) of the FOI Act in the decision of ‘B’ and Brisbane North Regional Health Authority[10]: • an action for breach of confidence may be based on either a contractual or equitable obligation of confidence[11] • the test for exemption under section 46(1)(a) of the FOI Act is to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, with appropriate standing to bring an action to enforce an obligation of confidence claimed to bind the agency not to disclose the information in issue[12]. 31. I will consider each of these issues in turn. Obligation of confidence 32. I have carefully examined the terms of the Agreement. 33. On the basis of this examination, I am satisfied that the terms of the Agreement expressly impose a contractual obligation of confidence on the parties to the Agreement. Identifiable plaintiff with standing 34. To assess whether there is an identifiable plaintiff with appropriate standing to bring an action for breach of confidence in a hypothetical legal action, I must consider: • how the Agreement came to an end, including whether it was terminated • if the Agreement was terminated, whether the contractual obligation of confidence provided for in the Agreement survives termination. 35. I will consider each of these sub-issues in turn. How the Agreement came to an end 36. Section 87 of the FOI Act prevents me from disclosing the terms of the Agreement. However, after careful consideration of the Agreement, I am satisfied that it was terminated by the operation of one of its clauses, that is, by an outcome contemplated and provided for by the parties to the Agreement. Survival of the contractual obligation of confidence The applicant’s submissions 37. In his submissions to this Office dated 14 October 2007, the applicant states: ‘... Would it not be true that any Confidentiality Clause contained within the agreement became ultra vires at the instant that the agreement itself became ultra vires (lapsed), thus relieving the contracting parties of any perceived previously binding obligation?... On what basis would the terms remain confidential, notwithstanding that the agreement by which such terms originated, is itself ultra vires?’ 38. In his submissions to this Office dated 18 November 2007, the applicant states: ‘...Could it not be said that you do not appear to understand (or do not wish to understand) that because the contract is now void, the conditions therein, including alleged confidentiality, are no longer relevant?’ Analysis 39. Certain contractual terms will operate after a contract has been terminated. 40. Some terms may expressly provide for operation after the contract has been terminated. Where there is no express provision for a term’s ongoing operation, it is necessary to assess the parties’ intention to determine whether there is an implied intention[13]. This must be done objectively, for example by assessing what a reasonable person would consider the parties’ intention to have been[14]. 41. Having read the terms of the Agreement, I am satisfied that: • there is no express intention in the words of the Agreement as to the ongoing operation of the relevant confidentiality clause • it is necessary to consider whether the parties intended that the confidentiality clause was to continue in effect after the Agreement was terminated. 42. The type of clause in question is a relevant consideration in the objective determination of whether a contractual term was intended to operate after termination. 43. Clauses may be categorised in the following manner: • primary clauses (that is, a clause that creates a substantive primary performance obligation. For example, party A must obtain a particular financial approval within a particular timeframe). These clauses are generally not enforceable after a contract has been terminated[15] • secondary clauses (that is, procedural clauses. For example, the type of alternative dispute resolution the parties agree to submit to in certain circumstances, restraints of trade, agreed damages and obligations of confidentiality). In contrast to primary clauses, secondary clauses may be effective after a contract has been terminated and may be enforced by the parties[16]. 44. As set out above, terms such as confidentiality clauses represent obligations of a secondary or procedural nature rather than primary obligations under a contract. 45. These secondary or procedural terms will usually be enforced by a court after a contract has been terminated, subject to questions of policy[17]. 46. Again, I note the applicant’s submission that he is not in a position to judge whether there is a clearly identifiable plaintiff (as required to establish an action for breach of confidence) as that party ‘is unknown and unidentified’ to him. 47. I note that a party to an agreement is able to commence proceedings under that agreement. This ability or right is known as ‘standing’. The identity of a party does not affect their standing. 48. For the reasons set out above, I am satisfied that: • there is no evidence before me which supports the proposition that the parties did not intend for the relevant obligation of confidence to continue after termination of the Agreement, therefore, on balance, a court is likely to infer or imply an intention that the contractual obligation of confidence set out in the Agreement continues after its termination • there is a clearly identifiable plaintiff with appropriate standing to bring an action to enforce an obligation of confidence against the Council[18] • the Matter in Issue is exempt from disclosure under section 46(1)(a) of the FOI Act. Other matters raised by the applicant Proper construction of section 46(1)(a) of the FOI Act – ‘would’ The applicant’s submissions 49. In his affidavit sworn 17 November 2007, the applicant states at point 6: ‘The undersigned has not seen or been presented with any material facts or evidence which demonstrates that the matter is exempt pursuant to 46(1)(a) of the Freedom of Information Act 1992 (Qld) in that ‘its disclosure WOULD found an action for breach of confidence’ and believes that none exists.’ 50. In his submissions to this Office dated 18 November 2007, the applicant states: ‘Your letter indicates that you have formed a preliminary view that the issue qualifies for exemption under Section 46(1)(a) of the Act. I reject your view because the operative word in the subsection is ‘would’, and is it not beyond your jurisdiction and competence to determine that disclosure ‘would’ necessarily and absolutely found an action for breach of confidence? Had the words ‘may’ or ‘could’ be used then your assessment could be valid but the semantics preclude absolute, unarguable determination in the manner which you propose.’ [my emphasis] 56. Further, in his submissions to this Office dated 18 June 2008, the applicant states: ‘Since your office has not responded to Point 6 of my Affidavit dated 17 November 2007 by its sworn ... Affidavit, then your presumption that ‘its disclosure WOULD found an action of breach of confidence’ is simply just that; a presumption which I have successfully refuted. Whether there may still exist a contractual obligation of confidence and whether such presumed obligation has any bearing upon release of the documents, would depend entirely upon the original intent of the word would in Section 46(1)(2) [sic] and not upon any convoluted argument founded upon those authorities given by yourself. Indeed your argument is based upon your own wording... ‘will usually be enforced by a court...’ Does this not imply that you have transposed words such as may or could for the word would in your understanding of Section 46(1)(2)[sic]? I reject your interpretation of the original intent of this section as a flawed presumption.’ 57. The applicant also makes the following statements in his submissions to this Office dated 27 June 2008: ‘Is there not some element of doubt that disclosure ‘would’ found an action for breach of confidence, bearing in mind that such action in itself, would bring the issue into the public domain? Would this not be tantamount to agreement to release the supposed confidential information? I am at a decided disadvantage in the matter of meeting of minds regarding this issue, as I do not have access to the contents of the report; however I concede that I would agree with your interpretation had the words ‘may’ or ‘could’ appeared in Sec 46(1)(a) in lieu of ‘would’. ...Would it not be reasonable that your preliminary view be tempered by knowledge that in terms of the [FOI Report] this document would in all probability, be accessible once the report is acted upon?’ Analysis 58. I have carefully considered the applicant’s submissions on this point. 59. The Information Commissioner has previously indicated in ‘B’ that the test for exemption under section 46(1)(a) of the FOI Act is to be evaluated by reference to a ‘hypothetical legal action’. 61. Paragraph 44 of ‘B’ relevantly states: ‘...I consider that the terms of s.46(1)(a) require the test of exemption 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...’ 60. As the Information Commissioner’s delegate[19], I have the power to investigate and review an agency’s decision to refuse access to documents in accordance with an application under section 25 of the FOI Act[20]. 61. In considering the application of section 46(1)(a) of the FOI Act: a) I am required to form a judgment as to whether disclosure of a particular document, being the Agreement, would be actionable under the general law[21] b) I am not deciding proceedings in an action for breach of confidence[22] c) I am not required to consider the merits of proceedings in an action for breach of confidence, or whether any proceedings would be successful. 62. On the basis of the matters set out above, I find that: • as the test for exemption has been made out, disclosure of the Agreement would found an action for breach of confidence • the Agreement is exempt from disclosure under section 46(1)(a) of the FOI Act. FOI Report Applicant’s submissions 70. In his submissions dated 18 June 2008, the applicant states: ‘Would it not be true to say that a cursory reading of the [FOI] Report makes it very clear that a culture of defensive protection of matters pertaining to sensitive governmental issues has developed within agencies, including the Office of the Information Commissioner? This is well and concisely put in the statement.... ‘The lack of Openness and the default setting of ‘Confidential’ are issues that need resolution [sic] (P.17 Chapter 3). ...The report recognises the ‘spin’ and bias which has contaminated the approach to the concept of ‘Public Interest’ and clarifies the issue by recommending that.... ‘Access is to be provided to matter unless its disclosure, on balance, would be contrary to the public interest.’ This recommendation is made... ‘to make it more likely that it will be applied in the way the legislation intended.’ In other words, the report identifies the original intent of the present legislation. ...I ask that you carefully examine the [FOI]Report, to which you no doubt have access, and mirror the recommendations against your performance to date, having regard to the revelations of the entrenched anti-public interest culture which has insidiously crept upon agencies dealing with FOI matters...’ 71. I note the applicant’s final submissions (contained in his facsimile dated 27 June 2008) that: ‘This particular external review falls within the present problem area identified in the [FOI] Report, which has caused the recommendation for appointment of a privacy Commissioner and the upgrading of the Office of the Information Comissioner as the ‘champion of FOI’... I believe that your interpretation of Sec 46(1)(a) does not place yourself within this category.... Would it not be reasonable that your preliminary view be tempered by knowledge that in terms of the [FOI] Report, this document would in all probability, be accessible once the report is acted upon?... I ask this question based upon the subjective aspect (i.e. opinion factor) of interpretation of Sec 46(1)(a) of the current act. I have no doubt that a change in mindset will occur within your office in terms of the coming ‘right to know’ concept and the enlightenment regarding the term ‘public interest’ being reference in fact, to the people collectively from whom all power and authority emanates – a fact which presently seems to be ignored.’ 72. I have considered the applicant’s submissions on this point. 73. The FOI Report sets out the authors’ recommendations for legislative and other changes in respect of a broad range of issues including the freedom of information regime in Queensland. I note that these recommendations have not yet been implemented by the Queensland Government and any legislative amendments remain to be debated by the Parliament. 74. The FOI Report specifically refers to section 46(1)(a) of the FOI Act in the following paragraph at page 135: ‘...[Section 46] contains two parts. The first, subsection 1(a) provides that matter is exempt if ‘its disclosure would found an action for breach of confidence.’ There is no public interest test to be applied. The Panel does not propose any change to this [section].’ [my emphasis] 75. As stated in the FOI Report, there is no public interest test relevant to the application of section 46(1)(a) of the FOI Act. Much of the applicant’s submissions to date consist of argument in support of his case that on balance, the ‘public interest’ favours disclosure of the Agreement. 76. The only issue of ‘public interest’ which is relevant to section 46(1)(a) of the FOI Act is the iniquity exception, which is not analogous to the ‘public interest tests’ set out in the FOI Act to which the FOI Report refers. Extensions of time The applicant’s submissions 77. I note the applicant’s submissions dated 18 June 2008: ‘...I wish to advise that I seek to contest your preliminary view, however the time limit given does not allow me adequate time for a comprehensive response. This situation has arisen due to a 400 page report released 10 June 2008, being a comprehensive review of the F.O.I laws, together with the various authorities referenced in your letter... I am well aware of the fact that this F.O.I. matter is subject to existing laws, however it is the application of these laws, and specifically the Freedom of Information Act 1992, upon which I seek to contest your preliminary view.’ 78. In his final submissions dated 27 June 2008, the applicant also states that he has had ‘insufficient time to properly respond’ to my letter dated 19 June 2008, which clarified the matters contained in my preliminary view dated 5 June 2008. Analysis 79. In respect of the FOI Report, I acknowledge that it is an extensive document of 326 pages plus appendices. However, I consider that the applicant has had a reasonable opportunity to respond to the preliminary view and subsequent letter of clarification, given that: • the only exemption provision relevant to this external review is section 46(1)(a) of the FOI Act dealing with ‘matter communicated in confidence’ • the FOI Report’s reference to section 46(1)(a) of the FOI Act consists of one paragraph on page 135 and does not contain any proposed change to this section • the applicant has had three weeks to respond to the preliminary view. 80. On the basis of the matters set out above, I consider that the applicant has had sufficient time to respond to my preliminary view that the Agreement is exempt from disclosure under section 46(1)(a). Common law jurisdiction Applicant’s submissions 81. In his submissions dated 18 June 2008, the applicant states: ‘Your job as I see it, is to administer the Act strictly in accordance with the original intent.... I believe that you have erred in referring to past decisions of the Office of Information Commissioner because nowhere in the Act can I find authority to deviate from the original intent by reliance upon all or any such decisions. Should these decisions not be regarded only as heresay [sic] since they have been shown within the report to be contaminated by the very culture identified by the report?’ 82. In his submissions dated 27 June 2008, the applicant also states: ‘Your presumption that Australia is a common law jurisdiction is incorrect, therefore your claim of precedent reliance being applicable to your decision is not a valid one. Our courts operate in admiralty jurisdiction (sometimes referred to as summary jurisdiction) and they are strictly courts of commerce operating under roman law, governed by the Uniform Commercial Code as regulated by the Uniform Civic [sic] Procedure rules. The High Court only sits in common law jurisdiction when the full bench adopts the role of court of original jurisdiction whilst adjudicating Constitutional matters.’ Analysis 83. It is accepted by Australian courts and the wider legal profession that Australia is a common law jurisdiction[23]. 84. The term ‘common law’ is used to describe the body of legal principles that has been developed through decisions by the Courts and tribunals. In common law systems, decisions established in earlier cases are followed in later cases. This body of precedent binds future decisions where there is no authoritative statement of the law. The doctrine of stare decisis is to stand or abide by a precedent. On this basis, courts and tribunals usually follow their own decisions and are bound by decisions of superior courts in the same hierarchy. 85. The applicant is correct in his submissions that I have referred to past decisions of the Office of the Information Commissioner. I consider this approach to be consistent with common law principles and entirely reasonable in the circumstances. 86. On the basis of the matters set out above, I remain of the view that the Agreement is exempt from disclosure under section 46(1)(a) of the FOI Act. I will now consider whether any exception or defence applies in the circumstances. The iniquity exception 63. It has been accepted by Australian courts that in certain circumstances, the iniquity exception may apply to deny protection to information that would otherwise be confidential. 64. Accordingly, it is necessary for me to consider whether the iniquity exception applies in the current circumstances[24]. 65. The iniquity exception applies only to third party information (that is, information provided to government by third parties). It does not apply to government information (that is, information which is solely about government and is generated by government). I have carefully reviewed the content of the Agreement and am satisfied that it is properly categorised as third party information rather than government information. 68. The iniquity exception will only be successful in a narrow range of circumstances. 69. In this regard, I note Mason J’s comments in Commonwealth of Australia v John Fairfax & Sons Ltd[25]: ‘the defence [of iniquity] applies to disclosures of things done in breach of national security, in breach of the law (including fraud) and to disclosure of matters which involve danger to the public.’ 87. Cases subsequent to John Fairfax have further narrowed the circumstances in which the defence of iniquity will be successful. In the decision of AFL and Anor v The Age Company Limited and Ors[26] Kellam J considered that in order to rely on the iniquity exception, it is necessary for the person relying on the defence to establish that: (a) the proposed disclosure will in fact disclose 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; (b) that the iniquity to be disclosed affects the community as a whole, or affects the public welfare; and (c) that the person who is seeking to protect the confidence is doing so in order to prevent disclosure to a third party with a real and direct interest in redressing the alleged crime, wrong or misdeed. 88. In summary, it is accepted that courts of equity will not protect information concerning illegal activity, breach of the law (including fraud) or serious misbehaviour[27]. The applicant’s submissions 89. I note the applicant’s submissions on this point, including that: ‘... the public interest/transparency consideration is of even greater importance at present, since the Crime and Misconduct Commission has been investigating certain matters in relation to the Whitsunday Shire Council.’ [and] ‘...I am not convinced that the iniquity exemption does not apply, since the profound secrecy surrounding all aspects of the document may well suggest nefarious activity by one or more of the parties. I have no doubt that a change in mindset will occur within your office in terms of the coming ‘right to know’ concept and the enlightenment regarding the term ‘public interest’ being reference in fact, to the people collectively from whom all power and authority emanates – a fact which presently seems to be ignored.’ Analysis 90. I have carefully considered the applicant’s submissions and the terms of the Agreement. 91. In considering whether the Agreement should be disclosed, I must determine whether there is any evidence before me of illegal activity, breach of the law (including fraud) or serious misbehaviour. If there is evidence of such activity, the iniquity exception will operate to prevent protection of such information as serious harm to the public may occur if confidentiality is maintained. 92. I note the applicant’s submissions that: • secrecy surrounding the Agreement may suggest ‘nefarious activity’ by one or more of the parties to it • the Crime and Misconduct Commission is investigating or has investigated matters related to Council. 93. On the information available to me including the content of the Agreement and the applicant’s submissions on this point, I am satisfied that: • there is no evidence before me to suggest that the Agreement contains information concerning illegal activity, breach of the law or serious misbehaviour • there is no evidence before me to suggest that serious harm to the public may occur if confidentiality is maintained • the iniquity exception does not apply in the circumstances. 94. Given my finding that the iniquity exception does not apply to override the exemption of the Agreement from disclosure, I remain satisfied that the Agreement is exempt from disclosure in its entirety under section 46(1)(a) of the FOI Act. DECISION 51. I vary the decision under review and find that the matter in issue is exempt from disclosure under section 46(1)(a) of the FOI Act. 52. 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 June 2008 [1] Formerly the Whitsunday Shire Council.[2] These objections were based on the parties’ view that they remained bound by an enforceable obligation of confidence in respect of the Agreement which rendered the Agreement exempt from disclosure under section 46(1)(a) of the FOI Act.[3] Received by this Office on 28 June 2007.[4] Received by this Office by fax on 15 October 2007.[5] These documents were supplied in support of the applicant’s argument that the Agreement had not been frustrated (a point with which I agree – see paragraph 36 of this decision). [6] Received by this Office on 1 April 2008.[7] Received by this Office on 29 May 2008.[8] On 17 September 2007, the Queensland Government appointed an independent expert panel to review the FOI Act. The panel prepared a discussion paper on 30 January 2008 for public consultation, and the final report ‘The Right to Information’ was delivered to the Premier of Queensland on 10 June 2008.[9] Which was faxed to the applicant on the morning of 20 June 2008.[10] [1994] QICmr 1; (1994) 1 QAR 279 (‘B’).[11] ‘B’ at paragraph 43.[12] ‘B’ at paragraph 44.[13] Lindy Willmott, Sharon Christensen and Des Butler, Contract Law (2001) 646 at [20.530]. [14] See, for example, Hutton v Watling [1948] 1 All ER 803 per Lord Greene MR, CA; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 208 ALR 213 at 222 per the Full High Court; Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] 1 All ER 98 per Lord Hoffmann (Lords Goff, Hope and Clyde agreeing), HL; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451; Homestake Australia Ltd v Metana Minerals NL (1991) 11 WAR 435 at 446 per Ipp J.[15] Except where there are accrued obligations such as the right to damages: Moschi v Lep Air Services Ltd [1972] 2 All ER 393 per Lord Diplock; Delaney v Staples (t/as De Montfort Recruitment) [1992] 1 All ER 944 per Lord Browne-Wilkinson.[16] See, for example, FJ Bloemen Pty Ltd v Gold Coast City Council [1972-73] ALR 481; Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194 at 196 per Giles J (arbitration provision in sub-contract); Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709 at 715 per Giles J (provisions for mediation).[17] Lindy Willmott, Sharon Christensen and Des Butler, Contract Law (2001) 646 at [20.530]. Questions of policy include those contracts that are at common law, contrary to public policy including contracts in restraint of trade, contracts containing clauses that attempt to oust the jurisdiction of the court and contracts prejudicial to the status of marriage: at [18.25]. [18] That party or parties being the other parties to the Agreement.[19] Section 90 of the FOI Act.[20] Section 101C(c) of the FOI Act.[21] Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) and anor [1987] FCA 266.[22] Rather I am deciding whether there is an obligation of confidence and a plaintiff with standing.[23] DC Pearce and R Geddes, Statutory Interpretation in Australia (2006) 6th ed.[24] In B at paragraph 119, the Information Commissioner considered whether the statutory construction of section 46(1)(a) of the FOI Act allowed the consideration of defences to actions for breach of confidence and concluded that ‘... s46(1)(a)should be interpreted as requiring defences to an action for breach of confidence to be taken into account.’[25] [1980] HCA 44; (1980) 147 CLR 39 at 57.[26] [2006] VSC 308 at 69 (AFL).[27] In particular, see Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) and anor [1987] FCA 266.

queensland

court_judgement

Queensland Information Commissioner 1993-

Hudson (obo Fencray Ltd) and Department of the Premier, Economic and Trade Development [1993] QICmr 4; (1993) 1 QAR 123 (13 August 1993)

Hudson (obo Fencray Ltd) and Department of the Premier, Economic and Trade Development [1993] QICmr 4; (1993) 1 QAR 123 (13 August 1993) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION ) S 53 of 1993COMMISSIONER (QLD) ) (Decision No. 93004) Participants: Mr S T HUDSON as agent for FENCRAY PTY LIMITED Applicant - and - DEPARTMENT OF THE PREMIER, ECONOMIC AND TRADE DEVELOPMENT Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - decision giving access to a document subject to the deletion of exempt matter - exemption for Cabinet matter - access given to applicant of "merely factual matter" contained in a Cabinet submission - whether the extent of deletions made from the Cabinet submission exceeded what was permissible under s.36 of the Freedom of Information Act 1992 (Qld) - whether particular passages in the Cabinet submission comprised merely factual matter and if so whether they are still exempt from disclosure under s.36(2).FREEDOM OF INFORMATION - proper construction of s.36(1) and s.36(2) of the Freedom of Information Act 1992 (Qld) - words and phrases: "deliberation of Cabinet"; "merely factual matter"; "officially published by decision of Cabinet".Freedom of Information Act 1992 (Qld), s.36(1), s.36(2), s.41(1), s.41(2), s.76(2), s.87Freedom of Information Act 1992 (Cth), s.3, s.34(1), s.34(1A), s.36Freedom of Information (Amendment) Act 1983 (Cth)Freedom of Information Act 1982 (Vic), s.3, s.28(1)Freedom of Information (Amendment) Act 1993 (Vic)Freedom of Information Act 1989 NSW, Sch. 1, cl. 1(2)Freedom of Information Act 1991 SA, Sch. 1, cl. 1(2)Freedom of Information Act 1991 Tas, s.24(5)Freedom of Information Act 1992 WA, Sch. 1, cl. 1(2)Freedom of Information Ordinance 1989 ACT, s.35(2)Re Aldred and Department of Foreign Affairs and Trade (1990) 20 ALD 264Commonwealth of Australia v Northern Land Council and Another [1993] HCA 24; (1993) 67 ALJR 405Re Porter and Department of Community Services and Health (1988) 14 ALD 403Re Anderson and Department of Special Minister of State (No. 2) [1986] AATA 79; (1986) 11 ALN N239Victorian Public Service Board v Wright [1986] HCA 16; (1986) 64 ALR 206Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (Information Commissioner, Qld, Decision No. 93002, 30 June 1993, unreported)Re Birrell and Department of Premier and Cabinet (No. 1) (1986) 1 VAR 230Re Waterford and the Treasurer of the Commonwealth of Australia [1985] FCA 29; (1985) 7 ALD 93Re Howard and the Treasurer of the Commonwealth (1985) 3 AAR 169Harris v Australian Broadcasting Corporation and Others [1984] FCA 8; (1984) 5 ALD 564Public Service Board v Scrivanich (1985) 8 ALD 44 DECISION1. The decision of Mr E J Bigby made on behalf of the respondent on 18 March 1993 is set aside.2. In substitution therefor, it is decided that the matter contained in Cabinet Submission No. 02492 is exempt matter under s.36(1)(a) of the Freedom of Information Act 1992 (Qld) except for the matter identified below which, by virtue of s.36(2) is not exempt matter under s.36(1) of the Act, and to which the applicant is entitled to be given access: (a) in the Cover Sheet to Cabinet Submission No. 02492 - (i) the line under the first heading on page one; (ii) the last two paragraphs on page one, all material on page two above the heading which appears on page two, the last paragraph on page 3, and the first paragraph on page 4 (being the factual matter previously released to the applicant pursuant to the respondent's initial decision of 17 February 1993); (iii) the paragraph which immediately precedes the heading "URGENCY" on page three; (iv) the three sentences which immediately follow the third heading which appears on page four; (b) in the Body of Submission of Cabinet Submission No. 02492 - (i) page one, the first two paragraphs on page two, and the first two paragraphs on page seven (being the factual matter previously released to the applicant pursuant to the respondent's initial decision of 17 February 1993); (ii) the last two paragraphs on page two, and the first four paragraphs on page three; (iii) the third and fourth paragraphs on page four; (iv) all of the paragraphs contained on page five except for the fourth paragraph, the second sentence of the second paragraph, and the second sentence of the sixth paragraph; (v) the second and third sentences of the second paragraph on page six; (vi) the first sentence of the third paragraph on page six; (vii) the last paragraph on page seven; (viii) the first paragraph on page eight.Date of Decision: 13 August 1993...........................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) S 53 of 1993COMMISSIONER (QLD) ) (Decision No. 93004) Participants: Mr S T HUDSON as agent for FENCRAY PTY LIMITED Applicant - and - DEPARTMENT OF THE PREMIER, ECONOMIC AND TRADE DEVELOPMENT Respondent REASONS FOR DECISIONBACKGROUND1 By letter dated 22 December 1992, Mr S T Hudson, a consulting surveyor acting on behalf of his client, Fencray Pty Ltd, lodged with the Department of the Premier, Economic and Trade Development (the Department) a request under s.25 of the Freedom of Information Act 1992 (Qld) (the FOI Act) for access to "any Government submissions associated with the proposed development of "The Lagoons at Pimpama", by Fencray Pty Ltd".2 By a decision made on 17 February 1993, the applicant was granted access to several documents, but was refused access to other documents and parts of documents which the Department decided were exempt under s.36(1)(a), (c) or (e) of the FOI Act.3 On 3 March 1993, Mr Hudson lodged an application for internal review (under s.52 of the FOI Act) of the Department's decision of 17 February 1993. His application for internal review stated: "The specific document relating to this review is referred to as a Cabinet Submission No. 02492. What is sought is presentation of some of the "facts" presented to Cabinet in order that Cabinet was able to draw its determination. The information presented merely reflects a set of known or accepted circumstances relating to the proposal. The basis for Cabinet's decision does not lie specifically in the information presented, and more specific information is sought."4 The internal review was conducted by Mr E J Bigby (Executive Director, Government & Corporate Services Division, within the Department) who by letter dated 18 March 1993 informed the applicant that he had decided to affirm the Department's decision of 17 February 1993. Mr Bigby's reasons for decision, so far as relevant, were as follows: "I have confirmed by way of reference to the official records of Cabinet that the matter was submitted to Cabinet. I can also confirm that the matter was brought into existence for the purpose of submission for consideration by Cabinet. The matter is therefore exempt under [s.36(1)(a) and (b)] of the Act. ... I have examined the matter in question. Matter exempted on pages one to five of the Cover Sheet of the Submission relates directly to the deliberations of Cabinet. In addition, matter exempted on pages one to eight of the Body of the Submission also relates to the deliberations of Cabinet. As the additional matter sought formed the basis of deliberation by the Cabinet, I am of the opinion that the disclosure of such matter would involve the disclosure of deliberations of Cabinet and therefore the matter is also exempt under s.36(1)(e). However, s.36(2) of the Act provides that: 36.(2) Matter is not exempt under subsection (1) if it is merely factual or statistical 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. I have examined the matter in the light of the tests imposed by s.36(2)(a) and (b) and in accordance with these sections of the Act, I do not believe any additional factual or statistical matter could be released without disclosing the deliberations of Cabinet which has not been officially published by decision of Cabinet."THE REVIEW PROCESS5 Mr Hudson lodged an application, dated 7 April 1993, for review of Mr Bigby's decision, asking the Information Commissioner to "determine whether these presently exempted parts of the Cabinet submission are able to be accessed". At my request, the Department supplied me with a complete copy of Cabinet Submission No. 02492 (the Cabinet submission), together with a copy of the version, with deletions, that had been released to the applicant. After these documents had been carefully examined, a telephone conference was held with the applicant on 25 May 1993. The applicant confirmed that he understood that the Cabinet submission was prima facie exempt, but that he sought independent review by the Information Commissioner of whether the Department had given him access to all "merely factual or statistical matter" to which he was entitled to have access pursuant to s.36(2) of the FOI Act. 6 In that conference and in a subsequent letter dated 2 June 1993, the applicant explained that his client, Fencray Pty Ltd, had spent approximately $170,000 on having an Environmental Impact Assessment prepared by consultants in respect of a proposed development project on the Pimpama River at Pimpama (near Jacobs Well). His client was determined to find out the reasons for the State Government's opposition to the proposed development, so that it could determine whether the individual reasons for opposition could be overcome, or whether the project would have to be abandoned. He was trying to gather as much information as he could with a view to seeking audiences with relevant Ministers or senior officials to get them to explain precisely their objections to the proposed development, so that his client could assess whether the objections could be overcome. The applicant's letter of 2 June 1993 stated: "Our client has sought a review of the decision to exempt most parts of a Cabinet submission relating to an Environmental Impact Assessment prepared for a proposed project on the Pimpama River at Pimpama (near Jacobs Well). Freedom of Information searches through several Departments have included the following Departments: (1) Department of Primary Industries (2) Department of Environment & Heritage (3) Department of Housing, Local Government & Planning (4) Department of the Premier, Economic & Trade Development (5) Office of the Cabinet. All searches have led ultimately to a Cabinet document much of which appears to be exempt. In the course of preparing the Environmental Impact Assessment, numerous communications were made with officers of the departments listed above. Throughout the process there was some indication that Government was predisposed to the form of development proposed. Our client has expressed some degree of concern that a comprehensively prepared study enlisting the aid of numerous well credentialled professional advisers and involving considerable dialogue between those professionals and relevant departments should exact such an outcome from Government. It seems all the more incredulous that not one department saw fit to request any further advice and/or clarification of information presented in relation to the study. The cost of the study to date has amounted to some $170,000.00 being expended in its production and consequent accreditation by an independent firm of engineers chosen by the Albert Shire Council. Given that the basic terms of reference for the study were established by Government and modified as appropriate by Albert Shire Council, in consultation with relevant Government Departments, our client now seeks to determine what matters were put before Cabinet to sway it so strongly against the proposals for development of its property. It is our client's belief that the positive aspects of the proposals as supported by the Environmental Study were simply ignored or worse, simply not presented within the Cabinet options for consideration of the proposal. Further to this, a concerted media campaign sprang up only one month prior to consideration of the study by Cabinet and it seems that some of the public opinion being expressed at the time may have influenced the presentation of the information for consideration by Cabinet. This possible aspect has also concerned our client. Any further assistance you can provide to enlighten my client and allay his concerns as far as the submission is concerned would be most welcome."7 It was explained to Mr Hudson that most of the matter which had been deleted from the copy of the Cabinet submission released to him was clearly exempt matter. There were a number of deleted paragraphs, however, which arguably contained merely factual matter. Because that matter could not be revealed to him (by virtue of s.76(2)(a) and s.87 of the FOI Act), his opportunities for meaningful participation in the conduct of my review were severely limited. Mr Hudson accepted this, saying that he did not wish to expend money on legal representation, and was content to accept the results of the Information Commissioner's legal research and assessment of the contents of the Cabinet submission.8 By letter dated 28 May 1993 I wrote to the Department advising that the applicant had indicated that the scope of his application for review was confined to questioning whether all "merely factual or statistical matter" contained in the Cabinet submission had been disclosed to him. I said that the essential issue for my determination was whether the extent of the deletions made from the Cabinet submission in the version released to the applicant, exceeded what was appropriate and permissible under s.36 of the FOI Act. I drew the Department's attention to relevant case law of the Federal Court of Australia and the Commonwealth Administrative Appeals Tribunal (the Commonwealth AAT) that might be of assistance in determining this issue. I then identified eleven passages in the Cabinet submission which in my preliminary assessment arguably contained merely factual matter. I asked the Department to respond to the following questions in relation to each of the passages:(1) Do you dispute that this passage contains matter that is merely factual matter?(2) If so, how do you characterise this matter?(3) If the answer to (1) is no, do you allege that disclosure of this matter would involve the disclosure of any deliberation or decision of Cabinet, the fact of which has not been officially published by decision of Cabinet?(4) If the answer to (3) is yes, please explain the background facts and reasons to justify your response.9 I also extended to the Department the opportunity to forward to me a written submission which in addition to addressing the issues referred to above, set out -(a) any other facts, matters or circumstances; and(b) any legal arguments,on which it wished to rely to establish that the matter deleted from the Cabinet submission was exempt matter, according to the terms of s.36 of the FOI Act. On 21 June 1993, the Department supplied a detailed written submission in support of its decision under review. I have carefully assessed that submission against the contents of the parts of the Cabinet submission which were deleted in the version supplied to the applicant. 10 It will be difficult to explain my reasons for decision in a manner that will prove completely intelligible to the vast majority of readers, because they largely turn on whether individual sentences and paragraphs in the Cabinet submission can properly be characterised as "merely factual matter", and s.87 of the FOI Act prevents me from including in my reasons for decision matter which has been claimed by an agency to be exempt matter. My reasons for decision therefore are only likely to be fully intelligible to those who have access to an unexpurgated copy of the Cabinet submission. Nevertheless, I have tried as far as practicable to expound the general principles applicable to the questions I have to determine, so that my reasons for decision may be of some benefit to the majority of readers who will not have access to a copy of the Cabinet submission.11 Since I consider that the Department's decision-making in this case has proceeded upon an interpretation of s.36 (more particularly s.36(1)(e) and s.36(2)(a) and (b)) of the FOI Act which is mistaken in part, I will commence with an analysis of that provision.ANALYSIS OF S.3612 Section 36 of the FOI Act is in the following terms: "Cabinet matter 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; or (b) it forms part of an official record of Cabinet; or (c) it is a draft of matter mentioned in paragraph (a) or (b); or (d) it is a copy of, or contains an extract from, matter or a draft of matter mentioned in paragraph (a) or (b); or (e) 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 factual or statistical 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."13 The essential justification for the existence of the Cabinet matter exemption is to facilitate the process of Cabinet deliberation and decision-making, by providing the optimum conditions in which the highest policy-making body in the executive branch of government can make informed choices according to its judgment of what the public interest requires. (I use the word optimum in the sense of striking the appropriate balance between the public interests that are served by the appropriate degree of secrecy in the Cabinet process and the public interests that are served by openness, accountability and informed public participation, in the processes of government.)14 Cabinet stands at the apex of government and its members, comprising all Ministers of the Crown, are collectively responsible for the performance of the Queensland government. The Queensland Cabinet Handbook (GoPrint, Brisbane, August 1992) lays down the procedures and principles under which the Queensland Cabinet is to operate: "The procedures are designed to implement the following principles: ? Cabinet is responsible for the development and co-ordination of the policies of the Government; ? the convention of the collective responsibility of Ministers for Government decisions requires collective adherence to all Government decisions made in Cabinet; Cabinet decisions reflect collective deliberation and are binding on Cabinet Ministers as Government policy; ? consultation is an essential element of the Cabinet process; ? the deliberations of Cabinet and Cabinet Committees shall be conducted in a secure and confidential environment; ? the Cabinet process will allow for considered and detailed examination of specific matters before Cabinet; ? the processes of Cabinet are established by the Premier to ensure that all Ministers are bound by the same rules and by high standards of probity; and ? Cabinet collectively, and Ministers individually, are responsible and accountable to the Crown, the Parliament, and ultimately the electorate. Adherence to these principles is the corner-stone of an effective and efficient Cabinet system. For Cabinet to operate effectively, Cabinet documents are to be prepared by Ministerial Departments in a manner that aids well-informed decision-making. The purpose of Cabinet documents is to allow Ministers to discuss, analyse and resolve issues on their merits and in ways which can be effectively implemented." (at p.9)15 The most extensive and instructive analyses of the rationale for a Cabinet exemption in freedom of information legislation (considered in the light of the key role which Cabinet, and the convention of collective ministerial responsibility, play in our processes of government) are to be found in the 1979 Report on the Draft Commonwealth Freedom of Information Bill by the Senate Committee on Constitutional and Legal Affairs (at Chapter 18), and the 1989 Report of the Legal and Constitutional Committee of the Parliament of Victoria, titled "Report Upon Freedom of Information in Victoria" (at Chapters 4 and 5). Since both reports represent the work of Members of Parliament, they benefit from the insight of political "insiders".16 The Victorian Report discussed (at pp.70-72) both the virtues and vices of Cabinet secrecy: "The convention [of collective ministerial responsibility] serves several important constitutional purposes. It secures the responsibility of Cabinet to the Parliament and, through the Parliament, to the electorate. The coherence of government exercises pressure on the opposition to unite in the presentation of alternative policies and ministries. The convention assists in the maintenance of government control of legislation and public expenditure. It acts as a strong incentive towards the co-ordination of departmental policies and actions. More practically, Cabinet unanimity conforms with the expectations of the electorate which, in general, disapproves of divisiveness in its government ... However, some of the political purposes facilitated by the convention have been the subject of substantial criticism ... It is argued that the accretion of power at the centre of government has been at the cost of effective accountability to both Parliament and people ... Similarly, there has been criticism of the degree to which collective Ministerial responsibility has been productive of secrecy throughout government. Excessive secrecy can be seen as counter-productive to effective government since it conceals and distorts the process of decision-making ... Secrecy, like the ripples of a pond, can radiate from its centre in Cabinet to encircle the entirety of governmental administration. ... [Reproduced here was part of the passage from the Fitzgerald Report which is set out in the following paragraph] ... It is partly in response to such criticism that freedom of information legislation has been introduced in many nations with Westminster type governments. It is a central question for this inquiry to determine what degree of secrecy should attach to Cabinet and other documents in order to effectively preserve the convention of collective ministerial responsibility. In examining this question, the Committee must weigh carefully two competing public interests. There is first, the public's interest in preserving the proper and efficient conduct of affairs of state. Secondly, there is the public interest in ensuring that, in the conduct of those affairs, the government is fully accountable to the people it exists to serve." 17 The Fitzgerald Report had in 1989 warned Queenslanders of the dangers of excessive Cabinet secrecy (at pp.126-127): "Although "leaks" are commonplace, it is claimed that communications and advice to Ministers and Cabinet discussions must be confidential so that they can be candid and not inhibited by fear of ill-informed or captious public or political criticism. The secrecy of Cabinet discussions is seen as being consistent with the doctrines of Cabinet solidarity and collective responsibility under which all Ministers, irrespective of their individual views, are required to support Cabinet decisions in Parliament. It is obvious, however, that confidentiality also provides a ready means by which a Government can withhold information which it is reluctant to disclose. A Government can deliberately obscure the processes of public administration and hide or disguise its motives. If not discovered there are no constraints on the exercise of political power. The rejection of constraints is likely to add to the power of the Government and its leader, and perhaps lead to an increased tendency to misuse power. The risk that the institutional culture of public administration will degenerate will be aggravated if, for any reason, including the misuse of power, a Government's legislative or executive activity ceases to be moderated by concern for public opinion and the possibility of a period in Opposition. ... The ultimate check on public maladministration is public opinion, which can only be truly effective if there are structures and systems designed to ensure that it is properly informed. A Government can use its control of Parliament and public administration to manipulate, exploit and misinform the community, or to hide matters from it. Structures and systems designed for the purpose of keeping the public informed must therefore be allowed to operate as intended. Secrecy and propaganda are major impediments to accountability, which is a prerequisite for the proper functioning of the political process. Worse, they are the hallmarks of a diversion of power from the Parliament. Information is the lynch-pin of the political process. Knowledge is, quite literally, power. If the public is not informed, it cannot take part in the political process with any real effect. The involvement of Cabinet in an extended range of detailed decisions in the course of public administration gives principles intended to apply in different circumstances an operation that cannot have been contemplated or intended. Excessive Cabinet secrecy has led to the intrusion of personal and political considerations into the decision-making process by bureaucrats and politicians."18 Due regard should be had to these warnings. It has nevertheless become widely (and in my opinion, quite properly) accepted that debate within Cabinet, and the views contributed to debate by individual Ministers, should be entitled to secrecy. The 1989 Report of the Legal and Constitutional Committee of the Victorian Parliament said (at p.83): "... there is a clear and forceful public interest in creating a context for Cabinet discussion which promotes and enhances the vigorous exchange of opinions between Ministers in Cabinet. In the Committee's view better decision-making is likely to result when Ministers feel able to articulate and explore tentative, innovative and even radical views without fearing that these may subsequently attach to them individually. Better decisions will be produced where compromises can be made reflecting the application of Cabinet's collective mind to issues at hand, a process made difficult if Minister's individual positions are known. Government acts with more authority where decisions it takes are seen as having the endorsement of Ministers collectively rather than individually."19 In the context of the law relating to Crown privilege/public interest immunity (by which courts determine when it is appropriate for government-held information to be disclosed to a court for use as evidence in litigation, notwithstanding that the government objects that disclosure would be contrary to the public interest) the High Court of Australia has recently re-affirmed in Commonwealth of Australia v Northern Land Council and Another [1993] HCA 24; (1993) 67 ALJR 405, that the interest of a government in the maintenance of the secrecy of deliberations within Cabinet constitutes a public interest that will be accorded protection by the courts in all but exceptional cases. The majority judges (at p.406) saw fit to point out that the documents in issue in the case were "documents which record the actual deliberations of Cabinet or a Committee of Cabinet", and not "documents prepared outside Cabinet, such as reports or submissions, for the assistance of Cabinet".20 The public interest rationale for paragraphs (b) and (e) of s.36(1) of the FOI Act is therefore, in my opinion, unexceptionable. Section 36(1)(e) covers both deliberations and decisions of Cabinet, so as to permit Cabinet to determine the appropriate timing and manner of the announcement of its official decisions. 21 The wording of s.36(1)(a) arguably extends further than is strictly required by the public interest in creating the optimum conditions for Cabinet decision-making. As the 1989 Report of Legal and Constitutional Committee of the Victorian Parliament said (at p.88): "... it is only documents which disclose the individual submissions or opinions of Ministers and the nature and content of their collective deliberations [the latter being covered by s.36(1)(b) and (e) in the FOI Act] which must be protected. This is because it is these documents which by their nature expose Cabinet divisions and therefore prejudice collective Ministerial responsibility."Section 36(1)(a) may extend to a wider class of documents than simply documents which are prepared for the purpose of submitting to Cabinet the views and contributions of individual Ministers. In this, however, Queensland has done no more than follow the example of other Australian governments which have enacted freedom of information legislation, and indeed s.36(1)(a) is a fairly narrowly confined exemption provision compared to corresponding provisions in the freedom of information statutes of some other Australian jurisdictions.22 There is a significant difference between the wording and punctuation of s.36(1)(a) of the FOI Act compared to s.34(1)(a) of the Freedom of Information Act 1982 Cth (the Commonwealth FOI Act), a difference which renders inapplicable in Queensland the interpretation given to s.34(1)(a) of the Commonwealth FOI Act by the Commonwealth AAT in Re Porter and Department of Community Services and Health (1988) 14 ALD 403. Section 34(1)(a) of the Commonwealth FOI Act is in the following terms: "34(1) A document is an exempt document if it is - (a) a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Cabinet; "23 In Porter's case at p.407, the Commonwealth AAT said: "In my opinion the words "being a document that was brought into existence for the purpose of submission for consideration by the Cabinet" govern only the words "or is proposed by a Minister to be so submitted". The provision should accordingly be read as referring to: ? a document that has been submitted to Cabinet; ? a document proposed by a Minister to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by Cabinet. This construction ensures that actual submission of a document to Cabinet, and preparation of a document for the purpose of submission although not actually submitted, each receive the protection of the exemption provision."24 The interpretation of s.34(1)(a) given by the Commonwealth AAT in Porter's case is surprising for two reasons. First, because it was contrary to the interpretation previously given by Deputy President Hall of the Commonwealth AAT in Re Anderson and Department of Special Minister of State (No. 2) [1986] AATA 79; (1986) 11 ALN N239 where he said (at N243): "Section 34(1)(a) provides that a document is an exempt document if it is a document that has been submitted to Cabinet for its consideration, being a document that was brought into existence for the purpose. It is the fact of having been submitted to Cabinet for its consideration and of having been brought into existence for that purpose that, prima facie, attaches exempt status to the document as such. If those conditions are satisfied, the contents of the document are given exempt status regardless of the actual subject matter."Secondly because, if it be accepted that there is an ambiguity as to whether the words following the comma in s.34(1)(a) of the Commonwealth FOI Act qualify both documents that have been submitted to Cabinet and documents proposed to be submitted to Cabinet, then recourse to:(a) the legislative history (in particular, the 1979 Report of the Senate Legal and Constitutional Affairs Committee at paragraphs 18.3 to 18.9 (pp.206-207) - part of which is set out below at paragraph 31; and the Senate Explanatory Memorandum for the Freedom of Information Bill 1981 at pp.29-30); and (b) the principle endorsed by the High Court of Australia in Victorian Public Service Board v Wright [1986] HCA 16; (1986) 64 ALR 206 (at p.212) that (in the light of the objects clause in s.3 of the Freedom of Information Act 1982 Vic (the Victorian FOI Act), which is for practical purposes identical to the objects clause in s.3 of the Commonwealth FOI Act): "It is proper to give to the relevant provisions of the Act a construction which would further, rather than hinder, free access to information";would seem to indicate that any ambiguity should be resolved in favour of the interpretation preferred by Deputy President Hall in Re Anderson.25 No such ambiguity arises in respect of s.36(1)(a) of the FOI Act, however, which clearly is confined to two kinds of matter contained in documents, i.e.:(a) matter which has been submitted to Cabinet for its consideration; and(b) matter which is proposed by a Minister to be submitted to Cabinet for its consideration;but which, in either case, was brought into existence for the purpose of submission for consideration by Cabinet. 26 This means that a document is not exempt merely because it has been submitted to Cabinet. Inquiries must be pursued into the "genealogy" of such a document, to establish the purpose for which it was brought into existence. The time of the creation of the document is the time at which the purpose for its creation is to be ascertained. The fact that it was subsequently decided to annex to a Cabinet submission, a document that was brought into existence for a purpose other than submission to Cabinet for Cabinet consideration, will not bring the document within s.36(1)(a). A document which is created for the purpose of assisting in the preparation of a draft or final Cabinet submission (or some other kind of document that is being created for the purpose of submission to Cabinet) would not itself have been brought into existence for the purpose of submission for consideration by Cabinet. Such a document may gain exemption under s.41 of the FOI Act if it falls within the terms of s.41(1)(a), but it must also be established that its disclosure would be contrary to the public interest (cf the "co-ordination comments" on a draft Cabinet submission held not to be exempt under s.41 of the FOI Act in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Information Commissioner Qld, Decision No. 93002, 30 June 1993, unreported).27 A practical consequence (and no doubt an intended one) of the wording of s.36(1)(a) is that it is not open to a Minister or official simply to attach to a Cabinet submission a document not designed for Cabinet consideration but believed to be sensitive, and thereby claim that it is exempt from disclosure under s.36(1)(a) of the FOI Act.28 The use of the present tense in the phrase "... or is proposed by a Minister to be submitted, to Cabinet for its consideration ..." also imposes a requirement of eligibility for exemption under s.36(1)(a) in respect of matter that has not been submitted to Cabinet, that there be a current proposal by a Minister for its submission to Cabinet. Thus matter may acquire exempt status under s.36(1)(a) but lose it upon the Minister abandoning the proposal for its submission to Cabinet. I consider that Hartigan J (President) of the Commonwealth AAT was clearly correct when he said of the corresponding phrase in s.34(1)(a) of the Commonwealth FOI Act: "It seems to me that the words of s.34(1)(a) make it clear that the time the document "was brought into existence" is the relevant time at which to look at the document. However, the document must be one of which it can be said that it is proposed to be submitted to Cabinet. I consider that the subsection does not grant an exemption to documents that are not submitted to the Cabinet despite the intention to do so at the time of their creation. It seems to me that the subsection only grants exemption to documents already submitted or proposed to be submitted if they were created with that intention. The subsection clearly grants the exemption to documents that are proposed to be put before the Cabinet not to documents that were proposed to be put before the Cabinet but never were. Thus a document may lose its claim for exemption when it is proposed no longer to submit the document to Cabinet." (Re Aldred and Department of Foreign Affairs and Trade (1990) 20 ALD 264 at p.265-6)29 Hartigan J also made some comments in Re Aldred (at p.266) on s.34(1)(c) of the Commonwealth FOI Act which are relevant to the interpretation of the equivalent words in s.36(1)(d) of the FOI Act: "To be a copy or extract of another document it necessarily follows that the copy or extract succeeds the document. In this instance the "copy or extract" precedes the document. I cannot accept that the subsection should be so construed as to allow a document that precedes another to be included in the definition of copy or extract. Ordinary usage of language requires that the copy or extract come from the document referred to in s.34(1)(a) or (b) and not vice versa."30 In the present case, there is no doubt that the document in issue has been submitted to Cabinet and was brought into existence for the purpose of submission for consideration by Cabinet and hence contains exempt matter pursuant to s.36(1)(a) of the FOI Act. The question for my determination is the extent to which any matter contained in the document is not exempt under s.36(1), because it falls within the terms of the exception provided for in s.36(2) of the FOI Act.Section 36(2)31 Section 36(2) of the FOI Act can (though it contains some material differences) be said to correspond to s.34(1A) of the Commonwealth FOI Act, a provision which did not appear when the Commonwealth FOI Act was first enacted by the Fraser Liberal Government in 1982, but which was inserted by the incoming Hawke Labour Government in 1983 in response to recommendations contained in the 1979 Report of the Senate Committee on Constitutional and Legal Affairs. The relevant parts of the Senate Committee's Report were as follows: "... some amendment by the draftsman to clause 24(1) is necessary to clarify the question of attachments to Cabinet submissions. Currently the exemption includes 'a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister to be so submitted' (para 24(1)(a)). The only express limitation upon this provision is sub-clause (4) which provides that the earlier definition does not apply to a document by reason of the fact that it was submitted to the Cabinet for its consideration or is proposed by a Minister to be so submitted if it was not brought into existence for the purpose of submission for consideration by the Cabinet. 18.6 Notwithstanding this limitation many documents will possibly be included as Cabinet documents that should not be. For instance, it is possible that a Minister may order the compilation of a broad category of important statistics on Australian social or economic life, for consideration by Cabinet, in relation to a proposed policy. Again, Cabinet may require a major study, primarily of a factual nature, on the feasibility of a new policy or on the implications for Australia of a projected proposal. Reference can also be made to important reports prepared by such bodies as the Administrative Review Council on new or proposed legislation, which we understand are often submitted to a Minister for consideration by the Cabinet. Of a comparable nature are the reports of consultants. Quite often these are prepared, at considerable cost to the public, to evaluate the efficiency of existing government programs. Each of these examples refers to a document that has been brought into existence for the purpose of submission to Cabinet. In each case, the document, which is an important one of public interest, could be treated as conclusively exempt as a Cabinet document. 18.7 We believe that clause 24 lays down an inappropriate criterion for determining what is exempt. Essentially, the clause is designed to protect the Cabinet decision-making process. Yet, in protecting anything that is submitted or proposed to be submitted to Cabinet, it goes far beyond what is reasonably necessary for this purpose. To disclose documents of the type to which we referred in a previous paragraph is to disclose only the raw material on which the Cabinet process operates; it is not necessarily to disclose anything about Cabinet process itself. Disclosure may conceivably damage the political fortunes of those who participate in the Cabinet process, but this is essentially distinct from, and should not be confused with, the Cabinet process itself. Only the latter should be protected by the exemption. 18.8 When determining the criterion which should be used in clause 24, useful reference can be made to clause 26. That exemption (for internal working documents) seeks to differentiate between policy documents containing opinion, advice or recommendations (which are protected) and factual, statistical, and scientific and technical reports or analyses (which are not protected). We think that a similar distinction can be drawn in clause 24, so that any document or report of that nature which was attached to a Cabinet submission would not be protected. Indeed, we think that an even broader distinction could be drawn than in clause 26. For instance, the draftsman could exclude from clause 24 a range of general categories of documents such as consultants' reports, reports from advisory committees, and so on. These reports would still be entitled to protection under clause 26, but a decision to this effect would have to satisfy the public interest criterion contained in that clause. 18.9 Recommendation: Clauses 24 and 25 should be amended to limit the scope of the conclusive exemption for Cabinet documents to documents containing opinion, advice or recommendations of a policy nature, thereby excluding documents of a purely factual nature such as consultants' reports, reports from advisory committees, and so on."32 The insertion of s.34(1A) in the Commonwealth FOI Act did not precisely implement the Senate Committee's recommendation, but it did give effect to the principle that disclosure of some of the raw material upon which the Cabinet decision-making process operates, can be disclosed without compromising the efficacy of the Cabinet process. As Deputy President Hall of the Commonwealth AAT said when applying s.34(1A) to part of a document in Re Anderson and Department of Special Minister of State (No. 2) [1986] AATA 79; (1986) 11 ALN N239 (at N244): "... in my opinion, para (2) of document 15 contains "purely factual material" ... and ... its disclosure would not involve the disclosure of any deliberation or decision of Cabinet. The disclosure of the purely factual material will give some indication of the subject matter of the document submitted to Cabinet. It will imply that the facts, as stated, were relevant to a matter considered by Cabinet. But the facts give no indication of the thinking processes of Cabinet or of any of its members."33 While the Victorian FOI Act (which was introduced shortly after, and modelled on, the Commonwealth FOI Act as enacted in 1982) did not contain a provision corresponding to s.34(1A) of the Commonwealth FOI Act, each freedom of information statute subsequently enacted by an Australian legislature has contained a provision which corresponds to s.34(1A) of the Commonwealth FOI Act (see Freedom of Information Act 1989 NSW, Sch. 1, cl. 1(2); Freedom of Information Act 1991 SA, Sch. 1, cl. 1(2); Freedom of Information Act 1991 Tas, s.24(5); Freedom of Information Act 1992 WA, Sch. 1, cl. 1(2); Freedom of Information Ordinance 1989 ACT, s.35(2)). The 1989 Report of the Legal and Constitutional Committee of the Victorian Parliament recommended the enactment of a provision excluding from the Cabinet exemption in the Victorian FOI Act, documents containing the raw material of Cabinet discussion. The relevant parts of the Report (at pp.93-94) are as follows: "7.51 ... It will be recalled that the Senate Standing Committee on Constitutional and Legal Affairs (1979) drew a distinction between documents reporting and reflecting Cabinet's deliberations and those, such as statistical, scientific and technical reports or analyses, which provided the factual background for those deliberations ... The Committee recommended that the deliberative documents should be protected but that the factual documents providing the 'raw material' for Cabinet discussion should not be. 7.52 The following passage from the submission of the Law Institute of Victoria summarises well the position of witnesses arguing this case. We consider that a document should not be exempt under s.28 if it merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet. As Judge Rowlands observed in Re Birrell and Department of Premier and Cabinet (No. 1) (1986) 1 V.A.R. 230, 236:- If large sums of public money are spent on fact gathering exercises and scientific and technical reports whether conducted by consultants or public servants, it seems a great pity if these are not generally available to members of Parliament, the media and the public so that informed people may 'become involved in policy making and in government itself'. ... It follows in our view that documents which contain factual or statistical material which is used as a background for Cabinet discussions should not necessarily be exempt under s.28 if they do not disclose information concerning any deliberation or decision of Cabinet. Disclosure of these documents would not disclose anything about the Cabinet process itself. Nor of course would it disclose the decision making process of Cabinet. The convention of collective ministerial responsibility is hardly going to be offended in these circumstances. (Submission, p.14). 7.53 ... The [Victorian] Committee has been consistent in its view that only documents which, if disclosed, would undermine the unanimity of Cabinet should be protected as Cabinet documents. Therefore, documents which canvass or disclose the individual views or votes of Cabinet members should be exempt. Further, for the reasons already given, the decisions of Cabinet should not be disclosed unless and until the government determines that this is appropriate. However, factual documentation provided to assist Cabinet in its deliberations pre-dates decisions based upon it and in consequence will not disclose these decisions. Therefore, in the Committee's opinion, the disclosure of background material will not prejudice the maintenance of the convention of collective ministerial responsibility. 7.54 The availability of Cabinet's raw material will provide the community with a means of assessing the appropriateness of Cabinet decision making. Moreover, it will also assist the Parliament in exercising its legislative and supervisory functions. The Committee believes that these are important factors militating in favour of disclosure. In this regard, the comments of The Honourables Sir Rupert Hamer and Lindsay Thompson, former Premiers of Victoria, are apt. We should remember that factual material protected from disclosure is denied not merely to the community at large but to Parliament itself as well. That very material may well be important to the Parliament not only in exercising its legislative judgment but also in its vital function of supervising the administrative activities of government. Documents of a factual kind such as statistical surveys, opinion polls, feasibility and impact studies, consultants' reports, etc., will normally be an essential ingredient in decision-making, both in the Parliament and in the wider community, and democratic principle requires that they be made generally available. (Submission, p.2) 7.55 The Committee noted at the commencement of this chapter that there were two competing democratic principles bearing on the question of whether and which Cabinet documents should be protected. First, there is the importance of collective ministerial responsibility. Secondly, there is the public interest in the disclosure of information affecting the welfare of the community. The principle that Cabinet solidarity should be maintained is a vital one. So too, is the public interest in drawing government to account for its actions. 7.56 ... the Committee is of the view that Cabinet unanimity will be unaffected by disclosure of the 'raw material' providing the backdrop to its deliberations. At the same time the interests of accountability will be considerably advanced if it is available. In these circumstances, the Committee proposes to recommend that factual, statistical, technical and scientific material submitted to Cabinet should be capable of disclosure under the Freedom of Information Act."34 The Freedom of Information (Amendment) Act 1993 Vic. contains a provision which was apparently intended to implement the Committee's recommendations, though it is curious that the amending provision omits the word "factual". The amended s.28(3) of the Victorian FOI Act now reads as follows: "(3) Sub-section (1) does not apply to a document referred to in a paragraph of that sub-section to the extent that the document contains purely statistical, technical or scientific material unless the disclosure of the document would involve the disclosure of any deliberation or decision of the Cabinet."35 The terms of s.36(2) of the FOI Act are set out at paragraph 12 above. Its effect is to exclude from the category of matter that might otherwise be exempt matter under s.36(1), matter which is merely factual or statistical, unless the disclosure of such matter under the FOI Act would involve the disclosure of any deliberation or decision of Cabinet and the fact of the deliberation or decision has not been officially published by decision of Cabinet. In the light of the written submission received from the Department, there are three issues which require clarification. The first is the meaning of the term "deliberation of Cabinet", since the Department's submission argues for a broader interpretation and/or application of the term than I consider can be justified on the proper construction of s.36 as a whole. The second issue is the meaning of "merely factual matter", and how one approaches the task of characterising matter contained in a document as merely factual matter as opposed to some other kind of matter. The third issue is the meaning and effect of the qualification (which applies when both the condition stipulated by s.36(2)(a) and the condition stipulated by s.36(2)(b) are satisfied) to the s.36(2) exception for merely factual or statistical matter.The Meaning of "Deliberation of Cabinet" in s.36(1)(e) and s.36(2)(a) and (b)36 In my letter to the Department of 28 May 1993 drawing its attention to what I considered to be the issues for my determination and inviting a written submission, I said: "... I first pose as a general question whether you contend that the word "deliberation" in s.36 of the FOI Act bears any meaning different to the meaning of the equivalent word in the equivalent provision (s.34) of the Commonwealth Freedom of Information Act 1982, that was accepted by Deputy President Todd of the Commonwealth AAT in Re Porter and Department of Community Services and Health (1988) 14 ALD 403 at page 407: "'Deliberation' of Cabinet seems to me to connote what was actively discussed in Cabinet. It is not the agenda for a meeting of Cabinet, nor is it what Cabinet formally decided. What the words "deliberation or decision" of Cabinet cover is debate in Cabinet, and formal decisions made in Cabinet. It is not to be concluded that there was deliberation in respect of matter contained in a document merely because a document was before Cabinet at a meeting thereof." "37 The Department's submission on this point was a little confusing to follow. It seemed at first to be attempting to persuade me that it was appropriate to adopt a more extensive meaning for the word "deliberation" (which would extend to "careful consideration as distinct from discussion"), though it was ultimately indicated that the Department accepted the meaning of "deliberation" as expressed by Deputy President Todd in Porter's case. The submission stated that the Queensland system of recording the proceedings of Cabinet is materially different to the Commonwealth system: "In contrast to the documents of the Federal Cabinet, the only documents which record actual discussion by Cabinet are the "Cabinet Minutes" which document Cabinet decisions and the "Collective Minutes of Proceedings" (the "Collectives") which briefly record general matters raised in Cabinet. The Collectives also list the title, number and sponsoring Minister of those Cabinet Submissions deliberated on by Cabinet. The Collectives do not record particular issues discussed by Cabinet on a written Cabinet Submission although they may record issues raised by an oral Cabinet submission. Handwritten notes taken by the Secretary of Cabinet are destroyed once the Cabinet decisions in the form of "Cabinet Minutes" and the Collectives are typed. Consequently, the Queensland Cabinet process does not give rise to the type of Cabinet documents kept by the federal Cabinet which were under consideration in Commonwealth of Australia v Northern Land Council and anor. (unrep. 21 April 1993) and in the Commonwealth jurisdiction in Re Porter and Department of Community Services and Health (1988) 14 ALD 403."38 It was therefore argued that I should accept that: "If there are any documents which record 'active discussion and debate' by Cabinet in the Queensland Cabinet system, then those documents include written Cabinet submissions being documents which procure or form the basis of Cabinet decisions. It is clear that Collectives recording issues raised in oral submissions would constitute a record of deliberations by Cabinet. It follows that written Cabinet submissions also constitute a record of deliberations by Cabinet. There is no other such record of the deliberations when a matter is the subject of a written Cabinet submission. When a Cabinet submission is in written form, it is annexed to the official record of a Cabinet decision as a matter of course and not recorded in the Collectives other than by title, number and Minister."39 The first and third sentences of this passage contain propositions which I consider to be logically (and semantically) unacceptable. A document whose creation preceded "active discussion and debate" in Cabinet (even though it was created and submitted to provide information to assist Cabinet debate or indeed to contribute the opinions and recommendations on policy matters of an individual Minister) cannot logically constitute a record of what was actively discussed and debated in Cabinet on the occasion of that document's consideration by Cabinet. Such material could be incorporated by reference into the active discussion and debate, for example "I agree with the recommendations set out in the Cabinet submission", but that cannot equate the material prepared to assist Cabinet deliberation with the Cabinet deliberation itself. It cannot in my opinion be said that disclosure of the former would involve disclosure of any of the active discussion and debate within Cabinet. 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 so as to fall within s.36(1)(e).40 The position in respect of Cabinet decisions may be slightly different. Cabinet submissions are generally required to set out the sponsoring Minister's recommendations in a form capable of adoption as a Cabinet decision, if the recommendations are accepted (see the Queensland Cabinet Handbook, p.36). It must frequently occur that a decision in the terms recommended in a Cabinet submission is agreed to by Cabinet, with or without discussion and debate. That part of the Cabinet submission setting out the terms of the recommended Cabinet decision would probably in those circumstances be exempt under s.36(1)(e) because its disclosure would involve the disclosure of a decision of Cabinet (assuming that the decision had not already been officially published by decision of Cabinet). The same matter, however, will already have qualified for exemption under s.36(1)(a) (as it would have even if Cabinet had rejected the recommended decision) and it is difficult to conceive of any circumstances in which a recommendation for a Cabinet decision (whether accepted by Cabinet or not) could constitute "merely factual or statistical matter" so as to fall within the s.36(2) exception to the categories of exempt matter provided for in s.36(1). But, even if a recommendation in a Cabinet submission, and all its supporting material, is accepted by Cabinet without discussion or debate, that does not, in my opinion, somehow elevate the material prepared to assist the deliberations of Cabinet to the status of constituting the deliberations of Cabinet. The matter contained in such a Cabinet submission will generally be exempt under s.36(1)(a), rather than s.36(1)(e). (Exceptions may occur in respect of some parts of the matter contained in a Cabinet submission, as instanced in this paragraph and the following paragraph.)41 Some issues will be the subject of deliberation by Cabinet (or a Committee of Cabinet) on two or more occasions, probably with further written submissions being prepared to assist each new round of deliberation, before an acceptable outcome is agreed upon. In such instances, the second and subsequent Cabinet submissions are likely to contain matter summarising previous Cabinet deliberations on the issue. Similarly, policy proposals will frequently come before Cabinet after having been the subject of extensive consideration by a Cabinet Committee. In such cases, the Cabinet submission is likely to contain matter summarising the deliberations of the Cabinet Committee. Matter of the kind referred to in these two examples would clearly be exempt under s.36(1)(e) (assuming it has not been officially published by decision of Cabinet) as well as being contained in a document which is exempt under s.36(1)(a). But these two instances are no more than specific illustrations of the proposition contained in the last sentence of paragraph 39 above.42 The introduction in the second sentence of the passage quoted at paragraph 38 above, of the process of recording in the "Collectives" issues raised in oral submissions to Cabinet, seems to me to be rather a red herring. The record in the "Collectives" of an oral submission will always fall within the terms of s.36(1)(b) of the FOI Act. If an oral submission is made merely for the purpose of informing Cabinet Ministers on some matter, and no deliberation or decision is called for, then the record of the oral submission probably does not also fall within the terms of s.36(1)(e), there being no deliberation of the Cabinet in the sense of careful consideration and discussion with a view to making a decision. If an oral submission calls for deliberation and decision by Cabinet, then the record in the "Collectives" of the oral submission will probably also be exempt under s.36(1)(e) because its disclosure would involve the disclosure of a contribution by an individual Minister to what was actively discussed and debated within Cabinet with a view to arriving at a decision. In the event that a Minister merely repeated in a Cabinet debate what was contained in the Minister's written submission to Cabinet, a record of the Minister's contribution to active discussion and debate within Cabinet would be exempt under s.36(1)(e) (assuming it had not been officially published by decision of Cabinet), but the Minister's written submission to Cabinet would, in my opinion, still only fall within s.36(1)(a).43 The fact that the Queensland system of recording the proceedings of Cabinet is different to the Commonwealth system does not afford any justification for interpreting the words of s.36 other than according to their natural and logical meaning when the section as a whole is properly construed. I consider that Deputy President Todd of the Commonwealth AAT was clearly correct in Porter's case when he said that the term "deliberation of Cabinet" connotes what was actively discussed in Cabinet. That is properly to be inferred from the scheme evident in the structure of s.36(1) of the FOI Act, which contemplates that the exempt status of matter which has been brought into existence for the purpose of submission for consideration by Cabinet (and which necessarily therefore predates any deliberation by Cabinet in respect of that matter) is to be determined under s.36(1)(a), and not under s.36(1)(e) which is designed to accord protection to what was actively discussed in Cabinet, and to formal decisions made in Cabinet. 44 Clearly, s.36(1)(e) still has work to do in the scheme of s.36, even though, according to the Department's submission, the general practice with official records of the Queensland Cabinet does not involve the recording of particular issues discussed by Cabinet on a written Cabinet submission. It is likely that documents, other than official records of Cabinet, will be created which record the substance of deliberations within, and the terms of decisions made by, Cabinet or a Committee of Cabinet, so as to inform the responsible officials of what they need to know in order to implement effectively the government's decisions, e.g. minutes of briefings by a Minister to his or her Departmental officials on a Cabinet decision which the Minister has been charged with implementing; minutes prepared by Departmental officials allowed to be present at meetings of Cabinet Committees recording the substance of deliberations and decisions on matters for which they have responsibility for implementation. Matter contained in documents of this kind may fall within s.36(1)(e) of the FOI Act (assuming that the matter has not been officially published by decision of Cabinet).45 I should add that my conclusion as to the meaning of the term "deliberation of Cabinet" is also supported by the meaning given to the word "deliberation" where it appears in s.28(1)(d) of the Victorian FOI Act (which corresponds to s.36(1)(e) of the FOI Act) by Judge Rowlands, the then President of the Victorian AAT, and Mrs Rosen (Member) in Re Birrell and Department of the Premier and Cabinet (No. 1) (1986) 1 VAR 230 at page 239: "It was submitted on behalf of the respondent that the word "deliberation" encompassed any act of Cabinet including its mere receipt of information such as, for instance, a report without the need for debate or consideration. It is our opinion that "deliberation" encompasses more than the mere receipt of information in the Cabinet room for digestion by Cabinet Ministers then or later. The word "deliberation" connotes careful consideration with a view to the making of a decision. The mere acceptance of material which may or may not provide the basis for further action or decision-making (certainly if there is not discussion or consideration concerning its worth or merit) does not in our view amount to "deliberation"."46 Some confirmation that this interpretation accords with the natural meaning of the words "deliberation of Cabinet" even in a non-statutory context can be found in the observation of the High Court of Australia in Commonwealth v Northern Land Council [1993] HCA 24; (1993) 67 ALJR 405 (at p.406) which described the documents in issue in that case as: "... documents which record the actual deliberations of Cabinet or a committee of Cabinet. They are not documents prepared outside Cabinet, such as reports or submissions, for the assistance of Cabinet".47 It is a basic principle of statutory construction that a particular word or phrase is to be interpreted consistently throughout a statute in which it appears, except so far as the context and subject matter of particular provisions otherwise indicate or require: "I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section." (Craig, Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 per Hodges J at 452; see also Registrar of Titles (WA) v Franzon (1976) 60 ALJR 4 at 6 per Mason J.)While the presumption that a word has been used consistently throughout a statutory provision must yield to a contrary intention evident from the context of the provision, I can see nothing in the context of s.36(2) which requires the term "deliberation of Cabinet" to be given any different meaning in s.36(2) to that which it bears in s.36(1)(e). The Meaning of "Merely Factual Matter"48 Section 36(2) requires that, once matter in a document has been found to fall within one or more of the five paragraphs of s.36(1), it be carefully examined to identify any matter that is properly to be characterised as "merely factual or statistical matter". It must then be established whether the disclosure under the FOI Act of any such factual or statistical matter would involve the disclosure of any deliberation or decision of Cabinet, the fact of which deliberation or decision has not been officially published by decision of Cabinet (this issue is examined at paragraphs 62 to 73 below).49 I consider that, for practical purposes, there is no difference in meaning between the term "merely factual matter" in s.36(2) of the FOI Act and the term "purely factual material" which appears in s.34(1A) of the Commonwealth FOI Act. The adverb "merely" connotes that which is solely or no more than "factual material". (I should note that nothing in the nature of statistical matter is contained in the Cabinet submission in issue in this case.) There are very few cases from tribunals or courts hearing appeals under the freedom of information statutes of other Australian jurisdictions, which contain any worthwhile discussion as to what constitutes factual matter, and how it is to be distinguished from other kinds of matter contained in a document. The available cases have mostly involved the application of exemption provisions which correspond to s.41 (matter relating to deliberative processes) rather than to s.36 of the FOI Act, but these are largely comparable (subject to one note of caution sounded below) because both provisions place merely factual or statistical matter outside the scope of the exemption. 50 In Re Waterford and the Treasurer of the Commonwealth of Australia [1985] FCA 29; (1985) 7 ALD 93, a case dealing with s.36 of the Commonwealth FOI Act (which corresponds to s.41 of the FOI Act), Deputy President Todd considered the issue of what constituted "purely factual material" within the meaning of that provision. He said (at paragraphs 12-15): "12. "Factual material": In various areas of the law it is necessary to decide what is a question of fact. But where that question arises it does so where an alternative is presented: Is the matter a question of fact or a question of law? Is what is asserted a matter of fact or a matter of opinion? Hard as those questions may on occasion be to resolve, the task is perhaps aided rather than hampered by the fact that the nature of the alternative tells us something of the nature of the propositus. ... 13. The question is therefore whether the document consists of "factual material". As referred to in Morley v National Insurance Co. [1967] VicRp 61; [1967] VR 566 at 567, it is stated in Wigmore on Evidence, 3rd ed, Vol 1 paragraph 1 page 2, that in one sense "everything in the cosmos is a fact or a phenomenon". Yet plainly the relevant words must have been used with the intention of differentiating factual material from other kinds of material. Mr Waterford argued that the purpose of s.36 was to shield the decision-making process, not to shield the factual material with which the decision makers were armed. Disclosure of the relevant document, he contended, would not disclose anything about the decision making process. He said that all that the material was designed to do was to provide a factual background against which policies could be made adding, perhaps disarmingly, "assuming the correctness of the assumptions". 14. The difficulty, as it seems to me, is that I am still required, in order that the applicant may succeed on this point, to determine whether the document contains "purely factual material", there being as I understand the position nothing else in the document other than the material in question and explanatory headings. The word "purely" is clearly not used to denote something about the character of what is comprised in "factual material". It has the sense of "simply" or "merely". It seems to me that to be described as "factual" the material must be "factual" in fairly unambiguous terms. This is confirmed by resort to the dictionaries, where for "factual" there appears: Random House: "1. Of or pertaining to facts; concerning facts; factual accuracy. 2. Based on or restricted to facts: a factual statement." Macquarie: "Pertaining to facts; of the nature of facts; real." Shorter Oxford: "Concerned with facts; of the nature of fact, actual, real." 15. In Harris v ABC [1984] FCA 8; (1984) 51 ALR 581 at p.586 there is reference to the difficulties which occur when a statement is made of an ultimate fact involving a conclusion based on primary facts which may be unstated. Such a statement may be a statement of "purely factual material". On the other hand "a conclusion which involves opinion, advice or recommendation for the purposes of the deliberative process may well prevent material from being purely factual and render it exempt". Problems of the kind so raised in Harris v ABC are of course likely to recur, and there will no doubt be cases at the borderline. But I consider that projections or predictions of likely future revenue are a long way from being capable of being considered as facts or as "purely factual material" according to ordinary conceptions of the use of the language."51 In Re Howard and the Treasurer of the Commonwealth (1985) 3 AAR 169 at 174, the President of the Commonwealth AAT, Davies J, said: "The shorter Oxford English Dictionary defines "factual" as "concerned with facts; of the nature of fact, actual, real". The dictionary defines "fact" as, inter alia, "3. something that has really occurred or is the case; hence, a datum of experience, as dist. from conclusions 1632". In my opinion, the subject documents do not contain purely factual material. Estimates as to what will happen if certain changes are made to the taxation laws and rates involve elements of judgement or assumption. They are concerned with the future, not with facts. As the Tribunal said in Re Waterford and Department of Treasury (No. 1) [1985] FCA 29; (1985) 7 ALD 93: "... I consider that projections or predictions of likely future revenue are a long way from being capable of being considered as facts or as 'purely factual material' according to ordinary conceptions of the use of the language.""52 In Harris v Australian Broadcasting Corporation and Others [1984] FCA 8; (1984) 5 ALD 564, a Full Court of the Federal Court had to consider arguments as to the extent of the purely factual material contained in two interim reports by a consultant (Miss Pearlman) who had been appointed by the ABC Board to conduct an investigation into the operations of the ABC legal department. The Full Court said at page 569: "We have given consideration to sections of the report where passages are introduced by such phrases as "I am of opinion", "I am inclined to the view", "I find", or "I conclude". However, in all of these cases we consider that the statement made is in the nature of a statement of the facts as Miss Pearlman sees them. In each case the statement is preceded by a recital of particular facts in detail. In our view, a provision such as section 36 of the Freedom of Information Act Cth [which corresponds to s.41 of the Qld FOI Act] is to be applied according to common sense and the substance of the matter and not as an exercise in semasiology."53 It is also worth drawing attention to a short passage in the judgment of Keely J of the Federal Court of Australia, in Public Service Board v Scrivanich (1985) 8 ALD 44, which was an appeal from the Commonwealth AAT. His Honour found that the Tribunal had erred in law in its application of s.36(5) of the Commonwealth FOI Act: "The Tribunal (para 26) stated that the report involved "an opinion as to ultimate facts and not an analysis of primary facts". In my view that passage indicates that the Tribunal assumed that such "an opinion" necessarily excluded "an analysis of primary facts". In my opinion, such an assumption is not consistent with the opinions expressed by the Full Court in Harris v Australian Broadcasting Corp (1984) 51 ALR at 586; [1984] FCA 8; 5 ALD 564."54 Thus a commonsense approach should be taken to the task of characterising matter as factual matter or otherwise, according to its substance (i.e. its substantive nature or character) rather than merely to semantics (i.e. merely by reference to the particular terms in which it is couched). Material which contains elements of judgment or opinion concerning purely factual matters may still be capable, depending on its context and its purpose in that context, of properly being characterised as merely factual matter.55 The judgment of the Full Court in ABC v Harris also contains a passage at page 568 which is worth noting, but is subject to the cautionary note referred to above: "Counsel for the [applicant] argued that there should be excluded from the category of purely factual material under section 36: (a) summaries (because of the judgemental process involved in compiling them); (b) conclusions expressed as findings by Miss Pearlman; (c) judgments founded upon Miss Pearlman's expertise or the application of some standard. In our view some summaries may be classed as purely factual material; others, which are of such a character as to disclose a process of selection involving opinion, advice or recommendation for the purpose of the deliberative process, may be exempt under section 36. Equally, some conclusions may be classed as purely factual material. We hesitate to import notions from the law of evidence into this field. However, it may be useful to refer to the distinction, with which lawyers are familiar, between primary facts and ultimate facts. In our view a statement of ultimate fact may be a statement of purely factual material, notwithstanding it involves a conclusion based on primary facts. Many common statements of fact may, if analysed, be found to be based on primary facts. For example, the statements x has a cold or y resides in Sydney are both statements based on primary facts, which are unstated. On the other hand, a conclusion which involves opinion, advice or recommendation for the purposes of the deliberative process may well prevent material from being purely factual and render it exempt."56 The caution which should be sounded is that some of these observations on distinguishing factual material from opinion, advice or recommendation may only be relevant to the application of an exemption provision which corresponds to s.41 of the FOI Act.57 Section 41(1) provides that matter consisting 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 purposes of, the deliberative processes involved in the functions of government, is exempt if its disclosure would be contrary to the public interest. Section 41(2)(b) then provides that matter is not exempt under s.41(1) if it merely consists of factual or statistical matter.58 Since it is only matter in the nature of opinion, advice or recommendation which can be exempt under s.41 (and then only if its disclosure would be contrary to the public interest), most of the case law under provisions that correspond to s.41 of the FOI Act deals with the issue of whether or not factual or statistical matter is inextricably intertwined with the matter comprising opinion, advice or recommendation (which may qualify for exemption).59 Section 36 on the other hand does not define its category of exempt matter by reference to public interest considerations, or by reference to its character as advice, opinion or recommendation, but rather according to whether the matter has been, or is proposed to be submitted to Cabinet (and was brought into existence for that purpose), or whether it forms part of an official record of Cabinet, or whether its disclosure would involve the disclosure of any unpublished deliberation or decision of Cabinet. These are largely questions of fact, not dependent on the characterisation of the actual content of the matter in issue. Section 36(2) then provides that matter is not exempt under s.36(1) if it is merely factual or statistical matter, unless disclosure of factual or statistical matter would disclose any deliberation or decision of Cabinet, the fact of which has not been officially published by decision of Cabinet.60 Arguably, there is not the same scope or requirement under s.36(2) for distinguishing between two kinds of factual matter, in the manner of the distinction referred to in the second passage quoted from Harris v ABC, i.e. between those summaries of facts and conclusions of fact which are purely factual, and those which are of such a character as to disclose a process of selection involving opinion, advice or recommendation for the purpose of a deliberative process (and which may therefore qualify for exemption under s.41, depending on public interest considerations). After all, the Cabinet process is by its very nature a deliberative process, and a process protected on public interest grounds from mandatory disclosure, yet Parliament has still seen fit to provide that merely factual or statistical matter generated for and by the Cabinet process does not qualify for exemption (unless it would involve the premature disclosure of any deliberation or decision of Cabinet). Thus, it may be argued that some opinions or advice on merely factual matters submitted to provide the factual background to assist Cabinet's deliberations on policy issues, are still properly to be characterised as merely factual matter in the context of s.36(2).61 My task then is to determine which parts of the matter contained in the Cabinet submission comprise merely factual matter (i.e. that which is only, or purely, or no more than, factual matter), adopting a commonsense approach to the task of characterising matter as factual matter or otherwise according to its substantial nature or character rather than merely to the form of words in which it is couched. I do not propose to attempt to define the other kinds of matter from which "merely factual matter" is to be distinguished. In the context of the s.36 exemption, however, given its rationale as discussed at paragraphs 12 to 21 above, and the rationale for the s.36(2) exception as discussed at paragraphs 31 to 33 above, I think it is safe to say that merely factual matter is generally to be distinguished from matter expressing the opinions and recommendations of individual Ministers on policy issues and policy options requiring Cabinet determination. Factual matter which merely provides the factual background, or informs Cabinet of relevant facts, so as to assist its deliberations on policy issues, will generally constitute "merely factual matter".The Qualification to the s.36(2) Exception for "Merely Factual and Statistical Matter"62 Once merely factual matter has been identified, it must be established whether its disclosure would involve the disclosure of any deliberation or decision of Cabinet, the fact of which deliberation or decision has not been officially published by decision of Cabinet. 63 Section 36(2) contemplates that merely factual matter or statistical matter may be found in documents falling within any of the five categories set out in s.36(1), though in practice it is most likely to be found in documents falling within s.36(1)(a), and in copies or drafts of, or extracts from, such documents. Since, as I have concluded above, the word "deliberation" refers to active discussion and debate within Cabinet, it is highly unlikely that any deliberation of Cabinet on an issue could be revealed through the disclosure of merely factual or statistical matter that was submitted to Cabinet prior to, and for the purpose of assisting, Cabinet's deliberation on that issue. Some possible exceptions were mentioned in paragraphs 40 and 41 above, together with my opinion that matter comprising a recommendation for a Cabinet decision is unlikely ever to qualify as merely factual or statistical matter. It is highly unlikely therefore that the disclosure under the FOI Act of merely factual or statistical matter contained in a document that otherwise falls within s.36(1)(a) (or a copy or draft of, or extract from, such a document) would involve the disclosure of any deliberation or decision of Cabinet. This should generally be true (exceptions would include the two instances referred to in paragraph 41) of any such matter which has not yet been submitted to Cabinet, because no deliberation has occurred and no decision has been made, which could be disclosed as contemplated by s.36(2)(a) and (b).64 Section 36(1)(b) and (e) cover the documents created during and following Cabinet deliberation and decision-making, and which are therefore more likely to fall within s.36(2)(a). It would be relatively unusual for Cabinet to debate merely factual issues (though perhaps less so for Committees of Cabinet), rather than opinions and recommendations in respect of policy options. It should be the normal result of the consultation process prior to submission of a proposal to Cabinet that areas of factual disagreement are investigated and resolved, rather than having the factual basis of a Cabinet submission questioned and debated in the Cabinet room. 65 Nevertheless, the operation of s.36(2) can be illustrated by considering a hypothetical case where matter contained in a document records deliberations of Cabinet on factual matters in such a form that the matter contained in the document can properly be characterised as merely factual matter. The point of this hypothetical case is that the matter contained in the document is prima facie exempt under s.36(1)(e) because it would disclose that which was actively discussed in Cabinet and which has not been officially published by decision of Cabinet but, being merely factual matter, it also falls within the s.36(2) exception. The exempt status of such matter will turn purely on the question of whether or not the fact of Cabinet's deliberation has been officially published by decision of Cabinet. If it has not, then the matter will still be exempt because both s.36(2)(a) and (b) are satisfied. If it has, then the matter will not be exempt because s.36(2)(b) has not been satisfied. Section 36(2)(a) is satisfied because disclosure will still involve the disclosure of what was actively discussed in Cabinet. But whereas under s.36(1)(e) protection for matter which would disclose any deliberation of Cabinet is not lost unless that matter has been officially published by decision of Cabinet, under s.36(2)(b) protection for merely factual matter which discloses any deliberation of Cabinet is lost when the fact of the deliberation having occurred has been officially published by decision of Cabinet. Both s.36(2)(a) and (b) must be satisfied to prevent the disclosure, by virtue of s.36(2), of merely factual or statistical matter. 66 When a Cabinet decision is officially published by decision of Cabinet, that in my opinion involves, for the purposes of s.36(2)(b), publication of both the fact of the decision, and (by necessary implication) the fact of deliberation by Cabinet in arriving at the decision. If the decision was arrived at without deliberation by Cabinet, e.g. by acceptance of a Minister's written recommendation without debate, then there is no deliberation of Cabinet that is capable of being disclosed in the circumstances.67 The words which qualify the s.36(2) exception for "merely factual or statistical matter" (i.e. the words commencing with "unless" through to the end of the subsection) are for practical purposes equivalent to the corresponding words in s.34(1A) of the Commonwealth FOI Act. Section 34(1A) was inserted in the Commonwealth FOI Act by the Freedom of Information (Amendment) Act 1983, and its purpose was described in the Attorney-General's Second Reading Speech to the House of Representatives (Hansard, 18 October 1983, at p.1350) as follows: "... the exemption for Cabinet and Executive Council documents has been narrowed to exclude from its scope documents of a purely factual character the disclosure of which would not reveal a hitherto unpublished decision of the Cabinet."68 This confirms, in my opinion, that the primary purpose of the words specified above which qualify the s.36(2) exception for "merely factual or statistical matter" is to prevent the premature disclosure of the fact that Cabinet has deliberated and/or made decisions, upon a particular subject. Once the fact of deliberation or decision has been officially published by decision of Cabinet, the scheme of s.36(2)(a) and (b), with its material change of wording compared to s.36(1)(e), indicates that there is no longer any concern to protect against the disclosure of any deliberation of Cabinet that may be involved in the disclosure under the FOI Act of merely factual or statistical matter.69 I accept the Department's submission as to the meaning of the phrase "officially published by decision of Cabinet" which appears in s.36(1)(e) and s.36(2)(b) of the FOI Act: "The combined effect of "officially" and"by decision of Cabinet" means that the publication of the deliberation or decision be authorised or enabled by Cabinet decision. ("Cabinet" includes a Cabinet Committee)".70 It is appropriate to note in this context that page 35 of the Queensland Cabinet Handbook discloses that "Public Presentation" is to be a mandatory heading in Cabinet Submissions and Significant Appointment Proposals: "Ministers are required to give careful consideration to the public presentation and timing of announcements of their proposals. If the announcement is to be made by media release, a draft media release should be attached to the Cabinet submission. If no public presentation of the Cabinet Decision is necessary, this should be indicated on the cover sheet."71 The Department's submission explains that: "In the present case, Cabinet decided that the Albert Shire Council be advised that the State Government is unable to support the rezoning proposal by Fencray Pty Ltd on a number of grounds which were specified. A letter dated 14 December 1992 was forwarded to the Shire Clerk of the Albert Shire Council by the Minister for Housing, Local Government and Planning, Mr T Mackenroth. .... I accept that a letter by authority of Cabinet decision, signed by a Minister and addressed to a "third party" is a means of publication within the phrase "officially published by decision of Cabinet" ..."72 On the basis of this publication, the Department's submission made the concession that: "... the Ministerial letter to Albert Shire Council dated 14 December 1992, officially publishes by decision of Cabinet the fact that the "proposed 'Lagoons at Pimpama' development by Fencray Pty Ltd" was the subject of deliberation and decision by Cabinet."73 That concession was, in my opinion, correctly made, and I formally make a finding in like terms to those set out in the passage just quoted. It is not clear from the balance of its submission, however, that the Department appreciated that this constitutes an insuperable barrier to any argument that merely factual matter contained in the Cabinet submission in issue remains exempt under s.36(2), because it means that the second of the two cumulative requirements imposed by s.36(2)(a) and (b) cannot be satisfied in the circumstances of this case.APPLICATION OF THE PRINCIPLES DISCUSSED TO THE CABINET SUBMISSION74 The Cabinet submission here in issue follows the format prescribed at page 31 and following of the Queensland Cabinet Handbook. It is divided into two parts, namely the Cover Sheet and the Body of Submission, the former being intended to provide a succinct overview of the contents and implications of the latter. The Queensland Cabinet Handbook seems to contain an administrative instruction that Cabinet documents are to be set out according to mandatory headings which are detailed at pages 31-49 of the Cabinet Handbook. In my letter to the Department dated 28 May 1993, I queried why some of the mandatory headings for a Cabinet submission had been deleted from the version of the Cabinet submission released to the applicant, when the Cabinet Handbook makes it clear that all Cabinet submissions must be structured according to those mandatory headings. The version with deletions released to the applicant had left in the headings "Background", "Urgency" and "Consultation" in both the Cover Sheet and the Body of Submission, but a number of other headings were deleted. The Department's response was as follows: "Despite the publication by the Cabinet Handbook of the list of mandatory headings, it is to be noted that as a result of common administrative practice a "mandatory" heading may not necessarily be used where it is inapplicable in the context of a particular submission. The headings used in a Cabinet submission, therefore, have not been published by the Cabinet Handbook. In any event, it is submitted that it is not the function of the decision-maker to inquire as to whether the applicant may or may not be aware of matter in respect of which an exemption is claimed. The fact that the information can be obtained elsewhere does not negate an otherwise legally valid exemption. Only the title of each mandatory heading is publicly available, not the quantity of deleted text below each heading. Therefore, disclosure of the heading would disclose what level of detail Cabinet deliberated on each issue/heading. This may in turn reveal the fact of deliberation or absence thereof. Release of the headings would disclose, for example, that ... were considered only so far as four lines would permit. This would breach Cabinet confidentiality by effectively disclosing the extent of Cabinet deliberations upon matter which has not been officially published."75 These comments by the Department reflect the misapprehension that a document submitted to Cabinet to assist deliberation within Cabinet would disclose the deliberation of Cabinet. There may in fact be no debate within Cabinet at all on certain parts of a Cabinet submission. Revealing the quantity of deleted text will, in my opinion, disclose nothing about the extent of deliberation by Cabinet under certain headings, it will only disclose the extent of the material that was submitted to Cabinet to assist its deliberations in respect of that heading. 76 The headings are contained in a document which is exempt under s.36(1)(a) of the FOI Act, subject to the operation of s.36(2). Disclosure of the headings could not in itself reveal any deliberation or decision of Cabinet. It is difficult, however, to characterise them as merely factual matter. Headings in a document are used to provide structure and give the reader an indication of the topic or nature of the material considered below the heading. I do not propose to rule that the headings comprise merely factual matter, though it would be preferable for the Department to adopt a commonsense approach and exercise its discretion under s.28(1) to disclose a heading where that will give the proper context to other material which is to be released (as indeed the Department has done in respect of the small amount of factual matter contained in the Cabinet Submission which it has so far been prepared to release to the applicant).77 The Department's submission conceded that "the Ministerial letter to Albert Shire Council dated 14 December 1992, officially publishes by decision of Cabinet the fact that the "proposed 'lagoons at Pimpama' development by Fencray Pty Ltd" was the subject of deliberation and decision by Cabinet". The matter deleted from the first line under the first heading in the Cover Sheet should therefore now be disclosed to the applicant. I suggest to the Department that it may also be appropriate to exercise its discretion to release the heading which appears above that sentence.78 In my letter to the Department dated 28 May 1993, I queried why the identity of the Minister or Ministers sponsoring the Cabinet submission had been deleted. The Department's response was as follows: "As a mode of practice, it is in the public interest that the principle of collective responsibility not be undermined and Cabinet secrecy not be compromised by disclosing [which Minister or Ministers] brought the matter to Cabinet."79 I accept the Department's submission in this regard. I consider that it is consistent with the basic rationale of the Cabinet exemption in preserving the convention of collective Ministerial responsibility that the opinions or recommendations of particular Ministers should not be disclosed.80 My letter to the Department dated 28 May 1993 identified eleven separate passages in the Cabinet submission which arguably contain merely factual matter, and asked for the Department's response to the four questions set out above at paragraph 8. It will assist to ensure that my reasons for decision do not disclose matter which has been claimed by the Department to be exempt matter, if my following analysis refers to those passages as passages (a) to (k) inclusive, as they were identified on page 6 of my letter to the Department of 28 May 1993. As I pointed out at paragraph 10 above, the constraints upon me in stating my reasons for decision, unfortunately mean that the following discussion will be of little practical value to readers who do not have access to the Cabinet submission in issue.Passage (a)81 The Department argues that the second sentence of this two sentence paragraph is not merely factual matter, because it does not present as a statement or record of fact, but rather as a perception, belief or understanding. The Department argues that it is not unambiguously factual in nature (citing Re Waterford and Treasurer (No. 1); see paragraph 50 above).82 In my opinion, the Department has here fallen into the error cautioned against in Harris v ABC of paying undue regard to the terms in which the sentence is couched, rather than to its substantive character. In my opinion, the whole of the paragraph is merely factual in character, being clearly intended to convey to Cabinet the factual position with respect to the consideration by the relevant local authority of Fencray's development proposal.83 The Department conceded that the first sentence of the paragraph comprised merely factual matter, but argued that its disclosure "would disclose matter considered by Cabinet in its deliberations". That may well be the case, but the disclosure of factual matter considered by Cabinet in its deliberations does not equate to and does not necessarily involve (and indeed in my opinion for the reasons explained at paragraphs 39 to 41 and paragraph 62 above, could only in an exceptional case involve) the disclosure of any deliberation of Cabinet, as that term has been explained earlier in these reasons. As the Tribunal observed in the passage from Re Anderson quoted at paragraph 32 above, the disclosure of purely factual material will give some indication of the subject matter submitted to Cabinet, and will imply that the facts as stated were relevant to the issues considered by Cabinet. But the s.36(2) exception for merely factual matter is based on the principle that disclosure of material of this nature will not unduly compromise the efficacy of the Cabinet process. In my opinion, neither s.36(2)(a), nor (for the reasons explained at paragraph 73 above) s.36(2)(b), apply to the matter contained in passage (a). 84 I find that passage (a) comprises merely factual matter which is not exempt matter under s.36(1) because it falls within the terms of s.36(2).Passage (b)85 The first sentence of passage (b) is phrased as a statement of fact about the outcome of the consultation among Departments which were consulted on the applicant's Environmental Impact Statement (EIS). Reference to page 34 of the Queensland Cabinet Handbook affords confirmation of the purpose of this segment of a Cabinet submission: "Cabinet submissions and memoranda should state the extent of agreement or disagreement arising from the consultation process ... Where there is agreement amongst those consulted, it is sufficient to record this fact ..."I disagree with the Department's submission that the substance of the statement is an opinion as to how to describe the results of consultation. It is essentially a statement of fact about the outcome of consultation. In summarising the outcome of consultations, however, the sentence refers to matter other than purely factual matter, being matter in the nature of analysis, judgment and opinion in relation to the EIS. This passage is very much a borderline case, but I think the better view is that, although essentially factual in character, the reference to the material of a different nature means that the sentence cannot be said to comprise merely factual matter, in the sense of containing no more than factual matter.86 I find that passage (b) does not fall within the terms of s.36(2), and therefore is exempt matter under s.36(1)(a) of the FOI Act.Passage (c)87 This passage comprises three sentences. The Department argues that the substance of the first and third sentences are conclusions involving elements of judgment, opinion and assumption. The fact that a conclusion may involve elements of judgment or opinion concerning factual matters need not alter its essential character as merely factual matter (cf the passages from Harris v ABC and Public Service Board v Scrivanich quoted above). In my opinion, the first sentence of this passage, even if it is based on some element of judgment or opinion, can only properly be characterised as merely factual matter. The second sentence of the passage states as a fact that a particular claim has been made by the applicant in its EIS. In my opinion, the second sentence can only properly be characterised as merely factual matter. 88 The third sentence then states that the claims made by the applicant are not substantiated in the EIS. In my opinion, the third sentence would constitute a mere statement of fact if the EIS contains no material which attempts to substantiate the claims. If on the other hand there had been an attempt in the EIS to provide material to substantiate the claims, the third sentence would amount to a subjective judgment on the part of the author of the document based on analysis of the EIS, that the claims had not been substantiated. The applicant supplied me with a copy of its EIS, the relevant part of which has been examined. It contains no material which attempts to substantiate the particular claims in question here, apart from a brief explanation of the "methodology" on which the claims are based. In my opinion, then, the third sentence constitutes a mere statement of fact.89 Again, the Department has submitted that to reveal the matter contained in this passage would involve disclosure of unpublished deliberations of Cabinet and for the same reasons given at paragraph 83 above I reject the argument.90 I find that the whole of passage (c) is properly to be characterised as merely factual matter, and hence by virtue of s.36(2), it is not exempt from disclosure under s.36(1) of the FOI Act.Passage (d)91 This passage has a subheading (not being one of the mandatory headings stipulated in the Queensland Cabinet Handbook) which the Department argues constitutes matter of a conclusive nature involving judgment or opinion. I have already indicated that I do not propose to rule that headings in a document fall within the terms of s.36(2).92 The Department argues that the other matter in this passage "is not of a merely or purely factual nature because the presentation of the statements made has involved the processes of interpretation ..., deliberation ... and summary for the purposes of deliberation by Cabinet". If that is so, then in my opinion this passage illustrates that factual matter can be the subject of interpretation, deliberation, and summary without altering its essential character as factual matter. The Department also argues that the matter in question presents the policy issues to be addressed by Cabinet, and cannot therefore, by its nature or purpose, be purely or merely factual matter. No matter what the major heading to this passage may say, the matter contained in the passage which I have identified to the Department as passage (d) does not present major points of policy requiring resolution by Cabinet. It presents a series of statements of fact for the assistance of Cabinet's deliberations on policy issues. It is essentially a factual account of relevant aspects of a strategic plan and draft strategic plan which are pertinent to the applicant's development project. I do not accept the Department's argument that this factual matter is inextricably intertwined with the policy issues for deliberation by Cabinet. I consider that this factual matter is separate and readily distinguishable from the expression of policy issues for Cabinet's deliberation. 93 In my opinion, this passage is properly to be characterised as merely factual matter. Again, the Department has argued that its disclosure would involve disclosure of unpublished deliberations of Cabinet, and for the same reasons given at paragraph 83 I reject that argument. I find that passage (d) comprises merely factual matter which, by virtue of s.36(2) of the FOI Act, is not exempt from disclosure pursuant to s.36(1) of the FOI Act.Passage (e)94 The Department's submission conceded that the substance of the two paragraphs comprising this passage is merely factual in nature. Again, however, it argued that disclosure of the matter would involve the disclosure of unpublished deliberations of Cabinet and in this instance also of an unpublished part of Cabinet's decision. In my opinion, there is nothing in passage (e) that would disclose the terms of any part of Cabinet's decision made in response to the Cabinet submission. For the reasons given at paragraph 83 above, I reject the argument that disclosure of this matter would disclose any unpublished deliberation of Cabinet.95 I find that passage (e) comprises merely factual matter, which by virtue of s.36(2) of the FOI Act, is not exempt from disclosure pursuant to s.36(1) of the FOI Act.Passage (f)96 The last two lines on page 4 of the Body of the Submission are comparable to passage (b) above. Although they constitute essentially a statement of fact which summarises the findings of the review by Departments of the EIS, they also incorporate matter in the nature of analysis, judgment and opinion in relation to the EIS. I find that these two lines cannot be said to comprise merely factual matter in the sense of containing no more than factual matter. Hence they do not fall within the terms of s.36(2), and they constitute exempt matter under s.36(1)(a) of the FOI Act.97 The first paragraph on page 5 of the Body of the Submission contains some elements of judgment or opinion but only in relation to factual matters, such that the paragraph as a whole is still properly to be characterised as merely factual matter. 98 The first sentence in the second paragraph on page 5 contains a purely factual statement about the proposed development. The second sentence of this paragraph records as a fact that one of the Departments consulted has raised concerns about a particular aspect of the proposed development. The concerns referred to, however, are framed in terms of possible consequences of the project. They reflect judgments or opinions of a predictive or speculative nature. I find that the second sentence does not comprise merely factual matter and does not fall within s.36(2), but is exempt matter under s.36(1)(a) of the FOI Act. 99 The third paragraph on page 5 quotes a sentence from the EIS, and then makes categorical assertions of fact about what is not contained in the EIS.100 The fourth paragraph on page 5 is framed in terms of a judgment about future consequences of the project and subjective judgments about deficiencies in the EIS (based on analysis of the EIS) which cannot be characterised as merely factual matter. Hence, I accept the Department's submission that this paragraph does not fall within the terms of s.36(2), and therefore is exempt matter under s.36(1)(a) of the FOI Act.101 The fifth paragraph on page 5 contains mere statements of fact about what is, and (in the last line) what is not, contained in the EIS.102 The final paragraph on page 5 contains in the first sentence a statement of fact about the developer's intentions in respect to one aspect of the project. It constitutes merely factual matter. The second sentence of the final paragraph is framed in terms of a Department's opinion about possible future adverse consequences which may stem from the aspect of the project referred to in the first sentence. I do not think that the second sentence can be characterised as merely factual matter, hence it does not fall within the terms of s.36(2), and is therefore exempt from disclosure under s.36(1)(a) of the FOI Act.103 I find that passage (f) (apart from the opening two lines, the second sentence of the second paragraph on page 5 of the Body of the Submission, the fourth paragraph on page 5, and the last sentence on page 5, which are exempt matter under s.36(1)(a) of the FOI Act) comprises merely factual matter which, by virtue of s.36(2) of the FOI Act is not exempt from disclosure pursuant to s.36(1) of the FOI Act.Passage (g)104 My letter of 28 May 1993 to the Department had already indicated that the first sentence on page 6 of the Body of the Submission could not be characterised as merely factual matter. The second sentence of that paragraph also appears to me to contain a subjective judgment of deficiencies in the EIS based on an analysis of the EIS, rather than a statement of fact about matter which is or is not contained in the EIS. The first sentence in the second paragraph on page 6 seems to me to fall within the same category. It is a general statement of opinion based on analysis of the EIS.105 That is not the case, however, with respect to the second and third sentences in the second paragraph on page 6 which resort to specific examples to back up the general statement of opinion contained in the first sentence. The second and third sentences in the second paragraph are properly to be characterised as statements of fact about what is and what is not contained in the EIS.106 It would normally be impractical and potentially misleading to sever from the statement of a general opinion, two examples designed to illustrate it, and disclose the latter while withholding the former from disclosure. In the particular circumstances of this case, however, given the material which has been conveyed to the applicant through the letter by which Cabinet's decision was officially published, and the applicant's indication to me that he would wish to be given access to material of this nature (cf s.32(c) of the FOI Act), I consider that these two sentences are capable of conveying meaningful information to the applicant and that it is practicable to give the applicant access with the surrounding exempt matter deleted. I find that the last two sentences in passage (g) comprise merely factual matter which by virtue of s.36(2) of the FOI Act, is not exempt from disclosure under s.36(1) of the FOI Act. The balance of passage (g) does not fall within the terms of s.36(2) and hence is exempt from disclosure under s.36(1)(a) of the FOI Act.Passage (h)107 This comprises one sentence which makes an assertion about a deficiency in the EIS. The relevant parts of the EIS have been examined in order to determine whether this passage is properly to be characterised as a mere statement of fact about what is not addressed in the EIS, or a subjective judgment based on analysis of material appearing in the EIS. Although the EIS contains some three and a half pages of material which purport to be relevant to the general topic of passage (h), they do not address at all the issue on which passage (h) alleges there is a deficiency in the EIS. I am satisfied that passage (h) is properly to be characterised as a mere statement of fact about what is not addressed in the EIS, and hence it comprises merely factual matter which by virtue of s.36(2) of the FOI Act is not exempt from disclosure under s.36(1) of the FOI Act.Passage (i)108 This passage is identical to the first sentence of passage (b), the latter appearing in the Cover Sheet and the former appearing in the Body of Submission. For the same reasons given at paragraphs 85 and 86 above, I consider that this passage does not fall within the terms of s.36(2), and therefore is exempt matter under s.36(1)(a) of the FOI Act.Passage (j)109 This passage comprises two sentences, the second of which restates in slightly different words the first sentence of passage (c) and for the same reasons given at paragraph 87 above, I consider that the second sentence of this passage is also properly to be characterised as merely factual matter. The first sentence of this passage is indisputably a statement of fact. I find that passage (j) comprises factual matter which, by virtue of s.36(2) is not exempt from disclosure under s.36(1) of the FOI Act.Passage (k)110 This passage restates with slightly different wording the second and third sentences from passage (c). For the reasons given at paragraphs 87 to 90 above, I consider that this passage comprises merely factual matter which by virtue of s.36(2) of the FOI Act, is not exempt from disclosure under s.36(1) of the FOI Act.111 As already stated, the balance of the Cabinet submission, apart from the matter which I have identified as merely factual matter falling within s.36(2), is clearly exempt matter under s.36(1)(a) of the FOI Act. The result is that the applicant is entitled to obtain access to a number of paragraphs and individual sentences containing merely factual matter that were deleted from the version of the Cabinet submission to which the applicant was previously given access. The precise description of the matter to which the applicant is entitled to obtain access is set out in the terms of my decision which precedes these reasons for decision.................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Barling and Brisbane City Council [2017] QICmr 47 (15 September 2017)

Barling and Brisbane City Council [2017] QICmr 47 (15 September 2017) Last Updated: 1 December 2017 Decision and Reasons for Decision Citation: Barling and Brisbane City Council [2017] QICmr 47 (15 September 2017) Application Number: 313009 Applicant: Barling Respondent: Brisbane City Council Decision Date: 15 September 2017 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - file note - whether information is exempt due to legal professional privilege - schedule 3, section 7 of the Right to Information Act 2009 (Qld) - whether access may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and section 47(3)(a) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - pay rates and calculations - statement concerning Council’s liability - whether disclosure of information 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) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - IRRELEVANT INFORMATION - statement about other Council matters - whether information may be deleted under section 88 of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - ONUS ON EXTERNAL REVIEW - whether Council has established that its decision was justified - section 100(1) of the Information Privacy Act 2009 (Qld) REASONS FOR DECISION Summary The applicant was previously employed, through a labour hire company, to perform work for Brisbane City Council (Council) as a plant operator in the cemeteries. After ceasing employment, the applicant applied to Council under the Information Privacy Act 2009 (Qld) (IP Act) for access to information relating to the underpayment of his wages and superannuation. The applicant has been involved in negotiations with Council and the labour hire company regarding the underpayment issue since 2015.[1] Council located more than 1000 pages in response to the application, of which 400 were released to the applicant in their entirety. Access to the remaining pages was refused on the basis of legal professional privilege or public interest grounds. The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision. OIC managed to resolve most of the issues between the parties informally during the review, with Council agreeing to release some further information, and the applicant accepting OIC’s preliminary view that much of the refused information was either exempt or, on balance, contrary to the public interest to disclose. Council however, maintained that access to parts of 33 pages should be refused. Council submitted that one category of information attracts legal professional privilege, one category is irrelevant to the terms of the access application, and disclosing two categories would, on balance, be contrary to the public interest, primarily due to the significant prejudice which Council considers would result to its deliberative processes regarding the quantum of backpay to the applicant. For the reasons outlined below, I have decided to set aside Council’s decision refusing access to the information remaining in issue in this review. Background Significant procedural steps taken by OIC in conducting the external review are set out in the Appendix to these reasons. Reviewable decision The decision under review is Council’s original decision dated 14 September 2016. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix). Information in issue The information remaining in issue in this review appears in 33 pages[2] and can be described as follows: a file note of a telephone call between a Council solicitor and the applicant’s union representative (Call Note)[3] information relating to the applicant’s pay rates, including Council’s backpay estimations and calculations (Pay Information)[4] one sentence in an internal Council email setting out a Council officer’s view on Council’s potential liability regarding the applicant’s matter (Potential Liability Statement)[5] one sentence in an internal Council email, regarding the applicant’s matter, which also refers to other Council matters (Other Matter Details).[6] Issues for determination The issues for determination in this review are whether: access to the Call Note may be refused on the basis that it is exempt information access to the Pay Information and Potential Liability Statement may be refused on the basis that disclosure of that information would, on balance, be contrary to the public interest; and the Other Matter Details are relevant to the terms of the access application. Council’s submissions in support of nondisclosure are examined below. As the access applicant has accepted OIC’s view in resolution of the refusal of access issues adverse to him, those issues are not addressed in this decision. Relevant law Section 100 of the IP Act provides: On an external review, the agency or Minister who made the decision under review has the onus of establishing that the decision was justified or that the information commissioner should give a decision adverse to the applicant. Accordingly, in this review, Council bears the onus of establishing that its refusal of access decision should be upheld.[7] The IP Act confers on an individual a right to access documents of an agency, to the extent they contain the individual’s personal information.[8] However, this right of access is subject to some limitations, including grounds for refusing access.[9] The grounds relied on by Council and considered in these reasons for decision are where the requested information comprises exempt information[10] and where disclosure would, on balance, be contrary to the public interest.[11] The IP Act is to be administered with a prodisclosure bias, which means that an agency must decide to give access to a document unless giving access would, on balance, be contrary to the public interest.[12] Information is exempt information if it would be privileged from production in a legal proceeding on the ground of legal professional privilege (Privilege).[13] This exemption reflects the requirements for establishing Privilege at common law.[14] Privilege attaches to confidential communications between a client and their lawyer, made for the dominant purpose of giving or obtaining legal advice or for use in existing or reasonably anticipated litigation. When these requirements are met, Privilege is established. Qualifications and exceptions[15] may, in particular circumstances, affect whether information attracts or remains subject to Privilege. In determining whether disclosure of information would, on balance, be contrary to the public interest, the RTI Act identifies various factors that may be relevant to deciding the balance of the public interest,[16] and explains the steps that a decision-maker must take[17] in deciding the public interest as follows: identify any irrelevant factors and disregard them[18] 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. The final provision relevant in this case is section 88 of the IP Act which 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, ie. irrelevant information. This is not a ground for refusing 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.[19] FindingsCall Note Council submits that the Call Note attracts Privilege because its dominant purpose was to record a conversation that is relevant to and forms part of the ongoing negotiations occurring between the parties upon which the solicitor is providing legal advice to her clients within Council.[20] Council further submits that the Call Note forms part of the solicitor’s file utilised in providing legal advice, and is not a transcript of the conversation, but rather the solicitor’s notes on her recollection of the call, the dominant purpose of which was to record information as part of her role in providing legal advice to Council.[21] Council’s submissions focus on establishing the ‘advice’ limb of Privilege. Legal advice has been broadly interpreted to extend to all ‘professional advice as to what a party should prudently or sensibly do in the relevant context’.[22] Relevantly, Privilege attaches to communications rather than documents, ie. it is not the documents as such that attract Privilege, it is the communication to and by the lawyer.[23] I accept that the Call Note forms part of the Council’s solicitor’s file. I also acknowledge that the solicitor may have taken the content of the Call Note into account in later providing her client with advice in relation to the underpayment negotiations.[24] However, I am not satisfied that the Call Note constitutes a privileged communication which attracts the ‘advice’ limb of Privilege, for two reasons. Firstly, I am not satisfied that the Call Note comprises a confidential communication between the solicitor and her client. I find the Call Note is a contemporaneous record of a communication between Council’s solicitor and the applicant’s union representative. I am satisfied that confidentiality of the communication cannot be established against the applicant because his representative was the other party to the telephone call. Secondly, I consider that the dominant purpose of the Call Note was to create a contemporaneous record of a telephone discussion between the solicitor and the applicant’s union representative. While I accept that the solicitor may have later taken the content of the Call Note into account in providing legal advice to her client, and I am conscious that the ambit of legal professional privilege is broad[25], I am unable to accept Council’s argument with respect to dominant purpose. Accordingly, I find that the Call Note does not attract Privilege and does not comprise exempt information under schedule 3, section 7 of the RTI Act. Pay Information Council submits that disclosing its calculations as to the quantum of estimated backpay payable to the applicant would prejudice Council’s deliberative processes in ongoing negotiations and that the relevant deliberative process factor[26] should be afforded significant weight.[27] The Pay Information comprises the applicant’s personal information as he is the subject of the relevant discussions, he is identified in the documents and the rates reveal information about him, being details about what he was and/or should have been paid for the work he performed for Council.[28] I am satisfied that there is a strong public interest in disclosing the applicant’s personal information to him under the IP Act.[29] Council is accountable to the public for its decisions involving the expenditure of public funds. The Information Commissioner has previously held that the balance of the public interest lies in ensuring that government processes should be as transparent as possible for an affected citizen, who should be permitted access to information that would assist them in assessing whether fair compensation is paid to them.[30] While this case does not concern compensation as such, the applicant has performed services for Council for which he has not been remunerated at the appropriate level. Accordingly, I consider that the following principles[31] apply to disclosure of the Pay Information: the extent of the applicant’s knowledge will be enhanced if the applicant knows what Council has taken into account in its calculations the granting of access to information which shows the factual basis on which Council officers have proceeded is likely to advance the negotiation process;[32] and there appears to be no valid reason why the applicant should not have an opportunity to critically analyse Council’s calculations.[33] For these reasons, I am satisfied that disclosure of the Pay Information could reasonably be expected to enhance Council’s accountability[34], ensure effective oversight of expenditure of public funds[35], and reveal the reason for a government decision and any background or contextual information that informed the decision.[36] I accept that the weight to be attributed to these disclosure factors should be somewhat reduced on account of the fact that the Pay Information is specific only to the applicant and his employment, rather than the broader community. While there may be other similar cases considered by Council/government in the future, it is not a scenario which raises a broader public interest which could be considered common to all citizens.[37] Accordingly, I consider the weight of the public interest factors is somewhat reduced, and therefore, afford them moderate weight. The public interest will favour nondisclosure of information which could reasonably be expected to: prejudice a deliberative process of government (Prejudice Factor);[38] or cause a public interest harm through disclosure of an opinion, advice or recommendation that has been obtained, prepared or recorded or a consultation or deliberation that has taken place, in the course of, or for, the deliberative processes involved in the functions of government (Harm Factor).[39] 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’ and ‘careful consideration with a view to decision’[40]. I accept that the Pay Information comprises Council’s deliberations in terms of its calculations and determination of applicable pay rates. However, I find that the Harm Factor does not apply to the Pay Information, because one of the exceptions applies—namely, the Pay Information consists of factual information.[41] Accordingly, I consider only the Prejudice Factor is relevant in this review. In Little, disclosure of a valuation report was found not to be, on balance, contrary to the public interest. In reaching that decision, the Information Commissioner had regard to the equivalent deliberative process provision under the repealed Freedom of Information Act 1992 (Qld), and rejected the agency’s argument that the greater public interest would be served through nondisclosure as it would maximise the agency’s negotiating advantage against an applicant.[42] I consider that reasoning can be applied in this case and serves to reduce the weight of the Prejudice Factor. The Information Commissioner has also previously recognised that prejudice to a deliberative process can arise where releasing a document would cause disruptive public debate, reallocation of resources to deal with the disruption (resources which would otherwise be involved in finalising the deliberative process) and interference with the ability of an agency to objectively consider its options and reach a decision.[43] However, it is rare for the level of anticipated disruption to be sufficient to amount to an injury to the public interest.[44] Also, the fact that a relevant process is ongoing, does not, of itself, permit a conclusion that disclosure would, on balance, be contrary to the public interest.[45] Council submits that while the backpay negotiations are ongoing, it would be prejudicial and detrimental to disclose Council’s calculations to the applicant. Council has not however, particularised how disclosing the Pay Information could interfere with its ability to objectively consider the outstanding options and reach a final decision on the payment to the applicant. Accordingly, I am unable to see how its disclosure could reasonably be expected to lead to any of the adverse public interest consequences as argued by Council. As recognised earlier in these reasons, the weight of the disclosure factors is somewhat lessened in this case due to the Pay Information being particular to the applicant’s individual case.[46] Equally, I consider that any injury to Council’s deliberative processes and disruptive public debate that may arise from disclosure of the Pay Information, would be relatively limited. Accordingly, I afford the Prejudice Factor low weight in favour of nondisclosure. On balance, I find that the public interest in the applicant having full access to his personal information held by Council, ensuring transparency in government processes and effective oversight of public funds outweigh the prejudice to Council’s deliberative process.[47] Accordingly, I am satisfied that disclosure of the Pay Information would not, on balance, be contrary to the public interest and therefore, access may not be refused to it on that basis. Potential Liability Statement The Potential Liability Statement appears in email correspondence between staff of Council’s Workplace Relations Unit and the remainder of the email has been disclosed to the applicant. Council has not advanced the argument that the Potential Liability Statement attracts Privilege and in any event, this could not be established as the communication does not involve Council’s solicitor. Council has submitted that disclosure of the Potential Liability Statement could prejudice the ongoing negotiations regarding the applicant’s matter and the financial affairs/interests of Council, as it may be potentially exposed to future actions by the applicant. Council also submits that disclosure would not assist in the ongoing negotiations between the parties and there is little or no public interest in it being released. As set out earlier in these reasons, the IP Act is to be administered with a pro-disclosure bias. Accordingly, the starting point in considering the Potential Liability Statement is disclosure. In addition, I consider the public interest in ensuring transparent government processes and revealing contextual information for government decisions[48], raise relevant disclosure factors which should be afforded moderate weight in this case. I have had regard to the deliberative process public interest factors outlined at paragraph 28 of these reasons. Given the very limited nature of the Potential Liability Statement, ie. one sentence, comprising 23 words, and in the absence of any specific submissions from Council particularising the prejudice to its deliberative processes, I am unable to find that these factors apply in favour of nondisclosure. With respect to Council’s argument that disclosure would prejudice its financial affairs[49], I am not satisfied that a reasonable expectation of prejudice can be established in this regard. As set out above, the Potential Liability Statement is a view expressed by a Council officer in an email communication with another colleague—it is not legal advice and nor does it bind Council to any particular legal position. Given the volume of information already released to the applicant and the applicant’s resulting level of knowledge about Council’s involvement in the underpayment of wages matter, I consider Council’s concerns about future actions by the applicant are unfounded. Accordingly, I find that these factors do not apply and even if they were found to apply, I would afford them only minimal weight. On balance, I find that the public interest favours disclosure of the Potential Liability Statement as there is minimal, if any, weight to be afforded to the nondisclosure factors.[50] I am therefore, satisfied that disclosure would not, on balance, be contrary to the public interest, and that access may not be refused on this basis. Other Matter Details Council submits that the Other Matter Details are irrelevant to the applicant’s case, as the relevant sentence is about other matters Council became aware of after the applicant’s case.[51] The applicant applied for access to documents about the underpayment of his wages and superannuation. The Other Matter Details appear within a series of emails between Council officers discussing the applicant’s case. In the course of the discussions, reference is made to other comparable cases, ie. the Other Matter Details. I consider it would be illogical to sever a particular sentence on the basis of irrelevance given that the only reason the Other Matter Details appear is because the writer is using them to make reference to cases that have some comparison to the applicant’s. I am satisfied that the Other Matter Details have some bearing on the applicant’s case and are therefore, relevant to the terms of the access application. Accordingly, I find that the Other Matter Details may not be deleted under section 88 of the IP Act. DECISION I set aside Council’s decision refusing access to the Information in Issue. As Council has not discharged the onus of establishing that a decision refusing access was justified, I find instead that the applicant may be granted access to the Information in issue. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.K ShepherdAssistant Information CommissionerDate: 15 September 2017 APPENDIX Significant procedural steps Date Event 12 October 2016 OIC received the external review application. 13 October 2016 OIC notified Council that the external review application had been received and requested various procedural documents. 17 October 2016 OIC received the requested procedural documents from Council. 20 October 2016 OIC notified Council and the applicant that the external review application had been accepted and requested further documents from Council. 24 October 2016 OIC received the requested documents from Council. 29 November 2016 OIC received oral submissions from the applicant. 8 December 2016 OIC clarified the scope of the application with the applicant. 9 December 2016 OIC requested further documents from Council. 13 December 2016 OIC received the requested documents from Council. 15 December 2016 OIC received submissions from Council and requested further documents. OIC received the requested documents from Council. 21 February 2017 OIC requested further information from Council. 28 March 2017 OIC provided the applicant with an update on the status of the review. 31 March 2017 OIC received the requested information from Council. 16 May 2017 OIC conveyed a preliminary view to Council, requested submissions in response and provided the applicant with an update on the status of the review. 19 May 2017 OIC received the requested submissions from Council. 13 July 2017 OIC conveyed a preliminary view to the applicant and a further preliminary view to Council and requested submissions in response. 14 August 2017 OIC received the requested submissions from the applicant and Council. 15 August 2017 OIC contacted the applicant to clarify his submissions and confirm the issues remaining in the review. 21 August 2017 OIC contacted Council to update them on the status of the review and request they release additional information to the applicant. Council released additional information to the applicant. 15 September 2017 Council confirmed to OIC that its deliberations regarding the applicant’s underpayment of wages matter were ongoing. [1] Documents released by Council confirm the applicant was underpaid, however, the quantum of backpay to be awarded to the applicant remains the subject of dispute between the parties as at the date of this decision.[2] Some of the information is duplicated within these pages.[3] Brisbane City Legal Practice (BCLP) File Part 3, p 86.[4] 28 part pages: A Hastie File Part 2, pp 49, 60, 109, 113, 118, 122, 125, 128, 130, 135, 136; LA McNeill File, pp 57, 94, 97, 99, 122, 125, 138, 141, 143, 144, 145, 146, 147, 148, 149; and BCLP File Part 4, pp 139, 143.[5] A Hastie File Part 1, pp 21, 55.[6] A Hastie File Part 2, p 98; and LA McNeill File, p 115.[7] Council did not advance alternative grounds for refusing access to information, other than those addressed in these reasons for decision. [8] Section 40(1)(a) of the IP Act. Section 12 of the IP Act defines ‘personal information’ as information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.[9] Grounds for refusal of access are set out in section 47 of the RTI Act. Section 67(1) of the IP Act provides that access to information may be refused under the IP Act on the same grounds as in section 47 of the RTI Act.[10] Sections 47(3)(a) and 48 of the RTI Act. Schedule 3 of the RTI Act sets out the categories of exempt information.[11] Sections 47(3)(b) and 49 of the RTI Act. [12] Section 64(1) of the IP Act.[13] Schedule 3, section 7 of the RTI Act.[14] Ozcare and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 13 May 2011) at [12].[15] Such as waiver or improper purpose.[16] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, these lists are not exhaustive; in other words, factors that are not listed may also be relevant in a particular case.[17] Section 49(3) of the RTI Act.[18] I consider that no irrelevant factors arise in the circumstances of this review, and I have not taken any into account in making my decision.[19] O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) at [52].[20] Submissions received by OIC on 19 June 2017 and 14 August 2017.[21] Submission received by OIC on 14 August 2017.[22] ABW Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 at page 45.[23] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at page 585.[24] Hypothetically speaking, if such legal advice was prepared, the advice itself would be very likely to attract Privilege. However, that is not an issue for determination in this review. [25] See Pluta and Queensland Rail [2017] QICmr 4 (16 February 2017).[26] Schedule 4, part 3, item 20 of the RTI Act.[27] Submissions received by OIC on 19 June 2017 and 14 August 2017.[28] See the definition of ‘personal information’ in section 12 of the IP Act set out at footnote 8 above.[29] Schedule 4, part 2, item 7 of the RTI Act.[30] Little; Cantoni and Department of Natural Resources [1996] QICmr 2; (1996) 3 QAR 170 (Little) at [47]. Little concerned valuation calculations relating to the acquisition of private property by Government.[31] Adapted from the Information Commissioner’s findings in Little and see also Murtagh v Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313 at 329 (Davies J), cited in Little at [46].[32] Little at [46].[33] Little at [49].[34] Schedule 4, part 2, item 1 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] As was the case in Little which considered the disclosure of a valuation report relating to the acquisition of private property for public purposes.[38] Schedule 4, part 3, item 20 of the RTI Act.[39] Schedule 4, part 4, item 4 of the RTI Act.[40] 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.[41] Schedule 4, part 4, item 4(3)(b) of the RTI Act. [42] Little at [48].[43] Pallara Action Group Inc and Brisbane City Council (Unreported, Queensland Information Commissioner, 21 September 2012) at [42]-[43] and Johnston and Brisbane City Council (Unreported, Queensland Information Commissioner, 6 December 2013) at [39] and [42].[44] Eccleston at [179].[45] Johnson and Department of Transport; Department of Public Works (2004) 6 QAR 307 at [39]. While this decision was made under the FOI Act, the comments remain relevant to the objects of the RTI Act. See also the Commonwealth Administrative Appeals Tribunal’s observations in Re Boehm and Department of Industry, Technology and Commerce (1985) 7 ALN 186 at 189 that ‘submissions ... that final decisions only, and not earlier discussions, should be disclosed, seem to us to be inconsistent with the very existence of the [Commonwealth FOI] Act.’[46] However, I recognise that the Pay Information is of great personal significance to the applicant and do not intend to trivialise its importance. [47] I have carefully considered all factors listed in schedule 4, part 3 and part 4 of the RTI Act, and can identify no other prejudice or harm telling in favour of nondisclosure of the Pay Information. I cannot see how disclosure of the Pay Information could, for example, prejudice the competitive commercial activities of an agency in schedule 4, part 3, item 17 of the RTI Act or prejudice the management function of an agency in schedule 4, part 3, item 19 of the RTI Act, or raise the harm factor in schedule 4, part 4, item 7 of the RTI Act. [48] Schedule 4, part 2, items 1 and 11 of the RTI Act. [49] Schedule 4, part 3, item 2 of the RTI Act is the key factor to consider here. Schedule 4, part 3, item 15 and part 4, item 7 of the RTI Act, also raise nondisclosure factors concerning prejudice to an agency’s business and financial affairs. [50] I have carefully considered all factors listed in schedule 4, part 3 and part 4 of the RTI Act, and can identify no other prejudice or harm telling in favour of nondisclosure of the Potential Liability Statement. [51] Submission received on 14 August 2017.

queensland

court_judgement

Queensland Information Commissioner 1993-

B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (31 January 1994)

B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (31 January 1994) Last Updated: 26 February 2001 OFFICE OF THE INFORMATION ) S 4 of 1993COMMISSIONER (QLD) ) (Decision No. 94001) Participants: "B" Applicant - and - BRISBANE NORTH REGIONAL HEALTH AUTHORITY Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access - entry in applicant's hospital records - information supplied by third party after seeking express assurance of confidentiality - construction of s.46(1)(a) of the Freedom of Information Act 1992 Qld - whether disclosure would found an action for breach of confidence - explanation of the criteria which must be satisfied for protection in equity of allegedly confidential information - construction of s.46(1)(b) of the Freedom of Information Act 1992 Qld - explanation of the requirements of s.46(1)(b) of the Freedom of Information Act 1992 Qld - words and phrases: "could reasonably be expected to prejudice"; "communicated in confidence"; "merely".FREEDOM OF INFORMATION - refusal of access - information concerning the personal affairs of the applicant inextricably interwoven with information concerning the personal affairs of a third party - application of s.44(1), s.44(2) and s.6 of the Freedom of Information Act 1992 Qld in such circumstances explained - application of countervailing public interest test in s.44(1) of the FOI Act.Freedom of Information Act 1992 Qld s.5(1)(c), s.6, s.14(b), s.21, s.25, s.28(1), s.33, s.38, s.39, s.40, s.42(1), s.44, s.45(1), s.46, s.47, s.49, s.51, s.53, s.72(1)(c), s.76(1) and (2), s.78(2), s.81, s.87, s.88(2), s.102(2), Part 3 Division 2, Part 5Freedom of Information Act 1982 Vic s.35Freedom of Information Act 1992 Cth s.43(1)(c)(ii), s.45(1)Freedom of Information Amendment Act 1991 CthTrade Practices Act 1974Freedom of Information Act 1989 NSW Item 13(b), Schedule 1Freedom of Information Act 1991 SA Item 13(b), Schedule 1Freedom of Information Act 1991 Tas s.33(1)Freedom of Information Amendment Act 1993 Qld - ii -A v Hayden and Others (No. 2) [1984] HCA 67; (1984) 59 ALJR 6Ackroyd's (London) v Islington Plastics Ltd [1962] RPC 97Allied Mills Industries Pty Ltd v Trade Practices Commission [1981] FCA 11; (1981) 55 FLR 125Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VicRp 7; [1967] VR 37Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia [1977] HCA 71; (1977) 139 CLR 54Arnold v Queensland and Australian National Parks and Wildlife Service [1987] FCA 148; (1987) 13 ALD 195Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [No. 2] [1988] HCA 25; (1988) 62 ALJR 344Attorney-General (UK) v Heinemann Publishers Australia Ltd and Anor (1987) 75 ALR 353Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109Attorney-General's Department v Cockcroft (1986) 10 FCR 180; 64 ALR 97Baueris v Commonwealth of Australia (1987) 13 ALD 470Carindale Country Club Estate Ltd v Astill [1993] FCA 218; (1993) 115 ALR 112Caruth and Department of Health, Housing, Local Government and Community Services, Re (Unreported decision, Mr P W Johnston, Deputy President; Maj Gen K J Taylor and Mr S D Hotop, Members, No. W90/215, 18 June 1993)Castrol Australia Pty Ltd v EmTech Associates Pty Ltd & Ors (1981) 33 ALR 31Church of Scientology v Kaufman [1973] RPC 635Coco v A N Clark (Engineers) Ltd [1969] RPC 41Collins (Engineers) Ltd v Roberts and Co Ltd [1965] RPC 429Commonwealth of Australia v John Fairfax and Sons Ltd [1980] HCA 44; (1980) 147 CLR 39; 55 ALJR 45Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) and Another [1987] FCA 266; (1987) 74 ALR 428David Syme and Co Ltd v General Motors Holden Limited [1984] 2 NSWLR 294Department of Health v Jephcott [1985] FCA 370; (1985) 9 ALD 35; 62 ALR 421Department of Social Security v Dyrenfurth [1988] FCA 148; (1988) 80 ALR 533Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VicRp 17; [1979] VR 167Dunford & Elliott Ltd v Johnson & Firth Brown Ltd [1978] FSR 143Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Re (Information Commissioner Qld, Decision No. 93002, 30 June 1993)Es-me Pty Ltd v Parker [1972] WAR 52Fractionated Cane Technology Limited v Ruiz-Avila [1988] 1 Qd.R 51Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892G v Day [1982] 1 NSWLR 24Gold and Department of Prime Minister and Cabinet, Re (Unreported decision, Deputy President I R Thompson, Messrs R C Gillham and C G Woodard, Members, No. V92/632, 26 April 1993)Independent Management Resources Pty Ltd v Brown [1987] VicRp 50; (1986) 9 IPR 1Initial Services Ltd v Putterill [1968] 1 QB 396Johns v Australian Securities Commission [1993] HCA 56; (1993) 67 ALJR 850Joint Coal Board v Cameron [1989] FCA 437; (1989) 19 ALD 329Kamminga and Australian National University, Re [1992] AATA 84; (1992) 15 AAR 297Lion Laboratories v Evans [1985] QB 526Low and Department of Defence, Re (1984) 2 AAR 142M and Health Department (Vic), Re (1988) 2 VAR 317McNichol v Sportsman's Book Stores (1930) MacG Cop Cas. (1928-30) 116Mechanical and General Inventions Co Ltd and Lehwess v Austin & Austin Motor Co Ltd [1935] AC 346Mense v Milenkovic [1973] VicRp 78; [1973] VR 784Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) [1984] HCA 73; (1984) 156 CLR 414; 59 ALJR 77 - iii -Mr S T Hudson as agent for Fencray Pty Ltd and Department of the Premier, Economic and Trade Development, Re (Information Commissioner Qld, Decision No. 93004, 13 August 1993)News Corporation Ltd v National Companies and Securities Commission [1984] FCA 400; (1984) 5 FCR 88; 57 ALR 550Nichrotherm Electrical Co Ltd v Percy [1957] RPC 207O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; 56 ALJR 681Pyle and Health Commission (Vic), Re (1987) 2 VAR 54Ryder v Booth [1985] VicRp 86; [1985] VR 869Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 108 ALR 163Smith Kline & French Laboratories (Aust) Limited and Others v Secretary, Department of Community Services and Health [1989] FCA 384; (1990) 22 FCR 73Smith Kline & French Laboratories (Aust) Limited and Others v Secretary, Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291Smorgon and Australia & NZ Banking Group Limited & Ors; Commissioner of Taxation & Ors and Smorgon & Ors [1976] HCA 53; (1976) 134 CLR 475Stewart and Department of Transport, Re (Information Commissioner Qld, Decision No. 93006, 9 December 1993)Thomas and Royal Women's Hospital and Another, Re (1988) 2 VAR 618United States Surgical Corp v Hospital Products International Pty Ltd [1982] 2 NSWLR 766W and Health Department (Vic), Re (1987) 1 VAR 383Wiseman v Commonwealth of Australia (Unreported decision, Sheppard, Beaumont and Pincus JJ, No. G167 of 1989, 24 October 1989)Wolsley and Department of Immigration, Re (1985) 7 ALD 270 - iv - DECISIONThe matter in issue is exempt under s.44(1) and s.46(1)(a) of the Freedom of Information Act 1992 Qld, and accordingly the decision under review is affirmed.Date of Decision: 31 January 1994............................................................F N ALBIETZINFORMATION COMMISSIONER - v - TABLE OF CONTENTS PageBACKGROUND 1 External Review Process 1 Submissions of Applicant 3 Submissions of Third Party 5 The Relevant Provisions of the FOI Act 5 ANALYSIS OF S.46 - EXEMPTION FOR "MATTER 6 COMMUNICATED IN CONFIDENCE" Effect of s.46(2) 10 Issues in the Interpretation and Application of s.46(1)(a) 10 What is covered by "an action for breach of confidence"? 10 Contractual obligations of confidence 14 Flexible approach of the courts to jurisdiction 16 The Criteria which must be Satisfied for Protection in Equity 19 of Allegedly Confidential Information The First Criterion - Specific Identification of the 20 Confidential Information for which Protection is Sought The Second Criterion - The "Necessary Quality of 21 Confidence" The basic requirement is inaccessibility 23 It is not necessary to demonstrate absolute secrecy in 23 inaccessibility Secrecy may attach to a way in which public information 24 has been utilised (this is particularly relevant to trade secrets) A question of substance not form 24 Confidentiality may be lost with the passage of time 24 The Confider's own attitude and conduct toward preserving 25 the secrecy of allegedly confidential information may be relevant to whether it should properly be characterised as confidential information In the interests of privacy protection, a more relaxed standard 25 may apply in respect of personal information The meaning of "the public domain" 25 - vi - The Third Criterion - Receipt of the Information in Such 28 Circumstances as to Import an Obligation of Confidence Fundamental nature of the inquiry 34 Tests which may assist 34 Circumstances in which an obligation of confidence may 37 be imposed on a defendant who did not acquire the confidential information directly from the plaintiff Confidential information improperly obtained 38 Relationship of the FOI Act to the general law 38 The Fourth Criterion - Actual or Threatened Misuse of 39 the Confidential Information Is Detriment to the Plaintiff a Necessary (Fifth) Criterion? 41 In the Case of a Government Plaintiff, Detriment to the 44 Public Interest must be demonstrated Defences to an Action for Breach of Confidence 46 Other Defences 50 Application of s.46(1)(a) to the Matter in Issue 51 Issues in the Interpretation and Application of s.46(1)(b) 53 Information of a Confidential Nature 53 Communicated in Confidence 54 Could Reasonably be Expected to Prejudice the Future Supply 55 of Such Information Application of s.46(1)(b) to the Matter in Issue 57SECTION 44 - "MATTER AFFECTING PERSONAL AFFAIRS" 58 Shared Personal Affairs 58 Application of the Countervailing Public Interest Test 60CONCLUSION 63OFFICE OF THE INFORMATION ) S 4 of 1993COMMISSIONER (QLD) ) (Decision No. 94001) Participants: "B" Applicant - and - BRISBANE NORTH REGIONAL HEALTH AUTHORITY Respondent REASONS FOR DECISIONBACKGROUND1 By application dated 20 January 1993, B applied to the Information Commissioner for review of a decision dated 21 December 1992, made by Dr C B Campbell, Regional Director, Brisbane North Regional Health Authority (the Authority), which affirmed the decision dated 8 December 1992 made by Mr Bill Evans, Regional FOI Decision-Maker, to refuse to grant B access to one entry in B's medical records held by the Authority. 2 In his decision letter, Dr Campbell advised B that he had conducted an internal review of Mr Evans' decision of 8 December 1992, and that Mr Evans' decision was upheld on the basis of ss.44(1) and 46(1)(b) of the Freedom of Information Act 1992 Qld (hereinafter referred to as the FOI Act or the Queensland FOI Act). Dr Campbell concurred with the reasons for decision set out in Mr Evans' original decision; namely that access was not granted to the entry in question because it referred to the personal affairs of a third party, and included information which was provided by that third party in confidence, thus attracting exemptions from disclosure on the basis of ss 44(1) and 46(1)(b) of the FOI Act. External Review Process3 Pursuant to s.81 of the FOI Act, the respondent agency bears the onus of establishing that the internal review decision which is the subject of the present review proceedings was justified.4 In accordance with the power vested in me by s.76(1) of the FOI Act, I requested that the Authority produce for my inspection the document containing the entry which is in issue in these proceedings, for the purpose of determining whether that entry comprised exempt matter. The relevant document was provided to me for inspection.5 On the basis of my review of that document, the third party who had provided the information in question was contacted by a member of my staff, to determine whether the third party had any objection to the information in question being disclosed to B. 6 I note that, although s.51 of the FOI Act provides for consultation with third parties by the agency determining an access application, such consultation for the purpose of ascertaining a third party's views on disclosure is required only where the agency intends to grant access to the information in question. It is apparent that in this case, the Authority determined that the document was, on its face, clearly exempt, and that accordingly there was no necessity to consult with the third party in the course of its decision-making process.7 As discussed in more detail below, in paragraph 19, the third party concerned confirmed to a member of my staff that the information to which access was refused by the Authority was provided in circumstances in which both the third party and the recipient of the information had agreed that the information (including the identity of the third party) would be kept completely confidential by the recipient, and not disclosed to anyone, including the applicant. The third party subsequently provided me with a signed written statement confirming the third party's understanding in this regard, and the facts underlying that understanding.8 In addition to contacting the third party who had provided the information in issue in these proceedings, a member of my staff also contacted the particular employee of the Authority who had received and recorded the information in question. That person confirmed the third party's position with respect to the understanding of confidentiality of the information in question, and subsequently executed a statutory declaration to that effect.9 In conjunction with the application for external review, B lodged a written submission in support of the application, in which B set out arguments in support of the claimed entitlement to have access to the information in question. After receiving the views of the third party who had provided that information, I wrote to B to advise of the status of my review, and to review the submissions which I had received to date. 10 At that time, I advised B that in addition to the exemption provisions in the FOI Act which had been relied upon by the Authority, I considered that s.46(1)(a) was also a relevant provision in the context of this matter. I further advised B that while the s.46(1)(a) exemption in the FOI Act is not subject to a "public interest balancing test", both s.44(1) and s.46(1)(b) are subject to a "public interest balancing test", and I referred to the statement made by Dr Campbell in his internal review decision letter, to the effect that he could see nothing in the notation in question, the disclosure of which would be in the public interest. 11 In light of the issues discussed in my advice to B, I invited B to make additional submissions in support of B's case for access to the information claimed by the Authority to be exempt matter. I note that as both the identity of the third party, and the information provided by the third party, are claimed by the Authority to be exempt matter, I am precluded by s.76(2) and s.87 of the FOI Act from disclosing that information to the applicant in the course of my review. Accordingly, my communications with B in this regard could not provide any information which would identify either the source, or substance, of the information in issue. I appreciate that the circumstances of this case (with no information being available to the applicant as to the nature of the document in issue) make it difficult for the applicant to fully canvass the issue of whether or not a document in dispute is exempt under the FOI Act. However, in a situation where both the identity of a third party and the information communicated by that third party are claimed to be exempt matter, that is a result compelled by the terms of the FOI Act, in particular s.76(2) and s.87.12 In any event, B subsequently lodged a further written submission setting out at some length arguments on the issues which I had identified as being relevant to the present review. Submissions of Applicant13 In a submission accompanying the application for external review, B set out the basis on which Dr Campbell's internal review decision was disputed, and made the following statement concerning the factors claimed to weigh in favour of disclosure of the information in question: "I believe that any information written into a patient's medical record should be made available to the patient it relates to. A medical record bears witness to all medical treatment of the patient. From a moral viewpoint, to deny one access to that knowledge may be compared to the withholding of a material witness at a trial. Denying access because it may disclose the confidences of a third party could justify denial to all or any part of relevant medical treatment of which the patient requires knowledge. As such, if the medical staff of a hospital wish any part of a patient's treatment to be withheld, they may do so under this guise. Surely, though it may be in the interests of the medical staff to do this, it is not in the interests of the public. The deleted entry in my medical report on 18/6/'92 is especially relevant as a part of my medical history since the report by Dr A Sheehan (19/6/'92), indicates that I was over-sedated on that day. I therefore appeal to you with a request that all withheld matter in my personal medical record be made available to me."14 Throughout those submissions, B made repeated references to issues of a medical nature, using phrases such as "medical treatment", "medical record" and "medical history". This suggested that B's real concern was to obtain the withheld information if it related to B's medical treatment in the Prince Charles Hospital, and in particular the administration of medications. Accordingly, a member of my investigative staff contacted B to obtain clarification of this point.15 At that time, B made the following points in support of the application for access to the deleted entry in B's file: • the drug treatment issue was only part of B's concern, and B wished to see the entire medical record, including the withheld portion (regardless of what the nature of that withheld portion was); • B's view was that an individual's medical record should belong to the individual, and B was concerned that there were things recorded in the medical record which B felt were untrue, and which B might seek to have corrected or amended under the provisions of Part 4 of the FOI Act. However, since one cannot challenge what one does not know, B would be unable to pursue all issues in this respect without access to everything in B's medical file; and • refusing to grant individuals total access to their medical records was an extension of, or analogous to, the paternalistic attitude of hospital staff toward patients in their care, with the staff feeling that patients were unable to handle their own affairs or make important decisions, and that the staff knew what was best for them.16 In a supplementary submission, lodged on 20 August 1993, B reiterated many of the points previously made: "It is my belief that it is in the interests of the public, of which every individual is a part, that the Freedom of Information Act must be implemented to the fullest extent, allowing patients complete access to their files. To deny a patient this right by withholding essential information, thereby negating the benefit of access under the Act, amounts to a withdrawal of rights originally given. Would a court of law be satisfied with this type of selectivity? Of course not! Evidence must be made available as a whole. Information cannot be suppressed because of the disinclination of the witness. This insuperable limitation would never occur in any court of law. One may question the motives of those concerned in desiring information to remain hidden. No information should be considered valid unless able to be put to the test of debate. Patients should not be required to give account of their reasons in order to gain access to their files. If account is required, it should be that of those who would suppress information which is considered sufficiently relevant to be included in the patient's medical report. In my opinion, it should be mandatory for 'confidants' to be forewarned by medical staff that information given may become available, on request, to patients under the FOI Act. If this were so, the current problems which relate to this situation would never arise. In my requesting that the information withheld be made available to me (having noted the reluctance of the confidant to be identified) I request only that the information and the employment status of this person be made available. (Their occupation and whether or not they were medical personnel is relevant, but I do not require their name.) By submitting to this half-way mark, I have proposed an arrangement of mutual concession without compromising my requirements. As a result of the release of my medical file, I discovered the numerous misinterpretations and inaccurate data this document contained in relation to my state of mental well-being. On every page were errors and half-truths, which previous to my knowledge, I could have no opportunity to explain. Why would anyone wish to deny me the benefit of clarifying aspects of my medical report which cast doubt on my ability to use reasoned logic at that time? Should anyone be denied this right? Only by complete access to my file, am I given the opportunity to correct mistaken views, held in relation to my mental health. I believe no-one should ever be denied access to any information which is contained in their medical report. Every patient has a moral right to full access to their personal medical records. ... In conclusion, I wish to state that though it is valid for the law to protect the privacy of the individual to whom the medical report refers; the privacy of an individual whose information is recorded on a file which is not their own is not entitled to the same privilege. ..."Submissions of Third Party17 In notifying the third party of the review proceedings, I also advised the third party of the provisions of s.78(2) of the FOI Act which states: "(2) Any person affected by the decision the subject of the review ... may apply to the Commissioner to participate in the review."18 I requested that, if the third party wished to be an applicant in the review, a brief letter to that effect be forwarded to me. I further advised that even if the third party did not wish to make formal application for "participant" status, it was my view that if the matter could not be settled, the third party would be required to give evidence to establish the Authority's claim that the document in issue was exempt under s.46(1) of the FOI Act on the basis that it consisted of information of a confidential nature that was communicated by the third party in confidence.19 The third party did not take up the invitation to apply for participant status, but in the course of several conversations with a member of my investigative staff, advised that at the time the information recorded in the document in issue was provided, there had been a preliminary discussion between the third party and the recipient of the information in which the issue of confidentiality was specifically addressed. A statutory declaration was prepared for execution by the third party on the basis of the information stated in the third party's conversations with a member of my investigative staff. Despite repeated promises over a period of several months to execute and return the statutory declaration, the third party finally advised that the statutory declaration would not be executed. The third party did, however, forward to me a signed statement, witnessed by a Justice of the Peace, in which the third party stated that the information recorded in the document in issue had been provided on the basis of a mutual understanding between the third party and recipient that the information be kept completely confidential, and not disclosed to anyone, including the present applicant, B, and that the third party's expectation of confidentiality remained unchanged.20 I note that s.72(1)(c) of the FOI Act specifically provides that: "72(1) On a review under this Part - ... (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." 21 While the third party conveyed no sensible reason for being unwilling to execute the statutory declaration that was drafted on the third party's instructions, the signed statement which the third party forwarded was consistent with the account which the third party gave orally to my investigative staff, and was also consistent with a contemporaneous note made by the employee of the Authority who received and recorded the information in issue, and I am satisfied that it is proper for me to take into account the material provided by the third party for the purposes of this review.The Relevant Provisions of the FOI Act22 Insofar as relevant to the present proceedings, sections 44 and 46 of the FOI Act provide as follows: "Matter Affecting Personal Affairs 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. (2) Matter is not exempt under subsection (1) merely because it relates to information concerning the personal affairs of the person by whom, or on whose behalf, an application for access to a document containing the matter is being made. ... Matter communicated in confidence 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." ANALYSIS OF S.46 - EXEMPTION FOR "MATTER COMMUNICATED IN CONFIDENCE"23 Section 46 of the FOI Act poses a number of difficulties, some of interpretation, but more substantially in its application. As to the former, an issue which strikes one immediately is: what purpose did the legislature have in enacting (in s.46(1)(a) and s.46(1)(b)) two distinct and alternative grounds of exemption which, though their respective spheres of operation do not precisely coincide, must overlap to a significant extent? As to difficulties in application, the ground of exemption under s.46(1)(a) operates by calling for the application of legal tests to be derived from the general law relating to actions for breach of confidence. This is a fairly complex area of law. Its complexity is compounded by the fact that uncertainty still attends some aspects of its modern development such that not only leading academic writers but also many judges seem to disagree on some points of principle or on methods of approach to some issues.24 No assistance in the interpretation of s.46 can be gathered from a study of the legislative history of the FOI Act. Although s.46 of the FOI Act reproduces almost precisely clause 38 of the draft Freedom of Information Bill recommended by the Electoral and Administrative Review Commission (EARC) in its Report on Freedom of Information (December 1990, Serial No 90/R6), the EARC Report itself contained no analysis or commentary of any significance on clause 38 of its recommended draft Bill. Neither the second reading speech on the Freedom of Information Bill 1991, or the Explanatory Notes which accompanied it, contain any useful explanatory material in respect of s.46 of the FOI Act.25 The assistance to be gained from decided cases interpreting corresponding exemption provisions in the freedom of information legislation of other Australian jurisdictions is comparatively scarce.While the freedom of information statutes of other Australian jurisdictions include a "matter communicated in confidence" exemption, no two Australian jurisdictions use precisely the same formulation for the exemption. As a result, there are some significant differences between the structure and scope of the "matter communicated in confidence" exemption in s.46 of the Queensland FOI Act and the corresponding provisions contained in the freedom of information statutes of other Australian jurisdictions. This means that care must be taken in determining what assistance is appropriate to be gathered from approaches to the interpretation and application of those differently formulated provisions. In particular, caution is necessary when seeking guidance in the extensive case law generated by the Victorian Administrative Appeals Tribunal (the Victorian AAT) and Victorian Courts on s.35 of the Freedom of Information Act 1982 Vic (the Victorian FOI Act), and by the Commonwealth Administrative Appeals Tribunal (the Commonwealth AAT) and the Federal Court of Australia on the former s.45(1) of the Freedom of Information Act 1982 Cth (the Commonwealth FOI Act) as it stood prior to its amendment by the Freedom of Information Amendment Act 1991 Cth. 26 Section 46(1)(a) of the Qld FOI Act, however, corresponds fairly closely to the current s.45(1) of the Commonwealth FOI Act (as amended in 1991). Cases decided under s.45 of the Commonwealth FOI Act following its 1991 amendment are likely therefore to provide assistance in the interpretation and application of s.46(1)(a) of the Qld FOI Act, and indeed the legislative history relating to the 1991 amendments to s.45(1) of the Commonwealth FOI Act is of assistance in comprehending s.46(1) of the Qld FOI Act.27 Prior to its 1991 amendment, s.45(1) of the Commonwealth FOI Act had provided that: "A document is an exempt document if its disclosure under this Act would constitute a breach of confidence." A series of cases in the Commonwealth AAT and the Federal Court of Australia (see, for example, Attorney-General's Department v Cockcroft (1986) 10 FCR 180; Baueris v Commonwealth of Australia (1987) 13 ALD 470; Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) and Another [1987] FCA 266; (1987) 74 ALR 428) held that the former s.45(1) of the Commonwealth FOI Act extended to both actionable and non-actionable breaches of confidence, i.e. that the provision was wide enough to afford protection from disclosure in circumstances where a legal action for breach of confidence may not succeed.28 The Senate Standing Committee on Legal and Constitutional Affairs (in its 5 year review of the operation of the Commonwealth FOI Act) considered that this approach gave the s.45 exemption too broad a sphere of operation. In its 1987 Report on the Operation and Administration of the Freedom of Information Legislation (the 1987 Senate Committee Report), the Senate Committee said (at pp. 208-209): "14.30 The uncertainty said to surround the scope of section 45 was criticised in submissions. The uncertainty arises in part because section 45 operates by reference to the difficult and developing general law relating to the protection of confidential information. More significantly, interpretations by the Tribunal have expanded the ambit of section 45 so as to protect some confidences that the general law does not protect. The extent of the expansion is uncertain, and the question whether the Act permits such expansion is not beyond doubt. [Footnote: Compare for example both the comment of Beaumont J in Baueris v Commonwealth of Australia (9 June 1987) p. 4, and the decision of the majority in Corrs Pavey Whiting & Byrne v Collector of Customs (13 August 1987) pp. 2-3 (Sweeney J) and p. 6 (Jenkinson J), with the cogent dissent in the latter case, pp. 25-29 (Gummow J)]. Further uncertainty has arisen on whether it is permissible to apply public interest considerations so as to deny, on the facts of a particular case, the protection which would otherwise be conferred by the expanded interpretation given to section 45. 14.31 In its 1979 Report, the Committee recommended that what has since become section 45 should be deleted. This recommendation was rejected. The then Government considered that it would not be proper for an agency to be required to disclose a document under the FOI Act where that disclosure would breach a confidence protected by the general law. [Footnote: Senate, Hansard, 11 September 1980, p. 804]. 14.32 The Committee accepts this view. The Committee recognises that the general law is undergoing judicial development, and is, in some respects, uncertain. Therefore the only practical way to ensure that FOI Act protection is at least as wide as the protection given by the general law is by means of an exemption provision that operates by incorporating that general law. 14.33 The Committee does not consider, however, that any wider protection should be conferred by section 45. [Footnote: Cf. Corrs Pavey Whiting & Byrne v Collector of Customs (13 August 1987) p. 24 (Gummow J): general law is adequate to protect confidences reposed by citizens in government.] 14.34 Accordingly, the Committee recommends that sub-section 45(1) be amended to make clear that it provides exemption where, and only where, the person who provided the confidential information would be able to prevent disclosure under the general law relating to breach of confidence."29 The purpose of the 1991 amendment to s.45(1) of the Commonwealth FOI Act was set out in the Explanatory Memorandum which accompanied the introduction of the Freedom of Information Amendment Act 1991 Cth, in the following terms: "Clause 32 - documents containing material obtained in confidence 61. Clause 32 implements a Senate Committee recommendation that the breach of confidence exemption in the Act be amended to make clear that it provides exemption where, and only where, the person who provided the confidential information would be able to prevent disclosure under the general law relating to breach of confidence. The amendment overcomes decisions by the Administrative Appeals Tribunal which have created uncertainty as to the scope of section 45 and which have expanded the exemption to protect some confidences that the general law does not protect, such as information about a crime or fraud. Clause 32 amends sub-section 45(1) to provide that a document is an exempt document if its disclosure under the Act would found an action by a person, other than the Commonwealth, for a breach of confidence."30 The employment in s.46(1)(a) of the Queensland FOI Act of the same key phrase to define the scope of the exemption (i.e. "would found an action for breach of confidence") as is used in the amended s.45(1) of the Commonwealth FOI Act, in my view indicates that the Queensland Parliament intended that s.46(1)(a) should afford exemption where the provider of confidential information now in the possession or control of a Minister or agency subject to the Queensland FOI Act, would be able, in a legal action, to prevent disclosure of that information, under the general law relating to breach of confidence.31 Whereas the Commonwealth Parliament clearly intended that its s.45 exemption provision should provide no greater protection from disclosure than would be afforded by the general law in an action for breach of confidence, the Queensland Parliament, in enacting s.46(1)(b) appears to have intended that some confidential information communicated in confidence to an agency or Minister, which might not be afforded protection from disclosure by the general law in an action for breach of confidence, should nevertheless be capable of being protected from disclosure under the Queensland FOI Act, provided two further conditions are satisfied, i.e.:(a) its disclosure could reasonably be expected to prejudice the future supply of such information; and(b) its disclosure would not, on balance, be in the public interest. (This is the same "countervailing public interest test" which is incorporated into many of the exemption provisions in Part 3 Division 2 of the FOI Act, and the operation of which I endeavoured to explain in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Information Commissioner Qld, Decision No. 93002, 30 June 1993, at paragraph 19.)32 This poses a reasonably stringent test. The first of these conditions is not an element that a plaintiff would have to establish to found an action for breach of confidence (though it may be a factor relevant to the satisfaction of an additional test imposed by the law when a government, as plaintiff, brings an action for breach of confidence, see paragraphs 113 to 118 below) thus making the test for exemption under s.46(1)(b) potentially more difficult to satisfy than the test for exemption under s.46(1)(a).33 Moreover, the "countervailing public interest test" which is incorporated into s.46(1)(b), but not s.46(1)(a), leaves at large the public interest considerations which may be found to justify the disclosure of information that otherwise satisfies the first three elements of s.46(1)(b). This is in contrast to the comparatively restricted grounds of public interest which have been accepted by English courts and some Australian judges as providing a just cause or excuse in law, for a person's disclosure of confidential information in breach of an obligation of confidence (see paragraphs 121 to 131 below).34 Given that the first two elements of s.46(1)(b) correspond almost precisely with two of a number of elements that must be established to obtain protection from disclosure under the general law, it appears that there is bound to be a significant overlap in the coverage of s.46(1)(a) and s.46(1)(b), that is confidential information will frequently qualify for exemption under both s.46(1)(a) and s.46(1)(b). Some confidential information, however, may be eligible for protection under one only of s.46(1)(a) or s.46(1)(b). There are likely to be many instances where s.46(1)(a) will be an easier test to satisfy than s.46(1)(b): some confidences that would be protected by the general law in an action for breach of confidence may not be able to satisfy the third and fourth elements of s.46(1)(b). It appears from cases received in my office to date that many FOI decision-makers prefer to invoke reliance on the four elements clearly set out in s.46(1)(b) to claim exemption, rather than grapple with the intricacies of the general law relating to breach of confidence. This is not surprising since most FOI administrators are not legally trained, and the general law relating to breach of confidence is reasonably complex. These reasons for decision are intended to afford some guidance in this area.Effect of s.46(2)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).36 The terms of s.46(2) actually render s.46(1)(b) redundant, for practical purposes, in respect of matter of a kind mentioned in s.41(1)(a). Even where matter of that kind was provided by a person or body outside the categories referred to in s.46(2)(a) and (b), s.46(2) stipulates that disclosure of the matter must found an action for breach of confidence owed to such a person or body. If that requirement can be satisfied, then s.46(1)(a) will apply, and the issue of whether s.46(1)(b) also applies is of academic interest only.Issues in the Interpretation and Application of s.46(1)(a)What is covered by "an action for breach of confidence"?37 In Re Kamminga and Australian National University [1992] AATA 84; (1992) 15 AAR 297, the Commonwealth AAT chaired by O'Connor J (President) had occasion to consider and apply s.45 of the Commonwealth FOI Act (following its 1991 amendment). The Tribunal said at (p.300): "Section 45 of the FOI Act, as amended, which is discussed below, provides protection for documents to which the equitable doctrine of confidentiality applies."38 The Tribunal did not explain the basis for its suggestion that s.45 of the Commonwealth FOI Act incorporated only the equitable doctrine of confidentiality. Further on in the same decision, the Tribunal said (at p.304): "Prior to the amendment of the Act, s.45 was not limited in its application to situations where disclosure would be actionable at general law: see Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434; 7 AAR 187. The words 'found an action' in the amended section establish that that is no longer the case. ... The question for the Tribunal then is whether disclosure could found an action for 'breach of confidence'. The dissenting judgment of Gummow J in Corrs Pavey (supra at 449; 203-204) expressed the view that 'the term "breach of confidence" is used in s.45 in the sense well known to the law as the description of a particular class of legal proceeding: see, for example, F Gurry, Breach of Confidence (1984), p.25; "The English Law Reform Commission's Report on Breach of Confidence" (Law Com No. 110), 1981, Pt. III'. The Tribunal notes that there may be some ambiguity in the term 'breach of confidence'; in particular, it is not clear whether it covers the situation where there is a contractual right of confidence. It may be that it does so in all situations, or it may be that it does so in only those situations where a plaintiff could invoke the auxiliary jurisdiction of equity in relation to a breach of confidence."39 The Tribunal did not attempt to explore this possible ambiguity, since an action for breach of confidence in the case before it could only have been based on the independent jurisdiction in equity. However, I have difficulty in accepting that contractual obligations of confidence may not be covered by the words which are common to both s.45(1) of the Commonwealth FOI Act and s.46(1)(a) of the Queensland FOI Act. The only possible ambiguity I can perceive is if the term "action for breach of confidence" is not ordinarily understood to extend to an action for breach of a contractual obligation of confidence (being an action for breach of contract), but is ordinarily understood to refer only to an action for breach of confidence in the exclusive jurisdiction of equity. A check of the references cited by Gummow J as referred to in the passage above would tend to the conclusion, however, that the "particular class of legal proceeding" to which Gummow J referred should be taken to include a cause of action based on breach of a contractual obligation of confidence as well as an action for breach of confidence arising solely in the jurisdiction of equity (for example, see the English Law Reform Commission's Report on Breach of Confidence at p.18). Gummow J referred to Gurry's treatise on Breach of Confidence (Oxford University Press, 1984; references hereinafter to "Gurry" are references to this text) where it is stated (at pp. 25-27): "The jurisdictional basis of the action for breach of confidence has been a cause of lingering uncertainty and controversy. Contract, equity, and property have at different times each provided the basis on which the courts have granted relief. In some cases, a mixture of these bases has been relied on. ... Most commentators have regarded this situation as unsatisfactory and as evidence of conceptual confusion on the part of the courts. In Argyll v Argyll [1967] 1 Ch 302, however, Ungoed-Thomas J pointed the way to an alternative interpretation by saying that it is the policy of the law which is 'the basis of the courts' jurisdiction. This policy, it has been observed, is to enforce confidences created by the communication of confidential information. Underlying all of the cases in which the courts have granted relief is a broad notion of confidence reposed by one party in another which the courts will enforce. Once this policy is brought to mind, it is possible to regard the jurisdictional sources on which the courts rely as merely secondary mechanisms which provide the means by which the courts can enforce a confidence. The courts' attitude to jurisdictional sources has thus been a pragmatic one. Their principal concern has been, not to classify the breach of confidence action into an existing conceptual category, but to use existing categories to enforce the more fundamental notion of confidence. Thus, Turner V.-C., after a survey of the various sources on which the courts have relied, concluded in Morrison v Moat that 'upon whatever grounds the jurisdiction is founded, the authorities leave no doubt as to the exercise of it'. The action should properly be regarded, therefore, as sui generis, and attempts to confine it exclusively within one conventional jurisdictional category should be resisted. The present approach has the advantage of flexibility, giving the courts freedom to respond to the different social circumstances in which a confidence may arise, and it would be unwise to sacrifice this for conceptual neatness. Within the context of a given case, however, it may become important to identify the particular jurisdiction on which the court relies. The jurisdictional basis determines what remedies are available to the litigant."40 Further on, after reviewing cases in which the courts have relied on express or implied contractual terms to protect confidential information, Gurry makes the following points: • "The contractual jurisdiction must be considered an important basis of the action for breach of confidence." (at p.35) • "Equity has two distinct roles in the breach of confidence action. The first of these is auxiliary to the legal jurisdiction which the courts have in contract. ... Where an injunction is granted in aid of a legal right the court is still, by history, exercising an equitable jurisdiction. Thus, where an obligation of confidence is founded in contract, and the court grants an injunction to restrain the confidant from misusing confidential information in breach of that obligation, the injunction is granted upon an exercise of the equitable jurisdiction. This auxiliary jurisdiction in equity has been frequently used by the courts in cases involving a breach of confidence and, in appropriate circumstances, an injunction will be granted to enforce either an express or an implied contractual obligation of confidence. The second role of equity is to provide a jurisdiction by which the courts will restrain a breach of confidence independently of any right at law." (at p.36). • "The independent equitable jurisdiction is an important basis for the protection of confidential information, for it enables the court to grant relief in two situations where there would be no remedy at law. First, where the parties to confidential disclosure are not in a contractual relationship, equity provides the only basis for the court's intervention. ... Secondly, where a third party receives confidential information from a confidant in breach of the confidant's obligation of confidence, equity will restrain the third party from misusing that information." (at p.37-38) • "It is possible that the same facts could give rise to a contractual or an equitable obligation of confidence. The cases in which such a situation has arisen establish two propositions: (a) a confidant can be held liable in respect of the same conduct for breach of both of an equitable and a contractual obligation of confidence; (b) the courts will sometimes proceed on the equitable basis alone, even though an obligation of confidence might exist in contract." (at p.39) • "... a plaintiff pleading 'breach of confidence' would leave open the options of either a breach in contract or in equity. The conclusion which seems reasonable in this respect is that the courts will make available to a confider the full scope of the duty of confidence as it exists in the law ... and, in so doing, will use its multiple jurisdictions to grant whatever remedies seem appropriate for breach of that duty." (at p.46)41 Another leading text writer in this field, Robert Dean in The Law of Trade Secrets, (Law Book Company, 1990; references hereinafter to "Dean" are references to this text) after reviewing the decided cases endorsed (at p.42) the views expressed by Fullagar J of the Supreme Court of Victoria in Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VicRp 17; [1979] VR 167 at p.190: "Despite some articles of one kind or another overseas some of which in my respectful opinion border upon obscurantism, I am of the opinion that all the cases on 'breach of confidence' in relation to information fall into two broad and quite clear classes ... whether relating to trade secrets or not. The first ... is ... contract. The second is composed of ... intervention on purely equitable grounds."42 Dean concluded his chapter on the jurisdictional base of actions for the protection of trade secrets with the following summary: "(5) apart from statutory monopoly, secret information is protected; (a) directly, by the use of three causes of action: (i) breach of fiduciary duty of confidence and fidelity; (ii) breach of an equitable duty of confidence; (iii) breach of contract; and that the causes of action in (i) and (ii) predominate. (b) indirectly, by a number of causes of action including interference with contractual relations, conspiracy, trespass, conversion and interference with trade. (6) the courts rely in the main on 5(a)(i) and (ii) above but may in specific situations rely on 5(a)(iii) above and have relied alternatively and at the same time on combinations of 5(a)(i), (ii) and (iii), creating a multi-jurisdictional basis to effect the most suitable remedy; (7) the courts often deliberately refrain from specifying the cause of action upon which they rely; (8) the apparent willingness of the courts to enjoin the industrial spy from disclosing or using information not impressed with a confidential obligation is best explained by a duty of confidence implied from the circumstances surrounding the obtaining of the information knowledge of which is implied from the surreptitious conduct of the defendant; (9) third parties will be enjoined by equity to protect the original in personam obligation where it is equitable to do so." (at p.98)43 As in Kamminga, the circumstances of the present case are such that an action for breach of confidence to restrain disclosure of the information in issue could only be founded in the independent jurisdiction of equity (since the parties to the communication of the information in issue did not stand in a contractual relationship) and the words "found an action for breach of confidence" in s.46(1)(a) of the Queensland FOI Act undoubtedly cover the equitable action for breach of confidence. It is therefore not essential that I decide whether s.46(1)(a) extends to a cause of action for breach of a contractual obligation of confidence. If the Commonwealth AAT or the Federal Court should in a future case advance an explanation as to why the words "found an action for breach of confidence" in s.45(1) of the Commonwealth FOI Act should be construed as being confined to an action in equity for breach of confidence, I would be prepared to revisit this issue. However, on the basis of the material set out above, I consider that the better view is that the words "found an action for breach of confidence" in s.46(1)(a) of the Queensland FOI Act should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance is placed on one or more of the following causes of action:(a) a cause of action for breach of a contractual obligation of confidence;(b) a cause of action for breach of an equitable duty of confidence;(c) a cause of action for breach of a fiduciary (the meaning of "fiduciary" is explained at paragraph 53 below) duty of confidence and fidelity.(See, for example, Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [No. 2] [1988] HCA 25; (1988) 62 ALJR 344 at p.344, where it is noted in the judgment of the High Court that the appellant pleaded its case, in the alternative, on the basis of a breach of fiduciary duty, a breach of the equitable duty of confidence, or a breach of a contractual obligation of confidence.)44 Furthermore, I consider that the terms of s.46(1)(a) require the test of exemption to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, possessed of appropriate standing to bring a suit to enforce an obligation of confidence said to be owed to that plaintiff, in respect of information in the possession or control of the agency or Minister faced with an application for access under s.25 of the FOI Act to the information in issue. It appears that the courts, in an action for breach of confidence, apply a fairly stringent test of whether the plaintiff has standing to enforce an obligation of confidence. Thus Gurry says (at p.121): "A breach of confidence is actionable only by the person to whom the obligation is owed: ... the party complaining must be the person who is entitled to the confidence and to have it respected. He must be a person to whom the duty of good faith is owed (Fraser v Evans [1969] 1 QB 349, 361 per Lord Denning MR). Where the obligation of confidence is a contractual one, this proposition represents a self-evident application of the doctrine of privity - only a party to a contract can sue on it." (As to the standing of the plaintiff, see also Meagher, Gummow, Lehane, Equity: Doctrines and Remedies, 3rd ed, Butterworths, 1992, at p.876, para 4114.)Contractual obligations of confidence45 In the context of s.46(1)(a) the word "confidence" must be taken to be used in its technical, legal sense, thus: "A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose." (F Gurry "Breach of Confidence" in P Finn (Ed.) Essays in Equity; Law Book Company, 1985, p.111.)My references to a cause of action for breach of a contractual obligation of confidence must be understood in this sense. A contractual term requiring that certain information be kept secret will not necessarily equate to a contractual obligation of confidence: an issue may arise as to whether an action for breach of the contractual term would satisfy the description of "an action for breach of confidence" (so as to fall within the scope of s.46(1)(a) of the FOI Act). An express contractual obligation of confidence ordinarily arises in circumstances where the parties to a disclosure of confidential information wish to define clearly their respective rights and obligations with respect to the use of the confidential information, thereby enabling the parties to anticipate their obligations with certainty. A mere promise to keep certain information secret, unsupported by consideration, is incapable of amounting to a contractual obligation of confidence, and its effectiveness as a binding obligation would depend on the application of the equitable principles discussed in more detail below.46 In the absence of express contractual terms imposing an obligation of confidence, a contractual obligation of confidence may be founded on an implied term in an existing contractual relationship. In Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203, Lord Greene MR said (at p.211): "If two parties make a contract, under which one of them obtains for the purpose of the contract or in connection with it, some confidential matter, even though the contract is silent on the matter of confidence, the law will imply an obligation to treat that confidential matter in a confidential way, as one of the implied terms of the contract; but the obligation to respect confidence is not limited to cases where the parties are in a contractual relationship. The plaintiff can clearly, therefore, rely upon the wider principle of equity and I do not think it makes much difference which of the causes of action pleaded is considered because the same necessity arises of it being shown that the information was in fact confidential and imparted as such and that the defendant is seeking to use for his own purposes information which he obtained only on such a basis."47 The basis upon which a term of confidentiality will be implied in an existing contract was referred to in Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd by Fullagar J who said (at p.190): "The circumstances in which the law will imply a term in a contract are well known and clear ... For the most part the cases where the law implies a contractual obligation not to divulge or use information are confined to those cases where the implication or importation is 'necessary to give efficacy to the contract' ... such an implication will be made when it is necessary in order to give the transaction that efficacy which both parties must have intended it to have."48 In other cases the courts have managed to construct an implied contract around a confidential disclosure between parties who did not stand in a subsisting contractual relationship. In Mechanical and General Inventions Co Ltd and Lehwess v Austin & Austin Motor Co Ltd [1935] AC 346, the plaintiff disclosed confidential information to the defendant with a view to a future business arrangement, but the parties subsequently failed to come to any agreement. The defendant later used the information which had been imparted by the plaintiff. The plaintiff recovered damages for breach of an implied contract constituted by the plaintiff's disclosure of confidential information, and the defendant's implied promise not to use the information for a purpose other than considering whether to take a licence of it. (See also Nichrotherm Electrical Co Ltd v Percy [1957] RPC 207 at p.214-215.) Flexible approach of the courts to jurisdiction49 Both Dean (at p.50-53) and Gurry (at p.30-35) have commented upon a willingness evident in decided cases in this field for the courts to overlook the orthodox contractual principle that a written contract is exhaustive of its terms. Where the terms are too limited, an implied obligation of confidence can be imported to fill the gap. Again, both Dean (at p.44-46) and Gurry (at p.39-46) have noted the flexibility and pragmatism of the courts to jurisdiction in the inter-relationship between express and implied contract, and equity. Dean notes (at p.44) that equitable protection has been used in preference to an existing contractual obligation, or alongside a contractual obligation. Dean also notes (at p.47) that there are cases in which the judiciary has 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 (citing, inter alia, the Australian cases Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VicRp 7; [1967] VR 37 at p.41; Mense v Milenkovic [1973] VicRp 78; [1973] VR 784; Es-me Pty Ltd v Parker [1972] WAR 52; and this is implicit in the approach of Lord Greene MR in the passage set out at paragraph 46 above); and in Collins (Engineers) Ltd v Roberts and Co Ltd [1965] RPC 429 at p.431 the court used the recognised test for determining the existence of an equitable obligation of confidence as a test for establishing the existence of an implied contractual obligation of confidence (the parties already being in a subsisting contractual relationship).50 Those who regard it as important to preserve the purity of equitable doctrine view these trends with concern. McLelland J in United States Surgical Corp v Hospital Products International Pty Ltd [1982] 2 NSWLR 766 at p.779 correctively observed that: "Contractual obligations and fiduciary duties have different conceptual origins, the former represents express or implied common intentions ... and the latter being descriptive of circumstances in which equity will regard conduct of a particular kind as unconscionable and consequently attract equitable remedies."51 The learned authors of Meagher, Gummow, Lehane, Equity: Doctrines and Remedies, (Butterworths, 3rd Ed., 1992) have commented in their chapter on confidential information as follows (at p.865-6): "Most simply, the rights of the plaintiff may rest in express contract. Further, in many contracts terms will be implied to control use by the defendant of information valuable or otherwise important to the plaintiff. Thus, the law implies into his contracts terms whereby a professional man (an expression which certainly includes medical practitioners, solicitors, accountants, bankers) is to keep his client's affairs secret and not to disclose them to anyone without just cause: Parry-Johns v Law Society [1969] 1 Ch 1. The law of master and servant is replete with illustrations. ... The subject of this chapter is the jurisdiction in equity to restrain breaches of confidence, not in the auxiliary jurisdiction as an aid to contractual rights but in the exclusive jurisdiction where the plaintiff has no legal rights. Where there is a contract then it is to the contract that the court should look to see from express words or necessary implication what the obligations of the parties are, and the introduction of equitable concepts should be resisted: Vokes v Heather (1945) 62 RPC 135 at 142; Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VicRp 17; [1979] VR 167 at 191. The [English] Court of Appeal has affirmed that where the parties are or have been linked by contract their rights and obligations in respect of trade secrets are to be found in the terms (express and implied) in the contract: Faccenda Chicken Limited v Fowler [1987] Ch 117 at 135-8. Yet in a number of cases where there has been a contractual nexus the judges have nevertheless treated equitable principles at length as if they overlapped or were concurrent with the common law: for example, Peter Pan Manufacturing Corp v Corsets Silhouette Ltd [1963] 3 All ER 402; Surveys and Mining Ltd v Morison [1969] Qd R 470; Mense v Milenkovic [1973] VicRp 78; [1973] VR 784; Conveyor Co of Australia Pty Ltd v Cameron Brothers Engineering Co Ltd [1973] 2 NZLR 38; Thomas Marshall Ltd v Guinle [1979] Ch 227; G D Searle and Co Ltd v Celltech Ltd [1982] FSR 92. The apparent confusion of thought is not without significance. It has for example encouraged the infiltration into equity of the 'reasonable man' as the exemplar of equitable standards of conduct (Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 48; Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VicRp 17; [1979] VR 167 at 190-1) whereas the merest perusal of what has been said in Chapter 5 of this work in dealing with fiduciaries, would show that the standards required by equity can be quite above those of the commonality of mankind."52 Nevertheless, as is acknowledged in the preceding passage, there is abundant precedent for the flexible, and less doctrinally pure approach described by Dean and Gurry at paragraph 49 above. Gurry summarised the way in which the courts have used particular jurisdictional sources to enforce obligations of confidence, as follows (at p.61-62): "1. Where the defendant has received confidential information pursuant to a contractual relationship with the plaintiff: (a) If there is an express term of confidence in the contract: (i) the courts may proceed on the basis of that term alone; (ii) the courts may supplement it with a term implied from the contract; (iii) the courts may choose to ignore the term and proceed on the basis of the independent jurisdiction in equity. (b) If there is no express term of confidence in the contract: (i) the courts may proceed on the basis of implied terms of the bargain; (ii) the courts may disregard the contract and proceed on the basis of the independent jurisdiction in equity; (iii) the courts may proceed on the basis of both the implied terms of the contract and the independent jurisdiction in equity. In each of these situations, the choice of jurisdiction seems to be conditioned by a desire to give the confider the benefit of the full duty of confidence as it exists in the law. Thus, where an express term falls short of this full duty, implied contract or equity may provide an additional or alternative basis for relief. Furthermore, it seems that, where appropriate, the confider should be given access to the full range of remedies available for a breach of confidence. Thus, implied contract may allow access to damages where the equitable jurisdiction has been used to grant an injunction. 2. Where the defendant has received confidential information from the plaintiff but there is no contract between the parties: Here, there is an independent jurisdiction in equity on which the courts may proceed to grant relief. 3. Where the defendant is a third party who has acquired confidential information other than through a disclosure to him by the plaintiff: (a) If the defendant acquires the information as the result of a breach of either a contractual or an equitable obligation of confidence on the part of a confidant, the courts may grant relief on the basis of an independent jurisdiction in equity. (b) If the defendant acquires the information by reprehensible means, the courts may proceed on the basis of property in the confidential information. [Dean disagrees with Gurry on this last point. Dean prefers the view expressed at point (8) of the passage set out in paragraph 42 above.] " (Footnotes omitted)53 Fortunately, it appears to be the case that at least for the purposes of the application of s.46(1)(a) of the FOI Act, there is no need to differentiate between a cause of action for breach of an equitable duty of confidence and a cause of action for breach of a fiduciary duty of confidence and fidelity. (The word "fiduciary" comes from the Latin "fiducia" meaning "trust", so the adjective "fiduciary" means of or pertaining to a trustee or trusteeship. Thus McLelland J explained in United States Surgical Corp v Hospital Products International Pty Ltd [1982] 2 NSWLR 766 at p.810: "... the paradigm of the fiduciary relationship is the trust. A trust imposes obligations relating to property vested in the trustee, but an analogy is recognised in the position of a person who is obliged, or undertakes, to act in relation to a particular matter in the interests of another ... and is entrusted with the power to affect those interests in a legal or practical sense. ... the special degree of vulnerability of those whose interests are entrusted to the power of another, to abuse of that power, justifies a special protective rule." The fiduciary is subject to obligations of good faith and of loyalty to the interests of the principal, e.g. not to pursue self-interest in conflict with the principal's best interests.) Gurry argues forcefully (at p.158-162) that: "It becomes meaningless to speak of fiduciaries as a separate category of confidants amongst those who are generally bound by an obligation of confidence. ... The correct view here seems to be that recognition of a position as carrying certain fiduciary obligations serves only to establish the existence of an obligation of confidence 'with particular force' [citing Baker v Gibbons [1972] 1 WLR 693, 700 per Pennycuick V.C.]. In other respects, the principles which determine whether there is an actionable cause for breach of confidence remain unaffected."Gurry's approach was explicitly endorsed by McHugh J A in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd 1987) 75 ALR 353 at p.456, and was impliedly endorsed in the approach adopted by Kirby P in the same case (at p.414).54 For the purposes of the general law (especially with respect to the protection of trade secrets), Dean regards the distinction between the inter-related equitable doctrines of breach of confidence and breach of fiduciary duty as important (see Dean p.101-103). For the purposes of the application of s.46(1)(a) of the FOI Act, however, the fact that the doctrine of breach of fiduciary duty gives a greater depth of protection to confidential information is not of particular significance. The only misuse of allegedly confidential information that is contemplated in an FOI context is unauthorised disclosure of the confidential information. Any more extensive aspects of an equitable obligation of confidence or of a duty of fidelity (i.e. those which bind the confidant to refrain from other kinds of misuse of the confidential information) are not directly relevant for the purposes of the application of s.46(1)(a). The views of Gurry expressed at paragraph 53 above can safely be applied in this context, that is, the fact that a confidant is in a position which is traditionally regarded as fiduciary can be treated as relevant to determining whether confidential information received by the confidant (in the confidant's capacity as a fiduciary) was received in circumstances importing an obligation of confidence, and there is no need to embark upon a detailed examination of the scope of any relevant fiduciary duty. Confidential information imparted within the boundaries of a fiduciary relationship will almost invariably give rise to an obligation owed by the fiduciary to respect the confidence. Examples of relationships in which the courts have imported fiduciary obligations of confidence are those between partners, principal and agent, employer and employee, husband and wife, guardian and ward, director and shareholder, promoters and the companies they promote, and professionals such as doctors, psychologists, social workers, accountants, solicitors, bankers, barristers etc. and their clients.55 There can be no suggestion on the facts of the present case that the information in issue was imparted by the third party to the Authority pursuant to a contractual relationship, and no express or implied contractual obligation of confidence could be relied upon. It is also clear that no fiduciary relationship existed between the third party and the Authority, or between the third party and the employee of the Authority who received and recorded (on behalf of the Authority) the information conveyed by the third party. If the information is to be exempt from disclosure under s.46(1)(a) of the FOI Act, then the elements of an action in equity for breach of confidence must be established.The Criteria which must be Satisfied for Protection in Equity of Allegedly Confidential Information56 In Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) [1984] HCA 73; (1984) 156 CLR 414 at 438, Deane J, delivering the judgment of the High Court of Australia said: "It is unnecessary, for the purposes of the present appeal, to attempt to define the precise scope of the equitable jurisdiction to grant relief against an actual or threatened abuse of confidential information not involving any tort or any breach of some express or implied contractual provision, some wider fiduciary duty or some copyright or trade mark right. A general equitable jurisdiction to grant such relief has long been asserted and should, in my view, now be accepted: see The Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 at 50-52. Like most heads of exclusive equitable jurisdiction, its rational basis does not lie in proprietary right. It lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained. Relief under the jurisdiction is not available, however, unless it appears that the information in question has 'the necessary quality of confidence about it' (per Lord Greene MR, Saltman at 215) and that it is significant, not necessarily in the sense of commercially valuable (see Argyle v Argyle [1967] Ch. 302 at 329) but in the sense that the preservation of its confidentiality or secrecy is of substantial concern to the plaintiff. That being so, the starting point of the alternative argument must be the identification of the relevant confidential information." 57 Drawing on the leading authorities, Gummow J in Corrs Pavey conveniently distilled the constituent elements of the equitable action for breach of confidence (at ALR p.437): "It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge), (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence, and (iv) there is actual or threatened misuse of that information: Saltman Engineering Co Ltd v Campbell Engineering Co (1948) 65 RPC 203 at 215; Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 at 50-1; [1980] HCA 44; 32 ALR 485 at 491-2; O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 326-8; [1982] HCA 33; 41 ALR 255 at 266-8. It may also be necessary, as Megarry J thought probably was the case (Coco v Clark (AN) (Engineers) Ltd [1969] RPC 41 at 48), and as Mason J (as he then was) accepted in the Fairfax decision was the case (at least for confidences reposed within government), that unauthorised use would be to the detriment of the plaintiff."58 This formulation was subsequently reproduced (without variation to the first four criteria, but with an expanded consideration of the possible fifth criterion, see paragraph 108 below) in a later decision of Gummow J, in the case of Smith Kline & French Laboratories (Aust) Limited and Others v Secretary, Department of Community Services and Health [1989] FCA 384; (1990) 22 FCR 73 at p.87 (affirmed on appeal by a Full Court of the Federal Court at [1991] FCA 150; (1991) 28 FCR 291), and has been adopted in a number of decisions of the Commonwealth AAT dealing with s.45 of the Commonwealth FOI Act: see Re Kamminga; Re Gold and Department of Prime Minister and Cabinet (Unreported decision, Deputy President I R Thompson, Messrs R C Gillham and C G Woodard, Members, No. V92/632, 26 April 1993); Re Caruth and Department of Health, Housing, Local Government and Community Services (Unreported decision, Mr P W Johnston, Deputy President; Maj Gen K J Taylor and Mr S D Hotop, Members, No. W90/215, 18 June 1993).59 It will be convenient to record some observations on each of the elements of the equitable action for breach of confidence and on the defences to such an action, before turning to consider the application of those elements to the facts of the present case.The First Criterion - Specific Identification of the Confidential Information for which Protection is Sought60 It is necessary to specifically identify the information in issue in order to establish that it is secret, rather than generally available, information. Thus, in Independent Management Resources Pty Ltd v Brown [1987] VicRp 50; (1986) 9 IPR 1 at p.6, Marks J expressed concern at the absence of clear identification of the information said to be confidential and stated: "... the more general the description of the information which a plaintiff seeks to protect, the more difficult it is for the court to satisfy itself that information so described was imparted or received or retained by a defendant in circumstances which give rise to an obligation of confidence."61 In O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 327-28, it was an explicit basis of the High Court's rejection of the respondent/plaintiff's action for breach of confidence that he was unable to identify some particular pieces of information and show that they were confidential or that an obligation of confidence had arisen with respect to them. After finding that the contents of the documents claimed to be confidential generally comprised common knowledge, and observing that only those improvements evolved by the respondent could give rise to a claim for relief for breach of confidence, Mason J observed: "It is at this point that the respondent has consistently failed to identify the particular contents of the documents which he asserts constitute information the confidentiality of which he is entitled to protect. The consequence is that he has failed to formulate a basis on which the Court could grant him relief on the assumption that some part or parts of the documents constitute confidential information ... To simply say that the information is as to the effect and practical operation of discretionary trusts and private unit trust [tax minimisation] schemes does not identify the information and enable the Court to formulate an order. One needs to know not only what was the information conveyed but also what part of that information was not common knowledge ... See also Deta Nominees at pp. 189-190. There Fullagar J said (at p.190) 'I do not think that equity will exert itself to protect allegedly confidential information so widely expressed'."62 An explicit description of the information in issue is also essential to the framing of appropriate injunctive relief. On these two points, Gurry states (at p.83-84): "It is implicit in the notion of confidentiality that a secret must be distinguishable from the range of information which is generally available ... This requirement has been frequently enforced by the courts in cases where a confider has sought an injunction to restrain the use of a generalised body of information. Here, the courts have firmly applied the principle that a defendant's use of information cannot be restricted by injunction unless the injunction can be drafted in terms which are specific enough to enable the defendant to know with certainty what he can and what he cannot do."63 This principle also has utility for the purposes of the FOI Act, requiring that matter in a document which is claimed to be exempt under s.46(1)(a) be clearly specified, and differentiated from other matter which is available for access pursuant to the general right of access conferred by s.21 of the FOI Act.The Second Criterion - The "Necessary Quality of Confidence"64 As is evident in the passage from Moorgate Tobacco set out at paragraph 56 above, the equitable action for breach of confidence is at least in theory not primarily an action for the protection of confidential information, but for the prevention of unconscionable conduct. The basis for the court's intervention is not the information per se but the threatened or actual breach of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained. Thus what makes information potentially confidential is that it has about it a degree of secrecy sufficient for it to be the subject of an obligation of conscience. If the information is common knowledge or publicly available, the confider cannot be said to have placed any special faith in the confidant in making the communication.65 In Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203, Lord Greene MR said (at p.215): "The information, to be confidential, must ... have the necessary quality of confidence about it, namely, it must not be something which is public property and public knowledge."66 Dean has expressed the view (at p.106) that: "There are no legal prerequisites or parameters defining the type or nature of the information that the courts will protect because the courts are not, theoretically at least, protecting information. They are protecting a confidence ... All information not commonly known, or in the case of personal information, all information not 'notorious' may [potentially] be confidential information."67 There is also, however, a second aspect evident in the case law with respect to the qualities which information must possess to be eligible for protection in an action for breach of confidence, as observed by Lord Goff in the House of Lords proceedings in Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109 at p.282: "... the principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain (which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it. ... The second limiting principle is that the duty of confidence applies neither to useless information, nor to trivia."68 There are several reported cases in which the courts have simply adjudged that information said to have been imparted in confidence was not information of a kind which ought appropriately to be made the subject of an equitable obligation of confidence. Thus Megarry J in Coco v A N Clark (Engineers) Ltd [1969] RPC 41 said (at p.48): "... I doubt whether equity would intervene unless the circumstances are of sufficient gravity; equity ought not to be invoked merely to protect trivial tittle-tattle, however confidential."69 In similar vein, courts have declined to protect a dubious system of picking winners at horse races (described as "perfectly useless" information in McNichol v Sportsman's Book Stores (1930) MacG Cop Cas. (1928-30) 116 at 125) and details of the teaching and practice of Scientology (Church of Scientology v Kaufman [1973] RPC 635; Goff J said at p.658 that: "the passages sought to be protected are pernicious nonsense" and "at best utterly absurd").70 An extension of this line of authority has been advocated by Gummow J, who is critical of the course of development by English courts of the so-called "public interest defence" to an action for breach of confidence, and has argued (in Corrs Pavey at ALR p.450) for a principle which better preserves the purity of equitable doctrine: "That principle, in my view, is no wider than one that information will lack the necessary attribute of confidence if the subject matter is the existence or real likelihood of the existence of an iniquity in the sense of a crime, civil wrong or serious misdeed of public importance, and the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in redressing such crime, wrong or misdeed. I have earlier in these reasons described the various requirements for equitable protection of confidential information. The second of these requirements was that the information have the necessary quality of confidentiality. Authority already establishes that not all confidences will be suitable subject matter for equitable protection. First, the information must be secret, or substantially secret (G v Day [1982] 1 NSWLR 24; Department of Health V Jephcott [1985] FCA 370; (1985) 62 ALR 421; Speed Seal Products Ltd v Paddington [1986] 1 All ER 91) and, further, it must not be merely trivial in character (Coco v Clark (AN) (Engineers) Ltd [1969] RPC 41 at 48). It is no great step to say that information as to crimes, wrongs and misdeeds, in the sense I have described, lacks what Lord Greene MR called 'the necessary quality of confidence': Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215."71 This issue is further discussed at paragraphs 119 to 131 below. The main focus, however, of the court's inquiry in respect of this element of the equitable action for breach of confidence is whether the subject information possesses a sufficient degree of secrecy for it to be the subject of a confidence. An extended analysis of the principles to be derived from reported case law on this issue can be found in Gurry at pages 65-88, and in Dean at pages 111-137. Since this requirement of the equitable action for breach of confidence also equates to the first element which must be established under s.46(1)(b) of the FOI Act, a number of points made in the two leading texts are worth recording:The basic requirement is inaccessibility(a) "The basic attribute which information must possess before it can be considered confidential is inaccessibility ... This attribute is fundamental to the action for breach of confidence for it is only through the communication of inaccessible information that a confidence is reposed by the confider in the confidant." (Gurry, page 70)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)(c) "It is quite possible that information which is given to a limited group on a confidential basis will not be held to have entered the public domain so long as that group maintains the confidentiality and the group is small enough." (Dean, page 112)(d) "... Communication of a secret for limited business purposes will not destroy its confidentiality. Thus an employer can give his employees access to his secrets without impairing their confidentiality where this is necessary for the purposes of his business (footnote: provided that the employer, in so doing does not himself display a complete disregard for the confidentiality of the information). Similarly, the licensing or sale of confidential information under conditions of confidence will not remove its confidentiality." (Gurry, page 76)Secrecy may attach to a way in which public information has been utilised (this is particularly relevant to trade secrets)(e) "All information required to produce a product or required result may be in the public domain or even obvious, but what remains a secret is how the plaintiff combined that public information to produce that result or product. The information is present in the public domain but remains inaccessible and unavailable without effort and labour ... The secret could exist purely in the way that public knowledge had been utilised." (Dean, page 113)(f) "... Most information is composed of particular elements which are already generally known. A customer list, for example, may be composed of names which are all available in a number of trade directories, but the list as a discrete entity will nevertheless be confidential if it assembles those names in a way which are not otherwise available." (Gurry, page 71)(g) "While the general rule is that information must be inaccessible in order to be confidential, in certain cases information which is generally available may be considered as confidential between two parties because of the context in which it occurs. In these cases, confidentiality inheres not so much in the information itself, but in the association of the information with a particular context which the parties know attaches a special significance to the information (citing Cranleigh Precision Engineering Ltd v Bryant [1966] RPC 81, Schering Chemicals Ltd v Falkman Ltd [1981] 2 All ER 321, and G v Day [1982] 1 NSWLR 24)." (Gurry, page 78)A question of substance not form(h) "The question of confidentiality is to be determined by reference to the substance of the information for which protection is sought. An express marking of 'confidential' on a physical record of information will not confer confidentiality on the information if it has been made generally available ... Confidentiality depends on the availability of the information in question and, at most, a 'confidential' marking will be useful only in helping to establish that the recipient of a document is affected by an obligation of confidence." (Gurry, page 85) The same principle will apply to any purported promise by the recipient of information to the effect that the information will be received in confidence. The 'necessary quality of confidence' is not the recipient's gift to bestow.Confidentiality may be lost with the passage of time(i) "... the passing of time alone may be sufficient to reduce the secrecy of the information ... This is particularly relevant to government secrets. What is confidential today may be simply harmless historical facts tomorrow. Further, it may be reduced to trivia. The same consideration will apply to some personal information." (Dean, pages 115, 164)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(j) "The principle that the conduct of a confider may negative any implication of confidentiality upon which to base a confidential obligation is undoubtedly sound. The further principle that the courts of equity will not protect those who through their own actions cause their otherwise confidential material to enter the public domain is also worthy of support." (Dean, page 132)In the interests of privacy protection, a more relaxed standard may apply in respect of personal information(k) "The requirement that information be confidential or inaccessible has been differently applied by the courts according to whether the information in question is commercial (or technical), personal or governmental. In relation to commercial or technical information, the courts have usually determined confidentiality by an assessment of whether any special labours would be necessary for a member of the public to reproduce the information ... It is thus the expense, time, and effort required to reproduce commercial or technical information which determines its confidentiality. In emphasising these factors, the courts have been aware that the chief significance of commercial or technical confidences is economic. In contrast, a standard which determines confidentiality by reference to economic effort is hardly appropriate for personal confidences. In consequence, the requirement of confidentiality has been more sensitively measured in relation to personal information by reference to the degree of control which the confider is able to exercise over the information. If the confider retains some capacity to control the dissemination of the information in question, so that the information is not freely available to all, it may be considered confidential even it is not generally unknown." (Gurry, "Breach of Confidence" in P Finn (Ed) Essays in Equity, Law Book Company, 1985, at pages 116-7)The meaning of "the public domain"(l) "Information which is public property because it has become common knowledge is referred to as 'information in the public domain' or 'public knowledge'. It may be in the public domain either because it is so obvious or accessible that it would be generally known (an objective analysis) or because it has, in fact, become known to a sufficient number of people for it to be no longer a secret (a subjective analysis). The former is simpler than the latter -there is no need to investigate the number of people who have the knowledge; it is either in the public domain or it is not. The public domain is defined in accordance with the type of information in concern. ... The information will be in the public domain 'when it can be learnt without a great deal of labour and calculation' (citing Saltman Engineering Co Ltd at page 215)." (Dean, pages 112-4)(m) "There are a number of recent cases in which the term public domain is used. When will information enter the public domain? What is the public domain? The courts refer to information 'entering the public domain' when it has received such publicity amongst those in the relevant groups in the community to effectively destroy the usefulness of its secrecy to its 'owner'; to destroy any usefulness in enforcing the original confidential obligation." (Dean, page 123)(n) "The public domain in trade secret cases is not the world at large but the trade in which the plaintiff competes ... Hence information may be characterised as public knowledge even though only notorious in a particular industry." (Dean, page 129)72 A useful illustration of the approach of courts to determining whether information has the necessary quality of confidence can be found in O'Brien v Komesaroff, where the information sought to be protected was described by Mason J as follows (at ALJR p.681, 687): "The action for breach of confidence is founded upon an alleged confidential communication to the appellant of, and consequential misuse of, certain information relating to first, the form of a unit trust deed drafted by the respondent which expressed a concept to minimise taxation and estate duty for the beneficiaries of the trust and, secondly, a scheme designed to minimise taxation by using an overseas trust in a suitable 'tax haven' country in conjunction with an Australian trusts entity. ... Generally speaking the contents of the unit trust deeds and the articles of association were matters of common knowledge. Information may be characterised as public knowledge though only notorious in a particular industry or profession: see Finn, Fiduciary Obligations (1977) at p.146. Only those improvements evolved by the respondent could give rise to a claim for relief for breach of confidence. ... It is a fundamental problem with the information which the respondent seeks to protect that it is information which, by way of advice to others, he regularly publishes to the world at large, albeit for a limited purpose. The nature of such information ill accords with the accepted conception of confidentiality, which in substance involves the person seeking to protect the information largely keeping it to himself. See Ansell Rubber Co Pty Ltd v Allied Rubber Industries [1967] VicRp 7; [1967] VR 37 at p.49. ... The description of the information ... consists of: (a) advice (unspecified) as to the effect of three sections of the Income Tax Assessment Act and the Banking (Foreign Exchange) Regulation; (b) the form of resolutions for the issue of, and investment in, special units; (c) the provisions of the trust deeds; and (d) minutes and resolutions giving effect to the proposal. ... I have some difficulty in perceiving how advice as to the general legal effect of statutory provisions can constitute confidential information. And the form of minutes, resolutions and the provisions of a trust deed seem unlikely repositories of confidential information. ... In some respects the information which the respondent seeks to protect in this case resembles know-how. The information represents his accumulated knowledge, skill and experience in a particular field. He asserts that it is all confidential information. Obviously this cannot be right. Much of it is common knowledge, as the findings of fact made by the primary judge indicate. As to the problems associated with the classification of know-how as confidential information, see Amway Corporation v Eurway International Limited [1974] RPC 82 at pp.85-86; Stephenson Jordan & Harrison Ltd v McDonald & Evans (1951) 69 RPC 10 at p.15."73 As is evident from Lord Goff's observation in the passage set out at paragraph 67 above, any information which has been published, or stored, in a form that is generally available to the public, is regarded as being in the public domain. Some illustrations of routes by which it is generally accepted that information enters the public domain, or becomes a matter of public record, are:(a) by tabling in Parliament (assuming there is no restriction, by order of Parliament itself, on further publication or reporting of the information) or being read out in the course of proceedings in Parliament so as to become part of the Hansard record of Parliament's proceedings.(b) "When the proceedings of a court, tribunal or commission created by statute or an exercise of the prerogative are open to the public and a fair report of the proceedings can lawfully be published generally, it is not possible to regard information published in those proceedings as outside the public domain. Information published in those circumstances enters the public domain by a lawful gate. Once in the public domain, it can be freely used or disseminated." (Per Brennan J in Johns v Australian Securities Commission [1993] HCA 56; (1993) 67 ALJR 850 at p.860.)(c) collection of information by government agencies, including through disclosure under compulsion of law, for the purposes of a scheme (usually prescribed or authorised by statute or subordinate legislation) allowing public access to the information or certain parts of the information so acquired (whether or not a fee is payable for access) e.g. certain kinds of information required to be lodged by corporations with the Australian Securities Commission.74 There is clear authority to the effect that for information to be the subject of an implied contractual obligation of confidence, it must possess the requisite degree of secrecy or inaccessibility that would be required in equity (see the cases mentioned in paragraph 49 above). Likewise, Dean has noted (at p.50) that: "Implied contractual terms will mirror equitable obligations. Where the court finds a contractual relationship in which a term of confidentiality is implied, it will also find implied terms releasing the contractor from obligations of confidentiality when the information has entered the public domain. [Citing Flamingo Park Pty Ltd v Dolly Creation Pty Ltd (1986) 65 ALR 500 at 518.]"]75 In respect of express contractual terms, Gurry has expressed the view (at pp.65-66): "Theoretically, it is possible to have an express contractual obligation not to use or disclose information which is common knowledge, but, in practice, it is difficult to see how any meaning or effect could be given to such an obligation by the courts. The confider could not establish a right to damages for the confidant's use of something which was freely available to everyone. Similarly, insuperable obstacles would stand in the way of the grant of an injunction. There would be evidentiary problems in proving which information the confidant had acquired by virtue of the contractual relationship rather than from a public source, and it would be difficult to frame an injunction in terms which were sufficiently certain to be enforceable. For these reasons, most expressed obligations of confidence limit the operation of the obligation to 'secret' or 'confidential' information imparted pursuant to the contractual relationship."A M Tettenborn has also argued that a purported express contractual obligation of confidence should not and could not be enforced by the courts in respect of information that is in the public domain (see A M Tettenborn, "Breach of Confidence, Secrecy and the Public Domain" in (1982) Anglo-American Law Review 273 at p.281-2).The Third Criterion - Receipt of the Information in Such Circumstances as to Import an Obligation of Confidence76 This is the key criterion, and usually the most difficult to apply. The application of s.46(1)(a) of the FOI Act will require FOI administrators to make judgments of the kind made by courts of equity as to when the circumstances of communication of confidential information are such that the recipient should be fixed with an enforceable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it.77 The most recent authoritative exploration of this issue is to be found in the judgments of Gummow J, and on appeal of the Full Court of the Federal Court of Australia (Sheppard, Wilcox and Pincus JJ) in Smith Kline & French Laboratories (Aust) Ltd & Others v Secretary, Department of Community Services & Health reported at [1989] FCA 384; (1990) 22 FCR 73 and [1991] FCA 150; (1991) 28 FCR 291 respectively. These judgments post-date the leading texts in the field (Gurry and Dean). 78 The proceedings arose in the equitable jurisdiction of the Federal Court of Australia and did not involve consideration of the Commonwealth FOI Act. The facts were complicated, but for present purposes can be summarised as involving whether the first applicant (a pharmaceutical company), which had imparted certain confidential information to the first respondent for the purpose of obtaining certain approvals in relation to therapeutic substances, could restrain the first respondent from using that confidential information for its own internal purposes in the evaluation of applications by the first applicant's competitors for certain approvals and authorisations of therapeutic substances. The action for breach of confidence therefore was in respect of an alleged misuse of the confidential information other than disclosure. The first respondent conceded (and Gummow J found) that when the first applicant furnished the confidential data to it, the first applicant did so on the implicit understanding that it would be: "... kept confidential in the sense that it would not be disclosed to any other pharmaceutical company lest use be made of it to the commercial disadvantage of the company which had supplied the information." The basis of the first applicant's case was that the law required the first respondent to use the confidential information for no purpose other than that for which it was submitted by the first applicant. The case therefore turned on the extent of the obligation of confidence owed by the first respondent to the first applicant.79 Gummow J set out his general approach at pages 86-87: "Equity will only intervene if the information has been communicated in circumstances importing an obligation of confidence. That was how Megarry J put it in Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47-48, thereby directing attention to the issue of what in the whole of the relevant circumstances would suffice to impose upon the defendant an equitable obligation of confidence. The Supreme Court of Canada recently approached the matter in a similar fashion: Lac Minerals Ltd v International Corona Resources Ltd (1989) 16 IPR 27 at 33, 74-77." (my underlining)His Honour had no difficulty in finding (at p.87) that the relevant information had the necessary quality of confidence: "It is the product of detailed and costly work, is inherently valuable and has been kept secret."80 As to the first applicant's case that the respondent knew or ought to have known that the confidential information was communicated for the sole purpose of evaluating the first applicant's own applications for approvals under the relevant Regulations, Gummow J made the following observations (at pp.94-99): "In many situations, where a plaintiff establishes a case of disclosure of confidential information for a sole purpose, then any use of it for any other purpose including disclosure to any other party will be a breach of confidence; F Gurry, Breach of Confidence (1984), pp 113-114. ... The considerations relied upon by the applicants in the SK & F proceedings do not make good their submission that the Department ought to have had the alleged 'knowledge'. Further, one would be cautious in attributing to one party a belief as to the purposes of another when that other party could not show that it had turned its mind to the crucial element in those alleged purposes, here, use as against disclosure. Moreover, and this is a significant point, in assessing whether the Department ought to have had the 'knowledge' alleged, one should have regard to the effect of the legal framework within which the parties were dealing. One would be slow to attribute to a regulatory authority knowledge that a party dealing with it expected it to act in a manner which would inhibit it in the exercise of its legal powers and obligations. One would be slow also to attribute to that party a purpose which if fulfilled would inhibit the regulatory authority in this way. Such conduct would not readily be regarded in accord with equity and good conscience. ... 'Knew or ought to have known' - the law The [first respondent] submits, in my view correctly, that the circumstance that the person who imparted the information in question intended to do so for a limited purpose, will not necessarily of itself be sufficient to bind the conscience of the party to whom the information was imparted. The [first respondent] submits that the conscience of the other party will be bound if, by the combined effect of the confidential nature of the relevant information and the circumstances in which it was communicated, there appears an equity which answers the description of an obligation of confidence: see Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414 at 437-438, per Deane J. No doubt it is not necessary that the defendant have known of the limited purpose of the disclosure to him. However, where the defendant neither knew nor ought to have known of the alleged limited purpose of the disclosure, it is difficult to see on what footing equity should intervene to bind his conscience. Counsel for the applicants ... relied upon the well known decision of Bowen C J in Eq in Interfirm Comparison (Aust) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104, as authority for the propositions that the test of whether the defendant can use confidential information is the consent of the plaintiff, express or implied, and that what is crucial is the purpose of the plaintiff rather than the purpose of the defendant or any common purpose ... [His Honour then set out passages from that case to demonstrate that the case did not bear out the propositions of law contended for by the applicant] ... What is said in these passages indicates that His Honour accepted that there had been a common implicit understanding involving, in the particular circumstances, mutual obligations of confidence; this decision does not support the propositions for which it was relied upon by the applicants. In his paper 'Breach of Confidence' reprinted in Finn, Essays in Equity (1985), p 110 at p 118, Mr Gurry says (omitting footnotes): 'While the test for determining the existence of an obligation is clear, it is less clear whether the Court constructs from the circumstances an objective inference that the disclosure between the parties was for a limited purpose or whether it requires evidence that the confidant actually knew that the purpose of the disclosure was limited. There is relatively little direct authority on the point, largely because in most cases it has been clear from the circumstances that the confidant did know of the limited purpose of the disclosure. Despite the paucity of authority, it would seem beyond doubt that an obligation should be imposed on a confidant where the circumstances are such as to indicate that the confidant either knew or ought to have known that information was being imparted for a limited purpose. If it were otherwise, there would be little room for any jurisdiction to enforce confidences outside express contract or express non-contractual understanding.' ... ... I accept the general thesis of the learned author that equity may impose an obligation of confidence upon a defendant having regard not only to what the defendant knew, but to what he ought to have known in all the relevant circumstances. ... In the present dispute, the Court looks at the objective circumstances to ascertain whether the [first respondent] ought to have known that the ... data was imparted on the restricted basis alleged by the applicants ... The Court further must ask whether one would attribute to the [first respondent] knowledge that [the first applicant] was imparting the ... data on those terms, if they clashed or might clash with the performance of the [first respondent's] functions under the Regulations. ... The [first respondent] submits that in exercising the relevant discretions under the Regulations, he is obliged to have regard to issues concerning the quality, safety and efficacy of the therapeutic substance in question ... ... The [first respondent] stresses, and I accept, that (a) his functions under the Regulations are concerned with a matter of high government interest, public health and safety, not with commercial dealings of the type conducted in general by citizens rather than governments, and (b) there was no express assurance given [the first applicant] as to the use to which the ... data would not be put within the department, nor was there any consensus upon that subject. The [respondents] submit that in such a setting, and in the absence of express words, the Court should not impute an undertaking that would restrict or inhibit the exercise of discretionary powers."81 Gummow J expressed his conclusions on this issue at p.110, holding that equity would not attribute to the first respondent any obligation to the applicants not to use the applicants' confidential data for the purpose of evaluating competitors' products for approvals: "There was an implicit understanding common to [the first applicant] and [the first respondent] concerning non-disclosure to third parties ... . But that understanding would not interfere with the proper exercise of the functions of the [first respondent] under the Regulations. A court of equity would not impute to any relevant party the placing or acceptance of an obligation whereby in the subsequent discharge of his functions under the Regulations [the first respondent] was restricted in the way the applicants ... contend."82 The appeal from Gummow J's decision was dismissed by the Full Court, which made the following relevant observations (at pp.302-4): "... the appellants say that all that counts is the confider's purpose and that could not have gone beyond Departmental consideration of its [the confider's] own applications. There is indeed some authority which, at least superficially, supports that view. One learned commentator has remarked: 'The test which has found widespread acceptance is whether or not the information was disclosed for a limited purpose. If the information was disclosed for a limited purpose, the confidence crystallises around that limited purpose. The confidant will be bound by an obligation the content of which is not to use or disclose the information for any purpose other than the limited one for which the information was imparted.': see F Gurry in Finn, Essays in Equity (1985), p.118. In many circumstances, that suggested test will produce a proper result, but the circumstances in which confidential information is supplied may vary widely. To determine the existence of confidentiality and its scope, it may be relevant to consider whether the information was supplied gratuitously or for a consideration; whether there is any past practice of such a kind as to give rise to an understanding; how sensitive the information is; whether the confider has any interest in the purpose for which the information is to be used; whether the confider expressly warned the confidee against a particular disclosure or use of the information - and, no doubt, many other matters. Confidential information is commonly supplied without payment: for example, by a prospective employee (or his referee) to support an application for employment. The understanding ordinarily would be that the prospective employer would not disclose the information to any third party; but it would hardly be expected that its use would necessarily be confined to the employment application itself. If that application were successful, the employee would not act on the assumption that material in the relevant file would be destroyed. He would surely be inclined to assume that it might be resorted to later to assist the employer in making decisions relevant to the employee - for example, as to whether the employee (rather than another) should be promoted, or dismissed. The test of confider's purpose will not ordinarily be appropriate where each party's interest is quite different, and known to be so. Here, the confider's purpose is simple and narrow, the confidee's much broader. SK & F had only the purpose of having its applications approved. A person supplying confidential information to the government for the purpose of obtaining a licence (or a permission or concession) would ordinarily assume that the government would not destroy the application file after the confider had attained his purpose. The confider would probably expect that the information would be kept against the day when it might be needed to serve the government's legitimate interests: for example, to provide a record in case the decision is challenged as improper; to enable statistical information to be collected; or, acting directly against the interests of the confider, to compare the information supplied with the confider's subsequent performance, in determining whether to cancel the licence ... ... Megarry J has suggested a broad test to determine whether an obligation of confidence exists. In Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 48, Megarry J said: 'It seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence.' However, this test does not give guidance as to the scope of an obligation of confidentiality, where one exists. Sometimes the obligation imposes no restriction on use of the information, as long as the confidee does not reveal it to third parties. In other circumstances, the confidee may not be entitled to use it except for some limited purpose. In considering these problems, and indeed the whole question, it is necessary not to lose sight of the basis of the obligation to respect confidences: 'It lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained.' This is quoted from Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414 at 438, per Deane J, with whom the other members of the court agreed ... ... Similar expressions recur in other cases: see Seager v Copydex Ltd [1967] RPC 349 at 368: 'The law on this subject ... depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it.' To avoid taking unfair advantage of information does not necessarily mean that the confidee must not use it except for the confider's limited purpose. Whether one adopts the 'reasonable man' test suggested by Megarry J or some other, there can be no breach of the equitable obligation unless the court concludes that a confidence reposed has been abused, that unconscientious use had been made of the information ... ... We would add that, in our opinion, courts exercising equitable jurisdiction should not be too ready to import an equitable obligation of confidence in a marginal case. There is the distinction between use of confidential information in a way of which many people might disapprove, on the one hand, and illegal use on the other. Not only the administration of business and government, but ordinary communication between people, might be unduly obstructed by use of too narrow a test, such as that which the appellants put forward here ..."83 I have dealt with the two judgments in Smith Kline & French at length because they seem to me to have particular significance for the application of s.46(1)(a) of the FOI Act. Not only do they draw attention to some shortcomings in the orthodox tests for determining whether information has been received in such circumstances as to import an obligation of confidence (i.e. Megarry J's "reasonable man" test and Gurry's "limited purpose" test), they also draw attention to important considerations that arise in, and may be peculiar to, the situation where persons outside government seek to repose confidences in a government agency - which are the kind of confidences to whose protection s.46(1) of the FOI Act is primarily directed. (By contrast, the vast majority of reported cases involving the misuse of confidential information is concerned with trade secret information passing between parties in the private sector, with the great majority of those cases in turn involving the misuse of confidential information within the fiduciary employer-employee relationship.) In Attorney-General (UK) v Heinemann Publishers (1987) 75 ALR 353, McHugh JA also suggested that special considerations apply where persons outside government seek to repose confidences in a government agency, but did not explore the issue further because it did not arise on the facts of the particular case before him. McHugh JA said (at p.455): "... when ... a question arises as to whether a government or one of its departments or agencies owes an obligation of confidentiality to a citizen or employee, the equitable rules worked out in cases concerned with private relationships must be used with caution. ... ... governments act, or at all events are constitutionally required to act, in the public interest. Information is held, received and imparted by governments, their departments and agencies to further the public interest."Fundamental nature of the inquiry84 What the judgments in Smith Kline & French primarily emphasise is that 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 of the kind referred to in the third paragraph in the passage from the judgment of the Full Court in Smith Kline & French which is set out at paragraph 82 above.Tests which may assist85 Since FOI administrators will not frequently be experienced equity lawyers, resort to tests which can assist in determining whether an obligation of confidence arises is only to be expected. Two are referred to in the judgments in Smith Kline & French with qualified approval. Megarry J's "reasonable man" test seems to me to be too broad to be particularly helpful - it seems to amount to little more than a recognition that someone (presumably in an FOI context, the primary decision-maker, internal reviewer, or external review authority, as the case may be) must make a reasonable and objective evaluation of all the relevant circumstances surrounding the receipt of the confidential information in issue in order to determine whether the recipient of the information should have realised upon reasonable grounds, that the information was being given to the recipient in confidence. It should be noted that Lord Denning M R in Dunford & Elliott Ltd v Johnson & Firth Brown Ltd [1978] FSR 143 at 148 emphasised another aspect of reasonableness, perhaps implicit in Megarry J's statement of the "reasonable man" test, i.e. that the confider's expectations of confidentiality ought to be based on "reasonable grounds": "Megarry J drew attention to circumstances in which it would be unjust to enforce the stipulation for confidence, even though all three requisites are fulfilled. ... His instances lead me to think there is a further principle applicable in these cases. If the stipulation for confidence was unreasonable at the time of making it; or if it was reasonable at the beginning, but afterwards, in the course of subsequent happenings, it becomes unreasonable that it should be enforced; then the courts will decline to enforce it; just as in the case of a covenant in restraint of trade."Despite the different wording, this dictum probably equates in substance, and in practical effect, to the emphasis in the judgments in Smith Kline & French that the whole of the relevant circumstances must be taken into account before a court determines that a defendant should be fixed with an enforceable obligation of confidence.86 The reservation about the "reasonable man" test expressed by Meagher, Gummow and Lehane in the passage quoted at paragraph 51 should also be borne in mind, i.e. that equity may expect and enforce standards higher than those of the reasonable man. Dean, while he appears to accept the "reasonable man" test, adds (at p.153) the qualification that the reasonable man should be "one of ordinary intelligence who is part of the domain in which the information is alleged to be secret. Hence in commercial confidences, the reasonable man is familiar with the trade and is therefore required to take into account all the circumstances, 'inter alia the relationship of the parties and the nature of the information and the circumstances of its communication' (citing Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VicRp 17; [1979] VR 167 at 193)".87 The more useful test, and the one more frequently used by the courts, is Gurry's "limited purpose" test (see the second paragraph of the passage quoted at paragraph 82 above) which according to both Gummow J and the Full Court in Smith Kline and French will frequently produce a proper result. It should always be used, however, with appropriate regard to the qualifications expressed in Smith Kline and French, i.e. that the test cannot be applied without regard to other relevant circumstances which bear on the fundamental inquiry identified in paragraph 84 above. Gurry also notes (at p.114-5) that the "limited purpose" test provides the touchstone for the identification of an obligation of confidence as an implied contractual obligation, as well as in equity, citing Ackroyd's (London) v Islington Plastics Ltd [1962] RPC 97, and stating that the use of the test to determine the existence of an implied contractual obligation would seem to be perfectly consistent with orthodox contractual principles for the implication of terms into a contract. Gurry states that in assessing whether a confidant ought to have known that a disclosure was made for a limited purpose, the courts will take into account the confider's own attitude and conduct with respect to preserving the secrecy of the allegedly confidential information (see Gurry p.116-119).88 As noted at paragraphs 53 and 54 above, if the parties to a disclosure of confidential information stand in a fiduciary relationship and if information is obtained by the fiduciary in the capacity of fiduciary, this will be relevant to determining the existence of an obligation of confidence. Thus, medical practitioners employed by government authorities will come under an obligation of confidence in respect of information imparted by a patient, and apparently also in respect of information concerning the patient which the doctor learns from other sources (thus the obligation of secrecy would extend to reports received by a doctor about a patient from other medical specialists or from paramedical services). The obligation can be released with the express or implied consent of the patient. (See Gurry, p.148-9; Australian Law Reform Commission, Report No. 22, Privacy, Volume 1 at pp.414-419.)89 The Federal Court in Smith Kline & French accepted that equity may impose an obligation of confidence upon a defendant having regard not only to what the defendant actually knew, but to what the defendant ought to have known in all the relevant circumstances. In cases decided under s.45(1) of the Commonwealth FOI Act (prior to its 1991 amendment) the Federal Court had consistently held that the determination of whether information was provided in circumstances importing an obligation of confidence is essentially a question of fact, which depends upon an analysis of all the relevant circumstances, and it is not necessary for there to have been an express undertaking not to disclose information; such an obligation can be inferred from the circumstances: see Department of Health v Jephcott [1985] FCA 370; (1985) 9 ALD 35; 62 ALR 421 at 425; Wiseman v Commonwealth of Australia (Unreported decision, Sheppard, Beaumont and Pincus JJ, No. G167 of 1989, 24 October 1989); Joint Coal Board v Cameron [1989] FCA 437; (1989) 19 ALD 329, at p.339.90 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.91 Conversely, the confider's conduct cannot unilaterally and conclusively impose an obligation of confidence. It has already been noted above (at paragraph 71(h)) that merely labelling information as "confidential" will not confer it with the necessary quality of confidence, if it in fact lacks the requisite degree of secrecy or inaccessibility. In respect of the third element of the equitable action for breach of confidence, labelling of this kind (assuming it reflects the confider's genuine consideration of the nature of the information and of the need for restrictions on its use by the confidant, and is not simply routine rubber-stamping without genuine consideration) will ordinarily constitute a relevant factor to be evaluated, in the light of all the relevant circumstances, in determining whether an enforceable obligation of confidence is imposed, but it will not frequently, of itself, be conclusive of the issue. Indeed, properly construed according to its context, a "confidential" marking on a letter or other document may not have been intended at all by the author to relate to the imposition of enforceable obligations of confidence: it may merely indicate, as was found by the Commonwealth AAT to be the case in Re Wolsley and Department of Immigration (1985) 7 ALD 270 at 274, that the author of the document wished it to reach its addressee without being opened by an intermediary.92 Another principle of importance for government agencies was the Federal Court's acceptance in Smith Kline & French that it is a relevant factor in determining whether a duty of confidence should be imposed that the imposition of a duty of confidence would inhibit or interfere with a government agency's discharge of functions carried on for the benefit of the public. The Full Court in effect held that the restraint sought by the applicants on the Department's use of the applicant's confidential information would go well beyond any obligation which ought to be imposed on the Department, because it would amount to a substantial interference with vital functions of government in protecting the health and safety of the community. (This finding could also have followed from an application of Lord Denning's statement of principle set out at paragraph 85 above).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. Information conveyed to a regulatory authority for instance may require an investigation to be commenced in which particulars of the confidential information must be put to relevant witnesses, and in which the confidential information may ultimately have to be exposed in a public report or perhaps in court proceedings.94 Information may be confidential and imparted in circumstances where the confider intends that the information be treated confidentially, but it is already known by the recipient. Where the information is already known to the recipient through other means, no obligation of confidence can arise (see Dean, p.171-2). A practical issue may arise for some government agencies where an outside party proposes to provide information to it in confidence, but the government agency is able to obtain the information through other sources, or perhaps through the use of coercive powers to compel disclosure. A government agency should consider whether it wishes to avoid the possibility of subjecting itself to restrictions on the use that can be made of the information by accepting a voluntary supply of information on a confidential footing (cf. the restrictions placed on the Trade Practices Commission when it adopted this course of action in the circumstances described in Castrol Australia Pty Ltd v EmTech Associates Pty Ltd & Ors (1981) 33 ALR 31). Unwanted confidences may be rejected at the time of receipt, or the recipient can make clear that it would accept some kinds of restrictions on the use of the confidential information but not others (cf. Fractionated Cane Technology Limited v Ruiz-Avila [1988] 1 Qd.R 51 at p.63, p.67; as to the recipient of supposedly confidential information having the opportunity to reject the attempted disclosure if the conditions as to confidentiality are unacceptable).95 Also worth noting in this context are the comments by Gummow J in Corrs Pavey to the effect that the disclosure of information to a government agency pursuant to the exercise of statutory powers to compel the disclosure of such information cannot give rise to any obligation of confidence under the general law: "If the documents for which exemption is claimed under s.45 [of the Commonwealth FOI Act] in these proceedings had been supplied by Alphapharm only pursuant to direct requirement of the [Australian Customs] Service under its statutory powers (e.g. Customs Act 1901 s.38B) I would have some difficulty in seeing how from these circumstances any obligation of confidence could arise under the general law. The question in such a case would rather be one of finding a statutory restriction (if there be one) upon use by the [Australian Customs] Service of the information in the documents, and then of measuring the terms of that statutory restriction against the terms of the exemption in s.38 of the FOI Act [the corresponding exemption provision in the Qld FOI Act is s.48] : Newscorp Ltd v NCSC [1984] FCA 36; (1984) 52 ALR 277; Kavvadias v Commonwealth Ombudsman [1984] FCA 55; (1984) 52 ALR 728."96 Finally, it is worth repeating the caution given by the Full Federal Court in Smith Kline and French (in the last paragraph of the passage set out at paragraph 82 above) against being "too ready to import an equitable obligation of confidence in a marginal case".Circumstances in which an obligation of confidence may be imposed on a defendant who did not acquire the confidential information directly from the plaintiff97 The foregoing observations relate to circumstances in which a confidant is given access to information with the knowledge and consent of the confider, whether by direct communication of information, or by tacit consent to a situation which exposes the confidant to confidential information. Another possibility should be briefly mentioned. An obligation of confidence may also attach to a third party (i.e. one who is not privy to a disclosure by a confider) who derives confidential information as a result of a breach of duty on the part of a direct confidant. It is possible that a government agency could become fixed with an obligation of confidence if it receives information through a person who, by communicating it, was breaching a duty of confidence which that person owed to the original confider of the information. The relevant principles in this regard are conveniently summarised in Gurry, "Breach of Confidence" in P Finn (Ed) Essays in Equity at p.121-2: "It is clear that, in the exercise of this equitable jurisdiction, liability will be imposed on any third party who knowingly participates in the confidant's breach of duty which results in the acquisition of the information by the third party. Such liability will run from the date of the knowing participation. Knowing participation in this context means actual knowledge of the breach, imputed knowledge (for example, the knowledge imputed to a company which an aberrant confidant establishes to exploit confidential information) and constructive knowledge. ... Since a direct confidant will be affixed with liability if he ought to have known that information was communicated for a limited purpose, it would be consistent to impose liability also on the third party who ought to have known that he was deriving information through an impropriety. ... To be contrasted with the third party who receives confidential information with knowledge, whether actual, imputed or constructive, is the third party who is innocent of all knowledge of the impropriety at the time he receives the information. There is now a considerable body of authority to support the proposition that such a third party, even if innocent at the time of acquisition of the confidential information, will be liable to be restrained from using or disclosing the information after receiving notice of the impropriety. On this basis, his position is differentiated from the knowing third party recipient of confidential information only in respect of the time at which liability commences. In the case of the "innocent" third party, liability dates from receipt of knowledge of the impropriety through which he derived the information, while the liability of the knowing third party dates from the time of the impropriety in which he has participated with knowledge." Confidential information improperly obtained98 It is also established as a matter of principle that a court of equity will "restrain the publication of confidential information improperly or surreptitiously obtained" (Commonwealth of Australia v John Fairfax and Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 at p.50). The examples considered in reported cases have involved eavesdropping or theft. One hopes that information in the possession of government agencies would not be obtained by reprehensible means. It may be possible, however, that a law enforcement agency or regulatory authority could be found to have obtained confidential information improperly, e.g. through an invalid search warrant, or an invalid exercise of a coercive power to compel the disclosure of information. Any confidential information thus obtained which did not relate to actual or threatened crimes, frauds or misdeeds (see paragraphs 121 to 131 below) may qualify for protection in equity in an action for breach of confidence.Relationship of the FOI Act to the general law99 It appears that a government agency cannot by agreement or conduct bind itself so as to guarantee that confidential information imparted to it will not be disclosed under the FOI Act. Thus, a Full Court of the Federal Court of Australia in Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 108 ALR 163 at p.180 was prepared to say: "Prior to the coming into operation of the FOI Act, most communications to Commonwealth Departments were understood to be confidential because access to the material could be obtained only at the discretion of an appropriate officer. With the commencement of the FOI Act on 1 December 1982, not only could there be no understanding of absolute confidentiality, access became enforceable, subject to the provisions of the FOI Act. No officer could avoid the provisions of the FOI Act simply by agreeing to keep documents confidential. The FOI Act provided otherwise."100 This statement is correct also in respect of the Queensland FOI Act, but it perhaps requires some further explanation. A government agency may become subject to an obligation of confidence under the general law, enforceable at the suit of the confider. It is well recognised, however, 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 Gurry at p.359; Smorgon and Australia & NZ Banking Group Limited & Ors; Commissioner of Taxation & Ors and Smorgon & Ors [1976] HCA 53; (1976) 134 CLR 475 at 486-90. Section 21 of the FOI Act is a provision of this kind. It confers a legally enforceable right to be given access "under this Act" to documents of an agency and official documents of a Minister. An obligation of confidence may continue to bind the government undisturbed, until such time as an application is made under s.25 of the FOI Act for access to the relevant confidential information, whereupon the obligation of confidence may potentially be overridden. The right conferred by s.21 of the FOI Act, however, is expressed to be "subject to this Act". The FOI Act itself sets out a scheme whereby an agency or Minister dealing with an application for access to documents made under s.25, is conferred by s.28(1) with a discretion to refuse access to exempt matter or an exempt document. This means that, notwithstanding that a document satisfies all of the criteria for exemption under one of the exemption provisions in Part 3 Division 2, an agency or Minister nevertheless has a discretion to disclose the document to an applicant for access under the FOI Act with the benefit of the protections conferred by Part 6 of the FOI Act in respect of that disclosure (in particular s.102 provides in effect that no action for breach of confidence will lie in respect of the authorising or giving of access where the access was required or permitted by the Act to be given). On the other hand, if a document meets the criteria set out in one of the exemption provisions in Part 3, Division 2 of the FOI Act, an agency or Minister is entitled to exercise the discretion conferred by s.28(1) to refuse access to the exempt matter or exempt document. Thus, the fact that disclosure of a particular document would found an action for breach of confidence under the general law is a test which, if satisfied, will permit an agency or Minister to exercise its discretion under s.28(1) to refuse access to the particular document. 101 An agency or official cannot, however, by a contractual or other undertaking fetter the exercise of a discretionary power conferred by statute by binding the agency or official to exercise the discretion in a particular way (see Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia [1977] HCA 71; (1977) 139 CLR 54 per Mason J at p.74-75: "To hold otherwise would enable the executive by contract in an anticipatory way to restrict and stultify the ambit of a statutory discretion which is to be exercised at some time in the future in the public interest or for the public good"). Thus, information held by a government agency subject to an enforceable obligation of confidence can be disclosed to an applicant for access under the FOI Act, through a lawful exercise of the s.28(1) discretion by an officer authorised to make such a decision in accordance with s.33 of the FOI Act. (In theory, the obligation of confidence would remain enforceable under the general law, apart from the occasions when it was overridden by a lawful disclosure made under the FOI Act. However, an obligation of confidence may itself be rendered unenforceable if the confidential information subsequently passes into the public domain. Section 102(2) of the FOI Act may be of significance in this regard.)102 This explains the Full Federal Court's comment in Searle Australia Pty Ltd v PIAC that there could be no understanding of absolutely confidentiality, and that no officer could avoid the provisions of the Commonwealth FOI Act simply by agreeing to keep documents confidential. I should add that when reviewing a decision under Part 5 of the Queensland FOI Act, the Information Commissioner does not have the discretionary power possessed by Ministers or agencies to permit access to exempt matter: see s.88(2) of the FOI Act.The Fourth Criterion - Actual or Threatened Misuse of the Confidential Information103 In the application of s.46(1)(a) of the FOI Act, one is assessing whether a threatened disclosure (to an applicant for access under s.25 of the FOI Act) would found an action for breach of confidence. The relevant inquiry is as to whether such a disclosure would involve a misuse of the confidential information, (i.e. a use which is not permitted having regard to the scope of the obligation of confidence). In this regard what was said by Beaumont and Pincus JJ sitting as members of a Full Court of the Federal Court of Australia in Joint Coal Board v Cameron [1989] FCA 437; (1989) 19 ALD 329 (an appeal from a decision of the Commonwealth AAT applying the former s.45 of the Commonwealth FOI Act) at p.339, is significant: "... was the confidentiality intended to be absolute or limited only? That is to say, would there be a breach of the confidentiality if the information were now to be disclosed by the Board to the respondent, being the person who supplied the very information in question? In our view, no error of law was made by the Tribunal in rejecting the claim for exemption. The question is essentially one of fact. Whether, and if so, to what extent, the information in question was provided under an express or implied pledge of confidentiality, and if so, the scope or extent of that confidentiality, will depend upon an analysis of all the relevant circumstances: see Department of Health v Jephcott [1985] FCA 370; (1985) 9 ALD 35; 62 ALR 421 at 425. It is impossible to imagine that the respondent intended to exclude himself from later access to the material. It is difficult to conceive that Clutha, the employer, would wish to do so. It is, in essence, a question of fact whether, in the circumstances, it was the intention of the parties at the time of the communication of the information that the recipient should be at liberty, consistently with the confidence reposed, to divulge the information to a limited class of persons: see A-G's Department and Australia Iron and Steel Pty Ltd v Cockcroft, supra, at FCR 191-2. That is, it is well established that the fact that it is contemplated that disclosure will be made to a restricted class of persons will not destroy the confidential character of the material for other purposes and vis-a-vis other persons. The Tribunal concluded that even if some degree of confidentiality in the material were contemplated at the time the respondent handed over the claim forms, it should be inferred, or implied, from all the circumstances of the case that there would be no breach of any confidentiality if the information were later to be disclosed to the respondent. In our opinion, such a conclusion was not only open to the Tribunal, it was also clearly correct."104 Thus, disclosure to a particular applicant for access under the FOI Act may not be an unauthorised use of the confidential information.105 Even where disclosure to a particular applicant would appear to constitute an unauthorised use (having regard to the scope of the obligation of confidence that was understood at the time of receipt of the confidential information) it is worth emphasising that an obligation of confidence may effectively be waived by the express or implied consent of the confider, as explained by Gurry (at p.241-4): "The courts have acknowledged on a number of occasions that an obligation of confidence may be released by the express or implied consent of the confider. In order to constitute an effective release, the consent must be given by the person to whom the duty of confidence is owed. ... Where an obligation is released by the express consent of a confider, few difficulties are likely to arise between the parties to the confidence. ... It will be a question of fact in each case whether a particular event or action amounts to the implied consent of a confider to the release of an obligation. ... Mere knowledge on the part of the confider that the confidant has placed himself in a position which endangers the confidentiality of information which has been imparted to him will not constitute implied consent by the confider to the release of the obligation. ... It would seem, therefore, that implied consent to release can only be constituted by some positive action on the part of the confider. Where the confider does take some positive action, however, it will be sufficient to release the confidant from his duty if the circumstances are such that the confidant is justified in believing that his obligation has been released. ... Finally, it should be noted that a confider's consent to the release of an obligation of confidence may be either absolute or qualified. Thus, a confider may partially release the confidant from his duty by authorising him to disclose confidential information to a particular third party only. A common example of such a partial release is the patient's agreement to allow his doctor to make a report on his medical condition to an insurance company for the purposes of an insurance policy. In each case, the extent to which the confider's consent operates to release the confidant's duty 'must be a question to be determined on the facts'."106 I note that my office has dealt with several applications for review under Part 5 of the FOI Act in which an agency has claimed that matter is exempt under s.46(1), without inquiring of the original confider of the information as to whether that person was prepared to consent to the disclosure of the information requested. (Consultation is not required under s.51 of the FOI Act where an agency is satisfied that the matter in issue is exempt and does not intend to disclose it.) In several of these cases, the original confider was in fact prepared to authorise disclosure of the information in issue, when contacted by my office for the purposes of the review under Part 5 of the FOI Act. This suggests that agencies should be prepared to evaluate information which appears to be eligible for exemption, (through having at one time been communicated in confidence, and not appearing to have lost its status as confidential information, e.g. through passing into the public domain), but whose age or character is such that it would appear to have lost the sensitivity or value to the confider which made it worthy of protection as confidential information in the first place. In those circumstances, it would be a worthwhile exercise to seek to contact the original confider and determine whether that person has any continuing objection to the disclosure of the information. The original confider may be prepared to waive any obligation of confidence generally, thus making it available to any applicant for access under the FOI Act. Alternatively, the original confider may be prepared to consent to a disclosure only to a particular applicant for access. (If that disclosure is intended to fix the particular applicant with a continuing obligation to respect the original confidence, the position should be made clear so that the applicant has an opportunity to accept or reject a disclosure on that basis; cf. s.102(2) of the FOI Act).Is Detriment to the Plaintiff a Necessary (Fifth) Criterion?107 Detriment to the plaintiff can be a significant factor with respect to establishing the third criterion, even if it is not in itself an essential fifth criterion; for instance, the fact that significant detriment would be caused to the plaintiff by disclosure of the plaintiff's confidential information must be a factor which is relevant, along with other factors, to the determination of whether the defendant ought to be bound by an obligation of conscience to respect the plaintiff's confidence. The question now under consideration, however, is whether detriment to the plaintiff must always be established or whether a binding obligation of confidence may be found without any detriment to the plaintiff being shown. At the end of the passage set out at paragraph 57 dealing with the elements of the equitable action for breach of confidence, Gummow J referred to this issue (at ALR p.437): "It may also be necessary, as Megarry J thought probably was the case (Coco v Clark (AN) (Engineers) Ltd [1969] RPC 41 at 48), and as Mason J (as he then was) accepted in the Fairfax decision was the case (at least for confidences reposed within government), that unauthorised use would be to the detriment of the plaintiff."108 Gummow J did not deal with the issue at any length, because it was clear in the matter before him that detriment could be established, if it was necessary, in any event. Gummow J revisited the issue in Smith Kline &French (at p.111-2): "I accept what was said in Commonwealth v John Fairfax & Sons Ltd (supra) at 52, as authority that where a government seeks in equity to protect its secrets something more, which may be described as detriment to the public interest, is required of it than of other plaintiffs in these cases. As to other cases in equity, I note that in Coco v AN Clark (Engineers) Ltd (supra) at 48, Megarry J in fact left open the question of 'detriment'. Differing views were expressed in the House of Lords in Attorney-General v Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109 at 255-256, 270, 281-282, 293. The authorities have been recently assembled and discussed by Mr R Dean in his work The Law of Trade Secrets (1990) pp.177-178. They disclose that the question remains an open one in this country. I share the view of this learned author, and of Professor Birks in his note 'A Lifelong Obligation of Confidence' (1989) 105 LQR 501, that equity intervenes to uphold an obligation and not necessarily to prevent or to recover loss: see also F Gurry, Breach of Confidence (1984), pp.407-408. The cases dealing with recovery from errant fiduciaries of profits which their principles could not have made illustrate a similar point. The basis of the equitable jurisdiction to protect obligations of confidence lies, as the present case illustrates, in an obligation of conscience arising from the circumstances in or through which the information, the subject of the obligation, was communicated or obtained: Moorgate Tobacco Co Limited v Philip Morris Ltd (No. 2) at 438. The obligation of conscience is to respect the confidence, not merely to refrain from causing detriment to the plaintiff. The plaintiff comes to equity to vindicate his right to observance of the obligation, not necessarily to recover loss or to restrain infliction of apprehended loss. To look into a related field, when has equity said that the only breaches of trust to be restrained are those which would prove detrimental to the beneficiaries?"109 Gummow J nevertheless considered it prudent to make a finding (at p.112) that detriment could be established if that were necessary, and the Full Court did not deal with the issue. It appears that in particular situations, detriment can be a necessary element (see Carindale Country Club Estate Ltd v Astill [1993] FCA 218; (1993) 115 ALR 112 at p.118-9; though the context there is far removed from disclosure of government documents). Clarification of this issue may come through future court decisions. For the time being, however, the issue is probably foreclosed for tribunals such as the Information Commissioner by Commonwealth of Australia v John Fairfax & Sons Limited and Others [1980] HCA 44; (1981) 55 ALJR 45, where Mason J, sitting as a single judge of the High Court of Australia, appears to have accepted, without reservation, that detriment is a necessary element of the action for breach of confidence. The relevant passage (at p.49) is as follows: "However, the plaintiff must show, not only that the information is confidential in quality and that it was imparted so as to import an obligation of confidence, but also that there will be an 'unauthorised use of that information to the detriment of the party communicating it'. (Coco v AN Clark (Engineers) Ltd [1969] RPC 41, at p.47). The question then, when the executive Government seeks the protection given by Equity, is: What detriment does it need to show?"110 The Fairfax case is authority for a legal principle (i.e. that where a government is the plaintiff in an equitable action for breach of confidence seeking to protect government information, it must establish as an additional element that disclosure of the allegedly confidential information would be detrimental to the public interest) that has been widely approved both in Australia, (e.g. per Gummow J above, and per McHugh JA in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd and Anor (1987) 75 ALR 353 at p.455) and in England (Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109 at 283). The relevant question is whether Mason J's statement to the effect that detriment is a necessary element of the equitable action for breach of confidence forms part of the ratio decidendi (i.e. a proposition of law which is essential to the court's decision) of the Fairfax case. The passage set out above rather suggests that it does: Mason J commenced from the proposition that detriment to the plaintiff must be shown, and then considered what detriment a government as plaintiff must show. If so, as a decision of a single judge of the High Court of Australia, it would be binding on a tribunal such as the Information Commissioner, and on FOI administrators, until this element of the decision is distinguished or explained. (In Moorgate Tobacco, Deane J, with whom the other four judges of the High Court agreed, did not expressly refer to "detriment" as a requirement in equity for protection of confidential information. Deane J did, however, refer to a requirement that the information be not only confidential, but "... significant, not necessarily in the sense of commercially valuable ... but in the sense that the preservation of its confidentiality or secrecy is of substantial concern to the plaintiff". This could be interpreted as another means of expressing the requirement that the information must not be trivial or useless, but it is arguably implicit in that requirement that disclosure of trivial or useless information will occasion no detriment sufficient to warrant equity's intervention. Deane J's statement is at least consistent with the notion that some detriment to the plaintiff must be shown.) 111 In the meantime, it is probably necessary, and certainly prudent, to apply s.46(1)(a) of the FOI Act on the basis that it must be established that detriment is likely to be occasioned to the original confider of the confidential information if it were to be disclosed. It appears, however, that detriment is fairly easily established. In particular, it is not necessary to establish that threatened disclosure will cause detriment in a pecuniary sense: "detriment can be as ephemeral as embarrassment ... a loss of privacy or fear ... and indirect detriment, for example, the confidential information may gravely injure some relation or friend." (see Dean, p.177-8 and the cases there cited for these propositions). Moreover, in Attorney-General v Guardian Newspapers (No.2) [1990] 1 AC 109, Lord Keith of Kinkel (with whom Lord Jauncey agreed) said (at p.256): "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 the disclosure would not be harmful to him in any positive way."Lord Griffiths (at p.270) appeared to treat detriment as sufficiently established without economic loss and by loss of social amenities.112 Where contractual obligations of confidence are concerned, detriment would ordinarily be a relevant element in the sense that the normal elements of the action in contract require proof of the existence of a contractual obligation, breach of the obligation, and damage. The application of s.46(1)(a) of the FOI Act, however, calls for an assessment, before the fact, of whether a threatened disclosure would found an action for breach of confidence. As to this issue, Gummow J said in Smith Kline and French at p.111: "If a claim rests in contract and an injunction is sought to restrain breach of a negative stipulation to respect a confidence, then no question of the inadequacy of damages should arise. ..."In the Case of a Government Plaintiff, Detriment to the Public Interest Must be Demonstrated113 As the cases discussed in the preceding section make clear, the principle is now well established that where a government as plaintiff brings an action in equity to restrain the disclosure of confidential information, it must demonstrate that disclosure of the information would cause detriment to the public interest. Section 46(1)(a) of the FOI Act is primarily directed to the protection of information communicated to government agencies in confidence by persons outside government. It is arguable, however, that its wording (particularly in contrast to s.45(1) of the Commonwealth FOI Act where the words "would found an action, by a person other than the Commonwealth" appear) leaves open the possibility that a disclosure which would found an action for breach of confidence brought by the State of Queensland (or by an independent statutory authority or a local authority) as plaintiff, could fall within its terms. Such a possibility also seems to be assumed in the wording and tenor of s.46(2). 114 The likelihood of such an occasion arising is severely diminished in any event by s.46(2), (whose effect is explained at paragraph 35 above). But, in respect of matter of a kind that is not caught by s.46(2) because it falls outside the terms of s.41(1)(a) of the FOI Act, is s.46(1)(a) capable of applying by reference to a hypothetical action for breach of confidence brought by the State of Queensland (or an independent statutory authority, or local authority) as plaintiff? In Commonwealth of Australia v John Fairfax & Sons Limited, Mason J accepted that the Commonwealth government was entitled to seek the protection of the equitable principle which he described as follows (at p.48-49): "... Employees who had access to confidential information in the possession of their employers had been restrained from divulging information to third parties in breach of duty and, if they have already divulged the information, the third parties themselves have been restrained from making disclosure or from making use of the information ... The plaintiff had within its possession confidential information comprised in the documents published in the book. The probability is that a public servant having access to the documents, in breach of his duty and contrary to the security classifications made copies of the documents available to [the defendants]."115 As in the Fairfax case, all reported cases (of which I am aware) in which an action for breach of confidence has been brought by a government as plaintiff, have involved allegations of misuse of confidential government information by current or former government officials, or by publishers who have acquired the information through an unauthorised disclosure by a current or former government official. The confidential information was communicated to or obtained by the official as an incident of the employment relationship, and an obligation of confidence could be readily founded in the employee's duty of fidelity to the employer. All government employees owe a duty of fidelity to their employer not to disclose confidential information without authority.116 The possibility of s.46(1)(a) being applied by reference to a hypothetical action for breach of confidence brought by the State of Queensland (or a statutory authority or local authority) does not, in my opinion, sit easily with the scheme of the FOI Act, where the disclosure being contemplated is to be made by an officer who is authorised under s.33 of the FOI Act to disclose information in response to applications for access made under s.25 of the FOI Act. Where an obligation of confidence is owed by a Minister or government agency to a person outside government, an authorised FOI decision-maker can determine whether disclosure to an applicant for access under the FOI Act would be an unauthorised use in breach of the obligation of confidence. But in an Act with an avowed object to "extend as far as possible the right of the community to have access to information held by Queensland government" (see s.4 of the FOI Act), I doubt that, in respect of information generated within government, s.46(1)(a) is capable of operating, or can have been intended to operate, by reference to a hypothetical action for breach of confidence brought by the State of Queensland (or a statutory authority or local authority) on the basis of a notional unauthorised disclosure by an officer of the plaintiff in breach of an obligation of confidence owed to the plaintiff as employer. In any event, the original confider of confidential information who is entitled to sue to enforce an obligation of confidence is ordinarily at liberty to disclose the confidential information to other parties (unless restrained by a valid contractual undertaking not to do so). A further disclosure of confidential information by the original confider of it could not give rise to an action which answers the description of "an action for breach of confidence". Thus, a disclosure by a government agency of confidential information generated within that government agency, or within the legal entity of which it is a part (i.e. the legal entity which is the State of Queensland includes all Ministerial Departments, but independent statutory authorities, such as Suncorp Insurance and Finance, or local authorities such as the Brisbane City Council, are separate legal entities) would not in my opinion "found an action for breach of confidence" within the meaning of s.46(1)(a) of the FOI Act.117 There would appear to be room for s.46(1)(a) to operate by reference to a hypothetical action for breach of confidence brought by the State of Queensland, or a statutory authority or local authority, as plaintiff, in respect of confidential information passing between such entities in circumstances which import an obligation of confidence, e.g. a hypothetical action for breach of confidence by the Brisbane City Council against the State of Queensland might have to be evaluated. (Specific provision is made in s.38(b) for confidential information communicated between the State of Queensland and the Commonwealth government, or another state or territory government, or an overseas government).118 If I am wrong in the views expressed at paragraph 116 above, it is certainly clear that if s.46(1)(a) is to be applied by reference to a hypothetical action for breach of confidence brought by the State of Queensland (or a statutory authority or local authority) as plaintiff (including in the circumstances contemplated in paragraph 117) the plaintiff must establish that disclosure of the information in issue is likely to injure the public interest. Following the passage set out at paragraph 109 above, Mason J went on to state the following principles (which, as noted above, have since been endorsed by McHugh J A in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 75 ALR 353 at p.455): "The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive Government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that Equity will not protect information in the hands of the Government, but it is to say that when Equity protects Government information it will look at the matter through different spectacles. It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the Government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise Government action. Accordingly, the Court will determine the Government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected. The Court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public's interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality. Support for this approach is to be found in Attorney-General v Jonathan Cape Ltd [1976] QB 752, where the Court refused to grant an injunction to restrain publication of the diaries of Richard Crossman. Widgery LCJ said (at pp. 770-771): 'The Attorney-General must show (a) that such publication would be a breach of confidence; (b) that the public interest requires that the publication be restrained, and (c) that there are no other facets of the public interest contradictory of and more compelling than that relied upon. Moreover, the court, when asked to restrain such a publication, must closely examine the extent to which relief is necessary to ensure that restrictions are not imposed beyond the strict requirement of public need.'"(It should be noted for completeness that Professor Finn argues in Official Information at p.135-6 that some governmental activities may have such a non-governmental or commercial character as would warrant information generated in the conduct of those activities being accorded the same protection as would be given to private enterprises, i.e. the injury to public interest should not apply. It is unlikely that reliance on s.46 of the FOI Act would be needed for such information, given the strong protection afforded by s.45(1)(a) and (b) for trade secrets or other commercially valuable information held by government agencies.)Defences to an Action for Breach of Confidence119 There may be a threshold issue of statutory construction as to whether the words "would found an action" in s.46(1)(a) direct attention only to the elements which a plaintiff must establish in order to set up a cause of action for breach of confidence, without regard to any defences that may apply to defeat the cause of action, or whether the words require the existence of defences which would defeat an action for breach of confidence to be taken into account. Since the recognised defences to an action for breach of confidence generally reflect public interest considerations for refusing to enforce an obligation of confidence, I consider that it is consistent with the general scheme of the Act (in which public interest considerations, and the balancing of competing public interest considerations are predominant, as explained in my decision in Re Eccleston) that s.46(1)(a) should be interpreted as requiring defences to an action for breach of confidence to be taken into account. This certainly appears to have been the intention of the Commonwealth Parliament when employing the like words in the amended s.45 of the Commonwealth FOI Act - see the penultimate sentence in the relevant paragraph from the Explanatory Memorandum set out at paragraph 29 above. I am also encouraged in this view by the fact that Gummow J in Corrs Pavey, after holding that the term "breach of confidence" was used in the former s.45 of the Commonwealth FOI Act in the sense well known to the law as the description of a particular class of legal proceeding, went on to consider and apply the defences to an equitable action for breach of confidence (at ALR p.451 ff).120 In that case, Gummow J also explained his view that the English authorities which had constructed a "public interest defence" to the action for breach of confidence were wrong in principle, views which he summarised in Smith Kline & French (at p.111) as follows: "... (i) an examination of the recent English decisions shows that the so-called 'public interest' defence is not so much a rule of law as an invitation to judicial idiosyncrasy by deciding each case on an ad hoc basis as to whether, on the facts overall, it is better to respect or to override the obligation of confidence; and (ii) equitable principles are best developed by reference to what conscionable behaviour demands of the defendant not by 'balancing' and then overriding those demands by reference to matters of social or political opinion."121 These views led Gummow J to hold in Corrs Pavey in the passage set out at paragraph 70 above that crimes, civil wrongs and serious misdeeds of public importance lack the necessary quality of confidence to be the subject of protection pursuant to an equitable obligation of confidence. If that view is correct, it means that such matters must be considered in determining whether the elements of an equitable action for breach of confidence are established, even if the proper construction of s.46(1)(a) would not permit the existence of recognised defences to an action of breach of confidence to be taken into account.122 It remains to be seen whether Gummow J's views take root in Australian law. They have in turn been subject to criticism. Leo Tsaknis in "The Jurisdictional Basis, Elements and Remedies in the Action for Breach of Confidence - Uncertainty Abounds" [1993] BondLawRw 2; (1993) 5 Bond Law Review 18 at p.27 writes: "The approach of Gummow J focuses on 'what conscionable behaviour demands'. However it is difficult to divorce the question of what conscionable behaviour demands from the public interest sought to be promoted by making the disclosure. Only by assessing the public interest sought to be promoted by the making of the disclosure can it be determined whether conscionable behaviour demands that the disclosure be made."And D A Butler in "Is There a Public Interest Defence to a Breach of Confidence?", Queensland Law Society Journal, October 1990, 363 at p.367 submits that: "... notwithstanding the analysis of Gummow J in the Corrs Pavey case, there is, or at least should be, in Australian law a public interest defence to a breach of confidence. It would seem that the doctrine that imposes duties of confidence is best explained as being based on notions of public interest that in appropriate circumstances operate to 'transform confidentiality from a private expectation or from a matter of ethics, into a legal obligation'. To admit an exception that permits disclosure where there are other overriding public interests would seem to be a logical concomitant."123 There is no doubt that it is well established in English law that there is a defence to an action for breach of confidence of "just cause or excuse" for using or disclosing the confidential information, where it is in the public interest to use or disclose the information in that way. (See Lion Laboratories v Evans [1985] QB 526; Attorney-General v Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109; Gurry at p.325-346, Dean at p.273-292, and the cases there cited.) The defence of just cause or excuse has in England been held to apply to breaches of both equitable and contractual obligations of confidence (see Gurry, p.328.)124 Australian case law on the issue is sparse. In Castrol Australia Pty Ltd v Emtech Associates Pty Ltd (1981) 33 ALR 31, Rath J, while making it clear that he would confine the scope of any such defence considerably more tightly than was apparent in the approach of some of the English judges, appeared to accept the existence of a defence of just cause or excuse for breaking confidence. The existence of the defence was accepted by Samuels JA of the New South Wales Court of Appeal in David Syme and Co Ltd v General Motors Holden Limited [1984] 2 NSWLR 294, and by Kirby P of the New South Wales Court of Appeal in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 75 ALR 353 at pp.430-5, p.446. In Allied Mills Industries Pty Ltd v Trade Practices Commission [1981] FCA 11; (1981) 55 FLR 125, Sheppard J in the Federal Court of Australia held that the public interest in the disclosure of an iniquity or a crime would always outweigh the public interest in confidentiality; and that iniquity included a civil wrong or a breach of statute, which statute was "of the upmost importance in the public interest" (at p.167). The case concerned an attempt by Allied Mills to prevent the Trade Practices Commission using documents supplied to it by an ex-manager of Allied Mills for the purposes of supporting proceedings for breaches of the Trade Practices Act 1974. However, in A v Hayden and Others (No. 2) [1984] HCA 67; (1984) 59 ALJR 6, Gibbs C J said (at p.9) of Sheppard J's statement that "... the public interest in the disclosure ... of iniquity will always outweigh the public interest in the preservation of private and confidential information": "That is too broad a statement, unless 'iniquity' is confined to mean serious crime. The public interest does not, in every case, require the disclosure of the fact that a criminal offence, however trivial, has been committed."125 It appears that the "public interest defence" has been recognised in Australian law, but that it is confined to disclosures which evidence a crime or serious wrongdoing, or matters injurious to public health (see Tsaknis, cited in paragraph 122 above, at p.25; Finn, Official Information (Integrity in Government Project: Interim Report One, ANU, 1991) at p.147 and p.229).126 I consider that the application of a defence of just cause or excuse for breaching confidence where disclosure is in the public interest, will not for practical purposes be a significant problem area in the application of s.46(1)(a) of the FOI Act. This is because of a limitation on the availability of the defence which will be of particular practical significance in the context of dealing with applications for access to documents under the FOI Act. The limitation is that it will not be a defence to claim that disclosure of confidential information to the public is in the public interest, where the public interest could have been served by disclosure in confidence to a proper authority. Thus, in Initial Services Ltd v Putterill [1968] 1 QB 396, Denning L J said (at p.405-6): "The disclosure must, I should think, be to one who has a proper interest to receive the information. Thus, it will be proper to disclose a crime to the police; or a breach of the Restrictive Trade Practices Act to the Registrar. There may be cases where the misdeed is of such a character that public interest may demand, or at least excuse, publication on a broader field, even to the press."127 This reflects the recognition by the courts that (as Professor Finn observes in Official Information, cited above, at p.230): "It is one thing to make an allegation of misconduct, another properly to substantiate it, and that the interests of the person owed a secrecy obligation, or else of the person the subject of the disclosure, can require protection from disclosures which, on full inquiry, may be found to be baseless or at least insufficient to justify unlimited disclosure in the circumstances."Thus, it was said in the House of Lords in Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109 at 269 (per Lord Griffiths): "In certain circumstances the public interest may be better served by a limited form of publication perhaps to the police or some other authority who can follow up a suspicion that wrongdoing may lurk beneath the cloak of confidence. Those authorities will be under a duty not to abuse the confidential information and to use it only for the purpose of their inquiry. If it turns out that the suspicions are without foundation, the confidence can then still be protected: see Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892. On the other hand, the circumstances may be such that the balance will come down in favour of allowing publication by the media, see Lion Laboratories Ltd v Evans [1985] QB 526."128 In Francome v Mirror Group Newspapers Ltd, it was held that if the public interest in the disclosure of information allegedly showing breaches of the rules of racing could be vindicated by disclosure to the Jockey Club or the police, disclosure to the public (through the press) would not amount to a valid defence.129 Gurry has commented as follows (at p.345): "This element of the defence can operate as an important control device to ensure that attempts are not made to justify capricious disclosures. It seems settled that the proper authority to whom information relating to crime should be disclosed is the police or the Director of Public Prosecutions. Where the misdeed is a breach of statutory duty, the statutory authority charged with administering the relevant legislation would have a 'proper interest' to receive the information. Where it is a civil wrong, the individual against whom the tort has been, or is intended to be, committed is presumably the proper person to whom disclosure should be made. Thus, in Gartside v Outram (1857) 26 LJ Ch (NS) 43 Wood V-C considered that disclosure of fraudulent business practices to the defrauded customers was justified. If the event or practice affects the community as a whole, then there are grounds for justifying a general disclosure through, for example, the media or by the publication of a book. In Church of Scientology v Kaufman [1973] RPC 635, Goff J considered that the publication of a book exposing the malpractices of Scientology, which affected, or had a potential effect on, the general public, was legitimate. ... In Initial Services Limited v Putterill, the court seemed to consider that the press was not an inappropriate place in which to reveal a misleading business practice which affected the public at large. [For a further illustration of this principle, see Lion Laboratories v Evans [1985] QB 526.]"130 If the defence is ordinarily only available to excuse a breach of confidence where disclosure is to a proper authority, there is little scope for its practical application to a contemplated disclosure to an applicant for access under the FOI Act. With some potential exceptions, the kinds of proper authority to whom a disclosure must be made in the public interest are government agencies such as the police, regulatory authorities, authorities concerned with public health or safety, and the like. The FOI Act is generally used by persons outside government to obtain access to documents in the possession of government agencies, so the contemplated disclosure will rarely, if ever, be to a "proper authority" (though there is no restriction in theory on a government agency using the FOI Act to obtain access to documents in the possession of another government agency subject to the FOI Act, such that, for instance, the prospect of the Queensland Police Service or the Criminal Justice Commission making an FOI application for access to documents held by a local authority is a permitted, if unlikely, use of the FOI legislation). Even in respect of Gummow J's preferred alternative approach to the treatment of crimes, civil wrongs or serious misdeeds of public importance, His Honour made it clear (in the passage set out at paragraph 70 above) that equity would not enforce the confidence if "the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in redressing such crime, wrong or misdeed".131 There may be some scope on the authorities, however, for a "public interest defence" to operate so as to allow the disclosure under the FOI Act of otherwise confidential information:(a) to any applicant, if the confidential information concerns a misdeed or danger to public health or safety that affects the community as a whole (so that a court under the general law would not insist on disclosure to a proper authority); or(b) to the person(s) wronged, if the confidential information concerns a civil wrong.Other Defences132 As s.46(1)(a) requires that a claim for exemption be tested by reference to a hypothetical action for breach of confidence, other defences which may apply to defeat the cause of action are to be taken into account. In respect of an equitable action for breach of confidence, the defence of unclean hands may apply: "The maximum of equity that 'He who comes into Equity must come with Clean Hands' can operate as a defence to an action for breach of confidence. The defence is a discretionary one and will operate when the court considers that a plaintiff's conduct in a transaction has been so improper that he should be refused equitable relief. This equitable defence is to be distinguished from the defence of just cause or excuse on the ground that the latter is concerned with the public interest, whereas the defence of unclean hands is concerned with the propriety of a plaintiff's personal conduct in a particular transaction. In many cases, therefore, it may provide a broader ground of defence, since it is not necessary to show that the defendant's disclosure of information was in the public interest. Of course, there may be cases where the same set of facts would give rise to a good defence on the basis of both principles ... . ... ... if the defence is to be successful in a breach of confidence action, there must be some impropriety relating to the confider's conduct with the confidant, the information for which protection is sought, or the confider's own treatment of that information." (Gurry at p.352, p.356)133 In Corrs Pavey, Gummow J said (at page 451): "In most cases the conduct of the plaintiff upon which a defendant relies for a defence of unclean hands will be conduct adversely affecting the interests of the defendant personally, not another party or the public at large or a section of the public ... . There is authority which indicates that this defence is not so confined and it extends to cases where the plaintiff's misconduct has operated to the prejudice of third parties, especially where some general public interest is involved ... the court acts in this way ... to encourage fair dealing with the public."For an example of how this defence may be applied, see Corrs Pavey at p.451-2. 134 Where a contractual obligation of confidence is relied upon, there may be other kinds of defences which require investigation where some impropriety attends the subject of the confidence or the stipulation for confidence - an express contractual term may be illegal or unenforceable on public policy grounds (see A v Hayden and Others (No 2) [1984] HCA 67; (1984) 59 ALJR 6).Application of s.46(1)(a) to the Matter in Issue135 In the circumstances of this case, s.46(1)(a) is to be applied by reference to a hypothetical action for breach of confidence brought by the third party, in respect of an obligation of confidence said to be owed by the Authority through its employee who received and recorded the information communicated by the third party. I am satisfied that there is an identifiable plaintiff (the third party) who has standing to sue in respect of the matter in issue (see paragraph 44 above) and that the information in issue can be identified with specificity. 136 The information has the requisite degree of secrecy in that it is not common knowledge and is inaccessible to the general public. I have given some consideration to whether the information might be characterised as "trivial tittle-tattle" (cf. paragraph 68 above), since it appears with the benefit of hindsight that the concerns about B's welfare conveyed by the third party have turned out to be without substance. I am satisfied, however, that the third party's concerns were genuine, and that if the information had been well-founded it certainly must have been characterised as more than trivial. The nature of the information, and the fact that it would disclose that the third party held those concerns at one time, satisfies me that the information in issue is appropriate to be the subject of protection in equity. I therefore find that the information has the necessary quality of confidence, so as to satisfy the second element of the equitable action for breach of confidence.137 The third party's identity is also eligible for protection as confidential information in the circumstances of this case. The decision of Yeldham J of the New South Wales Supreme Court 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. Yeldham J said (at p.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. The fact that it was the plaintiff whose information set in train the application for a new inquest and the events which followed is not at present (subject to the disclosures on television, to which I will return) public property; the plaintiff imparted such information to the authorities only upon receiving assurances that his anonymity would be preserved; he genuinely believes that publication of his identity to the community at large may result in damage to him and his family and hence its non-publication was a matter of substantial concern to him; and it may also well result in ridicule of him by those whose standards of conduct are different from his. Certainly unauthorised disclosure of his name will work to his detriment in a not insubstantial way."I am satisfied that this is an appropriate case for application of the above principles to the third party's identity, and that disclosure of the third party's identity would work to the third party's detriment in a not insubstantial way.138 As to whether the information was received in circumstances importing an obligation of confidence, I have had regard to the evidence (described at paragraphs 7, 8, 19 and 21 above) obtained from the third party and from the Authority's employee who received and recorded the information from the third party. Their respective accounts of the relevant events are consistent, and are corroborated by a contemporaneous note made by the Authority's employee at the time the information in issue was received and recorded. That evidence discloses that the third party sought an express assurance from the Authority's employee that the information imparted by the third party and the third party's identity, would remain strictly confidential including from B. The Authority's employee gave the third party the assurance which the third party sought.139 There will be cases where the seeking and giving of an express assurance as to confidentiality will not be sufficient to constitute a binding obligation, for example if the stipulation for confidentiality is unreasonable in the circumstances, or, having regard to all of the circumstances equity would not bind the recipient's conscience with an enforceable obligation of confidence (see paragraphs 84 and 85 above). However, no such circumstances are present in this case. (As it turned out, the Authority had no use for the information, as it was no part of the Authority's functions to deal with concerns of the kind conveyed by the third party. The information simply remains recorded, but unacted upon.) In my opinion, the circumstances of the Authority's receipt of the information in issue are such as to bind the Authority with an equitable obligation to respect the third party's confidence.140 As to the fourth element of the equitable action for breach of confidence, I am satisfied that at the time the information in issue was communicated to the Authority's employee, the third party expressly stipulated that the information was not to be conveyed to B. In the course of these proceedings, it has been made clear to me that the third party continues to be vehemently opposed to the disclosure of that information to B. I find that disclosure of the matter in issue to B would constitute an unauthorised use of the information.141 I am also satisfied that disclosure of the information in issue to B would cause detriment to the third party of one or more of the kinds recognised in paragraph 111 above.142 In the circumstances of this case, no occasion arises to consider the application of any of the defences to an equitable action for breach of confidence discussed earlier in these reasons for decision. I should also note that s.46(2) does not apply to the matter in issue, so as to render s.46(1) inapplicable. The matter in issue probably does not answer the description of "matter of a kind mentioned in s.41(1)(a)" (though it may have done so if the Authority had been prepared to act on the information), but even if it does answer the relevant description its disclosure would found an action for breach of confidence owed to a person or body other than those mentioned in s.46(2)(a) and (b).143 I am satisfied that disclosure of the information in issue would found an action for breach of confidence, and that it therefore constitutes exempt matter under s.46(1)(a) of the FOI Act.Issues in the Interpretation and Application of s.46(1)(b)144 My remarks at paragraphs 31 to 34 are also relevant here. The focus of s.46(1)(a) is on ensuring that confidences that would be protected under the general law in an action for breach of confidence are capable of protection from disclosure under the FOI Act. To the extent that s.46(1)(b) has a different focus, it is that of minimising any prejudice to the future supply to government agencies of needed confidential information, that might be occasioned by the threat of disclosure of the confidential information under the FOI Act. Even then, if disclosure of the confidential information would on balance be in the public interest, the public interest in disclosure must prevail.145 Section 46(1)(b) of the Queensland FOI Act has no counterpart in the Commonwealth FOI Act. The FOI statutes of Victoria (s.35(1)), New South Wales (Item 13(b), Schedule 1), South Australia (Item 13(b), Schedule 1) and Tasmania (s.33(1)) all contain somewhat similar provisions, although none of those provisions explicitly requires that the information communicated in confidence be information of a "confidential nature", as is required by s.46(1)(b) of the Queensland FOI Act.146 In order to establish the prima facie ground of exemption under s.46(1)(b) three cumulative requirements must be satisfied:(a) the matter in issue must consist of information of a confidential nature;(b) that was communicated in confidence; (c) the disclosure of which could reasonably be expected to prejudice the future supply of such information.147 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 Nature148 In my opinion, this criterion 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).Communicated in Confidence149 This criterion will obviously be satisfied where a (valid) contractual obligation of confidence governs the communication, or the circumstances of the communication are such as to import an equitable obligation of confidence. But these are instances where resort to s.46(1)(b) is unnecessary, as s.46(1)(a) will protect from disclosure. I think the words "communicated in confidence" set up their own criterion which is to be satisfied without any necessity to consider whether legal obligations of confidence would attend the communication in issue. There will obviously, however, be a substantial degree of overlap with the kinds of considerations dealt with at paragraphs 76 to 96 above.150 The words "communicated in confidence" in s.35(1) of the Victorian FOI Act were briefly considered by two members of a Full Court of the Supreme Court of Victoria in Ryder v Booth [1985] VicRp 86; [1985] VR 869. Gray J (at p.878) looked at the terms of the document in issue, the nature of the information, the purpose for which the information was provided and the circumstances in which it was provided before concluding that the communication in question fell within the ordinary meaning of a communication made in confidence. King J (at p.883) said that whether information is communicated in confidence is a question of fact and it is not necessary to consider whether legal obligations of confidence are set up by the communications in question. King J held that undisputed evidence that the information in question was regarded and treated as confidential as between the supplier and the recipient agency suffices to prove that the information was communicated in confidence within the meaning of s.35(1) of the Victorian FOI Act.151 I consider that s.46(1)(b) contemplates the situation described by the Commonwealth AAT (Davies J presiding) in Re Low and Department of Defence (1984) 2 AAR 142, where the Tribunal said of the former s.45 of the Commonwealth FOI Act (at p.48): "... [it] is concerned with information which would not have been disclosed but for the existence of a confidential relationship. Such a situation is readily seen when a person dealing with an agency conveys to the agency information that the person is not bound to disclose and does so on the understanding on both sides that such information will be kept confidential."152 I consider that the phrase "communicated in confidence" is used in this context to convey a requirement that there be mutual expectations that the information is to be treated in confidence. One is looking then for evidence of any express consensus between the confider and confidant as to preserving the confidentiality of the information imparted; or alternatively for evidence to be found in an analysis of all the relevant circumstances that would justify a finding that there was a common implicit understanding as to preserving the confidentiality of the information imparted.153 The matters discussed at paragraphs 103 and 104 above concerning the scope or extent of an obligation of confidence will also be relevant to the extent of the mutual understanding as to confidence for the purposes of s.46(1)(b), i.e. it is a question of fact whether in the circumstances it was or must have been the intention of the parties that the recipient should be at liberty to divulge the information to a limited class of persons which may include a particular applicant for access under the FOI Act. Likewise the matters discussed at paragraphs 105 and 106 above concerning the confider authorising the disclosure of information previously communicated in confidence are also relevant here.Could Reasonably be Expected to Prejudice the Future Supply of Such Information154 The phrase "could reasonably be expected to" appears in several of the exemption provisions contained in Part 3 Division 2 of the FOI Act: (sections 38, 39, 40, 42(1), 45(1)(b)(ii), 45(1)(c)(ii), 45(3)(b), 46(1)(b), 47(1) and 49). In each case, the phrase appears in conjunction with some prejudicial effect which may result from the disclosure of matter. Where it is established that disclosure of the matter in issue "could reasonably be expected to" lead to the specifically described prejudicial consequence, then the matter is prima facie exempt. In all cases but s.42(1), 45(1)(b), and 45(3)(b), this prima facie exemption is then subject to a countervailing public interest test.155 In interpreting the meaning of the specific phrase "could reasonably be expected to prejudice", it is helpful to refer to cases decided under the Commonwealth FOI Act, since the same phrase appears in a number of comparable contexts in that statute, and has been the subject of judicial scrutiny in the Federal Court on several occasions: News Corporation Ltd v National Companies and Securities Commission [1984] FCA 400; (1984) 5 FCR 88, per Fox J and Woodward J; Attorney-General's Department v Cockcroft (1986) 10 FCR 180, at pp. 189-190 per Bowen CJ and Beaumont J, and at pp. 193-196 per Sheppard J); Arnold v Queensland and Australian National Parks and Wildlife Service [1987] FCA 148; (1987) 13 ALD 195, at p.204 per Wilcox J, and at p.215 per Burchett J; Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163, at pp.175-178.156 In Attorney-General v Cockcroft, which dealt with the proper interpretation of the phrase "could reasonably be expected to prejudice the future supply of information" in the context of the s.43(1)(c)(ii) (business affairs) exemption contained in the Commonwealth FOI Act, Bowen CJ and Beaumont J had this to say: "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 those 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 Kioa v West [1985] HCA 81; (1985) 62 ALR 321; 60 ALR 113 per Mason J and per Gibbs CJ." 157 In the same case, Sheppard J stated the appropriate test for the decision-maker in the following terms: "In my opinion he will not be justified in claiming exemption unless, at the time the decision is made, he has real and substantial grounds for thinking that the production of the document could prejudice [the future supply of information]. But, stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information."158 The most recent Federal Court decision on point is Searle's case, in which a Full Court of the Federal Court (Davies, Wilcox and Einfeld JJ) was asked to consider whether there was a fundamental difference in principle between the test proposed in the joint judgment of Bowen CJ and Beaumont J in Attorney-General v Cockcroft and the test proposed by Sheppard J in that case. The Full Court in Searle Australia Pty Ltd v PIAC stated: "Their Honours [Bowen CJ and Beaumont J] did not suggest ... that it was sufficient that there be a possibility not irrational, absurd or ridiculous that the specified consequence would occur. Their Honours specifically rejected that approach, saying that the words 'could reasonably be expected' meant what they said. The practical application of their Honours' view will not necessarily lead to a result different from that proposed by Sheppard J. In the application of s.43(1)(b), there would ordinarily be material before the decision-maker which would show whether or not the commercial value of the information would be or could reasonably 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."159 The Full Court went on in that case to state that the issue which the decision-maker must determine is not the reasonableness of the claim for exemption, but rather the reasonableness of expecting a particular consequence to flow from disclosure: "However, the question under s.43(1)(b) is not whether there is a 'reasonable' basis for a claim for exemption but whether the commercial value of the information could reasonably be expected to be destroyed or diminished if it were disclosed. These two questions are different. The decision-maker is concerned, not with the reasonableness of the claimant's behaviour, but with the effect of disclosure."160 In News Corporation v NCSC [1984] FCA 400; (1984) 5 FCR 88, Fox J said that a mere risk of prejudice is not sufficient to satisfy the statutory phrase "could reasonably be expected to prejudice". The words 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.161 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 confider whose confidential information is being considered for disclosure, could reasonably be expected to refuse to supply such information in the future, but by reference to whether disclosure could reasonably be expected to prejudice future supply of such information from a substantial number of the sources available or likely to be available to an agency.162 If the first three criteria specified in s.46(1)(b) are satisfied, then the application of the countervailing public interest test must be considered.Application of s.46(1)(b) to the Matter in Issue163 The Authority found that the matter in issue was exempt under s.46(1)(b), without giving separate consideration to s.46(1)(a). Since I have found that s.46(1)(a) does apply, it is not necessary for me to determine whether s.46(1)(b) also applies and for reasons explained at paragraph 164 below, I do not propose to do so; but I will make some brief observations.164 Firstly, for the reasons explained at paragraph 142 above, s.46(2) does not apply so as to render s.46(1) inapplicable. I have already made findings at paragraphs 136 to 139 above that the information in issue in this case is confidential in nature, and that it was received by the Authority in circumstances importing an equitable obligation of confidence. Thus the first two criteria for the application of s.46(1)(b) are also satisfied.165 The evidence presently available to me would be insufficient to satisfy the requirements of the third criterion as explained above. The Authority's decision-makers gave reasons statements which did not set out findings on material questions of fact (nor refer to the evidence or other material on which those findings were based) sufficient to show that this criterion would be satisfied. I have not asked the Authority in this review under Part 5 of the FOI Act to provide evidence going to this issue, because I was satisfied that s.46(1)(a) applies to the matter in issue. I therefore do not intend to make a finding as to whether or not s.46(1)(b) would also apply to the matter in issue.166 In respect of the third criterion, however, I note that there is a series of cases decided by the Victorian AAT (Re W and Health Department (Vic) (1987) 1 VAR 383; Re Pyle and Health Commission (Vic) (1987) 2 VAR 54; Re M and Health Department (Vic) (1988) 2 VAR 317) that are somewhat similar to the present case, in that each involves an application by a former psychiatric patient for access to portions of the patient's clinical record comprising information about the patient conveyed to an agency by third persons. In all three cases, the Victorian AAT determined that disclosure of the information in issue would impair the future ability of the agencies concerned to obtain similar information. In those cases, however, the personal information concerning the patient was provided to assist in the treatment of the patient. The information in issue in the present case did not relate to B's medical care and treatment by the Authority and its employees, but rather to B's welfare in a more general sense. Indeed, as I remarked at paragraph 139, it appears that the Authority regarded the information recording the third party's concerns for one particular aspect of B's welfare as being related matters that it was not the Authority's function to deal with. It would probably not therefore be of any concern to the Authority if information of that precise kind was not forthcoming in the future. Nevertheless it will frequently be of assistance, and in some cases essential, for those involved in the care and treatment of a psychiatric patient to have access to a broad range of information, both clinical and non-clinical, concerning the patient. I can understand the Authority's concern to ensure that the supply of such information is not prejudiced. In any particular case, however, the Authority would need to demonstrate that a disclosure of requested information under the FOI Act could reasonably be expected to prejudice the future supply of such information. 167 Where a prima facie case for exemption is established under s.46(1)(b), it is then necessary to consider whether disclosure of the information in issue would, on balance, be in the public interest. The application of the countervailing public interest test in s.46(1)(b) involves the same considerations as the application of the countervailing public interest test in s.44(1), which I have dealt with below at paragraphs 179 to 189.SECTION 44 - "MATTER AFFECTING PERSONAL AFFAIRS"168 My reasons for decision in the case of Re Stewart and Department of Transport (Information Commissioner Qld, Decision No. 93006, 9 December 1993), referred to the various provisions in the FOI Act which employ the term "personal affairs", and contained a detailed discussion of the meaning of the phrase "personal affairs of a person" and relevant variations thereof (see paragraphs 79 to 114 of my reasons for decision in Re Stewart). 169 Whether or not particular matter contained in a document comprises information concerning an individual's personal affairs is essentially a question of fact. I have already found the matter in issue to be exempt under s.46(1)(a), and I cannot appropriately give a detailed explanation as to why the matter in issue is also "personal affairs" information without revealing details that ought not to be revealed. The matter in issue comprises information provided by the third party to an employee of the Authority and some notations recording details of the occasions on which the third party contacted the Authority's staff. The last four paragraphs of the matter in issue concern the personal affairs of the third party only, and clearly constitute exempt matter under s.44(1), there being no public interest consideration of any weight that would favour their disclosure. They contain no information concerning the personal affairs of B, so there is no scope for s.6 or s.44(2) to apply to assist B to obtain access to them. (The effect of s.6 and s.44(2) is explained below.)170 The four paragraphs comprising the balance of the matter in issue would if disclosed, disclose information concerning the personal affairs of the third party and information concerning the personal affairs of B; the matter clearly falls within the meaning of the term "personal affairs" as explained in Re Stewart (at paragraphs 79-80 and following) both as it relates to B and to the third party. To the extent that it concerns B it comprises expressions of opinion and of concern by the third party, who felt that the information being provided was relevant to the interests of B, as the third party saw them, at the time of B's hospitalisation. The matter in issue is not of a medical or clinical nature. It was not sought by the staff of the Authority for any purpose relating to B's treatment, but rather was proffered unilaterally by the third party, as being relevant to B's welfare in a more general sense. 171 Further complications arise because the information concerning the personal affairs of B is inextricably intertwined with the information concerning the personal affairs of the third party -it is not practicable to delete any information concerning the personal affairs of the third party, and to allow B access to any surviving material. Moreover if any of the information were disclosed to B, it would enable B to identify the third party, and as I have found above, the Authority is bound by an enforceable obligation of confidence not to disclose the third party's identity to B.Shared Personal Affairs172 I accept the correctness of the position stated by Deputy President Galvin of the Victorian AAT in a case involving an application for access to adoption records, Re Thomas and Royal Women's Hospital and Another (1988) 2 VAR 618, at 622: "I cannot see any reason why a particular matter might not be a personal affair of more than one party. 'Personal' has not been said to connote exclusiveness."173 The application of the Queensland FOI Act to matter that concerns the personal affairs of more than one person becomes a trifle complex. The starting point is the general right of access conferred by s.21 of the FOI Act, by which any person has a legally enforceable right to be given access, under the Act, to documents of an agency or official documents of a Minister, subject only to such reservations and exceptions as are to be found in the scheme of the FOI Act itself.174 When dealing with an FOI access application an agency or Minister has a discretion to refuse access to exempt matter. Applied literally, the opening words of s.44(1) would produce the result that information concerning the personal affairs of an applicant is prima facie exempt matter. Section 44(2) therefore provides for an exception to the operation of s.44(1), i.e. that matter is not exempt under s.44(1) merely because it relates to information concerning the personal affairs of the applicant. Section 44(2) cannot be construed as a provision which confers a personal right of access to information concerning an applicant's personal affairs. There is only one provision in the FOI Act which confers a right of access, and that is s.21; moreover, the scheme of the Act makes it clear that information relating solely to an applicant's personal affairs may be exempt under any applicable exemption provision in Part 3, Division 2. Section 44(2) is, according to its plain terms, no more than an exception to an exemption provision.175 The presence of the word "merely" in s.44(2) places a significant qualification on the scope of the exception, and one which is directly relevant to the circumstances under consideration. In paragraph 49 of my decision in Mr S T Hudson as agent for Fencray Pty Ltd and Department of the Premier, Economic and Trade Development (Information Commissioner Qld, Decision No. 93004, 13 August 1993), I expressed the view that the word "merely" in the phrase "merely factual matter" in the former s.36(2) of the FOI Act (since amended by the Freedom of Information Amendment Act 1993 Qld) meant purely factual matter, or solely or no more than factual matter. The English word "mere" comes from the Latin merus, meaning "pure, unmixed". Thus the Collins English Dictionary (Australian edition) gives the meaning of the word "mere" as "being nothing more than something specified". The correct sense of s.44(2) would be conveyed by paraphrasing it as - matter is not exempt under subsection (1) purely by reason that it relates to information concerning the personal affairs of the applicant for access.176 Thus, if matter relates to information concerning the personal affairs of another person as well as the personal affairs of the applicant for access, then the s.44(2) exception to the s.44(1) exemption does not apply. The problem here arises where the information concerning the personal affairs of the applicant is inextricably interwoven with information concerning the personal affairs of another person. The problem does not arise where some document contains discrete segments of matter concerning the personal affairs of the applicant, and discrete segments of matter concerning the personal affairs of another person, for in those circumstances:(a) the former will fall within the s.44(2) exception;(b) the latter will be exempt under s.44(1) (unless the countervailing public interest test applies to negate the prima facie ground of exemption); and(c) s.32 of the FOI Act can be applied to allow the applicant to have access to the information concerning the applicant's personal affairs, by the provision of a copy of the document from which the exempt matter has been deleted.Where, however, the segment of matter in issue is comprised of information concerning the personal affairs of the applicant which is inextricably interwoven with information concerning the personal affairs of another person, then:(a) severance in accordance with s.32 is not practicable;(b) the s.44(2) exception does not apply; and(c) the matter in issue is prima facie exempt from disclosure to the applicant according to the terms of s.44(1), subject to the application of the countervailing public interest test contained within s.44(1).(I should pause at this point to observe that I am analysing the situation according to a strict application of the exemption provisions, which I am bound to do by virtue of s.88(2) of the FOI Act. At the primary decision-making stage, and on internal review, an agency or Minister has the benefit of the discretions reserved by s.28(1) and s.14(b) of the FOI Act, which allow access to be given to matter even if it is technically exempt matter. Where it is clear by reason of the relationship or interaction between the applicant and the other person that the information concerning the personal affairs of the other person is such that it would be known to the applicant in any event or that its disclosure to the applicant would not be likely to be objected to by the other person, then it would appear to serve no useful purpose to exercise the discretion to grant or withhold access to exempt matter otherwise than in favour of disclosure to the applicant. This is particularly so if the other person is contacted, pursuant to s.51 or otherwise, and raises no objection to release of the information, either generally or to the particular applicant for access.)177 The result in the present case is that the segment of the matter in issue in which information concerning the personal affairs of B is inextricably interwoven with information concerning the personal affairs of the third party, is prima facie exempt from disclosure to B under s.44(1), subject to the application of the countervailing public interest test contained within s.44(1).178 In that regard B is entitled to whatever assistance can be obtained from s.6 of the FOI Act, which provides: "6. If an application for access to a document is made under this Act, the fact that the document contains matter relating to the personal affairs of the applicant is an element to be taken into account in deciding - (a) whether it is in the public interest to grant access to the applicant; and (b) the effect that the disclosure of the matter might have."Application of the Countervailing Public Interest Test179 Section 44(1) is one of several exemption provisions (s.46(1)(b) is another) which are framed so as to require an initial judgment as to whether disclosure of matter in a document would have certain specified effects, which if established will constitute a prima facie ground of justification in the public interest for non-disclosure of the matter, unless the further judgment is made that the prima facie ground is outweighed by other public interest considerations, such that disclosure of the matter in the document "would, on balance, be in the public interest".180 The meaning of the phrase "public interest" was discussed in some detail in my decision in Re Eccleston; see in particular paragraphs 49 to 57, of which the following is presently relevant: "54 Likewise, under freedom of information legislation, the task of determining, after weighing competing interests, where the balance of public interest lies, will depend on the nature and relative weight of the conflicting interests which are identifiable as relevant in any given case. 55 While in general terms, a matter of public interest must be a matter that concerns the interests of the community generally, the courts have recognised that: "the public interest necessarily comprehends an element of justice to the individual" (per Mason CJ in Attorney-General (NSW) v Quin (1990) 64 ALJR 627). Thus, there is a public interest in individuals receiving fair treatment in accordance with the law in their dealings with government, as this is an interest common to all members of the community. Similarly, the fact that individuals and corporations have, and are entitled to pursue, legitimate private rights and interests can be given recognition as a public interest consideration worthy of protection, depending on the circumstances of any particular case. 56 Such factors have been acknowledged and applied in several decisions of the Commonwealth AAT; for example in Re James and Others and Australian National University (1984) 6 ALD 687 at p.701, Deputy President Hall said: '87 In [Re Burns and Australian National University (1984) 6 ALD 193] my colleague Deputy President Todd concluded that, for the purposes of the Freedom of Information Act, the concept of public interest should be seen as embodying public concern for the rights of an individual. Referring to a decision of Morling J, sitting as the former Document Review Tribunal (Re Peters and Department of Prime Minister and Cabinet (No. 2) (1983) 5 ALN No. 218) Deputy President Todd said: "But what is important is that his Honour clearly considered that there was a public interest in a citizen having such access in an appropriate case, so that if the citizen's 'need to know' should in a particular case be large, the public interest in his being permitted to know would be commensurately enlarged." (at 197) I respectfully agree with Mr Todd's conclusion ... The fact that Parliament has seen fit to confer upon every person a legally enforceable right to obtain access to a document of an agency or an official document of a minister, except where those documents are exempt documents, is to my mind a recognition by Parliament that there is a public interest in the rights of individuals to have access to documents - not only documents that may relate more broadly to the affairs of government, but also to documents that relate quite narrowly to the affairs of the individual who made the request.' 57 The force of this principle has been recognised, at least in so far as it relates to documents concerning the personal affairs of an applicant for access, in s.6 of the FOI Act, ... "181 I have taken into account B's submissions as to public interests considerations favouring disclosure, the essence of which is summarised in the passages set out at paragraphs 13 to 16 above. B has submitted that a patient's medical record bears witness to all medical treatment of the patient, and that there is a public interest in patients being able to gain access to information concerning their medical treatment. B further argues that while it may be in the interests of medical staff to withhold from a patient certain aspects of their treatment, withholding such information is not in the public interest. With respect to the particular information withheld, B states that: "[t]he deleted entry in my medical report on 18/6/'92 is especially relevant as a part of my medical history since the report by Dr A Sheehan (19/6/'92), indicates that I was over-sedated on that day."182 I accept that there is a public interest consideration in patients being able to gain access to information concerning their medical treatment, though it is certainly not an unqualified one (cf. s.44(3) of the FOI Act where it is expressly recognised that there may be instances where disclosure to an applicant of information of a medical or psychiatric nature concerning the applicant would be prejudicial to the applicant's physical or mental health or wellbeing). In an appropriate case, I would be prepared to give appropriate weight to a public interest consideration of this nature and measure it against other relevant public interest considerations weighing for and against disclosure of the matter in issue.183 I emphasise again, however, that the information in issue is not concerned with B's medical treatment, as B supposes, but is entirely non-clinical information in the nature of an expression of opinion and of concerns held by the third party concerning B's interests and welfare in a general sense at the time of B's hospitalisation. Disclosure of the information in issue would do nothing to advance B's knowledge and understanding of B's medical treatment. A public interest consideration relating to patient access to information concerning medical treatment is not sufficiently relevant to the matter in issue to be of any assistance to the applicant's case for disclosure.184 I also note that B's submissions indicate that a review of the portions of the medical file released by the respondent disclosed certain inaccuracies in its contents, which B wishes to correct or clarify: "As a result of the release of my medical file, I discovered the numerous misinterpretations and inaccurate data this document contained in relation to my state of mental well-being. On every page were errors and half-truths, which previous to my knowledge, I could have no opportunity to explain. Why would anyone wish to deny me the benefit of clarifying aspects of my medical report which cast doubt on my ability to use reasoned logic at that time? Should anyone be denied this right? Only by complete access to my file, am I given the opportunity to correct mistaken views, held in relation to my mental health".185 I recognise that B's stated aim of gaining access to the entire contents of the medical file, for the purposes of correcting what B perceives as misinformation contained in that file, is consistent with s.5(1)(c) of the FOI Act, which states that one of the reasons for the enactment of the FOI Act was Parliament's recognition of the public interest in members of the community having the right to have access to information held by government in relation to their personal affairs, including the provision of mechanisms whereby they could ensure that such information was accurate, complete, up-to-date and not misleading. However, it must also be recognised that Part 4 of the FOI Act, which provides such a mechanism for amendment of personal affairs information held by government, is subject to the limitation that the person must have had access to a document containing the information from an agency or Minister, whether or not under the FOI Act (see s.53 of the FOI Act). The scheme of the FOI Act contemplates that even information which relates solely to the personal affairs of an applicant (for the purposes of s.44) may be withheld from access if it is exempt matter under any other of the exemption provisions in Part 3 Division 2 of the FOI Act.186 While the public interest in members of the community being given ways to ensure the accuracy of personal affairs information held by government is a relevant consideration, I do not regard it, considered as a separate factor, as adding any greater weight to the applicant's case for disclosure than the public interest consideration favouring disclosure which carries most weight in this context, namely the public interest (which is given special recognition in s.6) in an individual having access to information concerning that individual's personal affairs. However, with the advantage necessarily denied to B, of knowing the contents of the information in issue, I am satisfied that disclosure of that information to B would not serve B's interests in any positive way, apart perhaps from satisfying B's understandable curiosity concerning the identity of the third party and the nature of the confidential information conveyed to the Authority by the third party.187 I am satisfied that the public interest considerations favouring disclosure of the matter in issue in this case are not of sufficient weight to displace the prima facie ground of exemption in the public interest under s.44(1), and that the matter in issue is exempt matter under s.44(1). 188 In B's supplementary submission, lodged on 20 August 1993, B proposed a compromise which B felt would accommodate the interests of the third party, while allowing B to obtain the information sought: "In my requesting that the information withheld be made available to me (having noted the reluctance of the confidant to be identified), I request only that the information and the employment status of this person be made available. (Their occupation and whether or not they were medical personnel is relevant, but I do not require their name.) By submitting to this half-way mark, I have proposed an arrangement of mutual concession without compromising my requirements."189 The third party, however, maintains a vehement opposition to the release of any of the matter in issue, including both the identity of the third party and the substance of the information provided to the Authority. As I have previously stated, it is not possible to disclose the information which concerns B's personal affairs without also disclosing information which concerns the third party's personal affairs, and which would identify the third party.CONCLUSION190 Having found that the matter in issue is exempt matter under s.46(1)(a) and s.44(1) of the FOI Act, I affirm the decision under review.........................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

DML and Health Rights Commission [2005] QICmr 2 (17 March 2005)

DML and Health Rights Commission [2005] QICmr 2 (17 March 2005) Last Updated: 18 January 2006 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 02/2005 Application 629/04 Participants: "DML" Applicant HEALTH RIGHTS COMMISSION Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION – refusal of access – identity of medical practitioner who provided opinion to Health Rights Commission during assessment of complaint - information supplied by third party in expectation of confidentiality as to the source of the information - whether disclosure would found an action for breach of confidence – application of s.46(1)(a) of the FOI Act Freedom of Information Act 1992 Qld s.46(1)(a), s.46(1)(b) "B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279 Chand and Medical Board of Queensland; Cannon (Third Party), Re (2001) 6 QAR 159 G v Day (1982) 1 NSWLR 24 McCann and Queensland Police, Re [1997] QICmr 10; (1997) 4 QAR 30 Pemberton and The University of Queensland, Re (1994) 2 QAR 293 DECISION I affirm the decision under review (being the decision dated 19 August 2004 by Mr David Kerslake of the HRC) that the matter in issue is exempt from disclosure under s.46(1)(a) of the FOI Act. ....................... CATHI TAYLOR INFORMATION COMMISSIONER Date: 17 March 2005 TABLE OF CONTENTS Page Background ........................................................................................................... 1 Steps taken in the external review process ............................................................... 2 Matter in issue ........................................................................................................... 3 Section 46(1)(a) of the FOI Act.................................................................................... 3 (a) Requirements for exemption ........................................................................ 3 (b) Application of s.46(1)(a) to the matter in issue ............................................. 4 (i) Specifically identifiable information..................................................... 4 (ii) Necessary quality of confidence ......................................................... 4 (iii) Communicated in confidence ............................................................. 4 (iv) Unauthorised use ............................................................................... 5 (v) Detriment ........................................................................................... 5 (c) Conclusion ................................................................................................... 5 Decision ........................................................................................................... 5 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 02/2005 Application 629/04 Participants: "DML" Applicant HEALTH RIGHTS COMMISSION Respondent REASONS FOR DECISION Background 1. The applicant made a complaint to the Health Rights Commission (the HRC) in relation to health services provided to his son whilst his son was an involuntary patient at the Royal Brisbane Hospital. The applicant seeks review of a decision of the HRC to refuse him access, under the Freedom of Information Act 1992 Qld (the FOI Act), to parts of a document that comprise the name of a psychiatrist whom the HRC contacted in relation to the applicant's complaint. 2. The HRC assessed the applicant's complaint and, as I understand it, decided not to take action on the complaint. This is confirmed to some extent in a letter dated 22 March 2004 from Mr David Kerslake, the Health Rights Commissioner, to the applicant, which relevantly states: As you know the Commission has been making enquiries regarding your complaint about the care your son, [name] received from Royal Brisbane Hospital and his subsequent care by the mental health service. I understand Annette Anning, Investigator recently spoke to you about the Commission's enquiries and our findings, which I understand you did not accept. ... ... While you remain unhappy about the care [your son] received while in Queensland, I am of the view that further inquiry will not provide any new information for you to resolve your concerns. 3. By letter dated 1 June 2004 the applicant sought access, under the FOI Act, to documents held by the HRC in relation to his complaint about the treatment provided to his son. 2 4. By letter dated 13 July 2004, Ms Helen Adcock of the HRC informed the applicant that she had identified 301 folios falling within the terms of his FOI access application. Ms Adcock decided to give the applicant full access to 300 folios and partial access to one folio, relying on the grounds for exemption in s.46(1)(a) and s.46(1)(b) of the FOI Act to refuse access to the name of a medical practitioner. 5. By letter dated 2 August 2004, the applicant sought internal review of Ms Adcock's decision. The internal review was conducted by Mr Kerslake. By letter dated 19 August 2004, Mr Kerslake informed the applicant that he had decided to affirm Ms Adcock's decision. 6. By letter dated 27 September 2004 the applicant applied to the Information Commissioner for review, under Part 5 of the FOI Act, of Mr Kerslake's decision. Steps taken in the external review process 7. A copy of the document containing the matter in issue was obtained and examined. It is a record of a telephone conversation, dated 12 March 2004, between a psychiatrist whom the HRC contacted for an independent opinion (I shall refer to that person as "the third party") and a member of staff of the HRC's staff. 8. On 10 November 2004, a member of my staff spoke to the third party and advised him of the review. During that conversation, the third party advised that he objected to the disclosure of his name to the applicant. Assistant Information Commissioner (AC) Barker subsequently wrote to the third party, confirming his conversation with this office. At the same time, and in accordance with s.78 of the FOI Act, AC Barker invited the third party to apply to be a participant in the review. The third party did not apply to be a participant in the review. 9. By letter dated 10 November 2004, AC Barker conveyed to the applicant her preliminary view that the matter in issue qualified for exemption from disclosure under s.46(1)(a) of the FOI Act. By letter dated 23 November 2004, the applicant advised my office that he did not accept that preliminary view. 10. A copy of the applicant's submission dated 23 November 2004 was sent to the HRC on 10 February 2005, with an invitation to provide any additional material on which the HRC wished to rely in support of its position. The HRC provided additional background material concerning the applicant's complaint, and the treatment of the applicant's son, but did not make any further submissions. 11. In making my decision, I have taken into account the following material: • the matter in issue; • the applicant's FOI access application dated 1 June 2004, application for internal review dated 2 August 2004, and application for external review dated 27 September 2004; • the HRC's initial and internal review decisions, dated 13 July 2004 and 19 August 2004 respectively; • a record of a telephone conversation between the third party and a member of my staff on 10 November 2004; and • the applicant's letter dated 23 November 2004. 3 Matter in issue 12. The matter in issue in this review comprises the name of the third party, as it appears in two places in a record of a telephone conversation dated 12 March 2004 between the third party and a member of the staff of the HRC. Section 46(1)(a) of the FOI Act 13. (The HRC contends that the matter in issue qualifies for exemption under s.46(1)(a) and s.46(1)(b) of the FOI Act. I have not found it necessary in this review to consider the application of s.46(1)(b) to the matter in issue, as I have formed the view that it is exempt from disclosure under s.46(1)(a) of the FOI Act.) 14. Section 46(1)(a) of the FOI Act provides: 46.(1) Matter is exempt if-- (a) its disclosure would found an action for breach of confidence; ... 15. In Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279, Commissioner Albietz explained in some detail the correct approach to the interpretation and application of 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 agency not to disclose the information in issue. I am satisfied that there is an identifiable plaintiff (the third party) who would have standing to bring such an action for breach of confidence. (a) Requirements for exemption 16. There are five requirements, all of which must be established, to obtain 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). 4 (b) Application of s.46(1)(a) to the matter in issue (i) Specifically identifiable information 17. I am satisfied that the matter in issue, which is claimed to be confidential information, can be identified with specificity: see paragraph 12 above. (ii) Necessary quality of confidence 18. I am satisfied that the matter in issue 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 for exemption under s.46(1)(a). The connection of a person's identity with the imparting of information can itself be secret information capable of protection from disclosure: see G v Day (1982) 1 NSWLR 24; Re "B" at pp.335-336 (paragraph 137); Re Pemberton and The University of Queensland (1994) 2 QAR 293 at pp.344-345 (paragraphs 108-110); Re McCann and Queensland Police Service [1997] QICmr 10; (1997) 4 QAR 30, at paragraph 28. (iii) Communicated in confidence 19. The third criterion requires an evaluation of the whole of the relevant circumstances surrounding the imparting of the information in issue, including (but not limited to) the nature of the relationship between the parties, and the nature and sensitivity of the information in question: see Re "B" at page 316 and pages 314-316; at paragraphs 82 and 84. 20. In his internal review decision, dated 19 August 2004, Mr Kerslake stated: ... It is not unusual for independent advisors to agree to provide their opinion on the undertaking that the information is given and received in confidence. They wish to be able to provide frank advice free of the risk of being drawn into a dispute between the parties. In your case, the independent advisor requested that his name not be released, which is clearly evident on the record of the telephone conversation between the [HRC] officer and the independent advisor... . 21. I find that there was an implicit mutual understanding between the third party and the HRC that the third party's name would be treated in confidence by the HRC. This is supported by the third party's comment to a member of my staff on 10 November 2004; the third party stated that, when contacted by the HRC, he understood his conversation was private and that his name would not be released. 22. In his submissions to my office dated 23 November 2004, the applicant stated: A medical practitioner is well aware that their professional opinion and action may be subject to legal or other action. Your decision would take away my legal rights as well as personal complaint. The [HRC] is of course, a "complaint disposal unit". 5 Leaving aside the term of "independent" which is often quite farcical, the [HRC] if it wished should have proceeded by written request, and written opinion, not verbal, and forwarded for my comment. The issue was Incompetent/Inhuman patient treatment where those guilty self condemn. All on the record. The [HRC] try to make it appear as they are the only body in the world who can't buy the required medical opinion that suits. Those involved have all acted improperly, at least, and should not be sheltered because of these actions. 23. What is required to accord procedural fairness in any given case may vary according to the circumstances of the particular case (see the discussion about procedural fairness at paragraphs 33-36 of Re Chand and Medical Board of Queensland; Dr Adam Cannon (Third Party) (2001) 6 QAR 159). Whilst I do not consider that it would have been reasonable for the third party to expect that the opinion he gave would be kept confidential, in circumstances where the HRC relied upon that opinion in deciding what action to take in respect of the applicant's complaint, I also do not consider that procedural fairness would override the mutual understanding of confidence that existed between the third party and the HRC regarding the third party's identity, or require that the applicant be given access to the third party's identity in the particular circumstances of this case. If the applicant considers that there are grounds for challenging the third party's opinion, he is able to do so without knowing the identity of the third party. (iv) Unauthorised use 24. In view of the third party's objection to the disclosure to the applicant of his identity, I am satisfied that disclosure to the applicant of that information would constitute an unauthorised use of that information. (v) Detriment 25. I am satisfied that disclosure to the applicant of the matter in issue would cause detriment to the third party of one or more of the kinds referred to in paragraph 111 of Commissioner Albietz's decision in Re "B". (c) Conclusion 26. I find the matter in issue qualifies for exemption from disclosure under s.46(1)(a) of the FOI Act. DECISION 27. For the foregoing reasons, I affirm the decision under review (being the decision dated 19 August 2004 by Mr David Kerslake of the HRC) that the matter in issue is exempt from disclosure under s.46(1)(a) of the FOI Act. ....................... CATHI TAYLOR INFORMATION COMMISSIONER Date: 17 March 2005

queensland

court_judgement

Queensland Information Commissioner 1993-

Matthews and The University of Queensland [2012] QICmr 46 (21 September 2012)

Matthews and The University of Queensland [2012] QICmr 46 (21 September 2012) Last Updated: 28 May 2013 Decision and Reasons for Decision Application Number: 310930 Applicant: Mathews Respondent: The University of Queensland Decision Date: 21 September 2012 Catchwords: ADMINISTRATIVE LAW - INFORMATION PRIVACY - SCOPE OF APPLICATION - applicant sought access to information relating to his previous Freedom of Information and Information Privacy access applications - agency excluded information outside the scope of the access application - whether access may be refused under section 40(1) of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - LEGAL PROFESSIONAL PRIVILEGE - access refused to documents - whether information is exempt on the basis of legal professional privilege under schedule 3, section 7 and sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - LEGAL PROFESSIONAL PRIVILEGE - access refused to documents - whether information is exempt because it could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation – schedule 3, section 10(1)(g) and sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - access refused to information about other individuals - personal information and privacy - whether disclosure would, on balance, be contrary to public interest - whether access may be refused under sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) Summary The applicant applied to the University of Queensland (UQ) under the Information Privacy Act 2009 (Qld) (IP Act)[1] for access to the contents of four files regarding previous access applications made by him under the Freedom of Information Act 1992 (Qld) (FOI Act) and the IP Act.[2] The applicant is a UQ graduate and has been involved in a series of disputes with UQ since at least 1995. The applicant has made numerous access applications under the FOI Act and the IP Act to UQ. The applicant maintains a website,[3] which he describes as a ‘Public Journal’.[4] On the website he publishes material about various individuals against whom he holds a grievance. These individuals include numerous UQ staff and students. The website includes allegations and insults directed at these individuals. The website states that it is specially designed to achieve a high ‘Google rank’ when an internet search is conducted for the names of the individuals against whom it is targeted, and thereby to harm their reputation, job prospects, and financial interests.[5] In response to the applicant’s access application, UQ released the majority of the information located. However, UQ refused to release any information that identified particular individuals, initially on the grounds that to do so would be contrary to the public interest, and later on internal review on the basis that disclosure of that information could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation. UQ withheld some documents as they did not contain any personal information about the applicant. UQ withheld some further documents on the basis of legal professional privilege. It is the decision of this Office that: 25 pages do not contain personal information of the applicant. Therefore the applicant does not have a right to obtain access to those documents under the IP Act 53 pages are in part exempt under schedule 3, section 10(1)(d) of the RTI Act as their disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation 14 pages are exempt under schedule 3, section 7 of the RTI Act as they are protected by legal professional privilege; and 242 pages contain information of third parties that would not, on balance, be contrary to the public interest to release. Significant procedural steps Significant procedural steps are set out in the Appendix to these reasons. Reviewable decision UQ’s initial decision was made on 23 December 2011 (initial decision). The applicant applied for internal review on the same day. UQ sought to vary the initial decision by refusing access to the information in issue on different grounds (purported decision). As the purported decision was communicated to the applicant outside the statutory timeframe,[6] UQ is deemed to have made a decision affirming its initial decision (deemed decision).[7] The decision under review is the deemed decision, taken to have been made on 25 January 2012. Information in Issue The Information in Issue is contained in a variety of documents located on four files created by UQ while processing FOI requests and IP Act access applications made by the applicant. In these reasons, the information in issue is divided into four categories: Category A information: 25 pages[8] of internal university documents that UQ withheld because they do not contain any personal information of the applicant Category B information: 14 pages[9] that UQ withheld claiming legal professional privilege Category C information: 53 pages[10] that UQ released in part, which contain the personal information of third parties; and Category D information: 242 pages[11] that UQ released in part, which consist of printouts from the applicant’s website containing personal information of third parties. Issues in this review The issues to be determined in this review are whether: the information in issue (in particular, the category A information) contains the applicant’s personal information UQ can refuse access to the category B information on the basis that the information is exempt matter as it is subject to legal professional privilege UQ can refuse access to the category C and D information on the basis that disclosure of the information could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation; and whether it would, on balance, be contrary to the public interest for the balance of the information in issue (the category D information) to be disclosed. Material considered Evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and Appendix). Do all of the documents contain the applicant’s personal information? Under the IP Act an individual has a right to access documents of an agency to the extent that those documents contain the applicant’s personal information.[12] Applicants do not have a right to obtain access under the IP Act to documents that do not contain their personal information. Personal information is defined as ‘information or an opinion ... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’[13] Therefore, for a person to have a right to obtain access to a document under the IP Act, they must be able to be identified from information contained in that document.[14] UQ refused access to the category A information on the grounds that the applicant could not be identified from the information. Although the category A information is contained on files that relate to the applicant’s RTI application, the documents themselves contain no reference to him. These documents include, for example, internal university email correspondence and handwritten notes. There is nothing in the Category A documents from which the applicant’s identity could be ascertained. I am satisfied that because the category A information does not contain the applicant’s personal information, the applicant has no right to be given access to that category of information under section 40 of the IP Act. UQ is entitled to withhold the category A information. I am satisfied that the remainder of the information in issue (categories B, C and D) does contain the personal information of the applicant. The applicant therefore has a right to access that information, subject to certain exceptions. I will now consider whether any of those exceptions apply. Is any of the Information in Issue subject to legal professional privilege? The right to access in the IP Act is subject to the grounds for refusal 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 categories of information which Parliament has considered to be ‘exempt information’ as its disclosure would, on balance, be contrary to the public interest. If information is exempt, it is not necessary to apply a separate public interest test,[15] because the Act specifically provides that Parliament considers disclosing exempt information would be contrary to the public interest. Schedule 3, section 7 provides that information is exempt if its disclosure would be privileged from production in a legal proceeding on the ground of legal professional privilege (LPP).[16] UQ claims LPP in relation to the category B information. C01MAA and The Public Trustee of Queensland[17] (C01MAA), sets out the relevant law relating to LPP, including legal advice from salaried employee legal advisers.[18] The category B information consists of: correspondence requesting and providing legal advice, between various UQ staff and the UQ General Counsel (a salaried employee legal adviser); and correspondence requesting and providing legal advice between UQ’s external legal counsel and: the University Secretary and Registrar; and the University General Counsel. Having carefully reviewed the category B information, I am satisfied that this correspondence was prepared by either the University General Counsel or UQ’s external legal counsel, for the dominant purpose of providing independent legal advice to UQ. I am also satisfied that the communications were made confidentially. I therefore find that this information satisfies the requirement for LPP. There is no information before me that suggests that LPP has been waived. Based on the above, I am satisfied that the category B information is exempt information under schedule 3, section 7 of the RTI Act. UQ is entitled to refuse access to this information. Would disclosure of the information in issue result in a person being subjected to a serious act of harassment or intimidation? Schedule 3, section 10(1)(d) provides that information is exempt if its disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation.[19] A number of previous decisions of this Office have considered this exemption.[20] These decisions state that for this exemption to apply, there must be, first, an apprehended serious act of harassment or intimidation, and second, a reasonable basis for expecting that that act would be the result of the disclosure of the information in issue. Therefore, I will consider: Do postings on the applicant’s website constitute serious acts of harassment or intimidation? If the information were released, could it be reasonably expected that the applicant would make further postings? Do postings on the applicant’s website constitute serious acts of harassment or intimidation? Previous decisions of this Office have stated that because the terms ‘harass’, ‘intimidate’ and ‘serious’ are not defined in the RTI Act their ordinary meaning should be adopted.[21] This Office has previously referred to the following dictionary definitions for guidance in interpreting the terms ‘harass’ and ‘intimidate’:[22] 'harass' includes 'to trouble by repeated attacks, ... to disturb persistently; torment’; and 'intimidate' includes ‘to make timid, or inspire with fear; overawe; cow ... to force into or deter from some action by inducing fear.’ The Information Commissioner has noted that because this section refers to a ‘serious’ act of harassment or intimidation, some degree of harassment or intimidation must be permissible before the exemption will apply.[23] In other words, the expected harassment or intimidation must be 'serious' in nature for schedule 3, section 10(1)(d) to apply. Relevant dictionary definitions of ‘serious’ include: ‘weighty or important’[24] ‘giving cause for apprehension; critical’;[25] and ‘having (potentially) important, esp. undesired, consequences; giving cause for concern’.[26] UQ has submitted that disclosure of the information in issue will result in a person being subjected to a serious act of harassment or intimidation via the applicant’s website. UQ states that its conclusion is based on previous ‘harassing posts’ on the website. Examples of particular posts provided by UQ include: accusations that UQ staff are guilty of criminal assault accusations that a UQ staff member is a ‘Nazi Bully’ accusations of UQ staff bullying students references to UQ staff as parasites and labelling a staff member a ‘bitch/slut’ accusations that a UQ employee is endorsing criminal behaviour by engaging in death threats; and description of a UQ employee as a ‘post-menopausal fat fraudster’. I have perused the website. The website makes these and other allegations against various UQ staff and students. Many pages on the website describe, in length, the applicant’s grievances against various individuals, and make a range of offensive statements, attacks and accusations. The website states that one of its purposes is to harm the reputations of the individuals that it targets. Some of these pages attempt to quantify the harm that they will cause. For example, one page states: When employment agencies google on “[a UQ student]”’s name, they will find our explanation ... The chances are the employment agencies will not even [the student] they know. That will greatly reduce her employment prospects. It will take her longer to find a job and when she does find a job, it will be paying far less. That will snowball in subsequent jobs because she has not had the better experience. The gap will be quite a few thousand dollars per year. That gap will increase in time, in REAL terms, apart for in CURRENT VALUE terms which will be much greater. In rough terms, when that gap is discounted back to present value terms, each year will be about the same present value. If we allow about 40 years for a working life, the present value for each year can be between $3,000 and $5,000. That is up to $200,000 per person. We calculate that as about a 10% drop in salary. That would be for one about to graduate. ... Her lecturers and tutors will soon know about our references. They will not disregard what she has said as it will indicate the type of person she is. I would welcome cross-examining her in the witness box with the documented evidence I have, if she thought for one moment that she would sue me. She would be a mumbling mess. She should know, I have just started on her. Go ahead, sue. If anyone else thinks they too may sue, I will subpoena [the UQ student], as her evidence will be relevant. ... Our journals will be online for many years. Do you realize how internet "content" is so desirable? If I do not keep it published, (I will) there will be many others who will wish to publish it. (It is also in the National Library of Australia as part of our Nation's Literary Heritage.) ... This will apply to ALL "members" whose names are published. Now, they all have something to think about. Another page on the website includes details of a UQ employee including his name, photos of him, his address, and photos and maps of his home. The page states: If [the UQ employee] wishes to sell his home soon, prospective buyers may be turned off by the prospect of this house being targeted by a disaffected student or staff member of UQ, when that person does not know that [the employee] has sold. Prospective buyers will very likely know of this page. Within two days of this page going online, Google will have indexed it in many ways, INCLUDING BY THE ADDRESS ... In previous decisions of this Office, the Information Commissioner has stated that the ‘subjective purpose of the applicant’ is not a relevant consideration in assessing whether disclosure will result in a person being subjected to a serious act of harassment or intimidation.[27] It is correct that the objective of the access applicant is irrelevant, where, for example, it is a third party who is likely to engage in the anticipated harassing or intimidating conduct.[28] However, the stated objective of that third party might be relevant if it evidences an intention to harass or intimidate. While the motive of the applicant for making the access application is not directly relevant in assessing whether this exemption arises, the motive of the potential harasser or intimidator may be. In this case, they happen to be the same person.[29] I consider that the above postings on the applicant’s website show that the website’s purpose is to harass (in other words, to ‘disturb persistently’ and ‘torment’) and to intimidate (in other words, to ‘force into or deter from some action by inducing fear’) individuals against whom it is targeted. I consider that this weighs in favour of a finding that postings on the website constitute an act of harassment or intimidation. Having considered submissions made by UQ and correspondence from individuals affected by the website,[30] I am satisfied that some individuals have been caused significant distress by being targeted by the applicant. The posting of offensive commentary on the internet might not, by itself, be enough to reach the threshold of a ‘serious act of harassment or intimidation’. But the malicious nature of the applicant’s website including its stated purpose, together with the impact that it has had on the individuals it targets, bring me to the conclusion that this website meets the threshold. I am satisfied that the act of publishing pages on the applicant’s website that target individuals, is a serious act of harassment or intimidation against those individuals. I will now consider whether disclosure of the information in issue could reasonably be expected to result in such acts occurring. If the information in issue were released, could it reasonably be expected that the applicant would make further postings? Depending on the circumstances of the particular matter, a range of factors may be relevant in determining whether an expectation of serious harassment or intimidation is reasonable. These factors may include:[31] 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 relevant third parties; and relevant contextual and/or cultural factors. During this external review the applicant attempted to distance himself from this website. The applicant stated:[32] While I may be aware of [the website] and much of its contents, and aware that my name is plastered all over it, that does not mean that I have authored or approved the authoring that has occurred. In previous external reviews involving the applicant, he has stated that he publishes the website.[33] Furthermore, information released to the applicant under the FOI Act and the IP Act have been published on the applicant’s website. I consider that these are reasonable grounds to conclude that the applicant is the publisher of the website. I will now consider whether disclosure of the remaining information in issue (categories C and D) could reasonably be expected to result in the applicant making new postings on his website that would constitute serious acts of harassment or intimidation. Category D information – printouts from the applicant’s website The category D information consists of the personal information of third parties contained in printouts of the applicant’s website. All of the information within those pages is available to the applicant, both as the publisher of the information, and via the Internet. I am not satisfied that the disclosure of printouts of the applicant’s website could reasonably be expected to result in a serious act of harassment or intimidation as the applicant has access to this information already. I will now consider this exemption in relation to the remaining information in issue: the category C information. Category C information – other documents containing third party personal information The category C information consists of a wide variety of documents contained on the FOI request and IP Act access application processing files of UQ. These documents include the identities of UQ employees who were involved in the processing of the applicant’s FOI request and IP Act access applications. It is unclear how the applicant chooses who to target on his website, but in at least some cases he appears to have targeted individuals identified in information released to him through FOI requests and IP Act access applications. Information previously released to the applicant under the FOI Act and the IP Act is published on the website, alongside offensive and outlandish commentary about individuals named in that information. Given the applicant’s ongoing conflict with UQ, and his past conduct, I consider there is a significant chance that he will target the individuals whose identities are revealed in the category C information. The applicant’s previous conduct provides a reasonable basis for an expectation that should the information in issue be released, the individuals identified in it could reasonably be expected to be subjected to further serious acts of harassment or intimidation. Applicant’s submissions In response to a preliminary view from OIC, the applicant made the following points in support of his case for access:[34] any publication of the requested information would have ‘qualified privilege’ there has been a crime of armed robbery committed by various government agencies and individuals against him; and failure to release Information in Issue forms part of a government ‘cover up’. None of these submissions are relevant to the determination of whether disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation. ‘Qualified privilege’ may comprise a defence to an action for defamation;[35] it does not provide a justification for serious acts of harassment or intimidation. The other two submissions comprise unsubstantiated assertions having no bearing on the question of whether the individuals identified in the category C information will be subjected to serious acts of harassment or intimidation. Conclusion I am satisfied that disclosing the category C information would reveal the identity of individuals who were involved in the processing the applicant’s FOI requests and IP Act access applications. This could reasonably be expected to result in those individuals being subjected to serious acts of harassment or intimidation. In particular, based on the past conduct of the applicant it could reasonably be expected that he will post unfounded allegations and offensive commentary on his website about those individuals. Would release of the balance of information be contrary to the public interest? The balance of information (the category D information) consists of 242 pages which are printouts of the applicant’s website. UQ has deleted information from these printouts that identify third parties. Sections 47(3)(b) and 49 of the RTI Act provide that access may be refused to a document where its disclosure would be contrary to the public interest. Section 49 of the RTI Act describes the procedure to be followed in identifying whether information is contrary to the public interest to release. The RTI Act lists factors which may be relevant to deciding the balance of the public interest and sets out the following steps to decide where the public interest lies in relation to the disclosure of information:[36] identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure would, on balance, be contrary to the public interest. Irrelevant factors Schedule 4, Part 1, item 4 indicates that consideration of whether disclosure ‘could reasonably be expected to result in mischievous conduct by the applicant’ is an irrelevant consideration for the purpose of this public interest test. I therefore disregard the possibility of mischievous conduct by the applicant[37] should the information be released to him for the purpose of this public interest test. Factors favouring disclosure and nondisclosure I am satisfied that the 242 pages contain the personal information of numerous individuals. As such, I consider that the following factors favouring non-disclosure arise: disclosure would cause a public interest harm by disclosing the personal information of a person, whether living or dead;[38] and prejudice the protection of an individual’s right to privacy.[39] However, as noted in paragraphs 44 above, the applicant already has full access to this information because he publishes it. Also, it is available on the internet. Therefore I attribute only a low weight to these factors. On the other hand, disclosure of the information would reveal to the applicant what information (i.e., what specific pages of his website) UQ referred to while processing his previous FOI requests and IP Act access applications. This could reasonably be expected to reveal the reason for a government decision and any background or contextual information that informed that decision.[40] I afford this factor a moderate weight in favour of disclosure. Balancing the public interest On one hand, disclosure of this information in issue would result in the release of the personal information of third parties. However, I afford this factor only a low weight because this information is already in a publicly available form. It was likely written by the applicant. On the other hand, disclosure of this information would inform the applicant about what specific parts of his website UQ referred to in processing the FOI requests and IP Act access applications to which the documents relate. I am satisfied that this factor outweighs the public interest harm in disclosing the (already publicly available) personal information of third parties identified in those pages. DECISION For the reasons set out above, I vary UQ’s decision and find: access is refused to the 25 pages[41] that do not contain the applicant’s personal information because the applicant does not have a right to be given access to these documents under section 40(1) of the IP Act 14 pages[42] are exempt under section 67(1) of the IP Act, and section 47(3)(a) and schedule 3, section 7 of the RTI Act as they would be privileged from production in a legal proceeding on the ground of legal professional privilege; and access is refused to 53 pages[43] as they are exempt under section 67(1) of the IP Act, and section 47(3)(a) and schedule 3, section 10(1)(d) of the RTI Act, as their disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation 242 pages[44] withheld in part by UQ should be released to the applicant in full, as their disclosure would not, on balance, be contrary to the public interest under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act. ________________________ Jenny Mead Acting Information Commissioner Date: 21 September 2012 APPENDIX Significant procedural steps Date Event 20 November 2011 UQ received the access application. 23 December 2011 UQ notified the applicant that it had located a number of relevant documents and decided to release 90 folios in their entirety, partially release a further 315 folios and refuse access 10 other folios (Initial Decision). 23 December 2011 The applicant applied to UQ for internal review of the initial decision. 19 January 2012 On internal review, UQ varied the original decision and decided that the Information in Issue is exempt from disclosure under Schedule 3, section 10(1)(d) of the RTI Act, and also under Schedule 3, section 7 of the RTI Act (Purported Decision). 27 January 2012 UQ internal review decision conveyed to the applicant via email, 21 business days after the application for internal review was lodged. 27 January 2012 The applicant applied to OIC for external review of the internal review decision. 31 January 2012 OIC asked UQ for a copy of relevant procedural documents. 3 February 2012 OIC received the requested documents from UQ. 7 February 2012 OIC asked UQ to provide a copy of the Information in Issue and other procedural documents. 15 February 2012 OIC received a copy of the Information in Issue and relevant procedural documents from UQ. 21 February 2012 OIC notified the applicant that the external review application had been accepted. 27 March 2012 OIC conveyed a preliminary view to the applicant on the Information in Issue and invited the applicant to provide submissions supporting his case by 12 April 2012 if he did not accept the preliminary view. 27 March 2012 The applicant advised OIC that he did not accept the preliminary view and provided submissions. 28 March 2012 The applicant made additional submissions regarding the preliminary view. 20 June 2012 OIC conveyed a second preliminary view to the applicant on the Information in Issue and invited the applicant to provide submissions supporting his case by 10 July 2012 if he did not accept the preliminary view. 20 June 2012 The applicant advised OIC that he did not accept the preliminary view. [1] By application dated 20 November 2011.[2] In the access application, the applicant identified the files he sought access to as follows: ‘Ranking and/or sorting the files by order of the date of the creation of the file, of, if that is not available for any particular file, then the date of the first dated document on that particular file, I require access to all documents meeting my specification of document, in the file next later in time to that file just released with the earliest ranking date, and the three files with the next latest ranking dates prior to the dates of the three files with the latest ranking dates just released.’[3] In his application for external review, the applicant submitted: ‘While I may be aware of the [website] and much of its contents, and aware that my name is plastered all over it, that does not mean that I have authored or approved the authoring that has occurred.’ For the reasons outlined at paragraph [42] below, I am nonetheless satisfied that the applicant publishes the website. In these reasons, I do not provide the website’s URL. As discussed below, the website states that it is designed to gain the highest possible ‘Google rank’ to cause maximum harm to the individuals against whom it is directed. Providing the URL of the website in these reasons would improve its Google rank.[4] Submissions from applicant, 28 March 2012. [5] See discussion at paragraph [32]-[33] below.[6] The University’s purported decision, dated 19 January 2012, was emailed to the applicant on 27 January 2012, one business day outside of the timeframe established by section 83(2) of the RTI Act. [7] Under section 97(2) of the IP Act, as the University did not notify the applicant of its decision within 20 business days after 23 December 2012, i.e., by 25 January 2012. [8] Pages unnumbered.[9] In full: File CR A16031-2: pages 47, 48, 52, 53, and 57-61. In part: File CR A16031-2: 49-51, 54, 55.[10] File A6610: pages 1-12; File CR A16031-1: pages 1, 49-55, 89, 160, 166, 167, 170, 172, 202-211, 213, 214, 216, 217; File CR A16031-2: pages 1-4, 8, 49-51, 54-56, 62, 93; File CR A16032: pages 1-3, 5-17, 19, 20.[11] File CR A16031-1: pages 2-4, 5-10, 12-14, 16, 21-38, 40-42, 45, 58, 74, 75, 78, 81, 83-86, 88, 89, 91, 94, 96, 98-100, 102,107, 108, 110, 112, 115, 118-130, 134, 135, 139, 141, 143, 148-151, 154, 161-165, 173-201; File CR A16031-2: pages 9-19, 21-46, 63-92, 94-107, 109-110, 123-166.[12] Under section 40 of the IP Act.[13] Under section 12 of the IP Act.[14] For further discussion see Mahoney and Ipswich City Council (Unreported, Queensland Information Commissioner, 17 June 2011) [19]-[22].[15] BL v Office of the Information Commissioner, Department of Communities [2012] QCATA 149 [15].[16] Schedule 3, section 7 of the RTI Act.[17] (Unreported, Queensland Information Commissioner, 8 May 2012).[18] C01MAA [11]-[17].[19] Schedule 3, section 10(1)(d) of the RTI Act. [20] See, e.g., Richards and Gold Coast City Council (Unreported, Queensland Information Commissioner, 28 March 2012) (‘Richards’); Sheridan and South Burnett Regional Council and others (Unreported, Queensland Information Commissioner, 9 April 2009) (‘Sheridan’).[21] Sheridan [188].[22] Ogawa and Queensland Police Service (Unreported, Queensland Office of the Information Commissioner, 21 June 2012), applying Sheridan, at paragraphs [194]-[197] referring to the Macquarie Dictionary Online (Fourth Edition).[23] Sheridan [187].[24] Macquarie Dictionary Online (Fifth Edition).[25] Macquarie Dictionary Online (Fifth Edition).[26] New Shorter Oxford Dictionary (4th Edition), as quoted by the Information Commissioner in Sheridan.[27] Sheridan [187].[28] As was the case in Sheridan.[29] See paragraph [42] below.[30] The information in issue contains correspondence from individuals affected by the applicant’s website. This correspondence describes the significant impact that the website has had on the individuals it targets.[31] Richards [19].[32] Email from the applicant to OIC, dated 27 January 2012.[33] Email from the applicant to OIC, dated 2 November 2011.[34] Emails from applicant to OIC, dated 27 March 2012 and 28 March 2012.[35] Although I have not considered this issue in detail, I express doubt that the applicant could make out this defence in relation to his website.[36] In section 49(3) of the RTI Act.[37] Such as that discussed in [26]-[49] above.[38] Schedule 4, Part 4, Item 6.[39] Schedule 4, Part 3, Item 3.[40] Schedule 4, Part 2, Item 11.[41] Unnumbered.[42] In full: File CR A16031-2: pages 47, 48, 52, 53, and 57-61. In part: File CR A16031-2: 49-51, 54, 55.[43] File A6610: pages 1-12; File CR A16031-1: pages 1, 49-55, 89, 160, 166, 167, 170, 172, 202-211, 213, 214, 216, 217; File CR A16031-2: pages 1-4, 8, 49-51, 54-56, 62, 93; File CR A16032: pages 1-3, 5-17, 19, 20.[44] File CR A16031-1: pages 2-4, 5-10, 12-14, 16, 21-38, 40-42, 45, 58, 74, 75, 78, 81, 83-86, 88, 89, 91, 94, 96, 98-100, 102,107, 108, 110, 112, 115, 118-130, 134, 135, 139, 141, 143, 148-151, 154, 161-165, 173-201; File CR A16031-2: pages 9-19, 21-46, 63-92, 94-107, 109-110, 123-166.

queensland

court_judgement

Queensland Information Commissioner 1993-

Moon and Gold Coast City Council [2006] QICmr 10 (13 February 2007)

Moon and Gold Coast City Council [2006] QICmr 10 (13 February 2007) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 2006/F0005 (53629) Applicant: Dr B Moon Respondent: Gold Coast City Council Decision Date: 13 February 2007 Catchwords: sufficiency of search – Council decision making process – Integrated Planning Act – no further documents exist – Council searches reasonable - s.22(a) – access to documents held in Planning and Environment Court Registry – Gold Coast City Council administrative access regime Contents Background 2 Steps taken in the external review process 3 Matter in issue 5 Scope of FOI Application and Sufficiency of Search 5 Section 22(a) of the FOI Act 14 Decision 17 Reasons for Decision Background Dr Moon (the Applicant) seeks review of the Gold Coast City Council’s (the Council) decision to exempt material from disclosure under section 43(1) of the Freedom of Information Act 1992 (FOI Act). Additionally, he claims that there are further documents that should be released to him that are responsive to his freedom of information (FOI) application relating to the determination of the assessment procedure for a particular development application. The Applicant’s FOI application dated 19 April 2005 was expressed to encompass ‘primary’ and ‘ancillary’ components relating to how the Council made the decision that the relevant development application should be assessed under the Integrated Planning Act 1997 (IPA) as ‘code assessable’: This is a request for information about matters by Council in regard to the way Council has acted to determine the assessment procedure for a development application by the Co-You Corporation... Essentially, this information request is to gain material that enables me to comprehend how Council made this decision (to be Code Assessable). In effect this is the primary component in this information request. To fully comprehend how Council made this development application to be ‘processed’ as Code assessable, some background material pertinent to the original decision is being sought. The intention for seeking selective aspects of the original decision is to compare the logic assumably embraced in documents pertinent to the primary component. Thus, this part of the information request is an ancillary component. ‘Council’ was defined broadly in the FOI request to include persons contracted to undertake work for the Council. In its decision of 24 June 2005 the Council advised that it found 158 documents falling within the FOI request, to which 15 of the documents were refused access under section 43(1) of the FOI Act. On 1 July 2005 the Applicant subsequently contacted the Council to clarify the scope of his FOI application. In a file note of the conversation (noted in his application for external review) he wrote: Went on to discuss the basis of application – that it sought information about how Council (it’s officers) decided how a development application on a piece of land in Currumbin be considered to be assessed under the Integrated Planning Act as ‘Code Assessable’ (a term that denotes a specific method by which to assess a development application). Thus, the focus of the FoI was upon the material used by Council (officers) to come to that decision. [original emphasis] In a letter dated 19 August 2005, based on the Applicant’s clarification, Council rescinded the decision of 24 June 2005 and replaced it with a decision that found 210 documents responsive to the application to which 28 documents (folios) were refused access under section 43(1) of the FOI Act. The Applicant applied to this Office for external review of the decision in a letter dated 23 September 2005. This Office advised the Applicant that it has no jurisdiction to undertake the review as he had not applied in writing for internal review of the Council’s decision (section 73(3) of the FOI Act). In a letter dated 10 October 2005, the Applicant sought an extension of time from the Council in which to make an application for internal review. In support of his application, the Applicant provided a list of specific documents or categories of documents, which he believed the Council held and that he claimed were responsive to his initial application (hereinafter referred to as the ‘list’). The internal review decision-maker decided to accept the late application for internal review and in a decision dated 19 December 2005 affirmed the original decision maker’s decision. He said that there are no further documents responsive to the FOI application; however, he did not specifically address the items requested by the Applicant in the ‘list’. By letter dated 2 January 2006, the Applicant sought external review of the Council’s decision that relevant documents were exempt under section 43(1) of the FOI Act and that the Council does not control or possess additional documents responsive to his FOI application. Steps taken in the external review process The matter in issue was obtained and examined. During a telephone conversation in May 2006 the Applicant accepted this Office’s oral preliminary view that the matter in issue was exempt from disclosure under section 43(1) of the FOI Act and agreed to withdraw this component of the review. This Office asked the Council whether it was willing to release to the Applicant the documents detailed in the ‘list’. In a letter dated 25 May 2006 the Council provided further documents responsive to some of the items requested in the ‘list’, and reasons why the Council does not hold other documents requested in the ‘list’. In a letter dated 30 June 2006, this Office provided its preliminary view to the Applicant that there are no reasonable grounds for believing the Council holds further documents responsive to his FOI request. In a letter dated 14 July 2006, the Applicant advised that he did not accept the preliminary view and provided further grounds as to his claim that additional documents responsive to his FOI application are within the control of Council. This Office forwarded to the Council the Applicant’s arguments and requested that further searches be undertaken. In a letter dated 17 October 2006 the Council responded to the Applicant’s submissions and provided an explanation as to why there are no further searches it could take that would produce other documents in the possession or under the control of the Council (including documents in the possession of third parties) falling within the scope of the FOI request. On 25 October 2006, a case officer from this Office had a meeting with the Applicant to provide him with the opportunity to respond to the Council’s submissions of 17 October 2006. He made further submissions at the meeting. In a letter dated 6 November 2006 I asked the Council to respond to the Applicant’s submissions, to which the Council responded in a letter dated 23 November 2006. I advised the Applicant in a letter dated 11 December 2006 of my preliminary view that: the documents he sought relating to the assessment of the development application were outside the scope of his FOI request; the Council correctly exercised its discretion under section 22(a) of the FOI Act to refuse access to specified documents; and there are no reasonable grounds for believing that there exists any further documents responsive to the FOI application and the search efforts by the Council have been reasonable in all the circumstances of the case. In a letter dated 30 December 2006 the Applicant: accepted my view that documents relating to the actual assessment of the development applications are outside the scope of his request however he claimed that the relevant documents related to “how Council (via both officers and Councillors) assessed/decided/interpreted how the development application would be assessed”; and did not accept my view in relation to section 22(a) of the FOI Act and sufficiency of search issues. During a telephone conversation on 4 January 2007 the Applicant provided further clarification on his submissions to this Office. On 18 January 2007, a case officer from this Office attended the Council to: view the process by which Council files are searched; clarify Council processes for handling development applications; and clarify the historical, legislative and policy context of the relevant development applications. On 24 January 2007, an officer from this Office searched the Planning and Environment Court Registry for documents to which access was refused under section 22(a) of the FOI Act. In making my decision I have taken into account the following material: the Applicant’s correspondence dated 19 April 2005, 23 September 2005, 10 October 2005, 2 January 2006, 14 July 2006, and 30 December 2006; the Council’s correspondence dated 24 June 2005, 19 August 2005, 19 December 2005, 25 May 2006, 17 October 2006, 23 November 2006, and 25 January 2007; information provided at the meeting with the Applicant on 25 October 2006 and with the Council on 18 January 2007; verbal submissions from both parties in telephone conversations during the course of the review; and the 1995 Albert Shire Planning Scheme and relevant provisions under IPA and the Integrated Planning Regulation 1998. Matter in issue As the Applicant accepted the preliminary view that the relevant documents are exempt from disclosure under section 43(1) of the FOI Act, those documents no longer form part of this review. Therefore, the outstanding issue in this review relates to the sufficiency of the Council’s searches for documents that are responsive to the Applicant’s FOI request. During the course of the review, the Council provided further documents responsive to the ‘list’ provided by the Applicant, however the Applicant raised various grounds as to why he believed the Council held further documents responsive to his FOI application (in general) and his ‘list’ (in particular). During the course of this review, and in response to the Applicant’s submissions that the Council holds various documents, the Council raised arguments that it may refuse access to particular documents under section 22 of the FOI Act. Thus, in addition to the question whether Council’s searches were sufficient in this case, I must also consider whether the Council correctly exercised its discretion to refuse access under section 22 of the FOI Act to two items from the ‘list’, namely: the minutes and relevant attachments for the Council meeting dated 4 June 2004; and Sheets 52/16 and 80/3 of the 1992 Planning Scheme maps. Scope of the FOI Application and Sufficiency of Search Prior to addressing the substance of the Applicant’s claims in relation to the existence of further responsive documents it is necessary to consider what documents are properly within the scope of the application. In order to do this it is useful to review the legislative context of the relevant development applications. Legislative context relating to the relevant development applications IPA provides for coordinated and integrated planning across all levels of government. It provides for the management of the processes by which development occurs with a view to managing the effects of development on the environment. For local Councils, IPA provides the framework and procedures for the application, information and referral, notification and decision stages for their approval and assessment processes for development within their jurisdiction. Development proposals may be either assessable (impact or code assessable), exempt or self-assessable (Schedule 10 Dictionary IPA). In summary: Impact assessment requires an assessment of the environmental effects (physical, social and economic) of the proposed development and the ways of dealing with the effects; Code assessment requires an assessment by the assessment manager (in this case, the Council) of the proposal against any applicable code; Self assessment requires that the applicant ensures the proposal complies with any applicable code or standards; and Exempt development is where the proposal is not required to comply with any codes or standards. Generally, a Council will assess development applications in accordance with the provisions of a local government planning scheme, so long as its provisions are not inconsistent with the provisions of IPA. In circumstances where a Council has implemented a new planning scheme, a development applicant may propose to carry out development under a superseded planning scheme (Schedule 10 Dictionary IPA) if the development application is made within two years of the implementation of the new planning scheme. The Queensland Government’s IDAS Guideline 1: Implementing the Integrated Development Assessment System, March 2001, Version 2.1 clarifies that if the proposed development would not have required a development permit under the superseded planning scheme but requires one under the scheme in force at the time the application was made, the applicant may notify its intention to carry out development under the superseded planning scheme. If the proposed development would have required a permit (i.e. if it would have been assessable) under the superseded scheme and is assessable under the new planning scheme, the applicant may make a ‘development application (superseded planning scheme)’ requesting assessment under the superseded planning scheme. If a development application (superseded planning scheme) is made, Council has the discretion to: agree to apply the superseded planning scheme; or refuse to apply the superseded planning scheme so that the new planning scheme would apply to the development application (section 3.2.5 and section 3.5.27 IPA). lf a Council exercises its discretion to refuse to apply the superseded planning scheme, under certain circumstances, it may be liable to pay compensation to an applicant if in applying the new planning scheme the value of the interest in the land is reduced (section 5.4.2 IPA). In this case, on 30 April 2004 the Council received from the relevant developer (the Development Applicant): Notification of the intention to carry out development that was self-assessable or exempt under the superseded planning scheme (use component); Application for development permit for reconfiguration of a lot in stages (ROL component); Application for preliminary approval for building work (building height) (building component); Application for preliminary approval for operational work (operational components): Tree clearing; Road layout and grading; and Water and sewerage infrastructure. In 2003 the Council implemented a planning scheme that was compliant with the provisions of IPA. However, as the Development Applicant proposed to carry out development under the superseded planning scheme, the source of development rights for the subject land was the 1995 Albert Shire Planning Scheme (the Superseded Scheme) (section 3.1.1 Superseded Scheme). The Council’s City Planning Committee (the Committee) considered the application under the Superseded Scheme in a meeting on 4 June 2004. The relevant agenda (that is publicly available on the Council’s website – see below) states in part: Assessment of the ROL application against the existing planning scheme is likely to result in council facing a claim for compensation, and therefore it is recommended that assessment of the ROL application proceed under the superseded scheme. The relevant land was located in the Special Facilities Zone of the Superseded Scheme in which ‘permitted development’ (i.e. development that could be carried out without consent of Council) could in effect only be carried out in accordance with the red or black lettering on the relevant zoning map (section 8.1.2 Superseded Scheme). As the proposed development exceeded 2 storeys in height and therefore did not comply with section 8.1.3.1 of the Superseded Scheme, such development could only be undertaken with the consent of Council (in other words, would have required a permit to carry out development). The Committee resolved to: assess the relevant components of the application under the Superseded Scheme (except for the ‘operational component – trees’ which was to be assessed against the current planning scheme, i.e. 2003 Living City Scheme); and advise the Development Applicant that the ‘notification of the intention to carry out development that was self-assessable or exempt under a superseded planning scheme’ was misconceived because the proposed development was impact assessable development under the Superseded Scheme. It is my understanding that once the Council had made a decision about which planning scheme to apply to a particular development application, the planning scheme’s provisions determine whether an application is to be effectively assessable or not (so long as its provisions are not inconsistent with IPA). In this case, Council consent (or assessment) was required to carry out the proposed development under the Superseded Scheme. Under IPA, schedule 8 and the Integrated Planning Regulation 1998 or a planning scheme determines the ‘level of assessability’ for development (sections 3.1.2 and 6.1.1 of IPA). In this case, as the Superseded Scheme was implemented prior to the introduction of IPA, section 6.1.28(2) of IPA specifies that the application will be processed as if it were impact assessable if, under the repealed Local Government (Planning and Environment) Act 1990, the proposal would have required public notification (i.e. a consent or rezoning application). If public notification would not have been required, the application is to be processed as if it were code assessable (section 6.1.28(3) IPA). Under IPA, if any part of a development application requires impact assessment (even if code assessment is required for another part of the application), the process for impact assessment must be followed on the whole application (section 3.4.2 IPA). Therefore, the assessment of the original development application under the Superseded Scheme (and the current scheme in the case of the operational component – ‘trees’) meant that automatically under IPA: the use and building components were impact assessable; the ROL and operational components were code assessable; and therefore the whole application was impact assessable. The Development Applicant subsequently lodged an amended development application in January 2005 and a second amended development application in March 2005 so that the application no longer contained a proposal to build greater than 2 storeys. This triggered an automatic change under IPA in the assessment status for the application’s components so that: The building component became self-assessable; and The ROL and operational components remained code assessable. On the material available to me, it appears that the Council did not have the discretion to determine whether the development application was impact or code assessable; it was an automatic consequence of the consideration of the development proposal under the Superseded Scheme. The only decision the Council was required to make was which planning scheme to apply. Further, I have no reason to doubt the Council’s assertions that there was no need to submit the amended development applications to the City Planning Committee for a decision as to which planning scheme to apply because it was considered to be an amendment to the original development application under the Superseded Scheme. Accordingly, once the Council had made the initial decision that the development application was to be assessed under the Superseded Scheme, it had no discretion to determine which planning scheme should apply to the amended development application. Scope of the FOI application In his FOI application and later submissions the Applicant requested documents relating to the Council’s ‘decision’ to make the application ‘code assessable’. As noted in the section above, I am satisfied that there was no Council decision to make the application code assessable. Accordingly, there can be no documents responsive to this aspect of the Applicant’s application. I note however, that in my view the FOI application can be interpreted to relate to documents concerning how it exercised its discretion to determine that the Superseded Scheme applied to the relevant development applications. During the review, the Applicant provided submissions about the sufficiency of Council’s searches relating to both the determination of the assessment procedure to be applied to the development application and the assessment of the original and amended development applications. The Council argued that documents relating to the assessment of the development applications (i.e. the original application and the amended applications) did not fall within the scope of his application. I note, however that the Council FOI officer who processed the application advised that while she did not agree to increase the scope of the Applicant’s FOI request to include the assessment of the development applications, in order to facilitate the resolution of his application, she in fact released some documents relating to the assessment of the amended development application. The general rule is that an applicant is not permitted to unilaterally expand the terms of an access application (see Re Robbins and Brisbane North Regional Health Authority [1994] QICmr 19; (1994) 2 QAR 30 at paragraph 17). Expansion of the scope of an access application can be done with the consent of the agency, but an agency that is not prepared to so consent is within its rights to insist that the access applicant lodge a fresh access application for any document that falls outside the terms of an existing access application. Having reviewed the wording of the Applicant’s initial application to the Council dated 19 April 2005, his summary of the 1 July 2005 telephone conversation with the Council clarifying scope issues (outlined in his application for external review) and the ‘list’, I advised the Applicant of my preliminary view that the scope of his application is limited to documents concerning the determination of the assessment procedure that would apply to the development applications. I expressed my view that documents concerning the actual assessment of the development applications are not within the scope of his application. I noted that he has the right to make a fresh application to the Council for documents concerning the assessment of the relevant development application/s. In his response of 30 December 2006, the Applicant said that he generally concurred that the FOI application does not extend to the assessment of the development applications but said: However, I was not seeking material showing how Council actually assessed the Development Application, rather, how Council (via both officer and Councillors) assessed/decided/interpreted how the Development Application would be assessed. This ‘process’ would involve ‘deciding’ the legislative parameters, the parties needing to be involved, and the issues/grounds/criteria that will come into play...So, in the ‘process’ of ‘deciding’ how this Development Application would be assessed, the Council would not only determine how it as ‘assessment manager’ would ‘translate’ the applicable legislative criteria but proceed to so do, decide the extent of external parties, and determine the geophysical/social, economic &/or environmental material that would form the basis of assessment. He said that he had not yet received information regarding: how Council ascertained the external parties to be part of the ‘assessment’ process; and the various inputs that could reasonably be expected in the evolution of the ‘Information Request’. According to my understanding of the IPA process, once an application has been received and an assessment manager (in this case, the Council) notifies the applicant against which planning scheme the application will be assessed, the ‘information and referral’ stage commences. Among other things this stage gives a Council the opportunity to ask the applicant for further information needed to assess the application and receive advice about the application from referral agencies (section 3.3.1 IPA). The referral agencies (concurrence and advice agencies) are listed in Schedule 2 of the Integrated Planning Regulation 1998. The characteristics of a development application in the context of a planning scheme and/or IPA processes determines which referral agencies are involved. In other words, the Council does not ascertain the external parties to be part of the assessment process; IPA does. Ordinarily it is the responsibility of the applicant to notify the relevant referral agencies of the development application and provide the relevant information (the Information Request) (section 3.3.3 IPA). However, referral coordination is required where there are 3 or more concurrence agencies, in which case the information is given to the Department of Local Government Planning, Sport and Recreation which contacts the relevant referral agencies and compiles a single Information Request for the applicant’s response (section 3.3.5 IPA). In this case, referral coordination was required for the relevant development applications. On the material available to me, I am satisfied that: the determination of referral agencies and the Information Request process concern the actual assessment of the development application once the assessment procedure as to the applicable planning scheme (and consequently, the level of assessment under IPA) has already been determined; and therefore the information sought in paragraph 57 does not fall within the scope of the FOI application. Principles applicable to sufficiency of search cases Information Commissioner Albietz explained the principles applicable to 'sufficiency of search' cases in Re Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7; (1994) 1 QAR 464 (pp. 469-470, paragraphs 18 and 19) as follows: It is my view that in an external review application involving 'sufficiency of search' issues, the basic issue for determination is whether the respondent agency has discharged the obligation, which is implicit in the FOI Act, to locate and deal with (in accordance with Part 3, Division 1 of the FOI Act) all documents of the agency (as that term is defined in s.7 of the FOI Act) to which access has been requested. It is provided in s.7 of the FOI Act that: "'document of an agency' or 'document of the agency' means a document in the possession or under the control of an agency, or the agency concerned, whether created or received in the agency, and includes – (a) a document to which the agency is entitled to access; and (b) a document in the possession or under the control of an officer of the agency in the officer's official capacity;" In dealing with the basic issue referred to in paragraph 18, there are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined in s.7 of the FOI Act); and if so (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case. Application of sufficiency of searches principles to this case During the review, the Applicant raised the following grounds as to why he believes the Council is in the possession or control of additional documents responsive to his FOI application: His request included documents in the possession of persons contracted to undertake work for Council and he claimed proper searches have not been conducted for consultant’s documents; A legal firm was engaged by Council to manage a routine assessment of a land-use development application on behalf of the Council and therefore any documents generated by the firm should have been provided to him; He claims it “would be unlikely that the ‘process’ of arriving at the ‘decision’ to make the application ‘code assessable’ was undertaken without extensive consultation, deliberation and/or feedback.” He claims to have personally viewed 19 boxes of the relevant documentation during Planning and Environment Court proceedings on a similar matter. Regarding grounds (a) and (b), by letter dated 5 September 2006 I advised the Council that the documents sought in the Applicant’s ‘list’ (and falling within his FOI application generally) should not be narrowed by focusing on ‘officer documents’, but rather should encompass documents falling within the ambit of documents in the Council’s possession or control, even if originated by a third party contractor. In response, the Council advised that all documents responsive to the FOI application (including any documents that may have been generated by third parties) had been identified and either released to the Applicant or exempted pursuant to section 43(1) of the FOI Act on the grounds of legal professional privilege. As noted earlier, in March 2006 the Applicant accepted this Office’s preliminary view that the matter in issue was exempt from disclosure under section 43(1) of the FOI Act and agreed to withdraw this component of the review. However, in his submissions of 30 December 2006, he argued that the relevant legal firm was engaged by Council to manage a routine assessment of a land-use development application on behalf of the Council and therefore these types of documents should be provided to the Applicant. On the material available to me I am satisfied that: the documents concerning the alleged management by a legal firm of the assessment of the development application as sought in (b) do not relate to the determination of the assessment procedure and therefore do not fall within scope of this review (see scope section); and there are no reasonable grounds to believe additional documents exist and the search efforts by the Council for third party documents within the control of the Council and responsive to the FOI application have been reasonable. Regarding ground (c), the Applicant claimed that there should be material provided to him that addresses: “how the legislative material was assessed to arrive at the ‘decision’ to make the application code assessable”; “input by Council staff and/or Councillors to a draft decision to make the application code assessable”, including Councillor Robbins’ emails; and “discussion with other parties in relation to a draft decision to make the application code assessable”. The Council provided evidence that having sought legal advice, the decision about which planning scheme to apply was made by Council resolution. It claims there are a limited number of documents in existence that relate to the decision that the development would be assessed under the Superseded Scheme, which are not exempt under section 43 of the FOI Act. The Council submitted that the non-exempt documents simply record the applicable planning scheme and the level of assessment that the planning scheme prescribes. It claims that all non-exempt documents within the scope of the application have been released to the Applicant (this Office has viewed the documents that were released to the Applicant). The Council advised that when it receives an application to carry out development pursuant to a superseded planning scheme, the Council’s Development Assessment Review Team (DART) ordinarily discusses the application and makes recommendations to the City Planning Committee about whether Council should agree or refuse to apply the superseded planning scheme to that particular development application. The Council advised that minutes are not taken at DART meetings and I have not been provided with any evidence to suggest otherwise. The Council advised that reports are not always produced from DART considerations, particularly if DART agreed with the development applicant to assess the application under a superseded scheme. However, if there is a report, it would go to Council for Council consideration. The Council advised that DART would have met to discuss the relevant development application. The former Senior Strategic Planning Officer who would have attended the DART meeting drafted a report that constituted the agenda for the City Planning Committee’s consideration about which planning scheme to apply. The agenda was released to the Applicant, however, the Applicant claims that he has not received the minutes or attachment to the minutes for the relevant Council meeting. The Council refused access to the minutes and attachment under section 22 of the FOI Act (see below). This Office requested a search of the former Senior Strategic Planning Officer’s files to determine whether there are any other non-privileged documents that were produced before the Council’s deliberations. The staff member no longer works at the Council however a box of her work was found and Council confirmed that the box contained no documents in relation to the relevant development application. A large part of the review focused on the Applicant’s claims that the Council holds emails to and from Councillor Robbins who was allegedly vocal about the proposed development. The Applicant claimed that while he has not actually seen her emails which allegedly relate to the development application, during the Crime and Misconduct Commission (CMC) hearing into Gold Coast Council electoral matters her emails were discussed. He suggests that “someone had collated Cr Robbins’ emails. Given this, it would appear reasonable to expect that this ‘database’ could be reviewed for reference to this development application.” This Office asked the Council to search Council records and the relevant CMC collation for Councillor Robbins’ emails with reference to the assessment procedure for the relevant development application. The Council advised: Regarding the search of Council records: to retrieve the emails from archives would involve rebuilding a ‘test lab backup’ and a new exchange server which would be extremely labour and resource intensive; to find emails relating to the assessment procedure of the development application among hundreds or thousands of day-to-day emails would be extremely labour intensive and time consuming; Councillor Robbins passed away in November 2004 so the Council made enquiries of the Assistant Manager in relation to the relevant development applications for any relevant emails; No emails responsive to the FOI application were located; and Regarding the search of the CMC collation: The Councillor’s emails dated between 1 March 2004 and 30 April 2004 were collated for a specific purpose regarding Council elections and none of the key words in searching for the emails related to the development application. I have taken into account the fact that the Applicant provided no firm evidence that there are any emails with reference to the assessment procedure for the relevant development application. He claimed to have viewed 19 boxes of relevant information (during a similar matter) but was unable to confirm or provide evidence that the relevant documents related to the assessment procedure as opposed to the actual assessment (the latter of which falls outside the scope of this review). Further, the relevant development application was lodged with Council on 30 April 2004 and Council’s determination of which planning scheme to apply was made at the Council meeting on 4 June 2004, which is outside the dates of the emails collated for the CMC matter. On the material available to me, I am satisfied that: The only documents that would reasonably be expected to relate to the Applicant’s grounds under (c) that are within the scope of the FOI application are: The documents that are exempt under section 43(1) of the FOI Act; The documents that were released to the Applicant; and The agenda, minutes and attachment for the Council meeting on 4 June 2004; It would be unreasonable to request the Council to review Councillor Robbins’ emails in the possession of the CMC; There are no reasonable grounds to believe that further documents responsive to the FOI application exist in the control or possession of the Council; and The Council’s search efforts to locate documents responsive to the Applicant’s FOI application have been reasonable in all the circumstances of the case. Section 22 of the FOI Act Section 22(a) of the FOI Act provides: 22 Documents to which access may be refused An agency or Minister may refuse access under this Act to – (a) a document the applicant can reasonably get access to under another enactment, or under arrangements made by an agency, whether or not the access is subject to a fee or charge... The Applicant argued that the Council has not correctly exercised its discretion under section 22(a) of the FOI Act to refuse access to: 1992: Sheets 52/16 and 80/3 of the Planning Scheme Maps (1992 Maps); and The minutes, agenda and attachments to the Council meeting dated 4 June 2004 (Council meeting documents). 1992 Maps In the course of the review the Council was asked to undertake further searches to locate the relevant maps and/or make submissions as to why the maps had not been provided. The Council argued that: Such maps were not within the scope of the FOI application; If they were within scope, they could be accessed by the Applicant through the: the Planning and Environment Court Registry; or Council’s website and/or Technical Advice Counter; and therefore, the Council refuses access to the maps pursuant to section 22(a) of the FOI Act. I note that while the FOI application relates to “the way Council has acted to determine the assessment procedure for a development application by the [relevant developer]”, it contains the following ‘ancillary component’: Sections of parts of the Planning Scheme of the Council of the Albert Shire applicable to the decision by the Council of the Albert Shire to approve the development application lodged in the late 1980’s...for the subject land. The Council raised concerns in its letter dated 25 May 2006 that the Applicant was attempting to unilaterally extend the scope of his FOI application, stating that it could not: .....see any relationship between his requirement to be provided documents that explain “the reason/s behind council’s decision in 2004 to code assess the application in question” and [Council] being required to provide the Planning Scheme Maps for a 1992 gazettal and the Albert Shire Planning Scheme Maps of 1995. As [Council has] advised previously, Dr Moon was quite adamant after receipt of [the] initial decision that [Council] had completely misunderstood his application and he did not require access to any historical documentation. And now these documents form part of his review application. Dr Moon claims that the 1992 Maps have always fallen within the scope of his application. On the material available to me, I am satisfied that the 1992 Maps fall within the scope of the ‘ancillary component’ of the FOI application (see paragraph 2). Thus a question for this review is whether the Council correctly exercised its discretion to refuse access to the 1992 Maps under section 22(a) of the FOI Act. In JM and Queensland Police Service (‘Re JM’) [1995] QICmr 8; (1995) 2 QAR 516 the Information Commissioner said at paragraphs 21 and 28-29 that if: the terms of the other enactment or other arrangements made by the agency contemplated by section 22 place restrictions on the extent of access available to certain kinds of information under the particular specialised scheme of access; and those restrictions would operate to deny access to all or part of a particular document requested by an applicant for access under the FOI Act; then section 22 would not be available. Re JM was decided prior to the amendment of section 22 of the FOI Act in 2005, however I am satisfied that the statements above remain relevant to section 22(a) of the FOI Act in its current form. Rule 980 in conjunction with rule 981 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPRs), provide as follows: Copies of documents (1) A person may ask the registrar for a copy or a certified copy of a document filed under these rules. (2) The person asking for a copy must pay any prescribed fee for the copy or certified copy. (3) The registrar must give to the person a copy or certified copy of the document as the case may be. (4) The copy must have the seal and the word ‘copy’ stamped on it. Searches (1) A person may ask the registrar to search for and permit the person to inspect a document in a court file. (2) If the person is not a party or a representative of a party, the person asking for the search or inspection must pay any prescribed fee for the search or inspection. (3) Subject to any court order restricting access to the file or document or the file or document being required for the court’s use, the registrar must comply with the request, unless there is not enough information for the registrar to be able to comply with it. Rule 3(2) of the Planning and Environment Court Rules 1999 (Qld) (P & E Court Rules), provides: Application of rules... (2) If these rules does not provide for a matter in relation to a proceeding, or proceedings, in the Planning and Environment Court and the rules applying in the District Court would provide for the matter in relation to a proceeding, or proceedings, in the District Court, the rules applying in the District Court apply for the matter in the Planning and Environment Court with necessary changes. Rule 3(1) of the UCPRs, provides: Application (1) Unless these rules otherwise expressly provide, these rules apply to civil proceedings in the following courts – the Supreme Court the District Court Magistrates Courts. Therefore as there are no rules in the P & E Court Rules dealing with public access to court documents, rules 980 and 981 UCPR apply. Section 7 of the FOI Act provides that “enactment means an Act or a statutory instrument”. A Rule of Court is a statutory instrument (sections 7 and 12 Statutory Instruments Act 1992). This Office’s search of the Planning and Environment Court Registry revealed that a copy of the 1992 Maps is attached to document number 10 (attachment 21) which was filed during the course of the Planning and Environment Court matter number 2992/04. On the material available to me, I am satisfied that: The UCPRs are an ‘enactment’ for the purposes of the FOI Act and provide public access to Planning and Environment Court material; The UCPR’s place no restrictions that would operate to deny access to all or part of the 1992 Maps requested by the Applicant; The 1992 Maps are available in their entirety to the Applicant from the Planning and Environment Court Registry, subject to search and photocopying fees; and The Council has correctly exercised its discretion under section 22 of the FOI Act to refuse access to the 1992 Maps. Council meeting documents In my letter to the Applicant on 11 December 2006, I provided my preliminary view that the Council correctly exercised its discretion under section 22(a) of the FOI Act to refuse access to the Council meeting documents because they are available for public access on the Council’s website (in the case of the agenda and minutes) and from the Council’s Meeting Support Unit, Community Relations Branch (in the case of the attachment to the minutes). The Applicant responded in his letter of 30 December 2006 saying that a search of the website and enquiries made to the Council “revealed that no material is available.” A case officer from this Office searched the website and found the publicly available minutes and agenda. She telephoned the Minutes Support Secretary at the Council and found that the minutes’ attachment is available to the public for a reasonable fee. I note that as part of the FOI release, the Applicant was provided a copy of the relevant Council agenda. I am satisfied that the Council meeting documents are reasonably available to the Applicant under the Council’s administrative access regime and the Council correctly exercised its discretion under section 22(a) of the FOI Act to refuse access to the Council meeting documents. Decision I affirm the decision under review (being the decision dated 19 December 2005 by Mr C Martins) by finding that: the Council correctly exercised its discretion under section 22(a) of the FOI Act to refuse access to the 1992 Maps and the Council meeting documents; and there are no reasonable grounds for believing that there exists, in the possession or under the control of the Council, any further documents responsive to the FOI application. The searches and inquiries conducted by the Council in an effort to locate any further responsive documents have been reasonable in all the circumstances of the case. I have made this decision as a delegate of the Information Commissioner, under section 90 of the FOI Act. ________________________V CorbyAssistant Information Commissioner Date: 13 February 2007

queensland

court_judgement

Queensland Information Commissioner 1993-

Moreton Bay Regional Council and Respondent [2020] QICmr 21 (8 April 2020)

Moreton Bay Regional Council and Respondent [2020] QICmr 21 (8 April 2020) Last Updated: 4 August 2020 Decision and Reasons for Decision Citation: Moreton Bay Regional Council and Respondent [2020] QICmr 21 (8 April 2020) Application Number: 431003 Applicant: Moreton Bay Regional Council Respondent: ‘Respondent’ Date 8 April 2020 REASONS FOR REFUSING APPLICATION FOR DECLARATION UNDER SECTION 114 OF THE RIGHT TO INFORMATION ACT 2009 (QLD) Background The Respondent, a resident within the local government area administered by Moreton Bay Regional Council (Council), has been in dispute with Council in relation to residential plumbing matters. The Respondent has applied to Council under the Right to Information Act 2009 (Qld) (RTI Act) for access to information concerning these matters. By application dated 19 July 2019, Council applied to me for a declaration under section 114(1) of the RTI Act that the Respondent is a vexatious applicant. Council sought a declaration in terms that would prohibit the Respondent from applying to Council under the RTI Act, for a period of three years, for access to information concerning:[1] Plumbing and/or drainage matters at [the Respondent’s],...including any current legal proceedings or complaints still on foot regarding plumbing and/or drainage matters at [the Respondent’s] property; Plumbing and drainage matters of any other property (residential or commercial) in Council’s region, including the plumbing and drainage files of other properties and any show cause notices, rectification notices and enforcement orders issued in relation to plumbing and drainage; Information regarding Council’s plumbing and drainage officers; and Council’s plumbing and drainage procedures, methods, and statistics. For the reasons explained below, I am not satisfied that grounds exist for the making of the requested declaration. I therefore refuse Council’s application. Relevant law Section 114 of the RTI Act relevantly provides as follows: (1) The information commissioner may, on the commissioner’s own initiative or on the application of 1 or more agencies, declare in writing that a person is a vexatious applicant. (2) The commissioner may make the declaration in relation to a person only if the commissioner is satisfied that— (a) the person has repeatedly engaged in access actions; and (b) 1 of the following applies— (i) the repeated engagement involves an abuse of process for an access action; ... Section 114(8) of the RTI Act sets out relevant definitions: (8) In this section— abuse of process, for an access action, includes, but is not limited to, the following— (a) harassing or intimidating an individual or an employee of an agency in relation to the access action; (b) unreasonably interfering with the operations of an agency in relation to the access action; (c) seeking to use the Act for the purpose of circumventing restrictions on access to a document or documents imposed by a court. access action means any of the following— (a) an access application; (b) an internal review application; (c) an external review application. ... engage, for an access action, means make the access action. Other grounds for abuse of process may be established at common law.[2] Council’s application for the making of a declaration Council contends that the Respondent has engaged in repeated access actions, and that his doing so has resulted in all three of the statutory abuse of process grounds stated in section 114(8) of the RTI Act, ie: harassing or intimidating Council employees, unreasonably interfering with Council operations, and seeking to use the RTI Act for the purpose of circumventing court-imposed restrictions.[3] It was apparent early in my Office’s consideration of Council’s application that the first and third grounds summarised above – harassment/intimidation and evading court-imposed restrictions – were unlikely to be made out. I have explained why neither is established later in these reasons. Consideration therefore focussed on Council’s case for a declaration based on abuse of process arising from unreasonable interference with Council operations. On this ground, Council’s case as originally put was not that the number of access actions engaged in by the Respondent was, of itself, unreasonable.[4] Rather, Council submitted that the nature of those access actions was unreasonably interfering with Council operations. As Council argued: ... more so than the frequency of requests, the extensive scope and the nature of these requests and reviews indicate a pattern of obsessive and unreasonable behaviour by [the Respondent]. ... [the Respondent] began by making various access applications in relation to his property and plumbing dispute with Council. The scope of these applications became far broader and accusatory as time passed, to the extent that it has become an avenue for [the Respondent] to air his complaints and make allegations. Once [the Respondent] had exhausted all possible scopes for applying for documents about his property and the plumbing dispute, he began requesting documents in relation to Council’s plumbing procedures and statistics, along with the schedules and work of targeted staff members. In recent years, [the Respondent] has started making access applications for the plumbing and drainage files of other properties in the region, and continues to request, with slight variations, documents about Council’s plumbing procedures and statistics. It is noted that, with only one exception, the scope of all [the Respondent’s] requests over the last three and a half years have not related to his property. His recent applications appear to be attempts to waste Council’s resources, to harass, and to scrutinise Council’s plumbing procedures and recordkeeping, down to an unreasonable level of detail, in order to expose what he seems to believe is some kind of misconduct or cover-up by Council. On the issue of unreasonable interference specifically, Council contended that: [The Respondent’s] repeated engagement with Council has substantially and unreasonably diverted Council’s resources and will likely continue to do so unless he is declared a vexatious applicant. Council does not consider the conduct will abate with the passage of time, given that [the Respondent] has been repeatedly engaging with Council for almost a decade and that his requests seem to have been increasing and becoming broader of late (with six requests for information and five reviews in 2018 alone). Over the course of [the Respondent’s] engagement with Council, Council’s Regulatory Services Department (the Department) has expended a significant and unreasonable amount of time searching for and providing documents in response to [the Respondent’s] repeated access applications. The Department has advised they often struggle with the large size of many of the requests and processing applications that are very broad and vague in nature (particularly recently) and have stated that these ongoing applications “are causing significant disruption and concern within the Regulatory Services Department in general.” In addition, as many of [the Respondent’s] requests for information are followed by extensive review requests, the Department has expended countless further hours assisting in the resolution of lengthy sufficiency of search reviews. Council’s RTI Unit, which is made up of one full-time Governance Information Officer and one decision-maker, whom is a Legal Officer with other duties, has similarly struggled to cope with [the Respondent’s] repeated applications and review requests, which often impact on the processing time of other access applications Council has on foot. This is due to the size of most of the applications and the extremely detailed nature of [the Respondent’s] review requests. In addition, and perhaps the source of the most frustration, is the great deal of time the RTI Unit expends determining which parts of new access applications reflect documents previously applied for. Respondent’s case in reply Council’s initial case for a declaration was put to the Respondent by letter from the RTI Commissioner dated 18 September 2019. That letter set out salient parts of Council’s application as extracted above, together with the RTI Commissioner’s preliminary view that there may exist grounds for the making of a declaration by the Information Commissioner,[5] and her reasons for forming that preliminary view. By reply dated 2 October 2019, the Respondent resisted the making of any declaration, relevantly submitting that: the various access actions in which he has engaged have been initiated in an effort to access information to assist him in progressing a civil claim against Council; in dealing with those applications, Council availed itself of the processing charge regime in the RTI Act, assessing $2,236.16 in charges, which the Respondent has fully paid; and he has sought from and accepted any advice from Council as to how his applications might be framed in a manageable form. Council’s further submissions Having considered the Respondent’s reply, the RTI Commissioner wrote again to Council, summarising the Respondent’s position and conveying a revised preliminary view: essentially, that the making of the requested declaration would not be appropriate. By letter dated 24 January 2020,[6] Council made further submissions in support of its application, maintaining its position that the making of a declaration under section 114(1) of the RTI Act was justified. Council relied on its 19 July 2019 submissions, and further submitted that: contrary to his submissions, the Respondent has not cooperated with Council in negotiating the scope of various access applications ‘comparative’ to the total number of applications received by Council in any given year, the time expended on the Respondent is ‘excessive and manifestly unreasonable when one considers that Council engages one (1) Governance Information Officer to deal with the totality of RTI/IP applications across Council’ the proposition that the Respondent’s access actions justified on public interest grounds is without merit, and/or insofar as information is required for ongoing legal proceedings, this should be pursued through curial processes, and not via applications under the RTI Act; and processing charges paid by the Respondent do not adequately reflect resources expended by Council in dealing with: ‘post-application’ inquiries made by the Respondent following receipt of a decision or documentation; and review actions initiated by the Respondent, many of which Council contends have lacked merit. Consideration The requirements of section 114 of the RTI Act have been previously considered by the Information Commissioner in two published decisions.[7] Additionally, section 114 of the RTI Act is substantially the same as sections 89K and 89L of the Commonwealth Freedom of Information Act 1982. Accordingly, in considering Council’s application I have obtained considerable guidance on the interpretation of section 114 of the RTI Act from: guidelines on the operation of those analogous Commonwealth sections, prepared by the Office of the Australian Information Commissioner (OAIC Guidelines);[8] and several declarations made by the Australian Information Commissioner[9] The power to make a declaration under section 114(1) of the RTI Act is discretionary. This means that in addition to considering the grounds for a declaration specified in section 114, the Information Commissioner may consider other relevant features of a person’s access actions or RTI administration in the agency that has applied for a declaration.[10] When such additional considerations are taken into account, it may be that it is not appropriate to exercise the discretion to make a declaration, notwithstanding that the grounds enlivening that discretion are made out. Repeated engagement in access actions The first issue to address is whether the Respondent has repeatedly engaged in access actions. I have identified 38 access actions made by the Respondent: 18 access applications, six internal review applications,[11] and 14 external review applications to OIC.[12] ‘Repeatedly’ is not defined in the RTI Act and can be interpreted within its ordinary meaning: ‘done, made, or said again and again’.[13] I consider that in making these 38 access actions the Respondent has repeatedly – ‘again and again’ – engaged in access actions.[14] Abuse of process The next question is whether the Respondent’s repeated engagement in access actions amounts to an abuse of process. As noted above, Council originally submitted that the Respondent’s access actions satisfied all three categories of abuse of process nominated in section 114(8) of the RTI Act. In her letter to Council dated 28 November 2019, the RTI Commissioner set out a preliminary view rejecting any argument that the access actions involved circumvention of court-imposed access restrictions, or harassment/intimidation. Circumventing court restrictions on access Council, correctly in my view, did not press this claim. This is a very specific ground, requiring a determination of fact as to whether a person has engaged in access applications to circumvent restrictions on access to documents imposed by a court. As the OAIC Guidelines note in relation to the equivalent Commonwealth ground, in assessing whether it is established ‘[i]t will be necessary to compare the terms of a person’s request with the terms of a court order.’[15] There is no evidence before me that a court has imposed any restrictions on the Respondent at all, let alone in relation to documents he has requested of Council via the RTI Act. This ground cannot be established. Harassment/intimidation As for harassment/intimidation arguments, Council did in its 24 January 2020 submissions refer to the ‘added effect’ of the Respondent’s access actions on Council staff, ‘who feel the [Respondent] is abusing the RTI process and questioning their integrity as public officers...’; language arguably suggesting it continued to rely on this ground. I do not accept that it is established. The terms ‘harassing’ and ‘intimidating’ are not defined in the RTI Act, and therefore have their ordinary meaning. To ‘harass’ a person is to disturb them persistently or torment them; and to ‘intimidate’ a person is to use fear to force or deter the actions of the person, or to overawe them.[16] The OAIC Guidelines state:[17] 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. Council submits:[18] Similar to the case of UQ and R, Council is of the view that [the Respondent’s] repeated engagement with Council is motivated by a desire to seek retribution against Council, and particular Council staff, whom [the Respondent] believes have wronged him. In particular, [the Respondent] appears to have an ongoing unresolved issue with ... [several named Council officers]. In the early years of [the Respondent’s] engagement with Council, he made serious and repeated allegations against Council’s plumbing officers, including [named officers], such as complaints about corrupt conduct to the Crime and Corruption Commission and complaints about perjury to Queensland Police. [The Respondent’s] complaints have all since been dismissed, however his repeated requests for documents continue to persistently disturb, torment and cause a great deal of stress to these officers. The requests appear to be continued attempts by [the Respondent] to harass Council and to substantiate unfounded allegations that these employees have engaged in inappropriate conduct. The material before me does not justify a finding that the Respondent’s repeated engagement in access actions involves an abuse of process in the nature of harassing or intimidating Council employees. There is no evidence of the Respondent having persistently adopted insulting, offensive or abusive language in his access actions or more broadly. Further, his access actions do not appear to have been motivated by a ‘desire to seek retribution’ but, as noted above and discussed further below, to obtain information for use in legal proceedings. Council asserts that the Respondent did, at some point, raise allegations against certain staff. It is, however, the right of any member of the community to raise with appropriate agencies what the individual honestly suspects to be inappropriate or delinquent conduct on the part of public officers – absent exceptional circumstances, the making of such an approach would not, of itself, amount to inappropriate conduct. Further, there is no evidence that the Respondent’s access actions have specifically targeted the personal, rather than simply operational, information of nominated staff. The underlying issue motivating his repeated actions concerns, as I understand, plumbing and plumbing compliance issues. In this context, it is not unusual that those actions will affect or require the attention of the several operational officers identified in Council’s submissions – this being an incidental consequence of the roles they occupy. While I appreciate the Respondent’s focus on this issue may annoy or inconvenience affected staff, I am not able to conclude his actions in this regard amount to harassment or intimidation. Similarly, on the information before me, it is not possible to conclude that the Respondent has engaged in access actions in an attempt to ‘overawe’ agency staff or for a collateral purpose of having them capitulate or concede on other issues. Unreasonable interference with agency operations It remains, then, to consider whether the Respondent’s repeated engagement in access actions involves an abuse of process, on the basis that that repeated engagement has unreasonably interfered[19] with Council’s operations. The OAIC Guidelines[20] list various factors relevant to assessing this issue, which I consider may be usefully applied when considering section 114(2)(b)(i) of the RTI 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 [RTI] 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 [RTI] 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 [RTI] 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 [RTI] 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 [RTI] processing whether the person has cooperated reasonably with the agency to enable efficient [RTI] 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 [RTI] processing or general administration have contributed to or might explain a person’s access actions... The first point to note is that the number of access actions initiated by the Respondent – while repeated – is not particularly excessive.[21] Nor is the time expended by Council in dealing with those actions.[22] These are important considerations telling against a finding of unreasonable interference. Nevertheless, as the factors listed in paragraph 39 make clear, the number of actions and time spent dealing with them are not the only matters to be considered in assessing whether those access actions unreasonably interfere with agency operations. As noted above, Council’s position is that it is the nature of the Respondent’s access actions, rather than number alone, that unreasonably interferes with Council operations:[23] that the Respondent’s repeated engagement in complex and repetitive access actions excessively – unreasonably – interferes with Council’s operations in relation to the access actions.[24] In this regard, I note particularly Council’s submissions that many of the Respondent’s applications to access information are very detailed and composed of multiple categories – ‘difficult to discern’ – requiring considerable effort on Council’s part to ascertain what exactly it is the Respondent has requested, and the extent to which a given application overlaps with earlier applications.[25] Further, as the RTI Commissioner pointed out to the Respondent in her letter dated 18 September 2019, it appears that he has at times: directly requested material his entitlement to which Council has previously resolved brought external review applications in which he has essentially sought to have Council ‘prove a negative’; and on occasion demonstrated an attitude that may be considered uncooperative or unhelpful.[26] Another point made by the RTI Commissioner was the fact that through his access actions, the Respondent has sought to pursue access to questions or explanations from Council about certain of its processes,[27] or press for access to information which appears to have already been released. Similarly, on occasion he has asserted that Council has failed to identify and deal with all relevant documents, when in fact it had already disclosed several relevant documents to him: Council was therefore required to expend resources in dealing with his queries as to the adequacy of its searches, when the answers to some of those queries were in the material it had disclosed to him.[28] Of some further relevance is the fact that, of the 14 applications for external review of Council decisions the Respondent has made to OIC – a process that, as noted, consumes Council time and resources – the majority of these have not resulted in the Respondent obtaining an outcome more favourable than that decided by Council. Council’s case, in summary, is that the Respondent’s repeated access actions have impacted on its ability to both undertake core service delivery in the building compliance area, and expeditiously process information action requests, potentially to the disadvantage of other members of the community seeking to exercise their right to access information from Council under the RTI Act. It further submits that it has attempted to manage individual applications according to the mechanisms afforded it under the Act where appropriate.[29] Additionally, and while the Respondent disputes this,[30] it is not clearly obvious to me that any deficiencies on its part have contributed to the number of access actions made by the Respondent, which might otherwise tend against a finding of unreasonableness. Taking all of the above circumstances into account – including the scope, complexity and repetitive subject-matter of the Respondent’s repeated applications to Council – the RTI Commissioner was initially inclined to the view that the Respondent’s repeated access actions did not constitute a ‘moderate and reasonable’ exercise of the right of access to government-held documents under the RTI Act.[31] Rather, the RTI Commissioner concluded, on a preliminary basis, that the nature of the majority of the Respondent’s access actions – arising, as noted, from a domestic plumbing issue – instead suggested ‘an immoderate prolongation of a separate grievance’, of a kind that may warrant a declaration in terms as requested by Council (apart from duration). Of course, the RTI Commissioner’s view as summarised in the preceding paragraph was only preliminary, and formed prior to considering the Respondent’s perspective, as summarised in paragraph 14 above. When those key matters are taken into account, the question of whether the Respondent’s repeated access actions unreasonably interfere with Council operations becomes much more contested. Firstly, as the RTI Commissioner’s 28 November 2019 letter to Council noted, obtaining information to pursue or evaluate a legal remedy is a recognised public interest.[32] The Respondent’s 2 October 2019 submissions annexed several court pleadings from an action to which Council is a party. These documents do appear to establish that he has been seeking information through his various access actions to assist him in pursuit of these proceedings. This militates, in my view, against a finding of unreasonableness. So, too, does the payment by the Respondent of more than $2,000 in processing charges: remuneration that, while unlikely to reflect cost recovery on Council’s part,[33] nevertheless tends to mitigate or offset the inconvenience incurred or interference suffered by Council in dealing with relevant actions. The Respondent also submits that he has sought to cooperate with Council in negotiating the scope of his access applications. Council, in its final submissions, strongly rejects this latter contention. This particular point strikes me in many ways as a matter of perspective – what the Respondent sees as an attempt to engage cooperatively, the Council perceives as an excessive or unreasonable call on its resources. Ultimately, I do not think resolving Council’s application turns on this point, and I have not taken it into account in making my decision.[34] What is important, however, is something I consider to be a shortcoming in Council’s case: the absence of firm evidence substantiating its assertions that dealing with the Respondent’s access actions unreasonably interfere with its operations – time-wise, financially or in any other fashion. As the OAIC Guidelines stress, a declaration of the kind provided for under section 114 of the RTI Act will not ‘be lightly made, and an agency that applies for a declaration must establish a clear and convincing need for a declaration’.[35] Council’s case, however, largely falls short in this regard. The materials it has supplied do not, as noted above, demonstrate an unreasonable or ‘immoderate’ interference.[36] Obviously, it can[37] be accepted that Council has been required to commit resources to dealing with the Respondent’s access actions, including on external review. The effects of a declaration under section 114(1) of the RTI Act are, however, profound, depriving an individual of a statutory right intended by Parliament to, among other things, increase ‘the participation of members of the community in democratic processes...’.[38] In these circumstances, an agency applying for such a declaration on the basis of unreasonable interference with operations should be careful to ensure that its claims can be substantiated by clear evidence as to the quantum and extent of the interference with its operations it contends arises from dealing with a given individual’s access actions (such as records of officer time spent or agency monies expended, for example – particularly relevant in this case, given the emphasis in Council’s final submissions on resources expended beyond those reflected in charges recovered from the Respondent). On this point, even if Council had better substantiated the interference it submits arises from handling the Respondent’s access actions, there is one category of expense I would still nevertheless need to treat with caution in assessing whether that interference is unreasonable: those that Council states have been incurred in dealing with the Respondent ‘post-decision’. This is because such liaison is not technically required under the RTI Act – while not wishing to discourage agencies from entertaining such queries from applicants, they are, on having discharged their decision-making powers,[39] not strictly required to take any further action in relation to an access application (subject only, in the case of initial decisions, to dealing with any application for internal review). Given this, I would be hesitant to consider work or expenditure of this kind, in assessing whether dealing with access actions unreasonably interferes with agency operations.[40] Nor, in the absence of firm evidence, am I persuaded by Council’s 28 January 2020 submission that the time and resources spent on access actions brought by the Respondent is ‘excessive and manifestly unreasonable’, ‘comparative’ to other applicants. In assessing reasonableness for the purposes of section 114(8) of the RTI Act, it may be relevant to have regard to the interference with agency operations caused by an individual applicant, relative to the total number of access actions dealt with by the agency.[41] In this case, however, the only concrete figures that are available – number of access actions – reflect favourably on the Respondent including when assessed comparatively: his applications to Council for access to information[42] are consistently a relatively low number of applications per annum across the eight year period provided by Council. Further, as a proportion of the total of information access applications fielded by Council, the Respondent’s access applications have never exceeded more than 3.73% in a given financial year.[43] As for Council’s complaint that the Respondent should avail himself of curial processes in his pursuit of information, rather than the RTI Act, access applicants are not required to justify or explain why it is they are making an application for access to documents under the latter. Information access rights of the kind provided for in the RTI Act are generally regarded as ‘applicant and motive blind’,[44] and while the Act recognises the potential for abuse of that right – via, for example, the very existence of section 114 – I am not persuaded that merely electing to use that right, in preference to others that may be available – is of itself a matter demonstrating abuse.[45] This is particularly so, given the significant limitations ordinarily applying to use of information obtained via court disclosure processes. It is also the case that such routes of access are often relatively narrow or circumscribed, and of little to no assistance to an individual who may be seeking to explore the merits of claims or the scope or viability of potential legal action (or an expansion of existing legal action). Finally, I note Council’s submissions as to the merit or otherwise of the Respondent’s review applications. The merits of certain of these applications was a matter raised in the RTI Commissioner’s initial preliminary view, and taken into account by her in forming that view. Casting this as these applications ‘lacking merit’, however, is to perhaps go too far: an external review application[46] genuinely without merit or lacking substance would be liable to an exercise of the discretion conferred on me by section 94(1) of the RTI Act,[47] action I have not taken in relation to any of the Respondent’s external review applications to date. It must be remembered that the Respondent has a statutory right to seek review of Council’s decisions – to have those decisions ‘tested’ by an internal review officer within Council, or the independent review body in OIC. While he has, as I have noted above, obtained no better outcome as a result of a considerable number of those applications, it is also the case that in the vast majority, he has been prepared to accept OIC’s independent preliminary assessments, and settle or resolve reviews informally rather than put Council and OIC to the expense of requiring formal decisions. Conclusion I accept that the Respondent has repeatedly engaged in access actions. However, when the considerations discussed in the paragraphs above are taken into account, I am not, on the information before me, prepared to find that this engagement unreasonably interferes with Council operations, as required by sections 114(2) and (8) of the RTI Act. As I am not satisfied that Council has established the Respondent’s repeated engagement in access actions amounts to an abuse of process, there is no basis to consider making a declaration under section 114(1) of the RTI Act against him. The discretion to do so is not enlivened. Given this, it is not strictly necessary that I consider whether, assuming Council had established abuse of process, this would be an appropriate case in which to exercise the discretion to make the requested declaration. Nevertheless, in the interests of completeness, I record my findings that I do not consider that exercising that discretion would, on the information available to me, comprise a reasonable and proportionate response to those access actions.[48] I acknowledge Council’s sincere frustration with the Respondent, and, from my Office’s own experience with both him and Council over a number of years, accept that his use of the RTI Act may aggravate or exasperate Council. There are, however, a number of tools and mechanisms available to Council under the RTI Act to manage individual applications brought by applicants in such circumstances, such as noncompliance with statutory requirements for a valid application, refusing to deal with repeat applications for the same documents[49] or applications that would substantially and unreasonably divert Council resources[50] or even, as regards external review applications, inviting my office to consider not dealing or not further dealing with an application under section 94(1)(a) of the RTI Act. While I acknowledge that Council has in the past used some of these mechanisms,[51] it still strikes me that relevant measures – intended to deal with applications – would comprise a more proportional response, than a declaration under section 114 precluding the making of applications altogether, even in the somewhat confined terms requested by Council.[52] Decision I refuse Council’s application for a declaration that the Respondent is a vexatious applicant under section 114(1) of the RTI Act.Rachael RangihaeataInformation CommissionerDate: 8 April 2020 APPENDIX Significant procedural steps Date Event 19 July 2019 OIC received the application for a declaration from Council. 25 July 2019 OIC notified Council that the application had been received. 18 September 2019 OIC wrote to the respondent, advising him of the declaration application, conveying the preliminary view that the declaration may be justified, and inviting submissions. OIC also wrote to Council, explaining OIC’s preliminary view. 24 September 2019 Council provided written submissions to OIC. 2 October 2019 The respondent provided written submissions to OIC. 28 November 2019 OIC wrote to Council, conveying the revised preliminary view that the declaration may not be justified. OIC wrote to the respondent, notifying him of same. 28 January 2020 Council provided written submissions to OIC (dated 24 January 2020. [1] Council’s application also asked that the requested declaration include a condition requiring an existing RTI application be withdrawn. [2] Applicant - University of Queensland - Declaration date 27 February 2012, at [13]. See also Applicant - Cairns and Hinterland Hospital and Health Service - Declaration date 26 October 2017, at [14].[3] Council’s application also uses the language ‘manifestly unreasonable’, which appears in section 114(2)(b)(iii) of the RTI Act, as a further criterion on which a declaration may be based, ie, ‘a particular access action in which a person engages would be manifestly unreasonable’ [emphasis added]. This criterion requires an agency to identify a specific access action, which, in view of the words ‘would be’, is either proposed or on foot, and which would be ‘manifestly unreasonable’. Council’s application and supporting submissions have, however, been addressed to the Respondent’s prior history of access actions – rather than any particular, present, access action – and their substance directed toward establishing ‘abuse of process’ as defined section 114(8) of the RTI Act. Accordingly, I do not understand it to be relying on section 114(2)(b)(iii) of the RTI Act. It has not sought to argue to the contrary (despite preliminary correspondence from the Right to Information Commissioner making clear the basis on which it was understood Council’s application to have been put), and there is, in any event, insufficient information in its submissions that would allow a conclusion that this particular criterion was met.[4] See also supplementary submissions from Council dated 24 September 2019, conceding that the total number of access and review applications lodged by the Respondent ‘do not represent an unreasonably large proportion of total applications’ and ‘are not significant’.[5] For a period of 12 months, rather than three years as initially applied for by Council. Council did not contest this shortened period.[6] Received 28 January 2020.[7] See footnote 2.[8] Available at https://www.oaic.gov.au/freedom-of-information/foi-guidelines/part-12-vexatious-applicant-declarations/.[9] A list of these declarations is accessible at https://www.oaic.gov.au/freedom-of-information/information-commissioner-decisions/vexatious-applicant-declarations/).[10] Paraphrasing OAIC Guidelines, at [12.9].[11] Particularised in a schedule forming part of Council’s application; Council did also include additional dealings with the Respondent in this schedule, however for reasons explained in the RTI Commissioner’s letter to Council dated 18 September 2019, these dealings do not comprise access actions that may be taken into account under section 114 of the RTI Act.[12] Set out in a list accompanying the RTI Commissioner’s letter to the Respondent dated 18 September 2019.[13] Sweeney and Australian Information Commissioner & Ors [2014] AATA 531 (4 August 2014) (Sweeney) at [53], quoting the Macquarie Dictionary.[14] I note that the Respondent did not contest the figures set out in paragraph 21, nor the RTI Commissioner’s preliminary view that they amount to a repeated engagement for the purposes of section 114(2)(a) of the RTI Act.[15] OAIC Guidelines, at [12.29].[16] OAIC Guidelines, at [12.22], citing Macquarie Online Dictionary.[17] Footnotes omitted.[18] Application dated 19 July 2019 (footnotes omitted).[19] ‘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.[20] Paragraph [12.27].[21] On the figures available to me, I note, for example, that the Respondent made three of the 92 access applications finalised by Council in the 2017/18 year. See also footnote 43.[22] Submissions dated 19 July 2019, supporting Council’s application for a declaration. I acknowledge this is not a complete account of time spent by Council in dealing with relevant access actions, a fact recognised in the RTI Commissioner’s letter to the Respondent dated 18 September 2019. As discussed further below, however, I consider that an agency seeking a declaration under section 114 of the RTI Act on the basis of unreasonable interference with operations should carefully articulate and quantify the type and extent of that interference.[23] In dealing with similar requests for individuals to be declared vexatious litigants, courts have determined that a person can have engaged ‘frequently’ in proceedings so as to amount to an abuse of process, even though the number of proceedings is quite small: Registrar of the Supreme Court v Jenkins [2019] NTSC 51 (21 June 2019) at [15], citing HWY Rent Pty Ltd v HWY Rentals (in liq) (No. 2) [2014] FCA 449 at [112]; Fuller v Toms [2013] FCA 1422 at [77]; Conomy v Maden [2019] HCA Trans 49 (20 March 2019). [24] Paraphrasing the RTI Commissioner’s characterisation of Council’s case, as set out in her letter to the Respondent dated 18 September 2019.[25] The RTI Commissioner’s letter to the Respondent dated 18 September 2019 included a table of sample applications, at least three of which requested the same or substantially the same information.[26] On all three points, see examples cited in the RTI Commissioner’s letter to the Respondent dated 18 September 2019.[27] Beyond the right conferred by section 23 of the RTI Act: Hearl and Mulgrave Shire Council [1994] QICmr 12; (1994) 1 QAR 557 at [30], which considered the equivalent section 21 of the repealed Freedom of Information Act 1992 (Qld). [28] See generally the file correspondence referred to in footnote 16 of the RTI Commissioner’s letter to the Respondent dated 18 September 2019. [29] Such as by way of the substantial and unreasonable diversion provisions in sections 41 and 42 of the RTI Act, relied on by Council in application RTI 2014-114.[30] In his 2 October 2019 submissions, the Respondent contended that Council has failed to comply with disclosure obligations relevant to the court proceedings brought by him against Council, pointing to claims made by him in associated pleadings. In the absence of an objective determination of this contention (ie, by the court dealing with those proceedings), I am reluctant to take it into account.[31] See Indigenous Business Australia and ‘QB’ (Freedom of information) [2019] AICmr 14 (29 April 2019).[32] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368.[33] Which a charges regime of the kind contained in the RTI Act is neither able nor intended to achieve – as the FOI Independent Review Panel noted in the report that lead to the enactment of the RTI Act, The Right to Information: Reviewing Queensland’s Freedom of Information Act (June 2008), ‘full cost recovery will never be possible. Indeed it can be argued...that it is not desirable’ (page 192).[34] Nor have I taken into account apparent administrative or other releases of information by Council to the Respondent that may have occurred outside formal access application framework under the RTI Act (a matter raised in both Council’s application and the Respondent’s reply), given these would not comprise ‘access actions’ – see also footnote 11 above.[35] OAIC Guidelines, at [12.7]. [36] On this point, in her letter dated 18 September 2019 the RTI Commissioner invited Council to supply more information in this regard. Its reply, dated 24 September 2019, did not greatly assist Council’s case – indeed, as canvassed at paragraph 61 below, to the extent this reply states firm figures, they reflect favourably on the Respondent.[37] And, indeed, was by the RTI Commissioner in forming her initial preliminary view.[38] Preamble to the RTI Act, clause 1(e).[39] Including advising applicants of their rights of review.[40] Although persistent contact from a given applicant may be something to be taken into account in evaluating whether to exercise the discretion to make a declaration under section 114 (assuming it is enlivened).[41] OAIC Guidelines, at [12.36].[42] A category of access action: section 114(8) of the RTI Act.[43] Comprising a total of 5 applications in that case: Council’s submissions dated 24 September 2019, accompanied by the acknowledgement quoted at footnote 4 above. These figures cover eight full financial years, from 2011/12 to 2018/2019, and that part of 2019/2020 up to the date of the submissions. Relevant submissions also cover internal and external review applications made by the Respondent – the most ever made in a year has been five, out of a total of 17 (2013/14) and 33 (2018/19). This does not, of itself, appear unreasonable.[44] S v the Information Commissioner [2007] UKIT EA/2006/0030, at [19]. Applicant identity and motive are irrelevant considerations: State of Queensland v Albietz [1996] 1 Qd R 215 and Australian Workers’ Union and Queensland Treasury; Ardent Leisure Limited (Third Party) [2016] QICmr 28 (28 July 2016), at [40]-[41] and Schedule 4, part 1 items 2 and 3 of the RTI Act.[45] Noting, too, that where other access is available to a document within the meaning of section 53 of the RTI Act, an agency may refuse access under the RTI Act: section 47(3)(f).[46] Council in these submissions also refers to the merits of the Respondent’s internal review applications – he has, however, made very few of these (six in some eight years, from a total of 38 access actions – see paragraph 21, based in turn on submissions supporting Council’s application under section 114 of the RTI Act). Given this, even if all of these internal review applications were entirely unmeritorious, I am not persuaded that the Respondent’s engaging in them suggests unreasonableness amounting to an abuse of process.[47] Which empowers me to decide not to deal with, or not to further deal with, all or part of an external review application if I am satisfied it is frivolous, vexatious, misconceived or lacking substance.[48] As noted at paragraph 19, the power to make a declaration under section 114(1) of the RTI Act is discretionary. That discretion must be exercised reasonably, and when exercising discretionary power which impacts on an individual, the impact should be proportionate to the interests which the decision-maker is seeking to protect: Sweeney, at [82]-[84]. [49] Section 43 of the RTI Act.[50] Section 41 of the RTI Act.[51] The ‘substantial and unreasonable diversion’ provisions, for example, and by levying processing charges against the Respondent.[52] Noting the OAIC’s observation that an agency’s recourse to other mechanisms in relation to a particular applicant may be a relevant consideration in deciding whether to make a declaration against that person, (OAIC Guideline, at [12.11]), with which I agree.

queensland

court_judgement

Queensland Information Commissioner 1993-

A56 and Surveyors Board Queensland [2021] QICmr 10 (10 March 2021)

A56 and Surveyors Board Queensland [2021] QICmr 10 (10 March 2021) Last Updated: 19 August 2021 Decision and Reasons for Decision Citation: A56 and Surveyors Board Queensland [2021] QICmr 10 (10 March 2021) Application Number: 315122 Applicant: A56 Respondent: Surveyors Board Queensland Decision Date: 10 March 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - request for information concerning the applicant’s complaint - personal information of or about other individuals - 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) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - NONEXISTENT OR UNLOCATABLE DOCUMENTS - whether agency has taken all reasonable steps to locate documents requested by the applicant - whether access to further documents may be refused on the basis that they do not exist or cannot be located - sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary 1. The applicant applied to the Surveyors Board Queensland (Board) under the Right to Information Act 2009 (Qld) (RTI Act) to access information concerning his complaint about a surveyor.[1] 2. The Board located relevant documents and granted the applicant full access to 47 pages. The Board decided to refuse access, on various grounds, to 22 full pages, parts of 7 pages and located video recordings.[2] Certain irrelevant information was also deleted from the documents disclosed to the applicant. 3. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Board’s decision and raised concerns that the Board had not located all relevant documents.[3] 4. During the review, the Board disclosed some additional information to the applicant, however, the Board maintains that access can be refused to the remaining refused information. 5. The applicant remains dissatisfied with the level of documentation that has been located and released to him. 6. Having considered the submissions made by the Board and the applicant on external review, as well as the specific information in issue, I have decided to vary the Board’s decision and find that: access may be granted to additional parts of two pages of information as I do not agree with the Board’s submissions on external review that disclosure of this information would, on balance, be contrary to the public interest access may be refused to the remaining information in issue, on the ground its disclosure would, on balance, be contrary to the public interest; and access to any further information may be refused on the ground it does not exist or cannot be located. Background 7. The Board was established under section 7 of the Surveyors Act 2003 (Qld) (Surveyors Act) and its functions include: authorising investigations, whether because of a complaint or on its own initiative, of registrants’ professional conduct[4] taking disciplinary proceedings against registrants;[5] and referring disciplinary matters, for hearing, to professional conduct review panels and the Queensland Civil and Administrative Tribunal (QCAT).[6] 8. Part 5 of the Surveyors Act contains provisions concerning complaints and investigations about registrants’ professional conduct. Those provisions empower the Board to deal with matters without conducting investigations of a registrants’ professional conduct.[7] Where the Board reasonably suspects that a registrant has engaged in professional misconduct, it may ask the registrant, by written notice, to attend before the Board (or some of its members) to give information, answer questions or produce a document.[8] Where a registrant complies with such a request, the Board may decide that it can satisfactorily deal with the matter,[9] without authorising an investigation.[10] 9. The applicant lodged a complaint with the Board about the conduct of a particular surveyor (Complaint). After reviewing information that it had received and obtained about the Complaint, the Board notified the applicant in October 2019 that it had found no evidence of the surveyor’s professional misconduct and had closed its complaint file.[11] 10. Significant procedural steps taken during the external review are set out in the Appendix. Reviewable decision 11. The decision under review is the Board’s decision dated 17 December 2019. Evidence considered 12. Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and the Appendix). 13. The applicant provided extensive submissions (together with supporting information) to OIC. I have considered all this material and have extracted those parts which have relevance to the issues to be determined in this external review. 14. I have also had regard to the Human Rights Act 2019 (Qld),[12] particularly the right to seek and receive information.[13] I consider a decision-maker will be ‘respecting’ and ‘acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the RTI Act.[14] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[15] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[16] Information in issue 15. Certain issues were resolved during the review.[17] The information remaining for consideration (Information in Issue) comprises: 22 full pages parts of a one page file note segments of information within the Board’s minutes dated 25 July 2019 and 5 September 2019; and four video files. 16. I am constrained as to the level of detail I can provide about the Information in Issue,[18] however, I can confirm that it comprises the names of individuals other than the applicant; company names; information provided to the Board by other individuals; and communications between the Board and other individuals. Issues for determination 17. The issues to be determined are whether: access to the Information in Issue can be refused on the ground disclosure would be contrary to the public interest;[19] and access to further relevant documents may be refused on the basis they do not exist or cannot be located.[20] 18. The Board has the onus of establishing that its decision refusing access to information was justified.[21] Public interest 19. Under the RTI Act, an individual has a right to access documents of an agency.[22] Although the RTI Act is to be administered with a pro-disclosure bias,[23] this right of access is subject to certain limitations, including grounds for refusal of access. 20. One such ground of refusal is where disclosure would, on balance, be contrary to the public interest.[24] 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.[25] 21. 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:[26] 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. 22. No irrelevant factors arise in the circumstances of this review and I have not taken any into account in making my decision. Factors favouring disclosure Accountability and transparency 23. The RTI Act recognises the following factors favouring disclosure will arise where disclosing information could reasonably be expected to: enhance the government’s accountability[27] inform the community of the Government’s operations, including, in particular, the policies, guidelines and codes of conduct followed by the Government in its dealings with members of the community;[28] and reveal the reason for a government decision and any background or contextual information that informed the decision.[29] 24. The applicant submits that these factors apply and deserve significant weight because the Board did not provide him with ‘any reasonable feedback’ and he believes the complaint information he provided to the Board (together with information provided on his behalf) was ‘persuasive evidence’.[30] More specifically, the applicant contends that the Board’s accountability and transparency can only be achieved by full disclosure of all the information received by the Board, together with details of how that information was considered and how conflicting evidence was weighed up.[31] 25. The Board must be transparent and accountable for how it deals with the complaints it receives about the conduct of registered surveyors. In this matter, the Board notified the applicant that it had found no evidence of professional misconduct by the surveyor who was the subject of the Complaint. The Board has also disclosed information to the applicant which includes a copy of the Board’s ‘Complaints and Disciplinary Policy and Procedures’. This has, to some extent, advanced the Board’s accountability and transparency. 26. As the applicant is the complainant in this matter, it is understandable that he seeks to be more informed about the Board’s decision concerning the Complaint. However, although there is a public interest in affording relevant parties with an understanding of an agency’s complaint processes, the agency’s complaint conclusions and any outcomes which arise from those conclusions, this does not extend to affording the complainant the right to reinvestigate the agency’s conclusions. 27. Taking into account the nature of the Information in Issue, the Complaint outcome and the information which has been disclosed to the applicant, I am satisfied that disclosure of the Information in Issue would, to an extent, further advance the Board’s accountability and transparency and inform the community about the Board’s complaint procedures. In these circumstances, I afford these factors moderate weight. Applicant’s personal information 28. There is a public interest in individuals being able to access their own personal information.[32] The applicant contends that all information which the surveyor who is the subject of the Complaint provided to the Board relates to his property and should be disclosed.[33] 29. I have reviewed the Information in Issue and, while most of it generally concerns the applicant’s property, only a small amount comprises the applicant’s personal information.[34] Accordingly, this factor favouring disclosure applies to that information comprising the applicant’s personal information and I afford it significant weight. 30. This personal information of the applicant is intertwined with the personal information of other individuals to such an extent that it cannot be disclosed without also disclosing the personal information of those other individuals, which raises a factor favouring nondisclosure discussed below. Administration of justice for the applicant 31. A public interest factor favouring disclosure[35] will arise where disclosing information could reasonably be expected to contribute to the administration of justice for a person. In determining whether this public interest factor in favour of disclosure applies, I must consider whether:[36] 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. 32. The applicant submits that ‘very high weight’ should be afforded to this factor[37] because: he ‘need[s] to know’ what the surveyor has given in evidence to the Board to advance two QCAT proceedings he has already commenced and for the pending encroachment claims he considers may be brought against him[38] it will not be possible for him to ‘properly pursue those remedies because potentially denied evidence’ will prevent the applicant from determining if criteria identified in Olindaridge Pty Ltd and Anors v Tracey and Anor[39] exists to prove negligence at common law and/or specific contractual breaches[40] disclosing the Information in Issue will enhance his attempt to ‘achieve justice in QCAT’[41] and he has identified aspects of his commenced proceedings that would ‘potentially benefit from the submissions made by [the surveyor] to the Board’[42] he believes nondisclosure will make his private insurance claim ‘more difficult’, as the Information in Issue may include evidence qualifying him for insurance that was previously declined;[43] and he considers it unfair for the Board to withhold this information when the RTI Act has a pro-disclosure bias[44] and disclosure will also assist ‘resolution’ for certain building subcontractors.[45] 33. I acknowledge the encroachment impacts outlined in the applicant’s submissions. However, unlike the circumstances in Willsford and 1OS3KF, the applicant already possesses details of the relevant entities and circumstances involved in the encroachment issue which is the subject of the Complaint and the applicant is already pursuing a number of remedies in respect of those issues, based on that information. 34. There is insufficient evidence before me to indicate that disclosure of the Information in Issue is required to enable the applicant (or any other individual or entity) to pursue a remedy or evaluate whether a remedy is available or worth pursuing.[46] On this basis, I afford no weight to this disclosure factor. 35. I also consider the Information Commissioner’s comments in Phyland and Department of Police[47] are relevant: The RTI Act was not ... designed to serve as an adjunct to court processes, but to comprise a stand-alone mechanism for enabling public access to government-held information. Obviously, the applicant is entitled to elect to pursue access under the right of access conferred by the RTI Act. In doing so, however, she must accept the qualifications upon and limitations to that right imposed by the Act itself, including refusal of access where ... disclosure would disclose personal information or infringe upon an individual’s right to privacy. 36. In this regard, I note that it is reasonable to expect that the applicant may use disclosure processes available to him in the already commenced proceedings to seek further information he believes to be relevant to those proceedings. Advance fair treatment and procedural fairness 37. 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;[48] and contribute to the administration of justice generally, including procedural fairness.[49] 38. The applicant submits that these factors favour disclosure of the Information in Issue and should be afforded significant weight.[50] 39. 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.[51] 40. I acknowledge the applicant’s view that he has been provided with insufficient detail of the basis for the Board’s decision. However, taking into consideration the nature of the Information in Issue, the information which has been disclosed to the applicant and the Board’s notified decision about the Complaint, there is no evidence before me which indicates disclosing the Information in Issue could reasonably be expected to advance, or advance in any significant way, the applicant’s future dealings with the Board or any other agency. Accordingly, to the extent this factor favouring disclosure applies, I afford it low weight. 41. The applicant contends that there has been a denial of natural justice because, although the surveyor who is the subject of the Complaint was given an opportunity to respond to the Complaint, he was not then given an opportunity to consider the surveyor’s response.[52] 42. 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.[53] As the complainant in this matter, the applicant was afforded the opportunity to put forward relevant information supporting the Complaint (which he did) and he has been notified of the Board’s decision about the Complaint. Although the applicant may disagree with the Board’s decision, there is no evidence before me which indicates the Board did not properly consider the information provided by, or on behalf of, the applicant in support of the Complaint. On this basis, I afford this factor no weight. Consumer protection 43. In Seven Network (Operations) Limited and Redland City Council; A Third Party[54] (Seven Network), the Information Commissioner identified a factor favouring disclosure, where disclosing information could reasonably be expected to enhance consumer protection by creating a safe, informed and competitive marketplace.[55] 44. The applicant submits that the surveyor’s conduct which is the subject of the Complaint is a significant consumer protection issue[56] and this factor should be afforded significant weight in favour of disclosure.[57] The matters which are the subject of the Complaint relate to the conduct of a particular surveyor at a particular residential property. While I acknowledge the significance to the applicant of the matters raised in the Complaint, I note that the subject matter of the information considered in both Seven Network and Ardent Leisure concerns health and safety issues that had the potential to impact a large section/s of the community. Taking into account the nature of foothe Information in Issue, I am satisfied that, to the extent this factor applies, it deserves only low weight. Deficiencies in agency conduct 45. Where disclosure of information could reasonably be expected to allow or assist inquiry into possible conduct deficiencies of agencies or officials, or reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct, public interest factors favouring disclosure will arise.[58] Although these factors favouring disclosure were not specifically raised by the applicant, given the applicant’s submissions raise general concerns about how the Board dealt with the Complaint, I have considered whether they apply. 46. After carefully considering the Information in Issue (together with the applicant’s submissions and the information which has been released to the applicant), I am satisfied that there is nothing in the Information in Issue which gives rise to an expectation that disclosure would allow or assist enquiry into, reveal or substantiate, agency or official conduct deficiencies. In these circumstances, I afford no weight to these factors favouring disclosure. Other factors favouring disclosure 47. I have taken into account the pro-disclosure bias of the RTI Act[59] and considered whether any other public interest factors favouring disclosure apply, including those listed in schedule 4, part 2 of the RTI Act.[60] I cannot identify any other public interest consideration favouring disclosure of the Information in Issue that would carry weight in these circumstances.[61] Factors favouring nondisclosure Personal information and privacy of other individuals 48. The RTI Act recognises that disclosing an individual’s personal information to someone else can be considered harmful to the public interest due to the impact of disclosure on that individual’s privacy and also that the public interest will favour nondisclosure of information which could reasonably be expected to prejudice the protection of an individual’s right to privacy.[62] 49. The applicant contends that: ‘there is unlikely to be any information that identifies any personal information’ of the surveyor, as the survey in question was conducted by a corporation;[63] and these nondisclosure factors carry no weight.[64] 50. I note that the Complaint relates to a survey (and associated documentation) certified by a particular registered surveyor, on behalf of a registered surveying company and both the surveyor, and the corporate entity, are registrants with the Board. Having carefully reviewed the Information in Issue, I am satisfied that most of it comprises the personal information of other individuals, as it includes their identities, information about them and their opinions, observations and recollections.[65] As noted above, some of this information is intertwined with the applicant’s personal information. 51. The Board maintains that small portions of information on one page[66] should be refused as they identify certain Board members and ‘decisions and opinions made by Board members should remain confidential in this instance’.[67] However, the Board has not otherwise detailed any prejudice or negative impact that it contends would flow from disclosure of this information. I note that Board members are required to be appointed by the Governor in Council and their names, and public profiles, are in the public domain.[68] On this basis, I am satisfied that any prejudice or privacy impact that could be expected to arise from disclosing these portions of information would be negligible. 52. The remaining personal information of other individuals appears in the context of a regulator’s consideration of a received conduct complaint. Taking into account the Board’s notified Complaint decision and the nature and context of this personal information, I consider its disclosure would be a significant intrusion into the privacy of these individuals and the extent of the harm that would arise from its disclosure would be significant. 53. I acknowledge that the applicant may be aware of some of the Information in Issue. However, I do not consider that reduces the weight of these nondisclosure factors to any significant degree, particularly as there can be no restriction on the use, dissemination or republication of information disclosed under the RTI Act. 54. On this basis, I afford these factors favouring nondisclosure significant weight only with respect to the personal information of individuals other than Board Members. Flow of information 55. A public interest factor favouring nondisclosure will also arise if disclosing information could reasonably be expected to prejudice the flow of information to a regulatory agency.[69] 56. The Board submits that if information that is provided to the Board in a response to a received complaint is not treated as confidential by the Board, this could impact the provision of information to future complaint processes,[70] thereby significantly restricting the Board’s ability to address and process future complaints.[71] The applicant, on the other hand, submits that this nondisclosure factor does not apply because he considers the surveyor was compelled to provide information to the Board under the Surveyors Act[72] and there is no evidence that ‘a surveyor, subject of a complaint, would need any incentive to provide evidence before its own governing body’.[73] 57. I am unable to address the applicant’s belief that the Information in Issue includes information provided by any person or entity pursuant to a regulatory notice issued by the Board.[74] However, as noted in paragraph 8 above, while the Board’s powers include requesting a registrant to attend before the Board to give information, answer questions or produce a document, the Surveyors Act also specifically contemplates that a registered surveyor may elect not to comply with such requests.[75] 58. It is generally recognised that there is very strong public interest in protecting the ability of regulatory agencies, such as the Board, to communicate openly with relevant parties concerning a received complaint and to obtain information which it considers relevant to its consideration of a received complaint.[76] Taking into account the regulatory complaint framework and the submissions received from the Board and the applicant, I consider that disclosing communications with individuals involved in the Board’s complaint processes (including information the Board has obtained in such processes) may discourage individuals involved in future complaints from candidly providing information required for the Board’s consideration of those future complaints, which will negatively impact the Board’s effective discharge of its regulatory functions. In these circumstances, I afford this factor favouring disclosure significant weight. Prejudice fair treatment 59. The RTI Act also provides that a factor favouring nondisclosure arises where disclosure could reasonably be expected to prejudice the fair treatment of individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct.[77] 60. The Board submits that access should be refused to one portion of the Information in Issue[78] because it is ‘an opinion which, at that point in time, had not been clarified in any way by either surveyor’ and it could raise concerns about the professional conduct of a surveyor.[79] I accept that this portion of information records an opinion expressed by the applicant at a point in time, however, the Board has not detailed how its disclosure could prejudice the fair treatment of any involved individual. On that basis, I am not satisfied this factor applies to this one portion of information. 61. The Board also maintains that access should also be refused to other small portions of information on one page[80] because ‘[c]onsequential issues such as potential liabilities and societal issues could arise by reason of any further disclosure’.[81] As the Board has not detailed how these claimed issues would arise from disclosure of these particular portions of information, I am not satisfied this factor applies to favour nondisclosure of that information. 62. The applicant submits that this factor should be afforded low weight, as the Board provided no evidence to him explaining their Complaint decision and a decision that no professional misconduct was found does not equate to the Complaint being unsubstantiated.[82] As previously noted, the Complaint raises specific concerns about a surveyor’s conduct, namely, that certifying documentation was ‘either misleading or inaccurate’ and the surveyor had failed to correct it. While I acknowledge the applicant’s submission that the Board does not investigate negligence, as the Complaint decision found no professional misconduct, I consider this factor applies to the remaining Information in Issue and carries significant weight in favour of nondisclosure. Balancing the public interest Information for disclosure 63. Firstly, 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 with respect to the disclosure of the Information in Issue.[83] I also note that the Board has the onus of demonstrating that access to information should be refused.[84] 64. With respect to parts of two pages,[85] I am not satisfied that disclosure of this information would, on balance be contrary to the public interest. This is because I consider that public interest factors favouring disclosure, including those relating to the Board’s transparency and accountability and consumer protection, outweigh the minimal weight that can be attributed to the factors I have identified above favouring nondisclosure.[86] These portions of information do not comprise the sensitive personal information of private individuals, and the Board has not established that disclosure of this information would prejudice the flow of information to the Board or the fair treatment of any individual. Information to which access may be refused 65. I am satisfied that the public interest factors favouring nondisclosure attract much more significant and determinative weight with respect to the remaining Information in Issue.[87] I have afforded significant weight to the factor favouring disclosure of the applicant’s personal information within this remaining Information in Issue,[88] however, that personal information of the applicant is inextricably intertwined with the personal information of other individuals. In addition, and for the reasons outlined above, I have identified additional factors favouring disclosure (including those relating to the Board’s transparency and accountability, consumer protection, fair treatment and the administration of justice).[89] However, taking into account the nature of the Information in Issue, I afford these factors moderate, low and no weight. 66. On the other hand, for most of the remaining Information in Issue, I have afforded significant weight to the nondisclosure factors which relate to protecting the personal information and right to privacy of other individuals and ensuring the fair treatment of individuals.[90] I am also satisfied that protecting the flow of information to regulatory agencies such as the Board is a significant factor telling in favour of nondisclosure in relation to this information.[91] Conclusion 67. Accordingly, I find that disclosure the Information in Issue, apart from certain portions on two pages, would, on balance, be contrary to the public interest and access may be refused on this basis.[92] Nonexistent or unlocatable documents 68. The Information Commissioner’s functions on external review include investigating and reviewing whether an agency has taken reasonable steps to identify and locate documents applied for by applicants.[93] However, where the requested documents do not exist or cannot be located, access may be refused.[94] 69. A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[95] To be satisfied of this, a decision-maker must rely on their particular knowledge and experience and have regard to key factors including:[96] the administrative arrangements of government the agency’s structure the agency’s functions and responsibilities the agency’s practices and procedures; and other factors reasonably inferred from information supplied by the applicant, including the nature and age of the requested documents, and the nature of the government activity to which the request relates. 70. If searches are relied on to justify a finding that documents do not exist, all reasonable steps must be taken to locate the documents. What constitutes reasonable steps will vary from case to case, depending on which of the key factors are most relevant in the particular circumstances. 71. 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.[97] Determining whether a document exists, but is unlocatable, requires consideration of whether there are reasonable grounds for the agency to be satisfied that the requested document has been or should be in the agency’s possession; and whether the agency has taken all reasonable steps to find the document. In answering these questions, regard should be had to the circumstances of the case and the relevant key factors.[98] 72. Although the agency that made the decision under review has the onus of establishing that the decision was justified,[99] where the issue of missing documents is raised, the applicant bears a practical onus of demonstrating that the agency has not discharged its obligation to locate all relevant documents.[100] Findings 73. The applicant contends that the following documents had not been disclosed by the Board: internal procedural documents;[101] and audio and video recordings, specifically including any video recording of the ‘contributions to the Board’ that were made by the surveyor who is the subject of the Complaint and audio recordings of Board meetings.[102] 74. OIC sought information from the Board about its record keeping systems and practices and the searches it conducted for information requested in the access application. As noted above, the Board disclosed additional information to the applicant during the review, including a document titled ‘Complaints and Disciplinary Policy and Procedures’. 75. The Board confirmed that information relating to a received complaint is stored in a complaint file created for the specific complaint. The search records and certifications provided to OIC relevantly confirm that searches for information relevant to application were conducted of the hard copy complaint file maintained in respect of the Complaint, the Board’s telephone grievance file, Board agenda files, the Board’s email records and the Board’s file server. 76. With respect to video recordings, I note that the Information in Issue, that is the information that the Board has identified but not granted access to, includes video recordings. I am prohibited[103] from disclosing the content of those video recordings or confirming whether they comprise the particular video recordings that the applicant is seeking in this review. However, for the purposes of considering whether the Board has taken all reasonable steps to identify video recordings, generally, I note that certain video recordings have been identified and considered in this external review. 77. In respect of audio recordings of the Board’s meetings, the Board submits that: recorded audios of its board meetings are stored on sim cards, which are progressively cleared or deleted on a rolling basis once the minutes for the recorded meetings have been approved; and audio recordings of board meetings of interest to the applicant in this external review have been deleted in accordance with the Board’s standard practice.[104] 78. On external review, the question I must determine is whether the Board has taken reasonable steps to locate documents relevant to the access application.[105] On the information before me (including the Board’s search certifications and submissions), I consider the Board has undertaken comprehensive searches of locations where it would be reasonable to expect that the types of information requested in the access application would be found. I also consider that staff with working knowledge of the relevant record keeping systems made targeted searches and enquiries to locate relevant information. 79. For these reasons, I am satisfied that: the Board has taken all reasonable steps to locate relevant information; and there is a reasonable basis to be satisfied that any further information is nonexistent or unlocatable and access may therefore be refused on this ground.[106] 80. I understand the applicant is disappointed that video and audio recordings have not been disclosed to him and I acknowledge his concerns about the timing of the audio recording deletion.[107] However, I do not consider that the applicant’s concerns reasonably lead to a conclusion that the requested audio recordings still exist. DECISION 81. For the reasons set out above, I vary[108] the Board’s decision and find that: access cannot be refused parts of the Information in Issue appearing on two pages access can be refused to the remaining Information in Issue on the ground disclosure would, on balance, be contrary to the public interest; and access to any further information may be refused on the basis it is nonexistent or unlocatable. S MartinAssistant Information Commissioner Date: 10 March 2021 APPENDIX Significant procedural steps Date Event 17 January 2020 OIC received the external review application. 26 February 2020 OIC notified the applicant and the Board that the external review application had been accepted and asked the Board to provide information. 27-28 February 2020 OIC received the requested information from the Board. 27 April 2020 OIC conveyed a preliminary view to the Board concerning refusal of access issues and asked the Board to provide further information. 1 May 2020 OIC received the Board’s submissions. 22 September 2020 OIC conveyed a preliminary view to the applicant concerning refusal of access and search issues and invited him to provide submissions if he did not accept the preliminary view. OIC conveyed a preliminary view to the Board concerning information which OIC considered may be disclosed and invited the Board to provide submissions if it did not accept the preliminary view. 2 October 2020 OIC received the Board’s further submissions, partially accepting the preliminary view. 27 October 2020 OIC received the applicant’s submissions. 19 November 2020 OIC asked the Board to release the further information it had agreed to disclose and conveyed a further preliminary view about portions of information OIC considered may be disclosed. OIC received the Board’s confirmation that it did not wish to make any further submissions. OIC conveyed a further preliminary view to the applicant concerning refusal of access issues and invited him to provide final submissions if he did not accept the preliminary view. 19 January 2021 OIC received the applicant’s further submissions. [1] Access application dated 14 November 2019. [2] On 17 December 2019. [3] External review application received 17 January 2020. [4] Section 9(g) of the Surveyors Act. [5] Section 9(h) of the Surveyors Act. [6] Section 9(i) of the Surveyors Act. [7] Section 86 of the Surveyors Act. [8] Section 86 of the Surveyors Act. However, registrants are not required to comply with such requests and there is a statutory privilege against self-incrimination (sections 86(4) and (5) of the Surveyors Act). [9] By cautioning, advising or reprimanding the registrant; or requiring the registrant to correct a survey or undergo training/a competency assessment (section 86(2)(a) of the Surveyors Act). [10] Section 86(6) of the Surveyor’s Act. The Board has similar decision powers under section 87(2) of the Surveyors Act where a registrant has not complied with a request and the Board reasonably believes the registrant has engaged in professional misconduct. Part 5, Division 2 of the Surveyors Act identifies the actions to be taken following completion of an authorised investigation. [11] What constitutes professional misconduct is defined in schedule 3 of the Surveyors Act. [12] Referred to in these reasons as the HR Act, and which came into force on 1 January 2020. [13] Section 21 of the HR Act. [14] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111]. [15] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [16] XYZ at [573]. [17] As noted in paragraph 4 above, the Board disclosed additional information to the applicant. The Board did not seek to contest OIC’s preliminary view that 22 refused pages did not comprise exempt information and the applicant did not seek to access information the Board had deleted as irrelevant in the disclosed documents (as confirmed to the applicant on 19 November 2020). [18] Section 108(3) of the RTI Act, which relevantly prevents OIC from revealing information claimed to be contrary to the public interest information. [19] Sections 47(3)(b) and 49 of the RTI Act. [20] Sections 47(3)(e) and 52 of the RTI Act. [21] Section 87(1) of the RTI Act. [22] Section 23 of the RTI Act. [23] Section 44 of the RTI Act. [24] Section 47(3)(b) of the RTI Act. [25] However, there are some recognised public interest considerations that may apply for the benefit of an individual. [26] Section 49(3) of the RTI Act.[27] Schedule 4, part 2, item 1 of the RTI Act. [28] Schedule 4, part 2, item 3 of the RTI Act. [29] Schedule 4, part 2, item 11 of the RTI Act. [30] Submissions dated 27 October 2020. [31] Submissions dated 27 October 2020. [32] Schedule 4, part 2, item 7 of the RTI Act. [33] External review application. [34] ‘Personal information’ is defined in section 12 of the Information Privacy Act 2009 (Qld) as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.[35] Schedule 4, part 2, item 17 of the RTI Act. [36] 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) (1OS3KF) at [16].[37] Submissions dated 18 January 2021. [38] External review application and submissions dated 27 October 2020. [39] [2016] QCATA 23. [40] Submissions dated 18 January 2021. [41] External review application. [42] Submissions dated 18 January 2021. [43] Submissions dated 27 October 2020. [44] Submissions dated 18 January 2021. More specifically, the applicant submits that it is unfair for the Information in Issue to be withheld when the ‘entire factual matrix must be presented to QCAT’. [45] Submissions dated 27 October 2020. The applicant’s submissions do not identify how disclosure of this particular Information in Issue to the applicant would lead to such resolution. [46] In respect of the already commenced QCAT proceedings, the Refused Information is not required to pursue or evaluate the review that the applicant has already requested. [47] (Unreported, Queensland Information Commissioner, 31 August 2011) at [24], cited in Sedlar and Logan City Council [2017] QICmr 52 (7 November 2017) at [59]. [48] Schedule 4, part 2, item 10 of the RTI Act. [49] Schedule 4, part 2, item 16 of the RTI Act. [50] External review application and submissions dated 27 October 2020. [51] F60XCX and Department of Natural Resources and Mines [2017] QICmr 19 (9 June 2017) (F60XCX) at [101]. [52] External review application and submissions dated 27 October 2020. However, in the submissions dated 27 October 2020, when referring to the Information Commissioner’s observations at [89]-[90] in F60XCX, the applicant also comments that: ‘They are simply about the principal of natural justice of which I am not making any complaint whatsoever. I am comfortable that the [Board] allowed me to provide a submission and that of our surveyor... That is not my concern’. [53] The fair hearing aspect of procedural fairness requires that, before a decision that will deprive a person of some right, interest or legitimate expectation is made, the person is entitled to know the case against them and to be given the opportunity of replying to it (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582 per Mason J). [54] (Unreported, Queensland Information Commissioner, 30 June 2011). [55] At [33]-[45]. [56] External review application. The applicant also relies on Australian Workers’ Union and Queensland Treasury; Ardent Leisure Limited (Third Party) [2016] QICmr 28 (28 July 2016) (Ardent Leisure).[57] Submissions dated 27 October 2020. [58] Schedule 4, part 2, items 5 and 6 of the RTI Act. [59] Section 44 of the RTI Act. [60] Taking into account the nature of the Information in Issue, I am unable to identify how disclosure could, for example, reveal the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant (schedule 4, part 2, item 12 of the RTI Act); contribute to the protection of the environment (schedule 4, part 2, item 13 of the RTI Act); reveal environmental or health risks or measures relating to public health and safety (schedule 4, part 2, item 14 of the RTI Act); or contribute to the enforcement of the criminal law (schedule 4, part 2, item 18 of the RTI Act). [61] In the event that further relevant factors apply in favour of disclosure, I am satisfied that there is no evidence to indicate that any would carry sufficient weight to outweigh the significant weight that I have afforded to the public interest factors that favour nondisclosure, as discussed below.[62] Schedule 4, part 4, section 6(1) of the RTI Act and Schedule 4, part 3, item 3 of the RTI Act.[63] External review application. Similar contentions are made in submissions dated 27 October 2020. [64] Submissions dated 27 October 2020. [65] By way of example, the Information in Issue on page 7 appears within the Board’s file note of conversations with two individuals on 10 and 11 June 2019. [66] Page 45. [67] Submissions dated 2 October 2020. [68] For example, on the Board’s website at <https://sbq.com.au/about-us/our-boardmembers/>. [69] Schedule 4, part 3, item 13 of the RTI Act. [70] For example, by registrants refusing to attend meetings and provide information pursuant to section 86 of the Surveyors Act. [71] Submissions dated 1 May 2020. [72] In the external review application, the applicant referenced sections 86(2) and 136 of the Surveyors Act as being examples of the Board’s power to compel the provision of information. [73] Submissions dated 27 October 2020. [74] Section 108(3) of the RTI Act. [75] Section 86(4) of the Surveyors Act. I also note that where an investigation is undertaken, a person is not required to comply with an investigator’s information production or attendance notice where they have a reasonable excuse (refer, for example, to section 137(1) of the Surveyors Act). [76] See for example: P6Y4SX and Department of Police (Unreported, Queensland Information Commissioner, 31 January 2012), SW5Z7D and Queensland Police Service [2016] QICmr 1 (15 January 2016) and Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011). [77] Schedule 4, part 3, item 6 of the RTI Act. [78] Which appears on page 34. [79] Submissions dated 2 October 2020. [80] On page 45. [81] Submissions dated 2 October 2020. [82] Submissions dated 27 October 2020. [83] Section 44(1) of the RTI Act. [84] Section 87(1) of the RTI Act. [85] Pages 34 and 45.[86] Schedule 4, part 2, items 1, 3, 10, 11 of the RTI Act. I have afforded no weight to the factors in schedule 4, part 2, items 16 and 17 of the RTI Act with respect to these two discrete portions of the information in issue.[87] Comprising 22 full pages, four video files and parts of three pages numbered 7, 34 and 45.[88] Schedule 4, part 2, item 7 of the RTI Act. [89] Schedule 4, part 2, items 1, 3, 10, 11, 16 and 17 of the RTI Act. [90] Schedule 4, part 4, section 6 and schedule 4, part 3, items 3 and 6 of the RTI Act.[91] Schedule 4, part 3, item 13 of the RTI Act. [92] Sections 47(3)(b) and 49 of the RTI Act. [93] Section 130(2) of the RTI Act. [94] Sections 47(3)(e) and 52 of the RTI Act. [95] Section 52(1)(a) of the RTI Act. [96] See Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) (Pryor) at [19], Lester and Department of Justice and Attorney-General [2017] QICmr 17 (16 May 2017) at [11] and Van Veendendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017) at [23], which adopt the Information Commissioner’s comments in PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE) at [37]-[38]. PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld). Section 52 of the RTI Act is drafted in substantially the same terms as the provision considered in PDE and, therefore, the Information Commissioner’s findings in PDE are relevant. [97] Section 52(1)(b) of the RTI Act. [98] Pryor 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].[99] Section 87(1) of the RTI Act.[100] See Mewburn and Department of Local Government, Community Recovery and Resilience [2014] QICmr 43 (31 October 2014) at [13]. [101] Item 3 of the access application seeks ‘Any policy, procedure, document that confirms the process of consideration that was actually applied in connection with our application and the letter’ [original emphasis].[102] External review application.[103] Section 108(3) of the RTI Act. [104] The approved, written minutes of Board meetings relevant to the access application have been partially disclosed to the applicant. [105] Section 130(2) of the RTI Act. [106] Section 47(3)(e) of the RTI Act.[107] Submissions dated 27 October 2020. As explained to the applicant on 19 November 2020, OIC’s jurisdiction on external review does not extend to addressing his concerns about the Board’s record keeping practices or obtaining (and disclosing) information about when the audio recordings were deleted and whether such deletion was in compliance with applicable governance policies. [108] As a delegate of the Information Commissioner, under section 145 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Cutts and Queensland Police Service [2017] QICmr 39 (31 August 2017)

Cutts and Queensland Police Service [2017] QICmr 39 (31 August 2017) Last Updated: 1 December 2017 Decision and Reasons for Decision Citation: Cutts and Queensland Police Service [2017] QICmr 39 (31 August 2017) Application Number: 313014 Applicant: Cutts Respondent: Queensland Police Service Decision Date: 31 August 2017 Catchwords: ADMINISTRATIVE LAW – INFORMATION PRIVACY ACT – REFUSAL TO DEAL – applicant seeks information about searches for his personal information in police database – whether application is expressed to relate to all information of a stated kind – whether all of the documents to which the application relates would comprise exempt information – 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 applicant’s personal information in police database could reasonably be expected to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law – applicant concerned that his personal information in police database may have been unlawfully accessed – whether information in police database reveals that the scope of a law enforcement investigation has exceeded the limits imposed by law – schedule 3, section 10(1)(f) of the Right to Information Act 2009 (Qld) – exception in schedule 3, section 10(2)(a) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant, a former police officer of the Queensland Police Service (QPS), applied to QPS under the Information Privacy Act 2009 (Qld) (IP Act) for access to documents containing information of all officers who accessed his name in the QPRIME database (QPRIME)[1] over a ten year period. QPS decided to neither confirm nor deny the existence of the requested information under section 69 of the IP Act.[2] The applicant applied to the Office of the Information Commissioner (OIC) for external review of QPS’s decision.[3] On external review, QPS accepted OIC’s preliminary view[4] that the neither confirm nor deny provision could not be relied on in this case[5] and made alternative submissions.[6] For the reasons set out below, I vary QPS’s decision and find that all documents to which the application relates comprise exempt information under schedule 3, section 10(1)(f) of the Right to Information Act 2009 (Qld) (RTI Act), as their disclosure could reasonably be expected to prejudice QPS’s lawful methods and procedures and, therefore, section 59 of the IP Act can be relied on to refuse to deal with the application.[7] Background Significant procedural steps relating to the applications and external review process are set out in the Appendix. Reviewable decision The decision under review is QPS’s decision dated 15 September 2016 to neither confirm nor deny the existence of documents requested by the applicant in his access application dated 10 August 2016. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching my decision are as disclosed in these reasons (including footnotes and Appendix). Issues to be determined As noted at paragraph 4 above, QPS no longer contends that section 69 of the IP Act can be relied on to neither confirm nor deny the existence of the documents requested in the access application. Therefore, that provision is not considered in this decision.[8] The Information Commissioner[9] can decide any matter in relation to an application that could, under the IP Act, have been decided by the agency dealing with the application.[10] Accordingly, I will now consider whether the application may be the subject of a refusal to deal decision under section 59 of the IP Act.[11] To determine this issue, I must consider whether: the application is expressed to relate to all documents, or all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and all of the documents to which the application relates comprise exempt information. In support of his position that the requested information should be released, the applicant generally relies on:[12] his knowledge of previous releases of QPRIME information to other individuals his belief that there is a culture within QPS of unlawfully accessing QPRIME; and his concern that, due to media reporting around officers accessing QPRIME unlawfully, his profile on QPRIME has been accessed unlawfully. Relevant law If an access application is made to an agency under the IP Act, the agency should deal with the application unless this would not be in the public interest.[13] One of the few circumstances where it is not in the public interest to deal with an access application is set out section 59 of the IP Act as follows: 59 Exempt Information (1) This section applies if— (a) an access application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and (b) it appears to the agency or Minister that all of the documents to which the application relates are comprised of exempt information. (2) The agency or Minister may refuse to deal with the application without having identified any or all of the documents. Exempt information is information, the disclosure of which Parliament has considered would, on balance, be contrary to the public interest.[14] Schedule 3 of the RTI Act lists the various types of information that constitute exempt information, including: 10 Law enforcement or public safety information (1) Information is exempt information if its disclosure could reasonably be expected to— ... (f) prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law; ... (2) However, information is not exempt under subsection (1) if it consists of— (a) matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law; ... Findings Class of documents For section 59 of the IP Act to be enlivened, I must firstly consider whether the application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind, or relate to a stated subject matter. To determine this, it is necessary to examine the terms of the access application. OIC has recently considered the application of section 59 of the IP Act in relation to applications for information substantially the same as that requested by the applicant in the application which is the subject of this review.[15] The applicant’s application seeks access to specific information (QPRIME officer information), namely: Subject matter of the documents: Documents containing information of all officers who have accessed my name using QPRIME Time period / date range: January 2006 – August 2016. The applicant’s submissions on external review[16] confirm that he is wishing to identify all officers who have accessed his name on QPRIME within the specified period. I am satisfied that the application is framed as a request to access all documents of a stated kind, specifically, information revealing all officers who have accessed the applicant’s name using QPRIME during this period. Accordingly, I find that the first limb of section 59 of the IP Act is satisfied.Exempt information I must also be satisfied that the documents to which the application relates are comprised of exempt information. Of relevance to this review, information will be exempt information if the following are established: there exists a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law; and disclosure could reasonably be expected to prejudice that method or procedure.[17] QPS’s submitted[18] that the process of QPS officers accessing information in QPRIME forms an integral part of the methods and procedures used by QPS for preventing, detecting or investigating contraventions, or possible contraventions of the law, specifically regarding intelligence and surveillance operations. Further, QPS submitted[19] that disclosing information which would reveal who accessed an individual’s record on QPRIME would enable an individual to deduce whether particular QPS units were monitoring the individual’s behaviour or involvement in activities.[20] On this basis, QPS submitted that disclosure of the QPRIME officer information could reasonably be expected to prejudice the effectiveness of its lawful methods or procedures for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law. The applicant submitted[21] that disclosure of the use of QPRIME as a method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law could not be said to prejudice the effectiveness of QPRIME as a method or procedure. In support of this position, the applicant submitted as follows: ‘to disclose either that the police keep information in a computerised database or that police officers access the information held in that database reveals nothing which is novel, covert or clandestine’[22] ‘disclosure of methods or procedures which are “obvious and well known to the community” is not likely to prejudice their effectiveness’[23] some, but not all of, QPRIME officer information might be exempt under other specific provisions in schedule 3, section 10 of the RTI Act[24] which would ‘otherwise have no work to do’[25] ‘if Parliament had intended that keeping documents in the QPRIME database be regarded as an integral part of QPS methods and procedures ... then it would have been unnecessary for the Parliament to have enacted the[se] specific provisions’[26] the logical result of finding that the QPRIME officer information may be refused under schedule 3, section 10(1)(f) of the RTI Act is that QPS may circumvent the disclosure regimes in the RTI and IP Acts by claiming that ‘information held by it in computer databases which may be searched and accessed by police officers form an integral part of its lawful methods or procedures’, and ‘that effectively would operate to exempt the QPS from the disclosure regimes’[27]; and ‘the characterisation of QPRIME as “an integral part of QPS’s lawful methods and procedures, etc.” ... may have the absurd result of some information in QPRIME being deemed not to be exempt information by virtue of schedule 3, [section] 10(6) because it had been used by a specialist intelligence or security unit of the QPS, but other information continuing to be exempt as it was used by ordinary members of the QPS’[28]. Having considered the submissions provided by QPS on review,[29] I am satisfied that, when dealing with contraventions, or possible contraventions, of the law, QPS officers record information about certain individuals on QPRIME, and such information may relate to intelligence or surveillance operations, or other investigations. Further, I am satisfied that QPS officers also access information recorded in QPRIME both during and after such activities—for example, to obtain background information and inform their decisions. Given this position, I accept that accessing information in QPRIME forms an integral part of the methods and procedures used by QPS when dealing with contraventions, or possible contraventions, of the law. The existence of QPRIME as a database used by QPS, and the manner in which QPS officers use QPRIME—namely, recording information obtained by them and accessing previously recorded information—are commonly known. Consequently, I accept the applicant’s submission that ‘to disclose either that the police keep information in a computerised database or that police officers access the information held in that database reveals nothing which is novel, covert or clandestine’. The applicant further submits that ‘disclosure of methods or procedures which are “obvious and well known to the community” is not likely to prejudice their effectiveness’. In my view, this submission conflates information confirming the existence of QPRIME with the QPRIME officer information. It suggests that, because QPS’s use of QPRIME is obvious or known to the community, it follows that disclosure of particular information from that database—that is, the QPRIME officer information—is not likely to prejudice the effectiveness of QPS’s use of QPRIME. However, the prejudice does not, in my view, arise insofar as the QPRIME officer information reveals the existence of QPRIME, how it works or its use by QPS officers. Rather, the prejudice arises in terms of the QPRIME officer information revealing information (or an absence of information) which enables or assists an individual to deduce the level of surveillance they may (or may not) be under. This, in my opinion, reduces the effectiveness of QPRIME as a system for recording and exchanging information within QPS as part of conducting intelligence or surveillance operations, or otherwise dealing with contraventions, or possible contraventions, of the law. I am satisfied that disclosure of QPRIME officer information, for any individual, whether that individual is subject to intelligence or surveillance operations or not, could reasonably be expected to prejudice these lawful methods and procedures as a whole. In reaching this conclusion, I have considered whether specific types of QPRIME officer information may, if released with surrounding information redacted, not qualify as exempt information. In this regard, I have noted that the applicant does not seek access to information which would identify particular QPS units, the number of occasions on which QPS officers have accessed QPRIME in relation to the applicant, or the reasons for searches on QPRIME. However, I am of the view that releasing names or other information specific to particular QPS officers may still enable their relevant unit and therefore the nature of surveillance or intelligence (if any), to be ascertained. As to the question of whether this expectation of prejudice is reasonable,[30] I am satisfied that QPS has demonstrated that there are particular circumstances[31] in which disclosing QPRIME officer information could reasonably be expected to prejudice the lawful methods and procedures used by QPS, of which QPRIME is an integral part, even though the information may otherwise appear innocuous on its face or when read in isolation.[32] The applicant submits that disclosure of QPRIME officer information might be exempt under other provisions in schedule 3, section 10,[33] that these provisions would ‘otherwise have no work to do’, and that it would have been unnecessary for Parliament to enact them ‘if Parliament had intended that keeping documents in the QPRIME database be regarded as an integral part of QPS methods and procedures’. It is my understanding that, in making these submissions, the applicant’s position is that I cannot find that the QPRIME officer information may be refused under schedule 3, section 10(1)(f) of the RTI Act, as to do so would render the other provisions raised by him redundant. In respect of these submissions, I note that the provisions raised by the applicant[34] require that an investigation be on foot,[35] and that the information in issue be given in the course of the investigation, or obtained, used or prepared for it.[36] However, the nature of the information that would be subject to these provisions can be distinguished from the information in issue in this review. Here, the applicant is seeking information about who accessed his records within QPRIME (whether or not such access related to any investigation). He is not seeking his records viewed during any such access, nor is he seeking any documents received or generated during any investigation. Depending on the particular information and circumstances, I consider it feasible that the other exemption provisions in schedule 3, section 10 of the RTI Act raised by the applicant—or indeed schedule 3, section 10(1)(f)—may possibly apply to information of this nature. Accordingly, I cannot accept the applicant’s submissions that, to find that the QPRIME officer information is exempt information under schedule 3, section 10(1)(f) is to, in effect, find that the other provisions raised by him are superfluous. I also do not accept the applicant’s submission that the logical effect of refusing access to the QPRIME officer information is that QPS may circumvent the disclosure regimes in the RTI and IP Acts entirely by claiming that ‘information held by it in computer databases which may be searched and accessed by police officers form an integral part of its lawful methods or procedures’. This decision relates only to the QPRIME officer information, not all information and documents stored on QPRIME. Each decision on an access application must be considered on its own particular merits, on a case by case basis. Finally, I do not accept the applicant’s submission that finding that the QPRIME officer information may be refused under schedule 3, section 10(1)(f) of the RTI Act ‘may have the absurd result of some information in QPRIME being deemed not to be exempt information by virtue of schedule 3, [section] 10(6) because it had been used by a specialist intelligence or security unit of the QPS, but other information continuing to be exempt as it was used by ordinary members of the QPS’. In this regard, I note that the relevance of one exemption provision does not necessarily preclude the applicability of others. If there were circumstances where the exemption provisions in schedule 3, section 10(4) or (5) could apply, but for the operation of the exception raised by the applicant, the exemption provision in schedule 3, section 10(1)(f) of the RTI Act may still apply, depending on the particular information and circumstances. Given these considerations, I am satisfied that the QPRIME officer information comprises exempt information under schedule 3, section 10(1)(f) of the RTI Act.Exception to the exemption The applicant also made an alternative submission[37] that, if the QPRIME officer information does qualify as exempt information, it cannot be said on a ‘blanket basis’ that all documents must be exempt, because of the exception to the exemption in schedule 3, section 10(2)(a) of the RTI Act. This exception provides that information is not exempt information where it reveals that the scope of a law enforcement investigation has exceeded the limits imposed by law. In his submissions,[38] the applicant refers to previous cases of unauthorised QPRIME access and a ‘culture within the QPS of officers accessing the QPRIME database unlawfully’. In this regard, he refers to media articles discussing this issue,[39] and expresses concern that his personal information within QPRIME has been accessed unlawfully.[40] However, for the exception in schedule 3, section 10(2)(a) of the RTI Act to apply,[41] the information itself, that is, the QPRIME officer information, must consist of material that objectively reveals that the scope of a law enforcement investigation has exceeded the limits imposed by law.[42] In the application that is the subject of this review, the applicant sought access to QPRIME officer information. As noted at paragraph 27 above, the applicant is seeking to access information to identify all officers who have accessed his name on QPRIME, rather than seeking to access records relating to an investigation. I am satisfied that the QPRIME officer information alone, cannot, of itself, reveal that any particular access to QPRIME was unauthorised, or that the scope of any law enforcement investigation had exceeded the limits imposed by law. I also consider that this is the case when considering the QPRIME officer information within the context of all information before me in this review. Accordingly, I am satisfied that the QPRIME officer information may, at best, amount to untested evidence concerning an officer’s authority to access QPRIME in a particular instance. Given this position, I cannot conclude that QPRIME officer information reveals evidence of an investigation having exceeded its limits. Accordingly, I am satisfied that on the available information in this review, the exception to the exemption in schedule 3, section 10(2) of the RTI Act does not apply.[43] Other submissions In his submissions, the applicant also referred to other individuals who have successfully obtained access to QPRIME information from QPS which revealed, in one case, that an individual’s record had been accessed in excess of 1,400 times.[44] It is unclear how this submission is relevant to the present application, where the applicant is only seeking access to information which identifies all officers who have accessed his name on QPRIME, and has not requested information regarding the frequency of such access. The applicant also submitted that there is a significant public interest in disclosure of the QPRIME officer information. I acknowledge that the IP Act is to be administered with a pro-disclosure bias[45] and that it is Parliament’s intention that the grounds for refusing to deal with applications be interpreted narrowly.[46] However, the exemptions in schedule 3 of the RTI Act set out the types of information which Parliament has decided would, on balance, be contrary to the public interest to disclose. While an agency has discretion in these circumstances,[47] the Information Commissioner does not.[48] Once a class of documents satisfies the requirements of an exemption, as I have found in this case, I am precluded from considering any public interest factors, no matter how compelling.[49] DECISION I vary the decision of QPS and find that section 59 of the IP Act can be applied to refuse to deal with the applicant’s access application, on the basis that the application is expressed to relate to all documents containing information of a stated kind, and all of the documents to which the application relates comprise exempt information under schedule 3, section 10(1)(f) of the RTI Act. I have made this decision under section 123 of the IP Act, as a delegate of the Information Commissioner, under section 139 of the IP Act. A RickardAssistant Information Commissioner Date: 31 August 2017 APPENDIX Significant procedural steps Date Event 13 October 2016 OIC received the applicant’s external review application. 14 October 2016 OIC notified the applicant and QPS that the external review had been accepted. 27 October 2016 OIC conveyed a preliminary view to QPS and invited QPS to provide submissions in response. 31 October 2016 QPS accepted OIC’s preliminary view. 22 November 2016 OIC conveyed a preliminary view to the applicant and requested submissions in response. 2 December 2016 The applicant requested, and was granted, an extension of time to provide submissions. 8 December 2016 The applicant provided written submissions to OIC.[50] 2 June 2017 OIC provided QPS with a copy of the applicant’s submissions on external review and requested further submissions from QPS. 16 June 2017 QPS provided written submissions to OIC.[51] [1] Access application dated 10 August 2016. QPRIME is the Queensland Police Records and Information Management Exchange. This is the database used by QPS to capture and maintain records for all police incidents in Queensland. [2] By decision dated 15 September 2016. [3] External review application dated 13 October 2016.[4] Letter to QPS dated 27 October 2016.[5] Given it is commonly known that QPS maintains a computer database to capture and maintain records about police incidents.[6] Submission dated 31 October 2016.[7] Section 59 of the IP Act.[8] The applicant’s submissions in respect of QPS’s decision to neither confirm nor deny the existence of documents requested in the access application have also not been addressed in these reasons for decision.[9] Or delegate.[10] Section 118(1)(b) of the IP Act.[11] QPS does not contest the application of section 59 of the IP Act.[12] While I have carefully considered all of the submissions received, the applicant’s submissions are only addressed below to the extent they are relevant to the issues for determination.[13] Section 58(1) of the IP Act. [14] See sections 47(3)(a) and 48 and schedule 3 of the RTI Act. [15] See Isles and Queensland Police Service [2017] QICmr 1 (12 January 2017) (Isles), Flori and Queensland Police Service [2017] QICmr 5 (16 February 2017) (Flori), Shelton and Queensland Police Service [2017] QICmr 18 (29 May 2017) (Shelton), Eaves and Queensland Police Service [2017] QICmr 23 (30 June 2017) (Eaves), Kyriakou and Queensland Police Service [2017] QICmr 29 (9 August 2017) (Kyriakou (1)), Kyriakou and Queensland Police Service [2017] QICmr 30 (9 August 2017) (Kyriakou (2)), Kyriakou and Queensland Police Service [2017] QICmr 31 (9 August 2017) (Kyriakou (3)).[16] Submissions dated 13 October 2016 and 8 December 2016.[17] Schedule 3, section 10(1)(f) of the RTI Act. [18] Submission dated 16 June 2017.[19] Submission dated 16 June 2017.[20] In its submission, QPS provided generic examples of how disclosure of QPRIME officer information may prejudice policing activities. As an example, QPS submitted that: • the Child Protection Investigation Unit is well known for investigating child sexual offences • Task Force Argos well known for targeting perpetrators of organised paedophilia and child exploitation • Officers attached to Task Force Maxima are well known to be involved with organised crime associated with outlaw motorcycle groups; and • Homicide Group investigators dealing with suspected unlawful killingsand that disclosure of information which identifies these officers as accessing a person’s records may disclose the fact that the person was a suspect or person of interest by the officers investigating specific types of crimes.These examples, being generic, should not be construed as relating to the circumstances of this external review.[21] External review application and submission dated 8 December 2016.[22] Paragraph 16 of submission dated 8 December 2016.[23] Paragraph 17 of submission dated 8 December 2016, citing T and Queensland Health [1994] QICmr 4; (1994) 1 QAR 386 at [32]. [24] That is, schedule 3, section 10(1)(a), 10(3), 10(4), 10(5)(a), 10(5)(b) and 10(5)(c) of the RTI Act. [25] Paragraph 18 of submission dated 8 December 2016. [26] Paragraph 19 of submission dated 8 December 2016. [27] Paragraph 20 of submission dated 8 December 2016. [28] Paragraph 20 of submission dated 8 December 2016. [29] Submission dated 16 June 2017.[30] 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]. [31] Including those noted in the generic examples at footnote 20 above.[32] 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.[33] That is, schedule 3, section 10(1)(a), 10(3), 10(4), 10(5)(a), 10(5)(b) and 10(5)(c) of the RTI Act. [34] Except schedule 3, section 105(c) of the RTI Act which relates to information received by Crime Stoppers Queensland Ltd.[35] Schedule 3, section 10(1)(a) of the RTI Act. [36] By the relevant law enforcement body for the purposes of schedule 3, sections 10(3), 10(4) and 10(5)(a) and (b) of the RTI Act.[37] Paragraphs 25-29 of submission dated 8 December 2016.[38] External review application and submission dated 8 December 2016.[39] The media articles referred to in the applicant’s submission include, among others: • AAP, ‘Qld cop stood down over ‘database breach’ (17 May 2016) http://www.news.com.au/national/breaking-news/qld-cop-stood-down-over-database-breach/news-story/a62186679a17dd70ca4eea4c589c83e2; and • CCC Media Release, ‘Police officer charged for unauthorised access and disclosure of confidential information’ (22 June 2016) http://www.ccc.qld.gov.au/news-and-media/ccc-media-releases/police-officer-charged-for-unauthorised-access-and-disclosure-of-confidential-information-22-june-2016.[40] I note that such concerns are able to be considered by other bodies such as the Crime and Corruption Commission, who are able to obtain access to such records.[41] As noted in Isles at [21], Flori at [25], Shelton at [28], Eaves at [24], and Kyriakou (1), Kyriakou (2) and Kyriakou (3) at [29]. [42] Previous decisions of the Information Commissioner have not considered, in any detail, the nature or extent of evidence required for this exception to apply.[43] There is no evidence available to OIC to indicate that any other exceptions in schedule 3 of the RTI Act apply.[44] External review application.[45] Section 58(4) of the IP Act.[46] Section 67(2) of the IP Act.[47] Section 58(4) of the IP Act.[48] Section 118(2) of the IP Act.[49] Section 118(2) of the IP Act provides that the Information Commissioner does not have the power to direct that access to an exempt document be granted.[50] The applicant’s solicitor made the same submissions in this external review and another external review which has also been finalised by decision—see Morse and Queensland Police Service [2017] QICmr 38 (31 August 2017) (Morse).[51] QPS made the same submissions in this external review and the external review finalised in Morse.

queensland

court_judgement

Queensland Information Commissioner 1993-

X61 and Queensland Police Service [2020] QICmr 41 (24 July 2020)

X61 and Queensland Police Service [2020] QICmr 41 (24 July 2020) Last Updated: 22 September 2020 Decision and Reasons for Decision Citation: X61 and Queensland Police Service [2020] QICmr 41 (24 July 2020) Application Number: 314710 Applicant: X61 Respondent: Queensland Police Service Decision Date: 24 July 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO DEAL WITH ACCESS APPLICATION - EFFECT ON AGENCY’S FUNCTIONS - applicant seeks information about access to their personal information within a police incident database, also known as a QPRIME Activity Report - whether work involved in dealing with the access application would, if carried out, substantially and unreasonably divert resources of the agency from their use by the agency in performing its functions - section 60 of the Information Privacy Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to six categories of information.[1] QPS did not make a decision within the timeframe prescribed by the IP Act and notified the applicant, on 30 June 2019, that it was deemed to have refused access to all information requested in the access application. The applicant applied to the Office of the Information Commissioner (OIC) for an external review of QPS’s decision.[2] During the course of the review, QPS disclosed some of the requested information to the applicant. The applicant continues to seek access to information their QPRIME access file ‘which shows when [the applicant’s] file has been accessed and also by who’.[3] For the reasons set out below, I set aside QPS’s decision and find that QPS may refuse to deal with this part of the application under section 60(1)(a) of the IP Act, as dealing with it would substantially and unreasonably divert QPS’s resources from their use in the performance of QPS’s functions. Background A number of issues were resolved between the applicant and QPS during the external review through the disclosure of additional documents.[4] The information remaining for consideration was requested at item 2 of the access application. QPS initially submitted that it was entitled to refuse to deal with this part of the application under section 59 of the IP Act, on the basis that the responsive information comprised exempt information.[5] Subsequently, QPS submitted that it was entitled to refuse to deal with item 2 of the application under section 60 of the IP Act, on the basis that the work involved in dealing with it would substantially and unreasonably divert QPS’s resources from their use in the performance of QPS’s functions. The applicant’s submissions on external review raise concerns about a specific officer accessing their personal information within QPRIME.[6] The IP Act requires the Information Commissioner to identify opportunities for early resolution and to promote settlement of external review applications.[7] The applicant was invited to consider limiting the scope of item 2 by specifying a timeframe and/or QPS officers sought to be captured.[8] In response, the applicant confirmed that they sought access to the date, time, QPS registration number, rank and name of each QPS officer who had accessed their QPRIME file since 2008.[9] I wrote to the applicant on 20 March 2020, outlining the work that would be involved in QPS dealing with item 2 of the application and conveying a preliminary view that QPS was entitled to refuse to deal with item 2, on the basis such work would constitute a substantial and unreasonable diversion of QPS’s resources. I again invited the applicant to consider narrowing the scope of item 2 and noted that QPS had suggested it may be able to process this part of the application if the timeframe was significantly narrowed or it was limited to QPRIME activity in relation to a specific incident. In response,[10] the applicant proposed a narrowed scope of item 2 to all access activity on the applicant’s QPRIME file from 2013 to 2017 and from 30 January 2019 to the date of the access application (Narrowed Application).[11] QPS maintains that dealing with the Narrowed Application would constitute a substantial and unreasonable diversion of its resources. The applicant does not accept that QPS is entitled to refuse to deal with the Narrowed Application on this basis. Significant procedural steps relating to this review are set out in the Appendix. Reviewable decision and evidence considered The decision under review is the deemed decision QPS is taken to have made under section 66 of the IP Act. 14. The evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). I have also had regard to the Human Rights Act 2019 (Qld),[12] particularly the right to seek and receive information.[13] I consider a decision-maker will be ‘respecting’ and ‘acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the IP Act and the Right to Information Act 2009 (Qld) (RTI Act).[14] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[15] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[16] Information in issue QPS confirmed that information responding to item 2 of the application would be contained in a document known as a QPRIME Activity Report.[17] QPS provided OIC with a copy of this document on external review. Issue for determination The issue for determination is whether the Narrowed Application may be the subject of a refusal to deal decision under section 60 of the IP Act. QPS no longer relies on section 59 of the IP Act and therefore, the application of that provision is not considered in these reasons for decision. 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.[18] One of the circumstances in which it would not be in the public interest to deal with an access application is where 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.[19] In deciding to refuse to deal with an application on this basis, an agency must: not have regard to any reasons the applicant gives for applying for access or the agency’s belief about what are the applicant’s reasons for applying for access;[20] and have regard to the resources that would be used for:[21] 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. Whether the work involved in dealing with an application would, if carried out, substantially and unreasonably divert the resources of an agency is a question of fact in each individual case.[22] In each case, it is necessary to assess the work required to deal with the application in the context of the agency’s other functions. Procedural matters External review by the Information Commissioner is merits review and 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.[23] However, in circumstances where the issue of substantial and unreasonable diversion of resources is raised on external review, the IP Act does not expressly address the procedural requirements to be met by the Information Commissioner before making a decision to refuse to deal with an application under section 60 of the IP Act. Generally, the IP Act provides that the procedure to be taken on external review is, subject to the IP Act, at the discretion of the Information Commissioner.[24] In the course of the review, the applicant was given the opportunity to respond to OIC regarding the issue of substantial and unreasonable diversion of resources, as outlined in the Background section of this decision. I consider that the steps that were taken by OIC are similar to those outlined in section 61 of the IP Act, and have afforded procedural fairness to the applicant.[25] The applicant provided OIC with submissions in support of their case. I have carefully considered those submissions.[26] I have summarised and addressed the applicant’s submissions below to the extent they are relevant to the issue for determination.[27] Analysis - Substantial and unreasonable diversion of resources I have not had regard to the factors referred to in paragraph 18a) above. What work would be involved in dealing with the access application? On external review QPS claimed that to confirm the exact number of pages and entries that fell within the Narrowed Application would, in effect, reveal exempt information.[28] Under section 121(3) of the IP Act, I must not include any information in this decision that is claimed to be exempt by QPS. This has therefore limited the level of detail I have provided in the following paragraphs. QPS submits that in order to assess whether information within the Narrowed Application can be disclosed to the applicant, its decision-maker would be required to undertake enquiries with the officers responsible for the recorded QPRIME actions, to identify why the actions were undertaken and what those actions relate to.[29] While QPS indicated that it is difficult to provide a concise estimate of the time required to deal with the Narrowed Application, it estimates that: there are over 500 pages of information that require close consideration undertaking the enquiries referenced above would take in excess of 85 hours; and additional processing time would also be required to identify whether any information had been dealt with in the applicant’s previous access applications.[30] While an agency is required to consider how much time an access application is likely to take to process, a precise assessment is not required. As such, where a precise assessment may substantially and unreasonably divert the agency's resources, an estimate is acceptable.[31] The applicant has not directly challenged QPS’s estimate of the work involved in dealing with the Narrowed Application but contends that QPS is using section 60 of the IP Act to prevent their access to the QPRIME Activity Report.[32] In considering whether QPS’s processing estimate is reasonable, I note that in dealing with the application under the IP Act, the QPS decision-maker will need to assess the responsive information, to determine if grounds for refusal apply to any part of it,[33] redact documents and prepare a written decision. QPS explained that while consideration of some of the entries within the responsive information could be completed relatively quickly, the decision-maker’s consideration of other entries could take considerable time, given the nature of information.[34] On the information before me, it is difficult to reach an estimate regarding the amount of time that would be required to identify whether any of the information has been dealt with in the applicant’s prior applications, redact information and prepare a written decision. However, I consider it reasonable to expect that, if QPS was to deal with the Narrowed Application, some time in addition to the estimated hours would be required to complete these further steps. Based on careful consideration of the material before me, including the responsive information, I accept QPS’s contention that processing the Narrowed Application would take in excess of 85 hours. Would the impact on QPS’s functions be substantial and unreasonable? As at 30 June 2019, QPS employed 15,285.27 full-time equivalent staff.[35] The QPS Right to Information and Privacy Unit (RTI&P Unit) comprises a small team within QPS (of approximately 10 members). This unit processes large volumes of access applications,[36] together with internal reviews and external reviews. QPS’s minimum estimate of work in this review equates to more than 10 business days for one full time decision-maker working on the Narrowed Application to the exclusion of all other functions of that officer.[37] This estimate is only for the time required to assess the responsive information to establish whether any grounds of refusal may arise. This represents almost half the entire processing time usually allowed under the IP Act for processing an application.[38] I also note that the Narrowed Application being considered here is only one part of the initial six-part access application. QPS has already expended a significant amount of time considering and responding to the remaining five parts of the access application, which has included the disclosure of several other documents to the applicant.[39] Taking into account the additional time that will be required to identify whether any of the information responding to the Narrowed Application has been dealt with in the applicant’s prior applications, redact information and prepare a written decision, I am satisfied that the time required to deal with the Narrowed Application may exceed the usual processing period. It reasonable to expect that taking a decision-maker offline for such a long period would interfere with QPS’s ability to attend to its IP Act and RTI Act functions for persons other than the applicant over this period. I consider the consequent delays in processing other applications and attending to other matters would have a considerable impact on QPS’s functions. I am therefore satisfied that the work involved in dealing with the Narrowed Application would, if carried out, substantially divert the resources of QPS from their use in the performance of its functions. In determining whether the work involved in dealing with an application is unreasonable, it is not necessary to show that the extent of the unreasonableness is overwhelming. Rather, it is necessary to weigh up the considerations for and against, and form a balanced judgement of reasonableness, based on objective evidence.[40] Factors that have been taken into account in considering this question include:[41] whether the terms of the request offer a sufficiently precise description to permit the agency, as a practical matter, to locate the documents sought the public interest in disclosure of documents whether the request is a reasonably manageable one, giving due but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with access applications the agency’s estimate of the number of documents affected by the request, and by extension the number of pages and the amount of officer time the reasonableness or otherwise of the agency’s initial assessment and whether the applicant has taken a cooperative approach in rescoping the application the timelines binding on the agency the degree of certainty that can be attached to the estimate that is made as to the documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made; and whether the applicant is a repeat applicant to that agency, and the extent to which the present application may have been adequately met by previous applications. The applicant contends that, in agreeing on the application scope with QPS in late April 2019, they assumed QPS would provide to them ‘the very information that [QPS] deemed had been appropriately narrowed in order to successfully deliver’ the requested QPRIME information.[42] In confirming the scope of the access application, QPS was not, as the applicant contends, agreeing that the applicant ‘should, and could’ obtain access to the information requested in that scope.[43] The applicant submits that, as there is no auditing of police access to QPRIME, ‘it is time for the community to question how each person in Qld will know if their personal information has been illegally accessed and used with dangerous consequences ...’.[44] I accept that there is public interest in the applicant having access to their own personal information and that disclosure of the responsive information may enhance the accountability and transparency of QPS. However, in deciding whether dealing with the Narrowed Application would be unreasonable, the public interest in disclosing the information is just one factor to be considered. In terms of promoting the transparency and accountability of QPS, this decision does not prevent the applicant making future applications of a more confined scope in order to access information of this nature. For this reason, I have not placed any significant weight on this factor in my considerations. Having found that the resources reasonably required to deal with the Narrowed Application are substantial, and in light of the need for QPS to process other access applications and complete other functions, I do not regard the estimated workload in dealing with this request as being reasonably manageable. Taking into account the factors listed in paragraph 34 which are relevant in this case, I find that the work involved in dealing with the Narrowed Application would amount to a substantial and unreasonable diversion of QPS’s resources. DECISION For the reasons set out above, I set aside QPS’s decision and find that QPS may refuse to deal with part of the access application, described as the Narrowed Application, on the basis that the work involved in dealing with it would substantially and unreasonably divert QPS’s resources from their use in the performance of QPS’s functions.[45] I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.S MartinAssistant Information Commissioner Date: 24 July 2020 APPENDIX Significant procedural steps Date Event 7 July 2019 OIC received the external review application. 16 July 2019 OIC notified the applicant and QPS that the external review application had been accepted. 5 and 7 August 2019 OIC asked QPS to provide further information. 19 August 2019 OIC received information from QPS. 27 August 2019 OIC asked QPS to provide further information and received the requested information from QPS. 9 September 2019 OIC received submissions from QPS. 7 November 2019 OIC conveyed a preliminary view to the applicant and QPS. 15 November 2019 OIC received the applicant’s submissions (via an email dated 6 November 2019 which attached a letter dated 12 November 2019). 20 November 2019 QPS accepted OIC’s preliminary view. 9 December 2019 OIC conveyed a further preliminary view to the applicant. OIC also asked QPS to provide further information and release certain redacted documents to the applicant. 10 December 2019 QPS confirmed release of redacted documents to the applicant. 19 December 2019 OIC spoke with the applicant. 20 December 2019 OIC wrote to the applicant. 21 January 2020 OIC spoke with the applicant. 23 January 2020 OIC wrote to the applicant confirming the remaining issue to be considered was the request to access the QPRIME Activity Report. 29 January 2020 OIC received information from QPS. 19 February 2020 OIC asked QPS to provide further information. 10 March 2020 OIC received submissions from QPS. 20 March 2020 OIC conveyed a preliminary view to the applicant and invited the applicant to provide submissions and consider narrowing item 2 of the application. 23 March 2020 The applicant agreed to narrow the scope of item 2 of the application. 25 March 2020 OIC asked QPS whether it was able to process item 2 of the application with this narrowed scope. 7 May 2020 OIC received further submissions from QPS. 22 May 2020 OIC conveyed a further preliminary view to the applicant. 4 June 2020 OIC received the applicant’s further submissions. [1] Application received 27 April 2019, being the date on which the applicant confirmed the application scope to QPS. [2] On 7 July 2019. [3] This information is also known as a QPRIME Activity Report. ‘QPRIME’ refers to the Queensland Police Records and Information Management Exchange. This is the database used by QPS to capture and maintain records for all police incidents in Queensland. This part of the application was not limited by any timeframe in the access application. [4] As noted in paragraph 4, QPS disclosed some of the requested information to the applicant. The applicant did not contest OIC’s view that QPS was entitled to refuse to deal with other parts of the application under section 62 of the IP Act and that access may be refused to certain information on the grounds it did not exist and disclosure would, on balance, be contrary to the public interest. OIC confirmed to the applicant on 23 January 2020 that item 2 of the application was the only part of the application remaining in issue in the review. [5] On 7 November 2019, OIC conveyed a view to QPS that section 59 of the IP Act did not apply. [6] External review application and submissions dated 4 June 2020. [7] Section 103(1) of the IP Act. [8] On 7 November 2019. [9] Submissions received 15 November 2019 (by email dated 6 November 2019, which attached the applicant’s letter to OIC dated 12 November 2019).[10] On 23 March 2020. [11] Under section 47 of the IP Act, an application is taken to only apply to documents that are, or may be, in existence on the day the application is received. As the access application was received by QPS on 27 April 2019, the narrowed scope can only extend until 27 April 2019. [12] Referred to in these reasons as the HR Act, and which came into force on 1 January 2020. [13] Section 21 of the HR Act. [14] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111]. [15] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [16] XYZ at [573]. [17] On 10 December 2019. [18] Section 58 of the IP Act. [19] Section 60(1)(a) of the IP Act. Before making a decision to refuse to deal with an application under section 60(1)(a), an agency must satisfy certain procedural prerequisites set out in section 61 of the IP Act, for the purpose of allowing the applicant an opportunity to narrow the scope of the application, so that the agency can manage processing of the application. However, in this case, as the issue of substantial and unreasonable diversion of resources was raised by QPS on external review, I am not required to make any determination regarding QPS’s satisfaction of the procedural requirements in section 61 of the IP Act.[20] Section 60(3) of the IP Act. [21] Section 60(2) of the IP Act. [22] Davies and Department of the Prime Minister and Cabinet [2013] AICmr 10 (22 February 2013) at [28].[23] Section 118(1) of the IP Act. [24] Section 108(1)(a) of the IP Act.[25] As noted in paragraphs 9 and 10 above, the applicant was invited on two occasions to narrow the scope of item 2. Although the applicant proposed a further narrowed scope of item 2 on 4 June 2020, which they considered would ensure that section 60 of the IP Act had no application, I am satisfied that the applicant had already been afforded a reasonable opportunity to narrow the scope of item 2 as contemplated by the IP Act and accordingly, that further narrowed scope is not being considered in this review. OIC notified the applicant of this on 18 June 2020 and confirmed that, at the conclusion of this review, the applicant may make a fresh application to QPS to access documents within that further narrowed scope. [26] As set out in the Appendix. [27] The applicant’s submissions, in the main, raise concerns about the actions of specified officers, breaches of their privacy by certain of those officers and why the applicant considers information is not exempt under schedule 3, section 10(1)(f) of the RTI Act. As notified to the applicant on 18 June 2020, their concerns about officer actions and a breach of their privacy cannot be addressed in this external review and QPS seeks to refuse to deal with the Narrowed Application under section 60, not section 59, of the IP Act. [28] Email from QPS to OIC dated 20 July 2020.[29] Submissions dated 10 March 2020. [30] Submissions dated 10 March 2020.[31] Refer to McIntosh v Victoria Police (General) [2008] VCAT 916 at [10]. [32] Submissions dated 4 June 2020. [33] Grounds for refusal of access are set out in section 47 of the RTI Act. Section 67(1) of the IP Act provides that access to information may be refused under the IP Act on the same grounds as in section 47 of the RTI Act. [34] Submissions dated 10 March 2020. Under section 121(3) of the IP 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 any further details about the nature of the responsive information. [35] 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 16 July 2020).[36] The QPS disclosure logs indicate that between October 2019 and January 2020, the RTI&P unit finalized between 75 and 100 applications each month. Refer to <https://www.police.qld.gov.au/index.php/knowledge-centre-rti>. The Department of Justice and Attorney-General’s Annual Report for the RTI and IP Acts in 2018-2019 (which may be accessed at <https://www.parliament.qld.gov.au/documents/tableOffice/TabledPapers/2020/5620T976.pdf>) records that QPS received a total of 2410 access and amendment applications and was involved in 78 internal reviews and 159 external reviews in 2018-19. [37] Based on an 8 hour working day. [38] 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, 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. In this review, it is important to note that the Narrowed Application being considered in this decision is only one part of a six part application that was made by the access applicant.[39] This was set out in a letter to the applicant from OIC dated 9 December 2019.[40] ROM212 and Queensland Fire and Emergency Services [2016] QICmr 35 (9 September 2016) at [42], adopting Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1550 (Smeaton) at [30]. [41] Smeaton at [39]. As the issue of substantial and unreasonable diversion of resources only arose on external review, some of these factors are not relevant in this case. [42] Submissions dated 4 June 2020.[43] Submissions dated 4 June 2020. On external review QPS had indicated it may be able to process the application if the timeframe was significantly narrowed or it was limited to QPRIME activity in relation to a specific incident. Ultimately, the applicant only agreed to narrow the request to their QPRIME access file for a six year period and did not limit it to a specific incident. [44] Submissions dated 4 June 2020. [45] Under section 60(1)(a) of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Steinback and Ipswich City Council [1996] QICmr 6; (1996) 3 QAR 233 (9 April 1996)

Steinback and Ipswich City Council [1996] QICmr 6; (1996) 3 QAR 233 (9 April 1996) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 96006Application L 1/96 Participants: MARK IVAN STEINBACK Applicant IPSWICH CITY COUNCIL Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - application for review of decision requiring payment of $30 application fee for access to documents - applicant requested access to documents concerning complaints to the respondent about a particular property owned by the applicant, including complaints which predated his ownership of the property - applicant leases the property to residential tenants - whether any of the requested documents do not concern the applicant's personal affairs within the meaning of s.29(2) of the Freedom of Information Act 1992 Qld and s.6 of the Freedom of Information Regulation 1992 Qld - words and phrases: "concerns", "concerning".Freedom of Information Act 1992 Qld s.29(2), s.44(1), s.44(2)Freedom of Information Regulation 1992 Qld s.6Peace and Good Behaviour Act 1982 QldBolton and Department of Transport, Re (Information Commissioner Qld, Decision No. 95035, 20 December 1995, unreported)Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227 DECISION I affirm the decision under review (being the decision made on 4 January 1996 byMrs C Harsant on behalf of the respondent) that a $30 application fee is payable by the applicant in respect of his FOI access application dated 4 December 1995.Date of decision: 9 April 1996............................................................F N ALBIETZINFORMATION COMMISSIONER OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 96006Application L 1/96 Participants: MARK IVAN STEINBACK Applicant IPSWICH CITY COUNCIL Respondent REASONS FOR DECISION Background1. The applicant seeks review of the respondent's decision requiring payment of a $30 application fee in respect of an access application, under the Freedom of Information Act 1992 Qld (the FOI Act), dated 4 December 1995, which relevantly states:Due to the current harassment of tenants at [the address of a property owned by the applicant was stated here - it is referred to in these reasons for decision as the "subject property"], also the fact of phone harassment of my parents,I require, under the Freedom of Information Act 1992 Qld the names of complainants to this address, and the dates received.I believe this spans a number of years as the previous owner has had tenants driven from this address. I have had to date, three tenants harassed to the point of leaving, and have had an assault on my person (reported) and a window broken in the house by a brick (reported).I am left with no option but to take legal action.Please forward all details of complaints from 1987 onwards to the above PO box.2. By letter dated 11 December 1995, Mr C Simpson of the Ipswich City Council ("the Council") wrote to the applicant informing him that he was required to pay a $30 application fee before processing of his FOI access application could begin. 3. On 21 December 1995, the applicant applied for internal review of Mr Simpson's decision.He submitted as follows: I am an inmate within the meaning of s.10 of the Corrective Services Act Qld 1988 and consider the fee sought is beyond my capabilities at the present time. I am the owner of [the subject property] and said complaints affect my income from said property ensuring payment of Ipswich City Council payments. This income has been placed in jeopardy twice due to the direct involvement of this Council.4. The internal review was undertaken by Mrs C Harsant, Records Manager of the Council. By letter dated 4 January 1996, she decided to affirm the original decision, stating:Whilst I can appreciate the subject of your request may be of concern to you personally it is nonetheless not regarded as "personal affairs" in terms of this legislation. Therefore the required fee must be paid before your request can be accepted as an application under the Act. Refer Information Commissioner's decision number 93006. [This is a reference to Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227] Unfortunately there is NO provision under the Act to waive this fee.5. The applicant applied to me, on 18 January 1996, for external review under Part 5 of the FOI Act, of the respondent's decision requiring payment of a $30 application fee.Relevant legislative provisions6. Section 29(2) of the FOI Act provides:An applicant applying for access to a document that does not concern the applicant's personal affairs may be required, by regulation, to pay an application fee at the time the application is made.7. Section 6 of the Freedom of Information Regulation 1992 (the FOI Regulation) provides:Application fee for access to document 6.(1) An applicant who applies for access to a document that does not concern the applicant's personal affairs must pay an application fee of $30 at the time the application is made. (2) An application fee is not payable for access to a document that concerns the applicant's personal affairs.8. Although not strictly relevant to the disposition of this case, s.44(1) and s.44(2) of the FOI Act are mentioned below, and I will set them out for ease of reference: 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.The external review process9. The documents identified by the Council as falling within the terms of the applicant's FOI access application were obtained and examined. They comprise:(i) extracts from file number 60-1969-0002: comprising a letter of complaint and a number of file notes recording complaints concerning noise, unsightliness and dog attacks in respect of the subject property, together with reports on investigation of the complaints; and(ii) printouts from the Council's customer service system: comprising computer records of two complaints concerning the subject property, and investigator's comments.10. In support of his application for external review, the applicant submitted:I wish to point out that my request to the Ipswich City Council is to establish the persons involved in the constant harassment, of myself and the chain of tenants I have had and the owner before me, at [the subject property].Personal AffairsI have been personally assaulted at this address and a tenant previously had been frightened with a firearm - reported to Goodna Police.A recent event involving a firearm has also caused concern.I have also had a brick through the window of this house.I enclose an application for a Peace and Good Behaviour Order. I require the information to complete [the name of the person against whom Mr Steinback proposes to seek the Peace and Good Behaviour Order].I am currently imprisoned and feel the $30.00 fee is unjust as I only receive $1.15 per working day and $9.50 amenities allowance per week.11. The applicant attached to his application for external review a draft Complaint form under the Peace and Good Behaviour Act 1982 Qld. The applicant is named as the complainant.The space provided for the name and address of the putative respondent to the complaint is blank. The grounds set out in the draft complaint consist of a summary of incidents at the subject property in the period from November 1993 to 23 November 1995.12. On 8 February 1996, the Deputy Information Commissioner wrote to the applicant in the following terms:At this stage of the external review, I am able to form the preliminary view that the above-noted decision on behalf of the Ipswich City Council (the Council) to require payment of a $30.00 application fee is correct....You will note that the regulations confer no discretion on an agency to waive payment of the application fee, whether on grounds of impecuniosity of the applicant, or otherwise....In the Information Commissioner's decision in Re Ritchie and Department of Minerals and Energy (5 February 1993 - S8/93), the Information Commissioner decided that an application for access to documents need only seek one document which does not relate to the personal affairs of the applicant to attract the imposition of the application fee. I note that your FOI access application seeks access to complaints made to the Council, in respect of [the subject property] prior to your ownership of that property. It appears clear to me that any such information would not be information which concerns your personal affairs.The Information Commissioner considered the meaning of the term "personal affairs" for the purposes of the FOI Act in his decision in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, a copy of which is enclosed. In particular, the Information Commissioner 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, based on a proper characterisation of the matter in question. The Information Commissioner has also decided that complaints made by persons to public authorities are the personal affairs of the complainant (Re Byrne and Gold Coast City Council [1994] QICmr 8; (1994) 1 QAR 477, a copy of which is enclosed).In your application for internal review dated 21 December 1995, you have noted that you derive income from [the subject property]. In Re Stewart, the Information Commissioner decided that information concerning a person's business or professional affairs is not information concerning the personal affairs of that person (see paragraphs 82 and 107 of Re Stewart).I therefore do not consider that information relating to complaints made to the Council about [the subject property] is information which concerns your personal affairs, and therefore you are required to pay the $30.00 application fee before the Council is obliged to process your FOI access application.13. I subsequently received a submission from the applicant dated 11 February 1996. The principal argument raised by the applicant was that he requires the documents requested under the FOI Act in order to complete a complaint form under the Peace and Good Behaviour Act so that he might obtain a restraining order against the person he considers responsible for harassing the applicant, and his tenants, in relation to the subject property.His argument appears to be that, in the face of threats to his tenants, if he does not take action against the supposed wrongdoer by means of the Peace and Good Behaviour Act complaint, then should harm come to his tenants, he will be liable to prosecution under various sections of the Criminal Code on the basis of an omission to take appropriate action.Such liability to prosecution (according to the applicant's contention) explains his need to access the documents, and means that the documents concern his personal affairs.Conclusion14. The applicant's argument is, in essence, an attempt to connect the contents of the requested documents to the personal affairs of the applicant by reference to circumstances which are quite extraneous to the proper characterisation of the information contained in the requested documents. In previous decisions, I have stated that the question of whether or not information concerns a person's personal affairs is essentially a question of fact to be determined according to the proper characterisation of the information in the documents to which access has been requested. Thus, in Re Bolton and Department of Transport (Information Commissioner Qld, Decision No. 95035, 20 December 1995, unreported), I said (at paragraphs 16-17):16. In Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 at p.516, paragraph 67, I considered the meaning of the word "concerning" in the context of s.45(1)(c)(i) of the FOI Act, in particular, its meaning in the phrase "information ... concerning the business, professional, commercial or financial affairs of an agency or other person ...". I held that the relevant meaning of the word "concerning" in that context is "about, regarding".17. I consider that the word "concerning", and its relevant variations, i.e. "concern", "concerns", have the same meaning when used in other provisions of the FOI Act and FOI Regulation in conjunction with the phrase "personal affairs of a person" : see s.44 of the FOI Act and the two provisions set out at paragraphs 6-8 above. They call for a proper characterisation of the information or document in issue to determine whether it is about the personal affairs of the applicant for access (in the case of s.44(2) and [s.29(2) of the FOI Act and s.6 of the FOI Regulation] ) or about the personal affairs of an identifiable individual (in the case of s.44(1) of the FOI Act).15. Examination of the documents to which the applicant seeks access discloses that they are not about his personal affairs at all (as to the meaning of "personal affairs" see Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 at pp.249 and 256-266). For example, several of them concern complaints made in respect of the subject property before the applicant owned it. They clearly do not contain any information about the applicant's personal affairs.The stated purpose for which the applicant wants them does not transform those documents into documents which concern the applicant's personal affairs.16. Given the terms in which s.29(2) of the FOI Act and s.6 of the FOI Regulation are framed, an FOI access application need seek only one document which does not concern the personal affairs of the applicant for access to attract the imposition of the $30 application fee.17. Moreover, neither the FOI Act nor the FOI Regulation confer a discretion on an agency to waive payment of the application fee, whether for reasons of impecuniosity on the part of the applicant, or otherwise.18. Accordingly, I find that the Council was correct in requiring the payment of a $30 application fee by Mr Steinback in respect of his FOI access application dated 4 December 1995, andI affirm the decision under review.............................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Middleton and Building Services Authority [2010] QICmr 39 (24 December 2010)

Middleton and Building Services Authority [2010] QICmr 39 (24 December 2010) Last Updated: 7 June 2011 Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 310382 Applicant: Middleton Respondent: Building Services Authority Decision Date: 24 December 2010 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL TO DEAL WITH ACCESS APPLICATION – EFFECT ON AGENCY’S FUNCTIONS – applicant sought access to all documents concerning various legal proceedings, all complaints against specified builders and all documents concerning her home – agency refused to deal with the application under section 41 of the Right to Information Act 2009 (Qld) – whether the work involved in dealing with the application would, if carried out, substantially and unreasonably divert resources of the agency from their use by the agency in performing its functions Contents REASONS FOR DECISION Summary In her access application[1] (Access Application) to the Building Services Authority (BSA) the applicant sought copies of all documents relating to her property, all complaints against two building companies and various other documents. BSA gave the applicant written notice of its intention not to deal with the Access Application unless the scope was narrowed and attempted to consult with the applicant. Despite BSA’s attempts to assist the applicant to frame her application in terms that would enable the agency to process her application, the applicant’s amended terms reduced the volume of documents but not the complexity of the application and included extensive consultation. BSA subsequently decided not to deal with the application on the grounds that dealing with the application would substantially and unreasonably divert BSA’s resources from their use in performing its functions. Having considered the terms of the amended application, information provided by both parties and the relevant legislation, I affirm the BSA’s decision. Accordingly, BSA is not required to deal with the Access Application as subsequently amended by the applicant. Background In her Access Application[2] to BSA the applicant requested: all documents relating to court matters involving a company director all documentation on file relating to a specified Supreme Court hearing all documentation, including any complaints that BSA received between 1 January 1985 and 20 July 2010 relating to two identified building companies;[3] and all documents relating to the applicant’s property. BSA identified 450 files relevant to the application and gave the applicant written notice[4] of its intention not to deal with the application (Notice), explaining BSA estimated that dealing with the application would involve processing at least 45,000 documents. To provide a point of reference, BSA indicated to the applicant that in the year 2009-2010, their four full-time RTI officers had processed a total of 48,000 documents. In the Notice, BSA’s Manager, Right to Information and Privacy, explained the relevant consultation provisions,[5] invited the applicant to reconsider the terms of the application to enable BSA to process it, gave an example of how the terms might be amended and invited the applicant to contact her with any queries. In her response,[6] the applicant referred to other RTI applications she had made and issues surrounding a previous application to BSA. She also sought an immediate response to a series of questions. By letter dated 26 August 2010, BSA responded to the applicant’s questions as well as concerns she had raised about the consultation period and again sought to consult with the applicant to clarify the scope of her application In a further response, the applicant amended her application by confining the request to initial letters of complaint and forms in relation to the two building companies for a 15 year period. The applicant indicated in her letter that BSA could do a database search for the complainant details, export to excel and perform a mail merge for the letters to the complainants. The applicant added ‘For your convenience, I have included a letter than (sic) can be sent with your letter. Understandably, not all those contacted will respond.’ By letter dated 3 September 2010, BSA’s Manager, Right to Information and Privacy, again sought to consult with the applicant regarding the scope of the Access Application. In doing so, she: acknowledged the applicant’s effort to amend the scope of the application explained that although the new scope limited the number of pages, the content still related to 450 complaints concerning residential homes indicated that processing the application would involve BSA consulting 450 third parties, which in turn would require: ○ undertaking searches and inquiries for current contact details for a proportion of complainants compiling the correspondence and forwarding by registered post with return receipt arrangements; and collating written responses and responding to telephone calls explained that acting on the applicant’s proposal that BSA include the letter she provided BSA in the consultation documents would place BSA in breach of its obligations under the Information Privacy Act 2009 (Qld) and be inappropriate, given its role as industry regulator indicated that although the amended scope reduced the volume of documents, it did not reduce the complexity of the request indicated again that on the basis of the substantial diversion of resources necessary to process this single application, BSA would refuse to deal with the application explained in some detail the basis on which the position above was reached put forward an alternative proposal that would alleviate the need to consult and therefore allow the application to be processed, provided the applicant was agreeable to allowing BSA further time to process the application indicated again that if the application was not amended to remove the ground for refusal, the application would be refused; and invited the applicant to respond and to contact her if she had any queries.. The applicant responded to BSA’s further attempt to consult by: indicating that her ‘losses have been substantial and unreasonable’ raising issues regarding the sewerage system in her area declining to agree to the proposal put by BSA or to agree to any additional time for BSA to process her application refuting BSA’s explanation regarding its privacy obligations disputing BSA’s assessment of the time involved in processing the Access Application amending her Access Application by significantly expanding the scope beyond the terms outlined in paragraph 9 above (Changed Ap[7]lication);7 and providing information about the building companies and builders, the subject of her application. On 9 September 2010, BSA issued a written notice to the applicant refusing to deal with her Changed Application. OIC received the applicant’s external review application on 22 September 2010. On external review, the applicant submitted that it would not be unreasonable for BSA to process her application and sought review of BSA’s decision. Reviewable decision The decision under review is BSA’s decision to refuse to deal with the application under section 41(1)(a) of the Right to Information Act 2009 (Qld) (RTI Act).[8] Evidence considered In reaching a decision in this external review, I have considered the following: Access Application Changed Application external review application and supporting documents correspondence exchanged between the applicant and BSA BSA’s decision, as identified at paragraph 14 above print-out of BSA case search results from 7 December 2010; and relevant sections of the RTI Act. The 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. The limited circumstances in which dealing with an Access Application will be contrary to the public interest are set out in sections 40, 41 and 43 of the RTI Act. Relevantly, section 41 of the RTI Act permits an agency to refuse to deal with an Access Application if it considers the work involved in dealing with the application would substantially and unreasonably divert the resources of the agency from performing its functions.[9] Before making a decision to refuse to deal with an application, an agency must state in writing to the applicant its intention to refuse to deal with the application and offer a period for the applicant to consult with the agency, with a view to amending an application to remove the grounds for refusal.[10] Sections 41 and 42 of the RTI Act are set out in Appendix 1. Findings Did the BSA complete the prerequisites before refusing to deal with the application? The answer to this question is ‘yes’, for the reasons that follow. Section 42 of the RTI Act sets out a number of procedural steps an agency must comply with before refusing to deal with an access application. These steps include giving the applicant a written notice stating its intention to refuse to deal with the application, advising the applicant of the consultation period and explaining the effect of particular paragraphs in section 42. The steps taken by BSA, as set out at paragraphs 5 to 12 above, are evidence of BSA’s compliance with the requirements of section 42. Specifically BSA: issued a written notice to the applicant stating its intention not to deal with the Access Application invited the applicant to consult with the BSA on the terms of the application to remove the grounds of refusal allowed the prescribed consultation period; and stated the effect of subsections (2) to (6) of section 42 of the RTI Act. Would dealing with the application substantially and unreasonably divert BSA’s resources from their use in its functions? The answer to this question is ‘yes’ for the reasons set out below. In determining whether dealing with the Changed Application would substantially and unreasonably divert BSA’s resources from it functions, BSA: must not have regard to any reasons the applicant gives for applying for access or BSA’s belief about what the applicant’s reasons are for applying for access.[11] must have regard to the resources that would be used for the following:[12] identifying, locating or collating any documents in BSA’s filing system 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;[13] and notifying any final decision on the application. In relation to a) above, I have seen no evidence to suggest BSA has had regard to such factors and am therefore satisfied that BSA has not had regard to such factors. In relation to b) above, in its dealings with the applicant and OIC, BSA has provided the following information about its estimation of the resources involved in processing the application: identifying, locating or collating any documents in BSA’s filing system and making copies, or edited copies of any documents ○ BSA has identified 450 files as relevant to the application, of which some are archived files and which would need to be retrieved ○ dealing with the application will involve processing 2500 to 3000 documents, though this is a conservative estimate as BSA notes that complainants usually attach their own defects lists and reports ○ a number of the relevant documents were created prior to June 2008 and are not available electronically, so once they are located they will need to be scanned into BSA’s database for further editing ○ according to BSA’s data from 2009, it takes BSA administrative staff 2.5 hours to prepare (remove staples, markers etc) and scan 600 documents ○ all correspondence via telephone or mail would need to be ‘declared’ and in this instance, such declarations must be made to two files, involving 2 to 3 minutes per record ○ for this application alone, it would take BSA’s part-time administration officer approximately 5 to 6 weeks to process the 2500 to 3000 documents to be ready for checking by decision makers 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 ○ BSA calculates that if the 3.5 full time equivalent decision makers were to (in addition to assessing other applications) check at least 45 to 50 application forms each day, it would take them 4 weeks to complete the task, even without allowing for staff leave during this period ○ conducting third party consultation in relation to documents from 450 files would involve writing and sending acknowledgement and consultation letters and writing request for information letters to relevant departments ○ given the age of the documents sought, BSA would need to locate the most up to date addresses of complainants to ensure the security of the correspondence[14] ○ BSA’s experience has been that consulting with 20 parties involves a large amount of time collating the written responses, answering phone calls, following up with file notes and prescribed written notices and as such, consultation on 450 files would create a substantial and unreasonable diversion of BSA’s resources. The applicant contests BSA’s assessment of the work involved in processing the Changed Application, indicating that in her view, BSA has made ‘unrealistic’ assumptions[15] about the work involved in dealing with her application. In her external review application the applicant included an extract of a 2003 decision of the Queensland District Court which refers to BSA holding approximately 200 complaint files in the relevant matters. BSA has provided OIC with a print-out of its case search results from 7 December 2010 (Case Search Results). The Case Search Results show that there are approximately 450 complaints which are relevant to the application. BSA’s records are current and I accept the Case Search Results as evidence that BSA would be required to deal with approximately 450 complaint files. The applicant also points to BSA’s response in relation to a previous application as evidence that BSA can reasonably process her application. On this point I note that the relevant considerations for determining whether BSA can refuse to deal with the Changed Application are set out above. The applicant’s submission is not relevant to the issues at hand. The applicant also dismisses BSA’s efforts to explain the steps it takes to ensure those consulted receive the documents intended for them, including, for example, sending the documents by registered post and attempting to find current addresses for recipients to reduce the incidence of mail being accessed by unintended recipients. BSA’s processes, as described, are appropriate and commendable. I accept BSA’s submissions at paragraph 26 above regarding the time involved in processing the application. In reaching its estimations, BSA has appropriately had regard to data it has previously collected regarding time taken for specific tasks and has used this to inform its estimates. Data from the Case Search Results indicates that BSA would also be required to consult a minimum of 315 third parties. The time involved in contacting each of these parties, responding to any enquiries and collating and considering responses could reasonably be expected to be very substantial. In summary, BSA estimates (conservatively) that the time involved in processing the Changed Application is as follows: 5 to 6 weeks for a part-time administration officer to locate and prepare all relevant documents 4 weeks for 3.5 full-time equivalent decision makers to review the documents, giving the application exclusive attention each day during that period (at the rate of 50 complaints per day); and very substantial time to conduct third party consultation with at least 315 parties. BSA has an RTI Manager and 3.5 full-time equivalent decision-makers and 1.5 full-time equivalent administrative staff to respond to access applications. [16] Processing this application involves a large volume of documents in relation to which significant consultation would need to be undertaken. Locating and preparing the documents alone is quite a substantial task. As the documents contain individual’s personal information, decision-makers would need to check the documents carefully and have them redacted. The redactions would need to be checked. In view of the number and type of documents involved, the administrative processes needed to identify and deal with those documents and the extensive consultation required, I am satisfied that BSA’s estimate of the resources and time required is quite realistic. I am also satisfied that dealing with the Changed Application would divert BSA resources from their use in BSA’s functions and that such diversion would be both substantial, in the sense of being of considerable size,[17] and unreasonable, given BSA’s resources which must be used in processing all applications, not just the applicant’s. The applicant quotes in her external review application from her letter of 6 September 2010: I put it to you that the intention to refuse to deal with my RTI application is not the amount of work that it will create but rather the potential it has to cause embarrassment to the government. There is no evidence whatsoever to support the applicant’s contention. DECISION For the reasons set out above, I affirm BSA’s decision to refuse to deal with the Changed Application under section 41 of the RTI Act on the basis that it would substantially and unreasonably divert BSA’s resources from their use by the agency in performing its functions. ________________________ Jenny Mead Right to Information Commissioner Date: 24 December 2010 Appendix 1 Relevant provisions of the RTI Act Section 41 of the RTI Act provides: 41 Effect on agency's or Minister's functions (1) An agency or Minister may refuse to deal with an access application or, if the agency or Minister is considering 2 or more access applications by the applicant, all the applications, if the agency or Minister considers the work involved in dealing with the application or all the applications would, if carried out— (a) substantially and unreasonably divert the resources of the agency from their use by the agency in the performance of its functions; or (b) interfere substantially and unreasonably with the performance by the Minister of the Minister's functions. (2) Without limiting the matters to which the agency or Minister may have regard in making a decision under subsection (1), the agency or Minister must have regard to the resources that would have to be used-- (a) in identifying, locating or collating any documents in the filing system of the agency or the Minister's office; or (b) in deciding whether to give, refuse or defer access to any documents, or to give access to edited copies of any documents, including resources that would have to be used-- (i) in examining any documents; or (ii) in consulting in relation to the application with a relevant third party under section 37; or (c) in making a copy, or edited copy, of any documents; or (d) in notifying any final decision on the application. (3) In deciding whether to refuse, under subsection (1), to deal with an access application, an agency or Minister must not have regard to-- (a) any reasons the applicant gives for applying for access; or (b) the agency's or Minister's belief about what are the applicant's reasons for applying for access. Section 42 of the RTI Act provides: Prerequisites before refusal because of effect on functions (1) An agency or Minister may refuse to deal with an access application under section 41 only if- (a) the agency or Minister has given the applicant a written notice-- (i) stating an intention to refuse to deal with the application; and (ii) advising that, for the prescribed consultation period for the notice, the applicant may consult with the agency or Minister with a view to making an application in a form that would remove the ground for refusal; and (iii) stating the effect of subsections (2) to (6); and (b) the agency or Minister has given the applicant a reasonable opportunity to consult with the agency or Minister; and (c) the agency or Minister has, as far as is reasonably practicable, given the applicant any information that would help the making of an application in a form that would remove the ground for refusal. (2) Following any consultation, the applicant may give the agency or Minister written notice either confirming or narrowing the application. (3) If the application is narrowed, section 41 applies in relation to the changed application but this section does not apply to it. (4) If the applicant fails to consult after being given notice under subsection (1), the applicant is taken to have withdrawn the application at the end of the prescribed consultation period. (5) Without limiting subsection (4), the applicant is taken to have failed to consult if, by the end of the prescribed consultation period, the applicant has not given the named officer or member written notice under subsection (2). (6) In this section-- prescribed consultation period, for a written notice under subsection (1)(a), means-- (a) the period of 10 business days after the date of the notice; or (b) the longer period agreed by the agency or Minister and the applicant whether before or after the end of the 10 business days mentioned in paragraph (a). Appendix 2 The terms of the Changed Application are as follows: copies of all documentation on your file that relates to a tribunal hearing about a specified builder all documentation on file relating to a specified Supreme Court hearing all initial letters of complaint or complaint forms, forms, that the Queensland Building Service Authority received between 1 January 1985 and 3 September 2010 relating to two specified building companies the BSA’a computer records for all complaints and/or disputes made in relation to the two building companies. The computer records are to include the following information: Date of Complaint Property’s Suburb DN File No Defect Full name all documentation on file that relates to the applicant’s address. Any documents that I have written or provided the BSA can be excluded. Any documents that the BSA has previously sent me can be excluded. [1] Lodged on 21 July 2010.[2] Lodged on 21 July 2010.[3] The applicant indicated that any former complainants could contact the applicant at a specified email address. [4] Dated 13 August 2010.[5] Section 42 of the RTI Act.[6] Letter dated 14 August 2010.[7] See section 42(3) of the RTI Act. The terms of the changed application [8] A decision refusing to deal with an application under chapter 3, part 4 of the RTI Act is a reviewable decision; Schedule 6. [9] Section 41(1)(a) of the RTI Act.[10] Section 42 of the RTI Act.[11] Section 41(3) of the RTI Act.[12] Though this is not an exhaustive list: section 41(2) of the RTI Act. [13] Under section 37 of the RTI Act.[14] As is appropriate given BSA’s obligations under the Information Privacy Act 2009 (Qld).[15] Applicant’s letter to BSA of 6 September 2010.[16] BSA is also in the process of training an additional .5 full-time equivalent administrative staff member to address the increased number of applications received, size of the files, complexity of applications and processing times required. [17] Online Macquarie Dictionary, accessed 23 December 2010.

queensland

court_judgement

Queensland Information Commissioner 1993-

Lindeberg and Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts [2023] QICmr 34 (30 June 2023)

Lindeberg and Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts [2023] QICmr 34 (30 June 2023) Last Updated: 21 September 2023 Decision and Reasons for Decision Citation: Lindeberg and Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts [2023] QICmr 34 (30 June 2023) Application Number: 316080 Applicant: Lindeberg Respondent: Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts Decision Date: 30 June 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - SCOPE OF APPLICATION - briefing documents and emails - related and supporting earlier documents - construction of terms and scope of access application under section 24 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - NONEXISTENT OR UNLOCATABLE DOCUMENTS - whether agency has taken all reasonable steps to locate documents - whether access to further documents may be refused on the basis that they do not exist or are unlocatable - sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - ONUS ON EXTERNAL REVIEW - whether agency has established that Information Commissioner should give decision adverse to applicant - section 87(1) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - briefing document - whether information is Cabinet matter brought into existence before commencement of the Right to Information Act 2009 (Qld) - section 47(3)(a) and schedule 3, section 1 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - briefing documents - whether disclosure of information would infringe the privileges of Parliament - section 47(3)(a) and schedule 3, section 6(c)(i) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - briefing documents - whether information is exempt due to legal professional privilege - section 47(3)(a) 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 - briefing documents and emails - 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 On 1 January each year, Queensland Government Cabinet minutes from 30 years earlier are released as their restricted access period lapses.[1] Following the release of Cabinet minutes from 1990 on 1 January 2021, the applicant applied[2] to the then Department of Communities, Housing and Digital Economy (Department)[3] under the Right to Information Act 2009 (Qld) (RTI Act) for access to: Briefing document (and its other related and supporting earlier documents) recently created by Queensland State Archives [QSA], sometime in December 2020 or thereabout, in readiness for its anticipated usage on or at the public release of Queensland Cabinet submissions on 1 January 2021... The Department decided to release 26 pages and 6 part pages. The applicant applied[4] to the Office of the Information Commissioner (OIC) for external review of the Department’s decision on the basis that further documents should have been located. On review, the Department provided OIC with a further 472 pages that it had considered to be outside the terms of the application (Additional Documents). For the reasons set out below, I vary the Department’s decision and find that: a four page document titled ‘Background briefing – ‘The Heiner Affair’’ (Background Briefing) and three emails are within the terms of the application access to parts of one sentence in the Background Briefing may be refused on the ground that disclosure of this information would, on balance, be contrary to the public interest otherwise no grounds for refusing access apply to the remaining information in the Background Briefing or the three emails, and therefore the applicant may be given access to this information the rest of the Additional Documents and documents raised in the applicant’s submissions are outside the scope of the application; and further documents responsive to the application may be refused on the ground that they are non-existent. Background The Heiner Inquiry was set up in 1989 to inquire into complaints about the John Oxley Youth Centre at Wacol.[5] The applicant has long held concerns about the destruction, in 1990, of documents relating to the Heiner Inquiry’s investigations – colloquially referred to as the Heiner Affair.[6] The public release of Queensland Cabinet minutes on 1 January 2021 covered the year in which the events forming the basis of the Heiner Affair occurred, ie. 1990. The applicant’s application seeks documents linked to this public release. With each public release of Queensland Cabinet minutes, it has become practice that reports providing background and discussing selected highlights are published.[7] The ‘Selected highlights of the 1990 Queensland Cabinet Minutes’[8] provides the following summary about the Heiner Affair: Following the Heiner Inquiry into management of the John Oxley Youth Centre at Wacol, Cabinet agreed to extend legal indemnity to the inquiry Chair, retired magistrate Noel Heiner, as his initial appointment as a ‘contractor’ did not afford him the statutory immunity of Crown employees (Decision 101). Family Services Minister, Anne Warner, recommended in her submission that most materials (some considered ‘defamatory’) gathered as evidence during inquiry investigations should be destroyed to protect Heiner and witnesses from legal challenge. Cabinet initially deferred this matter pending a memorandum outlining the Crown Solicitor’s advice and further options regarding destruction of the materials, at that stage not considered ‘public records’. A week later, Cabinet again deferred consideration of the Minister’s memorandum until the Cabinet Secretary had liaised with the State Archivist for additional advice (Decision 118). In early March, with representations being made by solicitors for John Oxley Youth Centre staff seeking access to the documents in question, Cabinet agreed to the destruction of the materials having received advice from both the Crown Solicitor and the State Archivist that it was permissible to do so (Decision 162). The materials were subsequently destroyed under the guidance of the State Archivist in late March. One of the documents released to the applicant in response to his application includes the following summary:[9] In 1990, on advice from Crown Law, the State Archivist supervised the shredding of documents relating to the Heiner Inquiry into claims of bullying and rape at the John Oxley Youth Centre. In the 1990 Cabinet Minutes, Submission 160 recommended that “the material gathered by Mr N. J. Heiner during his investigation be handed to the State Archivist for destruction...” Mr Kevin Lindeberg [the applicant], former union representative for the John Oxley Centre Manager, has led a long campaign that accuses the Goss Government of acting illegally and claims a government cover-up. The applicant alleges that the released documents do not accurately record the events of the Heiner Affair[10] and what he alleges to be an ‘unprecedented systemic criminal cover-up’.[11] He seeks access to further briefing material concerning the Heiner Affair created in advance of the release of the 1990 Cabinet Minutes. He also seeks access to further internal files which he considers QSA must have created over the years since the destruction of documents in 1990. Reviewable decision The decision under review is the Department’s decision dated 23 April 2021. Evidence considered Significant procedural steps relating to the external review are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). I have taken account of the applicant’s submissions to the extent that they are relevant to the issues for determination in this review.[12] 12. 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 and the Information Privacy Act 2009 (Qld) (IP 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 similar pieces of Victorian legislation:[15] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[16] Allegation of bias Throughout his submissions during this external review, the applicant has raised a number of matters outside OIC’s jurisdiction. I have not addressed these matters, as I am limited to reviewing access and amendment decisions of an agency or Minister under the RTI Act or the IP Act. In terms of one such matter, the applicant alleges that I will be biased if I do not address his concerns about the interpretation of section 129 of the Criminal Code Act 1899 (Qld) by the Queensland Cabinet and former Crime and Justice Commission (CJC). These same concerns were addressed in an earlier decision involving this applicant. I repeat and rely on that decision’s comments regarding these concerns:[17] OIC’s jurisdiction is set out in the RTI Act and does not extend to considering the former CJC’s interpretation of the Criminal Code. In this matter, I am required to review the decision about access to documents made by the Department under the RTI Act and whether it should be affirmed, varied or set aside. I do not consider that limiting myself to a consideration of issues within OIC’s jurisdiction would cause a fair-minded lay observer to reasonably apprehend that I am not bringing an impartial and unprejudiced mind to reaching a decision on this matter. Issues for determination Three issues arise for determination in this review: a) Are the Additional Documents or the documents raised in the applicant’s submissions within the terms of the application? b) Has the Department conducted reasonable searches for any further documents responding to the terms of the application? For any documents within the terms of the application, do any grounds for refusal of access under the RTI Act apply? Issue a) Are the Additional Documents or documents raised in the applicant’s submissions within the terms of the application? For the reasons set out below, the Background Briefing[18] and three emails are within the terms of the application; however the rest of the Additional Documents and the documents raised in the applicant’s submissions are not. Relevant law An access application must give sufficient information concerning the documents sought to enable a responsible officer of the agency to locate the relevant documents.[19] There are sound practical reasons for the documents sought being clearly and unambiguously identified, as explained by the Information Commissioner in relation to similar considerations under RTI Act’s predecessor, the Freedom of Information Act 1992 (Qld) (FOI Act):[20] The terms in which an FOI access application is framed set the parameters for an agency's response under Part 3 of the FOI Act, and in particular set the direction of the agency's search efforts to locate all documents of the agency which fall within the terms of the FOI access request. The search for relevant documents is frequently difficult, and has to be conducted under tight time constraints. Applicants should assist the process by describing with precision the document or documents to which they seek access. Indeed the FOI Act itself makes provision in this regard with s.25(2) not only requiring that an FOI access application must be in writing, but that it must provide such information concerning the document to which access is sought as is reasonably necessary to enable a responsible officer of the agency to identify the document. The Information Commissioner also outlined the following principles to be followed in interpreting an access application which is framed in imprecise or ambiguous terms:[21] the question is not necessarily to be approached in the same manner as the interpretation of a statute or legal document seeking clarification of the intended meaning of an access application is a practice to be encouraged; and it can rarely be appropriate to apply legal construction techniques to the words of an access application 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 access application. Although outlined in the context of the repealed FOI Act, these principles remain relevant and are consistent with the object[22] and pro-disclosure bias[23] of the RTI Act. If, having applied these principles, a document does not contain any information that is relevant to the terms of the access application, it is outside the scope of the access application and that document will not be considered as part of the application under the RTI Act.[24] Findings The entire wording of the applicant’s application is: Briefing document (and its other related and supporting earlier documents) recently created by Queensland State Archives, sometime in December 2020 or thereabout, in readiness for its anticipated usage on or at the public release of Queensland Cabinet submissions on 1 January 2021, namely: 12 and 19 February 1990; and 5 March 1990. The type of documents requested were described in the application as: Internal memos, emails, and all related documentations While it is best practice to clarify any ambiguous terms with an applicant, if this does not occur, or the agency does not consider the terms to be ambiguous, then I do not have any power to undertake such clarification on external review. I am limited to the wording of the scope given in the access application as that is the basis of the agency’s decision which is under review. The Department has submitted[25] that, when interpreting the scope of the application, it followed ‘a logical and literal “element” approach to ensure each document satisfied each element before being determined to be in scope’. It identified the following as the 'elements' of the application:[26] briefing document (and its other related and supporting earlier documents) Recently created by QSA sometime in December 2020 [or thereabout] In readiness for its anticipated usage on or at the public release of Queensland Cabinet submissions ...’. [Department’s emphasis] Given the particular wording of the applicant’s application, I agree with the Department that consideration of the above elements assists with identifying the parameters of the application’s scope, and whether particular documents fall within or outside that scope. In short, the Department considers that no further documents fall within the terms of the application, whereas the applicant considers that the following should be released to him: an ‘internal briefing document’ the 472 pages of Additional Documents not addressed in the Department’s decision; and documents on internal files the applicant alleges would have been created by QSA for the purpose of saving, noting and commenting on ‘sources’ which investigated or discussed the Heiner Affair across multiple contexts over the years since the destruction of documents in 1990. i. Is the Background Briefing within the terms of the application? The applicant advised OIC that an officer of the Department told him about an ‘internal briefing document’ that was not referred to in the Department’s decision. He submitted that the Department inappropriately read down the term ‘briefing document’ in his application to mean ‘ministerial briefing document’.[27] In response, the Department submitted that ‘[i]t ... does not follow that just because any briefing notes included in the released documents are Ministerial briefing notes, that the Department has either narrowed its searches or its interpretation of the scope of the application’.[28] The Background Briefing is a four page document titled ‘Background briefing – ‘The Heiner Affair’’. It was located by the Department, but not considered in its decision, and appears among the Additional Documents.[29] The Department advised OIC that it did not consider the Background Briefing in its decision because it considered that the Background Briefing was not prepared ‘in readiness for its anticipated usage on or at the public release of Queensland Cabinet submissions’, and was therefore outside the scope of the application. In this regard, the Department stated that the Background Briefing was prepared for the use of the former State Archivist and the Director, Engagement and Access, QSA ‘as historical context and was for information only’[30] and ‘for the internal use... as historical background... for educational purposes (information only)’.[31] In support of this position, the Department set out the recollections of the Director, Access and Engagement, QSA and another senior executive,[32] both of whom had direct knowledge of the media release event for the 1990 Cabinet minutes, including direct involvement with preparing documents for that event.[33] I am satisfied that the Background Briefing is a ‘briefing document’ and ‘created by [QSA] sometime in December 2020 or thereabout’, as it was requested by the Director, Access and Engagement, QSA[34] and came into QSA’s possession around the relevant time. In terms of the Department’s submission that the Background Briefing was not prepared ‘in readiness for its anticipated usage on or at the public release of Queensland Cabinet submissions’, I have taken the following into account: while the Background Briefing was not specifically part of the deliverables[35] agreed between the Department and the historian who was engaged to research and prepare information for the public release of the Cabinet minutes,[36] it was prepared by that historian;[37] and the Heiner Affair was noted in the summary of issues in a Ministerial briefing about the Minister’s meeting with the historian before the media event.[38] I have also noted certain information in the Additional Documents regarding the Minister’s meeting with the historian and the media release event, and the extent and timing of any sharing of the Background Briefing beforehand.[39] Further, I have noted the following circumstances, as outlined by the Department:[40] generally, the Background Briefing was ‘not provided or briefed verbally to the Minister’ in relation to the Minister’s meeting with the historian specifically, the Background Briefing ‘was not mentioned at all nor ... given to the Minister’ in relation to the media release event specifically, the Background Briefing was not created for or considered at this event, nor created for or included in the media kit,[41] and ‘[t]he Heiner inquiry was not mentioned at the ... event’ the historian was asked to write about the Heiner Affair ‘as a back pocket, not for publication’ the reason this request was made was ‘there was no-one in the Department who was around at the time who knew anything about the subject matter and ... it would be good to have it for historical context’ and ‘as there could be a potential follow up issue. The Minister may need to be across the matter, not for journalists’ Media event, but it could be raised/asked about at any point of time after 1 January 2021 for example, raised later in Parliament’ to the extent the Background Briefing was shared, it was provided ‘as background information’, ‘for information only’ and ‘to give a ”heads up” on what it was about, not for publication, only for internal purposes’ this sharing occurred because ‘once the Cabinet Minutes were released after 1 January 2021 (and historian provided information in the highlights paper on what may be a sensitive issue), there was no historical knowledge on the issue and it was provided as a “heads up”, as issue that could be raised in Parliament’ and ‘[t]here is a possible use of the information for a PPQ which may not have eventuated’; and ‘[p]otentially, the matter could have been raised at media event or could happen at any time after that’. It is my understanding that that Department relies on these circumstances in support of its conclusion that the Background Briefing was not created ‘in readiness for its anticipated usage on or at the public release of Queensland Cabinet submissions’. While I accept the circumstances, as outlined by the Department, I do not agree that these circumstances are sufficient to support the Department’s conclusion. The circumstances outlined by the Department indicate that certain types of ‘usage’ of the Background Briefing did not occur (eg actual use by the Minister herself, in the sense of the Background Briefing being provided, ‘briefed to’ or mentioned to her in a meeting; and actual or intended use as part of a media kit or other publication). I accept this, but consider that ‘readiness for anticipated usage’ may also relate to other circumstances. Specifically, I consider that this phrase can reasonably be construed as encompassing anticipated use of the Background Briefing by departmental or ministerial staff to ensure understanding of questions from the media and inform the formulation of responses to those questions. To be clear, I consider that such use would involve using the Background Briefing as a source of information or point of reference, rather than text to be published in response to questions. In reaching this position regarding media enquiries, I have noted that the terms of the application refer to use either ‘on or at the public release’ [my emphasis]. Noting that interpreting the terms of an application cannot be equated with statutory interpretation and requires an approach that is not overly technical, I consider that the word ‘at’ refers to use during the media release event itself, while the word ‘on’ has a meaning similar to ‘from’ or ‘upon’, in that it includes use after the date of the media release event. The material before me[42] indicates that questions from the media were anticipated as a possibility – both at the media release event itself; and afterwards (ie both ‘on and at the public release’). Certain information in the Additional Documents regarding these circumstances relative to the extent and timing of any sharing of the Background Briefing, as noted at paragraph 31, is also relevant in this regard. On the material before me, I am satisfied that the Background Briefing was prepared in readiness for use if anticipated media enquiries eventuated – and therefore ‘in readiness for its anticipated usage on or at the public release of Queensland Cabinet submissions’. Accordingly, I find that the Background Briefing falls within the terms of the application. In the alternative, if I am wrong in this regard, and the Department’s position, as noted at paragraph 33 is correct, the relevant question is: what is the impact of the words ‘(and its other related and supporting earlier documents)’ in the application? In my opinion, the syntactical placement of brackets around the element ‘(and its other related and supporting earlier documents)’ and the specification of ‘all related documentations’ in the ‘type of documents’ section of the applicant’s application form have created some ambiguity as to the scope of the application. As the Department did not seek clarification with the applicant, as set out at paragraph 22, I am limited to the wording of the scope given in the application, as that is the basis of the agency’s decision which is under review. The Department has submitted that the Background Briefing cannot be considered to fall within the element ‘(and its other related and supporting earlier documents)’ because the element ‘in readiness for its anticipated usage on or at the public release of Queensland Cabinet submissions’ is a key element and applies to the bracketed section as much as it applies to ‘briefing document’.[43] The Department did not explain its reasoning behind this interpretation. On the face of it, I consider that the brackets around the element in question could also suggest an interpretation where the three other elements (‘briefing document’, ‘recently created by Queensland State Archives, sometime in December 2020 or thereabout’, and ‘in readiness for its anticipated usage on or at the public release of Queensland Cabinet submissions’) are read together, but the element ‘(and its other related and supporting earlier documents)’ is read only in light of the element preceding it – ie ‘briefing document’. I consider that a key word to consider in this matter appears in both the element ‘(and its other related and supporting earlier documents)’ [my emphasis] and the reference to ‘all related documentations’ [my emphasis] in the ‘type of documents’ part of the applicant’s application form. The Macquarie Dictionary defines ‘related’ as ‘associated; connected’.[44] What is associated or connected to a briefing document is a matter of subjective interpretation. There will be some documents that have a close degree of association or connectedness with the briefing documents that were released and there will be those that are associated or connected only loosely. In this regard, I note that the Background Briefing was prepared by the same historian who was engaged to research and prepare information for the public release of the Cabinet minutes, during the same time period. I have also noted the extent and timing of any sharing of the Background Briefing as mentioned at paragraph 31. I also note that the topic of the Background Briefing – the Heiner Affair – was mentioned in several of the released[45]ocuments.45 Given these particular circumstances, I consider that the degree of association or connectedness is sufficiently close to support an alternative conclusion that, as part of a reasonable interpretation of terms of the applicant’s application, the Background Briefing falls within the element ‘(and its other related and supporting earlier documents)’ [my emphasis], and therefore within the scope of the application. I am fortified that my finding regarding the Background Briefing is generally consistent with the RTI Act’s object and pro-disclosure bias. Although the Department does not agree with this conclusion, it has made submissions regarding grounds for refusing access under the RTI Act which is considers to be applicable to information in the Background Briefing. These are addressed at c) below. ii. Are the rest of the Additional Documents within the terms of the application? The applicant views the position that the Department’s searches located the 504 pages in response to his application, yet the Department’s decision addressed only 32 pages,[46] with suspicion:[47] ... due to the inexplicable sudden feature in [the Department’s] decision concerning hundreds of missing documents (and assuming they still exist) and, by the nature of what we are dealing with, who knew what in meeting together and what agreements were reached, what you come to learn in this external review about their prospective alleged highly embarrassing and/or incriminating content may see you find, for the first time, hitherto secret documents relating to this one limb (of others in this interconnected affair) captured in this long-running documented systemic cover-up since February/March 1990, surrounding illegal activities at Queensland State Archives in the particular. ... ... This marked material discrepancy is highly concerning. I pose this question: Where and what are the missing documents and their contents? At OIC’s request, the Department provided the entirety of the 504 pages located by the Department to OIC[48] along with submissions. The submissions include the Department’s observation that:[49] It is not uncommon for departmental officers, when conducting searches for documents possibly responsive to RTI applications, to take a prudent view of the scope of the application and the possible relevance of located documents. If in doubt about relevance they are encouraged to provide the documents in full for the decision maker’s consideration. The Department encourages those conducting searches to take care so as not to inappropriately narrow search terms and thereby inadvertently exclude relevant documents from being located. It does not follow from the mere fact a large number of possibly relevant documents are located, yet the decision results in a far smaller number of documents being determined as relevant, that the decision maker has narrowed his or her interpretation of the scope of the application or excluded relevant documents from consideration. Following a careful examination of these 504 pages, OIC responded to the applicants concerns. In response, the applicant replied:[50] I submit that stretches credulity and reasonableness to breaking point to contend that of the recovered 504 pages identified and located in the search process brought about by reason of my 28 January 2021 RTI application that 472 pages fell outside of scope because (as described in your preliminary view (p3) as contended by the Department), they were: (Quote) “...duplicates of Released documents or incidental documents related to the media event to announce the release of the Cabinet documents (for example, documents about logistics of that event – time, venue, attendees etc).” It seems impossible to believe that within the above description that the pages would equate to a total of 472. I submit that the true figure would be reasonably and significantly less than that which leaves a significant number of others to be properly accounted for. This should be clarified in precise terms, and not left to speculation. [applicant’s emphasis] Of the 504 pages located by the Department, 32 of these pages were addressed in the Department’s decision. Of the remaining 472 pages (ie the Additional Documents), four pages constitute the Background Briefing discussed above. A further 58 pages[51] comprise duplicates, or in a small number of instances near duplicates,[52] of these pages. Three Emails Of the remaining 410 pages of Additional Documents, three pages consist of three particular emails (Three Emails).[53] Two further pages comprise duplicates of one of the Three Emails.[54] I have carefully considered the content of the Three Emails. I have also considered when they were sent, the senders and recipients, and their respective roles.[55] I have also noted the reference to ‘emails’ in the ‘type of documents’ part of the applicant’s application form. Taking the same approach to the element ‘(and its other related and supporting earlier documents)’ [my emphasis] as that discussed above regarding the Background Briefing, I have concluded that the Three Emails are closely connected or associated with the Background Briefing. Further, whether the Background Briefing is taken to fall within the scope of the application as per my finding at paragraph 38 or the alternative conclusion at paragraph 43, I consider that a reasonable interpretation of application’s scope requires inclusion of the Three Emails. The close degree of association or connectedness of the Three Emails with the Background Briefing as a ‘briefing document’, or even as another ‘related document’, is in my opinion sufficient to bring the Three Emails within the terms of the application’s scope. I therefore make this finding. The Department does not agree with this conclusion and maintains that these Three Emails do not fall within the terms of the application. In doing so, it relies on the same reasoning it considers applicable to the Background Briefing.[56] The extent of the Department’s submissions regarding grounds for refusing access under the RTI are addressed at c) below. Other Additional Documents Once the five pages comprising the Three Emails are taken into account, 405 pages of Additional Documents remain. I am satisfied that these 405 pages of Additional Documents comprise incidental documents related to the media event to announce the release of the Cabinet documents – for example, documents about logistics of that event (time, venue, attendees etc), the Minister’s speech at the event, and the associated media release - and duplicates thereof. For these, I consider that the degree of association or connectedness is not sufficiently close to bring these pages within the parameters of the element ‘(and its other related and supporting earlier documents) [my emphasis]’. I therefore find that these pages do not fall within the terms of the applicant’s application. iii. Are internal QSA files regarding ‘sources’ with the terms of the application? The applicant submits that, due to his conversations with a departmental officer prior to lodging his application, the departmental officer knew that his application ‘encompassed earlier files dating back to 23 February 1990’ [applicant’s emphasis].[57] The applicant has submitted:[58] The nature of this external application I believe obliges me to provide credible evidence to you regarding the first stage of what documents were available in discovery/disclosure/retrieval process for the designated departmental RTI official to comprehensively explore. The person, who appears to have been designated this important task, albeit at some stage, was [the departmental officer]. Accordingly, this following list of entities, committees, inquiries, books, media coverage and related things [‘sources’], in their various ways at various times have mentioned in some way or been relevant to the role of Queensland State Archives ... in this affair which I believe would have been (a) contemporaneously taken note of, (b) prospectively internally commented on (e.g. by reason of explanation, requested report etc), (c) and kept in its own designated internal file at Queensland State Archives. ... The list of sources (not exhaustive or in chronological order) is: Criminal Justice Commission and Crime and Misconduct Commission; The three February/March 1990 Cabinet Submissions tabled in Parliament on 30 July 1998 by Queensland Premier the Hon Peter Beattie MP in confidence debate; Ministerial Statements in Parliament and to the media, Questions Without Notice in Parliament; Australian Society of Archivists inclusive of 8 October 1999 Statement to Parliamentary Criminal Justice Commissioner; Records and Information Management Professionals Australasia; Recordkeeping Journals; 2010 Thesis University of Manitoba – Department of History “Human Rights and Archives: Lessons from the Heiner Affair” by Mr Jonathan Nordland; Archives & Manuscripts: No 1 May 2011 edition. Ripples across the pond: global implications of the Heiner affair – Professor Randall C Jimerson, Western Washington State University USA. May 1991 Cooke Commission of Inquiry into The Activities of Particular Queensland Unions – An Investigation into the circumstances behind the sacking of Kevin Lindeberg from the Queensland Professional Officers Association October 1996 Morris QC/Howard Report into Allegations by Mr John Reynolds and Mr Gordon Harris and Allegations by Kevin Lindeberg; 1997 Connolly/Ryan Judicial Review into the Effectiveness of the CJC; 1998/99 Forde Commission of Inquiry Into the Abuse of Children in Queensland Institutions; 13 September 1999 85-page Lindeberg Petition (Tabling No 2596 27 October 1999); 2012/13 Carmody Commission of Inquiry into its Term of Reference 3(e); ABC-TV, including 2004 Australian Story “Three Little Words”; February 1999 Channel 9's "Sunday" Program re: "Queensland's Secret Shame"; Reporter Mr Paul Ransley and March 1999 “Neglect and Cover-Ups” Reporter Mr Paul Ransley Office of Crown Law; (Tabled in Parliament and supplied to Queensland State Archives) Queensland Audit Office(i.e. Annual Report No 6 2004-05 Tabled in Parliament 5.4.2. John Oxley Youth Detention Centre – Referral by Mr Kevin Lindeberg pp 40-44); Queensland Education BCL Years 11 and 12 Text Book; international archives conventions; tertiary text books on archives-recordkeeping; debates and public interest statements in State and Federal Parliament; 1993 Senate Select Committee on Public Interest Whistleblowing; 1995 Senate Select Committee on Unresolved Whistleblower Cases; Senate Privileges Committees 63rd (1997) and 71st Report (1998); 1999 Lindeberg Petition (85-pages See Points 175-189 re Queensland State Archives) tabled in the Queensland Parliament by the Member for Broadwater, Mr Alan Grice MP, on 27 October 1999 (Reference No. 4999T2596); 2004 Senate Select Committee on the Lindeberg Grievance; 2003/04 House of Representatives Standing Committee on Legal and Constitutional Affairs – Crime in the Community – victims, offenders and fear of crime; 2006 House of Representatives Standing Committee on Legal and Constitutional Affairs – Harmonising of Legal Systems -(Submissions 30 and 30.1.) eminent senior counsel, retired judges and academics (e.g. See the 9 Volume Rofe QC Audit of the Heiner affair); September 2011 Play NSW Whitecross Media Video YouTube “The Heiner Affair: A Play” Whistleblower’s Webpages; the mainstream and social media articles including the Queensland University School of Journalism newspaper. The applicant’s submission went on to discuss some of these ’sources’ and mention others.[59] He also added to his list of ‘sources’ in subsequent correspondence.[60] The applicant’s contention is that, due to the notoriety of the Heiner Affair and QSA’s role in that affair, QSA would have kept files regarding the ‘sources’. Some examples of such contentions are:[61] It is reasonable to suggest that a file keeping these ... comments concerning the role of the State Archivist and public recordkeeping practices ... would have been opened at some time at Queensland State Archives either by the State Archivist herself, or another official whose duty was to track any media or other important coverage directly relevant to the institution’s history, image and public confidence in its function. ... I believe that these adverse comments ... would have likely been noticed and kept by ... and afterwards by the Queensland State Archives itself out of concern for its own reputation as a body expected to conduct itself with utmost professionalism and integrity in order to (a) comply with the law, and (b) maintain public confidence in its vital statutory purpose. Hence, I believe that these records would have been highly probably accessible in any internal search and retrieval process for relevant files pertinent to my RTI application. It is my understanding that the applicant submits that: QSA would have created earlier internal files dating back to 23 February 1990 in which it saved, noted and commented on the above ‘sources’ which examined or discussed the Heiner Affair across multiple contexts over the years his application encompasses these files; and these files should therefore be located and released to him. Given these submissions, I must determine whether the internal QSA files regarding ‘sources’ about the Heiner Affair dating back to 23 February 1990 raised by the applicant fall within the terms of the application. Contemporaneous material supplied by the Department[62] indicates that communications between the departmental officer and applicant occurred prior to the Department’s receipt of the applicant’s application – however, this material provides only high level detail regarding the matters discussed.[63] Regardless, while I acknowledge the applicant’s reference to conversations with a departmental officer, I am limited to the wording of the scope given in the application, as that is the basis of the agency’s decision which is under review. The terms of the applicant’s application (set out in full at paragraphs 20-21) do not make any reference to earlier files dating back to 23 February 1990, regarding the Heiner Affair or otherwise. Indeed, the applicant’s application does not mention the Heiner Affair at all. It consequently appears that the applicant’s contention that his application encompasses internal QSA files regarding ‘sources’ about the Heiner Affair dating back to 23 February 1990 hinges on the element ‘(and its other related and supporting earlier documents)’ in the terms of his application. I must observe that the applicant’s submission in this regard is speculative in terms of presuming that the internal QSA files regarding ‘sources’ dating back to 23 February 1990 raised by him were actually created, and contain what he considers they would contain. Further, while I have carefully considered the entirety of the 180 plus pages of submissions provided by the applicant during this external review, I remain unsure of the basis on which the applicant contends that the internal QSA files he speculates exist would qualify as ‘other related and supporting earlier documents’. It may be the case that the applicant considers the research the historian was commissioned to undertake regarding the 1990 Cabinet documents, and the many issues canvassed therein, extended to reading the internal QSA files the applicant speculates exist regarding one such issue, namely the Heiner Affair – and that the applicant therefore considers that internal QSA files constitute ‘other related and supporting earlier documents’ relative to a ‘briefing document’ prepared by the historian. If this is the case, presuming that the historian’s research included the internal QSA files presumed to exist adds a further speculative dimension to the applicant’s submission. During the review, OIC informed the applicant that ‘[t]he scope of your application is somewhat problematic because of the differing views of what may be taken to be “related and supporting documents”’.[64] The applicant’s response summarised his primary concerns regarding the Heiner Affair and was framed in terms of the public interest in releasing the internal QSA files envisaged by him.[65] It concluded:[66] ... my reason in reciting the above and pointing to material in earlier submission/addenda is to argue, hopefully convincingly and to adequately satisfy the public interest test, that “the missing/withheld 472 (approx.) records” against what I made abundantly clear to Mr Weaver about “the scope” before in his search and then subsequently recovered during his search process cannot be sensibly classified as “problematic” and therefore beyond “the scope” of my 28 January 2001 RTI application. For example, while I can only speculate, it is not beyond reason, in these extraordinary circumstances, to suggest that those missing (i.e. withheld) records may likely relate to the aftermath of the State Archivist’s 1990 involvement and trace the life of my protracted public and recorded quest for justice, and now form part of official files created either by the State Archivist... and prospectively by others who followed in and/or reported on compliantly in these demonstrably fatally flawed footsteps at Queensland State Archives. As is apparent from the above extract, the applicant anticipated that the 472 pages of Additional Documents constitute internal QSA files, as envisaged by him. As set out at i. and ii. above, this is not so. I have therefore considered the broader thrust of the applicant’s response, in an attempt to identify any argument by the applicant as to why he considers that such internal QSA files would comprise ‘(and its other related and supporting earlier documents)’ and fall within the terms of his application. However, I have been unable to identify the applicant’s position in this regard. I do not consider it clear, either from the wording of the element ‘(and its other related and supporting earlier documents)’ or the application as a whole, that the terms of the application encompass internal QSA files as envisaged by the applicant. The terms of the application do not give sufficient information concerning these documents to enable the agency to identify them. In the circumstances, I do not accept that a reasonable interpretation of the applicant’s application extends its scope beyond the quite discrete matter of the public release of 1990 Cabinet minutes to documents concerning the circumstances of the Heiner Affair more generally. It is not reasonable to interpret ‘(and its other related and supporting earlier documents)’ as relating to the significant breadth of ‘sources’, notes and commentary that the applicant contends should have been created and retained by QSA across the years since 1990. I must therefore find that internal QSA files regarding ‘sources’ about the Heiner Affair dating back to 23 February 1990 do not fall within the terms of the applicant’s application.[67] Issue b) Has the Department conducted reasonable searches for documents responding to the terms of the application? Yes, the Department took all reasonable steps to locate the documents responding to the terms of the application and any further such documents may be refused on the basis they are nonexistent or unlocatable. Relevant law The RTI Act provides a right to be given access to documents of an agency,[68] however, this access right is subject to limitations, including the grounds on which access to information may be refused.[69] The functions of the Information Commissioner on external review include investigating and reviewing whether an agency has taken reasonable steps to identify and locate documents applied for by applicants.[70] Access to a document may be refused if the document is nonexistent or unlocatable.[71] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[72] To be satisfied of this, a decision-maker must rely on their particular knowledge and experience and have regard to a number of key factors.[73] the administrative arrangements of government the agency’s structure the agency’s functions and responsibilities the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested document/s and the nature of the government activity to which the request relates. If searches are relied on to justify a decision that the documents do not exist, all reasonable steps must be taken to locate the documents. What constitutes reasonable steps will vary from case to case as the search and inquiry process an agency will be required to undertake will depend on the particular circumstances. A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find the document, but it cannot be found.[74] Determining whether a document exists, but is unlocatable, requires consideration of whether there are reasonable grounds for the agency to be satisfied that the requested document has been or should be in the agency’s possession; and whether the agency has taken all reasonable steps to find the document. In answering these questions, regard should again be had to the circumstances of the case and the key factors.[75] 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.[76] However, where an external review involves the issue of missing documents, the applicant has a practical onus to establish reasonable grounds to believe that the agency has not discharged its obligation to locate all relevant documents.[77] Findings The applicant’s submissions expressed concerns that certain documents had not been located – specifically, the ‘internal briefing document’, 472 pages of Additional Documents and internal QSA files regarding ‘sources’ addressed at a) above. As already stated, I am satisfied that the documents raised by the applicant have been located and considered; or fall outside the terms of the application and therefore are not relevant for me to consider when examining the reasonableness of the Department’s searches for responsive documents. My consideration of the adequacy of the Department’s searches only extends to further documents falling within the terms of this application, ie. further briefing documents created for the public release of the 1990 Cabinet Minutes and documents related to and supporting these briefing documents. The Department provided OIC with records of the searches it conducted. Signed certifications were provided by three staff in the Office of the Deputy Director-General and three staff within QSA which detailed more than six hours of searches. The searches were conducted within relevant email accounts (personal and shared mailboxes), H:drive, desktops of relevant staff, the file container for the 1990 Cabinet minutes release project, within Ark (QSA’s recordkeeping system) and NEO (the Ministerial correspondence system) using search terms such as ‘Cabinet’, ‘Heiner’, ‘Minutes’, ‘1990 cabinet minutes’ and ‘Cabinet minutes’. Having carefully considered these records, along with the documents located as a result of the Departments searches (ie the entirety of the 504 pages located by the Department), I am satisfied that staff members of the Department in relevant roles searched in all appropriate locations in which responsive documents could reasonably be expected to be stored, using suitable search terms and for an adequate length of time. Therefore: I am satisfied that all reasonable steps have been taken to locate documents within the scope of the application; and I find that access to any further responsive documents may be refused under section 47(3)(e) of the RTI Act on the ground that such documents are nonexistent or unlocatable in accordance with section 52(1) of the RTI Act. Issue c) For any documents within the terms of the application, do any grounds for refusal of access under the RTI Act apply? Parts of one sentence on the third page of the four page Background Briefing,[78] comprising personal information, may be refused. For the rest of the information in the Background Briefing and the Three Emails, the Department has not met its onus of establishing any grounds to refuse access to this information under the RTI Act for the reasons set out below. Relevant law In the conduct of an external review, the Information Commissioner has, in addition to any other power, power to:[79] (a) review any decision that has been made by an agency or Minister in relation to the access application concerned; and (b) decide any matter in relation to the access application that could, under this Act, have been decided by an agency or Minister. 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.[80] The Act must be applied and interpreted to further this primary object,[81] and is to be administered with a pro-disclosure bias.[82] 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,[83] including grounds on which access may be refused.[84] These grounds are to be interpreted narrowly.[85] As mentioned at paragraph 72 above, on external review, the Department has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[86] Findings Do any grounds for refusal of access under the RTI Act apply to the Background Briefing? As set out at a)i. above, I have found that the Background Briefing[87] falls within the terms of the application. The information in the Background Briefing appears to be a matter of public knowledge due to various inquiries into the Heiner Affair and the publication of records, for example: legal advice about whether a public inquiry should be conducted into the Heiner Affair was requested by State Cabinet in 1996 – subsequently tabled in Parliament[88] various Cabinet minutes and submissions from 1990 referred to in the Background Briefing are no longer subject to the PR Act’s 30 year restricted access period and were tabled in Parliament in any event[89] Crown Solicitor advices dated 18 January 1990, 19 January 1990, 23 January 1990 and 16 February 1990 in which the Crown Solicitor advised ‘... the tape recordings of interviews conducted by Mr Heiner and associated material should be destroyed...’ – also tabled in Parliament[90] reports of four Senate Committee enquiries relating to the Heiner Affair in 1994, 1995, 1998 and 2004[91] a 144 page separate report into the Heiner Affair published as part of the Queensland Child Protection Commission of Inquiry in 2013;[92] and the summary about the Heiner Affair in the ‘Selected highlights of the 1990 Queensland Cabinet Minutes’ set out at paragraph 6. On the basis of the extensive publicly available information, I conveyed a view to the Department that it appeared that there were no grounds for refusal under the RTI Act.[93] In response Department submitted:[94] It is respectfully submitted that the issue on whether the Heiner Background Briefing (subject document) is responsive to the application is the decision subject to this review. If the OIC decides, contrary to our submission, that the Heiner background briefing is within scope, then the consideration of any grounds that would preclude the disclosure of the document is a matter for the OIC. The department did not decide the application on that basis, and therefore, the OIC is not reviewing our decision in any relevant respect. In other words, our position remains that the subject document does not fall within the scope of the application and the OIC, in determining it to be in scope and the extent of the application of any grounds that preclude disclosure of any part of the briefing, is acting as de novo decision maker... External review by the Information Commissioner[95] is merits review – that is, an administrative reconsideration of a case which can be described as ‘stepping into the shoes’ of the primary decision-maker to determine what is the correct and preferable decision. As such, the Information Commissioner has the power to decide any matter in relation to an application that could have been decided by the agency, under the RTI Act.[96] 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.[97] While it is my role to reach a decision in this matter, I depend on evidence held by the Department as the entity in possession and control of the document and with means of ascertaining the sensitivity of its contents due to its administrative responsibilities. Consistent with this, the onus of establishing that a decision adverse to the applicant should be made rests with the Department, as does the more general requirement to comply with reasonable requests for assistance in relation to a review.[98] The Department went on to provide the following brief submission regarding grounds of refusal that, in its view, could apply to the Background Briefing:[99] On the face of the [Background Briefing], it cannot be ascertained if any of the information is in the public domain. The [Background Briefing] includes references to a number of individuals, by name and by position, role or title. Even if the personal information of individuals is in the public domain, the information may not have been arranged in the same format and may have appeared in a different format and context. It is well established that the combination of information can be confidential even if the individual components are in the public domain. We respectfully suggest the OIC decision maker consider whether it is necessary to consult with these individuals. We further note there are references to ... and the decision maker may consider it appropriate to consult with ... prior to any disclosure. On its face, the [Background Briefing] contains information that may be subject to legal professional privilege that is not in the public domain. Notwithstanding that the applicant maintains he has copies of Crown Law advice and Cabinet information (in his submission to the OIC and on his webpage), the department is not able to confirm if that is accurate, if accurate how that occurred, and whether any advice in the possession of the applicant is the same as that to which the background briefing refers. The department submits a prudent view would be to consider the advice to which the background briefing refers to be subject to legal professional privilege and to act in a manner consistent with maintaining that privilege. The department is not in a position and cannot verify if the applicant is in possession of the same legal advice or cabinet decisions. The applicant stating that he has a copy of the legal advice or cabinet decisions as indicated in the subject document cannot be assumed. We have marked up information in the [Background Briefing] which refer to the above observations. [my emphasis] The following information was redacted from the ‘marked up’ version of the Background Briefing provided with this submission: the name of an agency the names of a small number of individuals connected with the Heiner Inquiry, the destruction of documents in 1990 or subsequent processes the routine work information of one such individual; and one sentence containing highly sensitive personal information regarding a particular individual. In an earlier submission in relation to scope, the Department also submitted:[100] Given the sensitive subject matter, the historical details contained in the [Background Briefing] could become useful in the future, particularly if raised later in Parliament. This is supported by a statement on page 96 of Part Two documents which refers to the development of a PPQ. Our inquiries indicate that no PPQ was created, however, it is our view that this should not detract from the fact that at the time of writing the email the [Background Briefing] was considered as being used for preparing a PPQ. I have taken the Department’s submissions as raising the following grounds on which access to the Background Briefing may be refused under the RTI Act: legal professional privilege Cabinet matter brought into existence before the commencement of the RTI Act Parliamentary privilege; and disclosure would on balance, be contrary to the public interest. i. Legal professional privilege Access to exempt information may be refused under the RTI Act.[101] Relevantly, information is exempt information if it would be privileged from production in a legal proceeding on the ground of legal professional privilege.[102] This exemption reflects the requirements for establishing legal professional privilege at common law.[103] That is, privilege protects confidential communications made in the course of a lawyer-client relationship for the dominant purpose of seeking or providing legal advice or for use in existing or reasonably anticipated legal proceedings.[104] This privilege is for the benefit of the client[105] and may be waived by intentionally disclosing a privileged communication[106] or where a party acts inconsistently with the maintenance of confidentiality which the privilege is intended to protect.[107] Disclosure of a privileged communication to a third party for a limited purpose in a specific context may not amount to overall waiver of privilege, ie, it may amount to a limited waiver which otherwise allows privilege to be maintained.[108] The Department did not identify specific information of concern in the Background Briefing; accordingly I have compared all of the references to legal advice in the Background Briefing against the advices tabled in Parliament as set out at paragraph 82. All of the advices that have been referred to, except one, were published in full by tabling in Parliament by the party for whose benefit legal professional privilege would have originally existed. The decision to table the advices in Parliament evidences a clear intention to waive privilege and indicates that the advice is no longer confidential. The remaining reference to advice which was not tabled in Parliament has otherwise been disclosed to[109]e media.109 Such disclosure also indicates an intention to waive privilege, although I acknowledge that this may be a limited waiver. The information the Background Briefing discloses in relation to this advice is the same as the information in the public domain, therefore I am also satisfied that it does not retain the character of confidentiality that is essential to the maintenance of privilege. Accordingly, I consider that the Department has not met its onus of establishing that the Background Briefing, or any parts thereof, are subject to legal professional privilege, and I find that access may not be refused on the ground that the Background Briefing comprises or includes exempt information of this type. ii. Cabinet matter Information is also exempt information if it is:[110] brought into existence before 1 July 2009[111] mentioned in section 36(1) of the repealed FOI Act; and not officially published by decision of Cabinet. Section 36(1) of the repealed FOI Act relevantly refers to matter submitted to Cabinet and matter forming part of an official record of Cabinet.[112] The Department did not identify the specific information of concern in the Background Briefing, however I have compared all of the references to ‘Cabinet’ in the Background Briefing against the Cabinet submissions and decisions tabled in Parliament and administratively released by Queensland State Archives as set out at paragraph 82. These decisions and submissions were all brought into existence before 1 July 2009 and would be the type of matter to which section 36(1) of the FOI Act applied. However, all of the information referred to has now been officially published by decision of Cabinet. Therefore, I consider that the Department has not met its onus of establishing that the Background Briefing, or any parts thereof, comprise this type of Cabinet material, and find that access may not be refused on the ground that the Background Briefing comprises or includes exempt information of this type. iii. Parliamentary privilege Information is exempt information if public disclosure would infringe the privileges of Parliament.[113] For information to qualify as exempt information of this type, the information must be prepared for the purposes of, or incidental to, the transacting of business of the Parliament.[114] Given the content of the Background Briefing, it is clear that it was not prepared for the purpose of assisting the Minister to answer possible parliamentary questions that might be asked in Parliament. Further, in the particular circumstances of this review, where I am satisfied that the Background Briefing was, at least in part, prepared in readiness for use if anticipated media enquiries eventuated,[115] and where the Department has advised that ‘[o]ur inquiries indicate that no PPQ was created’, I consider that the preparation of the Background Briefing was not incidental to the transacting of business of the Parliament. I therefore consider that the Department has not met its onus of establishing that the Background Briefing, or any parts thereof, are subject to parliamentary privilege, and find that access may not be refused on the ground that the Background Briefing comprises or includes exempt information of this type. iv. Public interest balancing test Access to information in a document may also be refused to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest.[116] The steps to be followed in determining whether disclosure of information would, on balance, be contrary to the public interest, 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.[117] The ’marked-up’ version of the Background Briefing (provided with the Department’s submissions, as mentioned at paragraphs 86 and 87) indicates that the Department considers access to certain information should be refused. However, all of the information redacted by the Department appears to have otherwise been disclosed elsewhere as set out at paragraph 82. I do not accept the Department’s submission that the combination of personal information in the Background Briefing is confidential. The circumstances of the Heiner Affair and references to the involvement of the same key people have been examined and reiterated extensively as set out at paragraph 82. Similarly, the processes involving the agency whose name the Department has redacted are evident among such material. One would be hard-pressed to find a topic that has as many and as sizeable a back-catalogue of official reports and primary documents that are publicly available. The level of information in the public domain renders it difficult to identify any concern or prejudice that could arise as a result of disclosure of the agency’s name. Likewise, the level of information in the public domain significantly reduces the weight I would attribute to concerns about the disclosure of personal information and privacy. I acknowledge that the existence of so much publicly available information reduces not only such factors favouring nondisclosure; it also reduces the weight to be attributed to the public interest in transparency and accountability.[118] However, on balance, excluding some highly sensitive personal information in one sentence, I am satisfied the Department has not established that access to the Background Briefing may be refused on the ground that its disclosure would be contrary to the public interest. In this regard, I have considered factors favouring nondisclosure which, on my reading of the Department’s submissions, the Department could be construed as having possibly raised.[119] On the material before me, I consider that factors favouring disclosure related to accountability and transparency warrant relatively greater weight in light of the many concerns and inquiries related to the Heiner Affair over the years. This, combined with the RTI Act’s pro-disclosure bias, supports a finding that, for this information, the factors favouring nondisclosure are outweighed by those supporting disclosure. In these circumstances, I consider that the Department has not met its onus of establishing that I should give a decision adverse to the applicant regarding this information, and find that access to it may not be refused on the ground that its disclosure would, on balance, be contrary to the public interest. This conclusion does not, however, apply to the highly sensitive personal information in one sentence.[120] While the RTI Act prevents me from disclosing the content of this information,[121] I can confirm that this information comprises personal information of the most sensitive kind about a private individual who was a child at the relevant time. In terms of this information, the concept of ‘privacy’ is, in my opinion, particularly pertinent. This concept 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.[122] In response to my proposed refusal of this information, the applicant made an assumption regarding the identity of this individual, and contended that ‘privacy’ was not a relevant consideration, as the individual addressed in his submission was deceased.[123] On the material available to me, however, I am content to conclude that privacy considerations remain relevant. I have carefully considered factors favouring disclosure and taken into account those factors which, on my reading of the applicant’s submissions, he has raised.[124] Here, I note that such factors are significantly advanced by my conclusion regarding information that may not be refused (at paragraph 102), which relates to information including those parts of the sentence in question which detail government action/s. Moreover, I note there is nothing novel in the personal information that is not otherwise already a matter of public[125]owledge.125 In these circumstances, I consider that the factors favouring disclosure do not warrant anything more than low weight. I acknowledge that the extent to which the personal information is also already a matter of public knowledge impacts on privacy considerations as well. However, while the fact that personal information is in the public domain may serve to reduce the public interest in protecting the relevant person’s associated right to privacy, it does not extinguish it.[126] Here – in circumstances involving particularly sensitive content about a person who was a child at the relevant time, which has entered the public domain but is not as extensively available as other information regarding the Heiner Affair – I consider that there remains a very significant public interest in not further prejudicing the privacy of the individual in question, and that this consideration outweighs the factors favouring disclosure. This is evident on the face of the highly personal information itself, if not established by the Department’s submissions. On this basis, I find that disclosure of the highly sensitive personal information in the sentence would, on balance, be contrary to the public interest, and access may be refused on this ground. Do any grounds for refusal of access under the RTI Act apply to the Three Emails? As set out at a)ii. above, I have found that the Three Emails[127] fall within the terms of the application. The applicant has confirmed[128] that he does not wish to access the mobile telephone numbers and direct email addresses visible in the email signatures of two of the Three Emails.[129] Accordingly, these are no longer in issue. I asked the Department to confirm whether it wished to make submissions regarding any grounds of refusal it considered applicable to the Three Emails.[130] In response, the Department reiterated its submissions as to why it considers the Background Briefing is outside the terms of the application (including quoting its comments set out at paragraph 83) and confirmed its position that these also applied to the Th[131] Emails.131 The Department’s response did not address any grounds of refusal that, in its view, could possibly apply to the Three Emails. I am unable to identify how the Three Emails, or any parts thereof, could reasonably be expected to comprise or contain exempt information – including the types of exempt information considered above with respect to the Background Briefing. In absence of any input from the Department, I have considered whether access to the Three Emails, or parts thereof, may be refused on the ground that their disclosure would, on balance, be contrary to the public interest.[132] I have done so by considering the factors favouring disclosure and nondisclosure noted above with respect to the Background Briefing. On the material before me, noting the many concerns and inquiries related to the Heiner Affair over the years as well as the public interest in understanding departmental/ministerial preparations associated with the release of Cabinet material, I consider that the factors favouring disclosure deserve moderate to high weight. On the other hand, I give the factors favouring nondisclosure low to moderate weight, noting that the extent to which the information in question is routine work information and/or already in the public domain. These considerations, along with the RTI Act’s pro-disclosure bias, support a finding that, for the Three Emails, pro-disclosure factors outweigh factors favouring nondisclosure. In these circumstances, I consider that the Department has not met its onus of establishing that I should give a decision adverse to the applicant regarding the Three Emails, and find that access to the Three Emails may not be refused on the ground that their disclosure would, on balance, be contrary to the public interest.DECISION For the reasons set out above, as a delegate of the Information Commissioner under section 145 of the RTI Act, I vary the Department’s decision and find that: the Background Briefing and Three Emails are within the terms of the application the rest of the Additional Documents and the documents raised in the applicant’s submissions are outside the scope of the application the Department has conducted reasonable searches for documents responding to the terms of the access application and access to any further such documents may be refused on the ground they do not exist[133] parts of one sentence on the third page of the four page Background Briefing may be refused on the ground that access to this information would, on balance, be contrary to the public interest;[134] and for the remaining information in issue in the Background Briefing and the entirety of the Three Emails, no grounds for refusing access apply, and therefore the applicant may be given access to this information. A RickardAssistant Information CommissionerDate: 30 June 2023APPENDIX Significant procedural steps Date Event 19 May 2021 OIC received the application for external review. OIC requested and received initial documents from the Department. 30 May 2021 The applicant provided a submission to OIC. 9 June 2021 OIC advised the parties that the application for external review had been accepted and confirmed to applicant that OIC would not review the Department’s refusal of access to six part pages. OIC requested information about the Department’s searches. 23 June 2021 The Department requested an extension of time to provide the requested information. 24 June 2021 OIC granted the Department an extension of time. 6 July 2021 The applicant provided a submission to OIC. 21 July 2021 OIC followed up the Department on the outstanding requested information. 23 July 2021 The Department provided a copy of the 32 pages addressed in the Department’s decision, a submission to OIC which included advice that 492 pages had been provided to its Right To Information unit for assessment, and search information. 22 September 2021 OIC requested from the Department a copy of 460 pages (ie the pages other than the 32 pages addressed in the Department’s decision), a submission addressing why these pages were considered outside the scope of the application, and a response to the applicant’s submission that an additional internal briefing document exists from the Department. 6 October 2021 The Department requested an extension of time to provide information. OIC granted the Department an extension of time. 22 October 2021 The Department provided a submission to OIC which included advice that 504 pages (not 492 pages) had been located and given to its RTI unit for assessment, and a copy of this 504 pages as an 84 page pdf document (part one) and a 420 page pdf document (part two). 26 November 2021 OIC conveyed a preliminary view to the applicant. 7 January 2022 The applicant provided a submission to OIC. 14 February 2022 OIC conveyed an informal resolution proposal to the Department and requested further information in the event the Department did not accept the proposal. 17 February 2022 OIC conveyed an informal resolution proposal to the applicant. 1 March 2022 The Department requested an extension of time to respond to the informal resolution proposal. 3 March 2022 OIC granted the Department an extension of time. The applicant requested an extension of time to respond to the informal resolution proposal. 9 March 2022 – 11 May 2022 The Department requested multiple extensions of time to respond to the informal resolution proposal, due to staffing changes. 12 May 2022 The Department provided a submission and further information to OIC, and advised OIC that it did not accept informal resolution proposal. 23 June 2022 OIC requested further information from the Department. OIC provided the applicant with an update. 12 July 2022 The Department provided further information to OIC. 27 July 2022 The Department provided further information to OIC. 6 October 2022 OIC conveyed an informal resolution proposal to the applicant. 19 October 2022 The applicant provided a submission to OIC. 21 October 2022 OIC consulted a third party. OIC conveyed a preliminary view to the Department. 3 November 2022 – 15 November 2022 The Department requested multiple extensions of time to respond to OIC’s preliminary view. OIC granted an extension of time. 16 November 2022 The third party confirmed no objection to OIC’s preliminary view and declined to participate in the review. 28 November 2022 – 5 December 2022 The Department requested further extensions of time to respond to OIC’s preliminary view. OIC granted the Department an extension of time. 6 December 2022 The Department provided a submission to OIC. 15 December 2022 OIC confirmed to the Department that the Department could not reserve the right to make further submissions. OIC conveyed a preliminary view to the applicant. 22 December 2022 The Department provided a submission to OIC. 9 January 2023 The applicant provided a submission to OIC. 9 June 2023 OIC conveyed brief preliminary views to the Department and applicant. 12 June 2023 An OIC officer spoke with the applicant by telephone regarding OIC’s brief preliminary view. 15 June 2023 The applicant provided a submission to OIC. 21 June 2023 The Department provided a submission to OIC. 30 June 2023 OIC asked the applicant to exclude duplicates of the Background Briefing and the applicant agreed. [1] Sections 16, 18 and 62A of the Public Records Act 2002 (Qld) (PR Act).[2] On 11 February 2021. [3] Following a machinery of government change on 18 May 2023, the agency currently responsible for this external review is the Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts.[4] On 19 May 2021.[5] Commissioner T Carmody QC, Queensland Child Protection Commission of Inquiry 3(e) Report (June 2013), p 17. [6] Carmody QC (n 5), p 21.[7] See ‘Cabinet Minutes’, Queensland Government Publications portal (Web page) <https://www.publications.qld.gov.au/ dataset/cabinet-minutes>.[8] Dr Chris Salisbury, ‘Selected highlights of the 1990 Queensland Cabinet Minutes’, Queensland Government Publications portal (Web page) <https://www.publications.qld.gov.au/dataset/cabinet-minutes/resource/1e34964b-1c83-4400-83b8-f08f6a0d2ee9>. A version of this document – with the same content, but a handwritten number and date on the first page – was released to the applicant by the Department (at pages 5-19 of 32 of the released documents). [9] ‘Meeting brief – Subject: Meeting with [historian] regarding his research into the 1990 Cabinet Minutes’ dated 16 December 2020 at page 3 of 32 (with a handwritten number and date on the first page) and 31 of 32 (without that handwritten information). [10] Submission dated 19 October 2022 at 14.[11] Submission dated 30 May 2021 at 8.26.[12] Including submissions dated 30 May 2021, 6 July 2021, 7 January 2022, 19 October 2022, 9 January 2023 and 15 June 2023. [13] Section 21(2) of the HR Act.[14] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[15] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [16] XYZ at [573].[17] Lindeberg and Department of Children, Youth Justice and Multicultural Affairs [2022] QICmr 39 (15 August 2022) at [18]-[19] (footnotes omitted).[18] Including the additional versions of the Background Briefing as set out in n 29.[19] Section 24(2)(b) of the RTI Act.[20] Cannon and Australian Quality Egg Farms Ltd [1994] QICmr 9; (1994) 1 QAR 491 (Cannon) at [8]; cited in O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) (O80PCE) at [33], Van Veenendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017) at [15] and Ciric and Queensland Police Service [2018] QICmr 30 (29 June 2018) at [20].[21] Cannon at [10]; Lonsdale and James Cook University [2015] QICmr 34 at [10]; see also Robbins and Brisbane North Regional Health Authority [1994] QICmr 19; (1994) 2 QAR 30 at [16], Fennelly and Redland City Council (Unreported, Queensland Information Commissioner, 21 August 2012) at [21] and O80PCE at [35].[22] Section 3(1) of the RTI Act.[23] Section 44(1) of the RTI Act.[24] Dubois and Rockhampton Regional Council [2017] QICmr 49 (6 October 2017) at [12].[25] Submission dated 6 December 2022.[26] Submission dated 6 December 2022.[27] Submission dated 30 May 2021 at 1.10.[28] Submission dated 22 October 2021.[29] At pages 7-10 of 84 (part one). This document has a handwritten number on the first of its four pages. Duplicates of the document, without a handwritten number on the first page, are at pages 14-17 and 43-46 of 84 (part one) and pages 97-100, 254-257, 259-262 and 263-266 of 420 (part two). The applicant confirmed he did not seek access to the duplicates in an email to OIC dated 29 June 2023.[30] Submission dated 22 October 2021.[31] Submission dated 6 December 2022.[32] The Deputy Director General, Service Delivery and Operations, Queensland Government Customer and Digital Group. [33] Submission dated 6 December 2022.[34] Submission dated 6 December 2022.[35] Provided with Department’s submission dated 12 May 2022.[36] That is, the historian who prepared the ‘Selected highlights of the 1990 Queensland Cabinet Minutes’ (noted at n 8 above) and the ‘1990 Cabinet Minutes – Background Report’ at <https://www.publications.qld.gov.au/dataset/cabinet-minutes/resource/18bef39b-bcb6-4b6c-8dc8-024ff825d2bb> (which makes no mention of the Heiner Affair). Like the former, a version of this document – with the same content, but a handwritten number and date on the first page – was released to the applicant by the Department (at pages 20-24 of 32 of the released documents).[37] In confirming the identity of the author in this decision, I have noted the Department’s concern about doing so expressed in its submission dated 6 December 2022, but also note that the Department does not claim that the historian’s name, and therefore his identity as the author, is contrary to the public interest information in the version of the Background Briefing redacted by the Department and provided to OIC on 22 December 2022. [38] Page 3 of the 32 released pages.[39] Given the Department’s general position (that such information is outside scope, but grounds of refusal would apply if it were within scope), I have not described this information in this decision, so as to avoid any possible contravention of section 108(3) of the RTI Act. Details of such information will be set out in the letter to the Department (ie the party to whom particular finding is adverse) accompanying this decision. [40] Submission dated 6 December 2022. These comments have been included in this decision noting procedural fairness, as mentioned in OIC’s letter dated 21 October 2022 and the Department’s submission, along with section 110(3) of the RTI Act’s requirement that I provide reasons for this decision. [41] Page 328 of 420 (part two). The three documents included in the Media Kit were provided with Department’s submission dated 12 May 2022: the ‘Selected highlights of the 1990 Queensland Cabinet Minutes’ (noted at n 8 above); the ‘1990 Cabinet Minutes – Background Report’ (noted at n 36 above); and a media statement ‘1991 a year of political change’ by the Minister at <https://statements.qld.gov.au/statements/94157>.[42] For example, some of the Department’s comments at paragraph 32 above – namely, ‘The Minister may need to be across the matter, not for journalists’ Media event, but it could be raised/asked about at any point of time after 1 January 2021' and ‘[p]otentially, the matter could have been raised at media event or could happen at any time after that’. [43] Submission dated 6 December 2022.[44] Macquarie Dictionary (online at 22 June 2023) ‘related’ (def 1).[45] In ‘Meeting brief – Subject: Meeting with [historian] regarding his research into the 1990 Cabinet Minutes’ at pages 3 of 32 (with a handwritten number and date on the first page) and 31 of 32 (without that handwritten information); in ‘Selected highlights of the 1990 Queensland Cabinet Minutes’ at pages 10-11 of 32; and ‘Dot Point Briefing Note – Minister Subject: Media release of the 1990 Queensland Cabinet Minutes’ at page 25 of 32.[46] In which, as noted at paragraph 2 above, the Department decided to release 26 pages and 6 part pages. [47] Submission dated 30 May 2021 at 1.16 and 2.8. [48] As an 84 page pdf document (part one) and a 420 page pdf document (part two).[49] Submission dated 22 October 2021.[50] Submission dated 7 January 2022 at 40. [51] Of the 58 pages, 34 pages duplicate documents addressed in the decision and 24 pages constitute six further copies of the Background Briefing, which the applicant does not wish to access – see footnote n 29 above.[52] ie the same text but small differences in formatting. [53] Pages 13 and 42 of 84 (part one) and 96 of 420 (part two).[54] Pages 249 and 258 of 420 (part two). These pages comprise duplicates of the email at page 42 of 84 (part one), except that the email at page 42 of 84 (part one) has a handwritten number on it, whereas these duplicates do not. Given the applicant confirmed he did not seek access to the duplicates of the Background Briefing in an email to OIC dated 29 June 2023, I am proceeding on the basis that he also does not wish to pursue access to duplicates of this email.[55] For the reasons noted at n 39 above, details of such information will be set out in the letter to the Department (ie the party to whom particular finding is adverse) accompanying this decision [56] Submission dated 21 June 2023.[57] Submission dated 30 May 2021 at 2.9.[58] Submission dated 30 May 2021 at 7.1, 7.2 and 7.4 (footnotes omitted).[59] Submission dated 30 May 2021 at 7.18, 7.19, 7.27, 7.29, 7.38, 7.43, 10.2, 10.19 and 11.1.[60] Submission dated 6 July 2021 at 2.[61] Submission dated 30 May 2021 at 7.18 and 7.38. [62] Submission dated 23 July 2021.[63] Specifically there is evidence of telephone calls between the parties on 5 and 11 February 2021 and an email on 11 February 2021 prior to the Department's receipt of the applicant’s application later that day. [64] Email dated 6 October 2022.[65] Submission dated 19 October 2022 at 8 to 54. [66] See above n 65 at 53 and 54. [67] This conclusion does not require me to, and I have not, considered nor reached any conclusion about whether such internal QSA files exist.[68] Section 23(1)(a) of the RTI Act. [69] The grounds on which an agency may refuse access are set out in section 47(3) of the RTI Act. [70] 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. [71] Sections 47(3)I and 52 of the RTI Act. [72] Section 52(1)(a) of the RTI Act. [73] See 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 [28]. These factors were more recently considered in Van Veendendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017) at [23] and P17 and Queensland Corrective Services [2020] QICmr 68 (17 November 2020) at [17]. [74] Section 52(1)(b) of the RTI Act. [75] Noted in paragraph 69 above. See Pryor at [21]. [76] Section 87(1) of the RTI Act.[77] See Mewburn and Department of Local Government, Community Recovery and Resilience [2014] QICmr 43 (31 October 2014) at [13]. [78] At page 9 of 84 (part one).[79] Section 105 of the RTI Act.[80] Section 3(1) of the RTI Act.[81] Section 3(2) of the RTI Act.[82] Section 44 of the RTI Act.[83] Section 23(1) of the RTI Act.[84] Section 47 of the RTI Act.[85] Section 47(2)(a) of the RTI Act.[86] Section 87(1) of the RTI Act.[87] At pages 7-10 of 84 (part one).[88] Anthony Morris QC and Edward Howard, Report to the Honourable The Premier of Queensland and The Queensland Cabinet of an Investigation into Allegations by Mr Kevin Lindeberg and Allegations by Mr Gordon Harris and Mr John Reynolds (8 October 1996) tabled in the Queensland Legislative Assembly by Hon. R. E. Borbidge on 10 October 1996, as recorded at pages 32–7 - 3230 of Hansard.[89] Cabinet decision 101 dated 12 February 1990, Cabinet submission 100 dated 5 February 1990, Cabinet decision 118 dated 19 February 1990, Cabinet submission 117 dated 13 February 1990, Cabinet decision 162 dated 5 March 1990, Cabinet submission 160 dated 27 February 1990 tabled in the Queensland Legislative Assembly by the then Premier P. D. Beattie on 30 July 1998, as recorded at pages 1495-1496 of Hansard.[90] Tabled in the Queensland Legislative Assembly by the Hon. D. M. Wells on 21 February 1995, as recorded at page 10917 of Hansard.[91] Report on the Senate Select Committee on Public Interest Whistleblowing (August 1994), Report of the Senate Select Committee on Unresolved Whistleblower Cases (October 1995), Senate Committee of Privileges, 71st Report, Further Possible False or Misleading Evidence before Select Committee on Unresolved Whistleblower Cases (May 1998) and Report of the Senate Select Committee on the Lindeberg Grievance (November 2004).[92] Carmody QC (n 5).[93] Letter dated 21 October 2022.[94] Submission dated 22 December 2022.[95] Or delegate.[96] Section 105(1)(b) of the RTI Act.[97] Section 110(1) of the RTI Act.[98] Sections 87(1) and 96 of the RTI Act.[99] Submission dated 22 December 2022.[100] Submission dated 6 December 2022.[101] Sections 47(3)(a) and 48 and schedule 3 of the RTI Act.[102] Schedule 3, section 7 of the RTI Act.[103] Ozcare and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 13 May 2011) at [12]. [104] Esso Australia Resources Ltd v Commission of Taxation [1999] HCA 67; (1999) 201 CLR 49 (Esso) at [61]-[62] and [167]-[173]; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [9].[105] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 (Mann v Carnell) at [28] per Gleeson CJ, Gaudron, Gummow and Callinan JJ; Esso at [1] per Gleeson CJ, Gaudron and Gummow JJ.[106] Goldberg v Ng (1994) 33 NSWLR 639 (Goldberg v Ng) at 670 per Clarke JA; Federal Commissioner of Taxation v Coombes [1999] FCA 842; (1999) 92 FCR 240 at 255 per Sundberg, Merkel and Kenny JJ.[107] Goldberg v Ng at 673 per Clarke JA; Mann v Carnell at [28] per Gleeson CJ, Gaudron, Gummow and Callinan JJ; Osland v Secretary to the Department of Justice (2008) 234 CLR 275 at [45] per Gleeson CJ, Gummow, Heydon and Kiefel JJ.[108] British Coal Corp v Dennis Rye Ltd (No 2) [1988] 1 WLR 1113 at 1121-2; Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 95-96; Mann v Carnell at [30]-[32]; Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 at 283-6 per Giles J; Australian Rugby Union Ltd v Hospitality Group Pty Ltd [1999] FCA 1061; (1999) 165 ALR 253 at 263 per Sackville J; Cantor v Audi Australia Pty Ltd [2016] FCA 1391 at [88], [123]-[125], [136]-[140].[109] For the reasons noted at n 39 above, details of this publication will be set out in the letter to the Department (ie the party to whom particular finding is adverse) accompanying this decision. [110] Sections 47(3)(a), 48 and schedule 3, section 1 of the RTI Act.[111] Being the date on which the relevant provisions in the RTI Act commenced. [112] Section 36(1)(a) and (d) of the FOI Act.[113] Sections 47(3)(a), 48 and schedule 3, section 6(c)(i) of the RTI Act.[114] Moriarty and Department of Health (Unreported, Queensland Information Commissioner, 15 September 2010) at [8]-[10] and Waratah Coal Pty Ltd and Department of State Development Infrastructure and Planning (Unreported, Queensland Information Commissioner, 10 December 2012) at [22]-[28].[115] Paragraph 35 above.[116] Section 47(3)(b) and 49 of the RTI Act. [117] 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. [118] Schedule 4, part 2, items 1, 2. 3 and 11 of the RTI Act.[119] Schedule 4, part 3, items 1, 2, 3 and 20 and part 4, sections 4 and 6(1) of the RTI Act. I have, as required, disregarded any irrelevant factors in schedule 4, part 1 of the RTI Act.[120] On page 9 of 84 (part one). [121] Section 108(3) of the RTI Act.[122] 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.[123] Submission dated 15 June 2023.[124] Schedule 4, part 3, items 1, 2, 3 and 20 and part 4, sections 4 and 6(1) of the RTI Act. I have, as required, disregarded any irrelevant factors in schedule 4, part 1 of the RTI Act.[125] For the reasons noted at n 39 above, information I am aware of that is in the public domain will be set out in the letter to the Department (ie the party to whom this aspect of this particular finding is adverse) accompanying this decision.[126] Queensland Newspapers Pty Ltd and Department of Justice and Attorney-General [2018] QICmr 52 (18 December 2018) at [31].[127] Pages 13 and 42 of 84 (part one) and 96 of 420 (part two).[128] By telephone on 12 June 2023 and submissions dated 15 June 2023.[129] Pages 13 and 42 of 84 (part one). [130] Email dated 9 June 2023. [131] Submission dated 21 June 2023.[132] I have, as required, disregarded any irrelevant factors in schedule 4, part 1 of the RTI Act.[133] Under section 47(3)(e) of the RTI Act. [134] Under section 47(3)(b) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Nine Entertainment Co Pty Ltd and Department of the Premier and Cabinet [2023] QICmr 8 (28 February 2023)

Nine Entertainment Co Pty Ltd and Department of the Premier and Cabinet [2023] QICmr 8 (28 February 2023) Last Updated: 14 April 2023 Decision and Reasons for Decision Citation: Nine Entertainment Co Pty Ltd and Department of the Premier and Cabinet [2023] QICmr 8 (28 February 2023) Application Number: 316893 Applicant: Nine Entertainment Co Pty Ltd (ACN 122 205 065) Respondent: Department of the Premier and Cabinet Decision Date: 28 February 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - JURISDICTION - DOCUMENT OF AN AGENCY - request for access to Google Maps data accessible through a government-issued mobile phone - whether a ‘document of an agency’ under section 12 of the Right to Information Act 2009 (Qld) - whether subject to the right of access in section 23(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Department of the Premier and Cabinet (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to Google Maps data (time and place information) stored on mobile phones issued to Queensland government officers (including the Premier) who travelled in a vehicle assigned to the Premier between 4 and 7 July 2021, and 13 July 2021. The Department decided[2] that there was no right of access to this information under section 23(1) of the RTI Act because, if the information existed, it would not be contained in a ‘document of an agency’ within the meaning of section 12 of the RTI Act. There was therefore no jurisdiction under the RTI Act for the Department to deal with the access application. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision For the reasons explained below, I affirm the decision under review. Background This is another in a series of applications made by the applicant seeking access to information apparently in order to investigate certain untested allegations concerning the Premier. OIC has published related decisions in Nine Entertainment Co Pty Ltd and Department of the Premier and Cabinet [2022] QICmr 31 (21 June 2022) and in Nine Entertainment Co Pty Ltd and Hon Annastacia Palaszczuk MP, Premier and Minister for the Olympic and Paralympic Games [2023] QICmr 6 (7 February 2023). Reviewable decision The decision under review is as outlined in paragraph 2 above. Under section 105(1)(a) of the RTI Act, the Information Commissioner has, in addition to any other power, the power to review any decision that has been made by an agency in relation to the relevant access application. This includes deciding threshold issues of jurisdiction, such as whether the access application falls within the scope of the RTI Act.[3] Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are set out in these reasons (including footnotes and the Appendix).[4] Issue for determination The right of access established by section 23(1)(a) of the RTI Act exists only in respect of documents of an agency. The issue for determination, therefore, is whether the Department was correct in finding, in effect, that there is no jurisdiction to deal with the access application because it does not request access to a ‘document of an agency’ within the meaning of section 12 of the RTI Act. Relevant law Section 23(1)(a) of the RTI Act provides that a person has a right to be given access to documents of an agency, such as the Department. ‘Document of an agency’ is defined in section 12 of the RTI Act as follows: 12 Meaning of document of an agency In this Act, document, of an agency, means a document, other than a document to which this Act does not apply, in the possession, or under the control, of the agency whether brought into existence or received in the agency, and includes— (a) a document to which the agency is entitled to access; and (b) a document in the possession, or under the control, of an officer of the agency in the officer’s official capacity. If the requested document is not a document of an agency under section 12, the application does not fall within the scope of the RTI Act and there is no jurisdiction to deal with it under the RTI Act. Submissions In its decision, the Department stated as follows: The type of information (location history) that may be contained in Google Maps data is stated in the ‘Google Privacy and Terms” as follows: “Google Privacy and Terms Depending on the Google products and services that you use and your settings, Google may be saving location information to your Google Account. ... Google Location History If you opt in to Location History and your device is reporting location, the precise location of your signed-in devices will be collected and stored, even when you’re not actively using a Google product or service. This helps create your Timeline where Location History data is stored, and may be used to power future recommendations on Google. You can review, edit, and delete what’s saved in your Timeline at any time. Turning on Location History provides more personalized experiences across Google restaurants suggested in Google Maps based on dining spots you’ve visited, real-time information about the best time to leave for home or work in order to beat the traffic, and albums in Google Photos automatically created from places you’ve visited. If a person has a Google account it is not dependent on a device, it uses all web and app activity and is not something the department manages or would have access to, and it is not a requirement of a person’s role to have a Google account. In summary, for the reasons explained above Google Maps data (showing time and location) from phones of Government Staff (including the Queensland Premier) would not comprise a document of the Department of the Premier and Cabinet for the purposes of section 23(1)(a) of the RTI Act and your request cannot be dealt with under the Act. ... In its external review application, the applicant argued as follows: Regardless of whether Google Maps data is held in a cloud account or on an employee's device, I expect that the Department of Premier and Cabinet is entitled to access that data pursuant to the employment contract it has agreed with each of its employees. I expect this to be the case whether an employee performs work on a personal electronic device or an electronic device owned by the Department. Provided the employee is using the device to perform their duties, that would amount to an officer of the Department acting in their official capacity. The fact that Google Maps data is not dependent on a device does not impact the Department's ability to access it using that device. During the course of the review, OIC sought clarification from the Department regarding statements made in its decision.[5] The Department was asked to confirm or clarify the following: that if an officer holds a Google account, it is held in a purely private capacity and that no official/employment-related business is transacted via that account; and that if an officer with a government-issued phone were to hold a Google account in a private capacity, there is nothing in their employment contract that would give their employer a legal entitlement to access any location tracking data that may be captured by that account. The Department responded[6] as follows to these two points: I confirm that it is not a requirement of a ministerial officer’s role to have a Google Account. Ministerial staff members, where appropriate, are provided with a phone. A Google account is not provided as part of the suite of products offered to ministerial offices and is not a requirement for a ministerial officer’s role. The Queensland Ministerial Handbook states “If a communication is received in a private email account that relates to ministerial portfolio-related business it must be forwarded from the private email account to the official ministerial email account within 20 days of receipt of the email. If a response is required, a ministerial email account should be used to respond”; and There is nothing explicit in a ministerial staff member’s employment contract that would give their employer access to location tracking data on a government-issued phone that may be captured by that account. Following consideration of the further information provided by the Department, OIC wrote to the applicant[7] to communicate this information and to express the preliminary view that any documents containing the information that the applicant sought to access could not be regarded as ‘documents of an agency’ within the meaning of section 12 of the RTI Act. The applicant disputed OIC’s preliminary view and submitted as follows: the fact that there is nothing in an officer’s employment contract that gives their employer a legal right to access location tracking data on a government-issued phone does not mean that the employer does not have a legal right of access to this information: Departmental policy would enable it to direct an officer to give the Department access to any data held on a government-issued phone in circumstances where the terms of the relevant Department policy may not be incorporated into the officer’s contract even if this is not the case, the Department would be able to give the officer a lawful and reasonable direction to disclose the information from their Google accounts information about the location of officers during their work hours is sufficiently connected with the relevant officers’ employment duties to require access – evidence of an officer’s location is intrinsically related to the performance of their duties for reasons including that it indicates where the officer is working the use by an officer of a government vehicle provides sufficient connection to their employment duties; and if the Google account is used on a device owned or paid for by the Department, or otherwise used by the officer to perform their duties, the Department would have a present legal entitlement to access Google account data held on it, including Google Maps data. Discussion The meaning of ‘document of an agency’ was discussed by the Queensland Civil and Administrative Tribunal (QCAT) in the Carmody series of decisions.[8] Justice Hoeben decided as follows: a) “possession” is not defined in the RTI Act or the Acts Interpretation Act 1954 (Qld). Its meaning depends upon the context in which it is used. Previous Information Commissioners have found that the word “possession” in the context of freedom of information legislation requires that the relevant documents be in the physical possession of an agency. The concept of possession is extended by the words “or under the control ... of”, words which have been considered by previous Information Commissioners to “convey the concept of a present legal entitlement to control the use or physical possession of a document”. b) “possession” must, however, be read in context and subject to the limitation that whatever possessory interest DJAG has, allows DJAG to legally provide an access applicant with those documents (see ss 23, 47(3)(e) and 68(1) RTI Act). Unlike the analogous context of disclosure (where disclosure is required even of documents not capable of being produced), the RTI Act confers a right to access documents where DJAG is able to provide a copy (or produce one). The expression “possession”, where used to describe the documents of an agency, must be construed in a way consistent with that, 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 capacity to produce them”. As such, His Honour limited the concept of ‘physical possession’ to instances where the agency is legally able to produce the requested documents. I have considered the information provided by the Department, as well as the applicant’s submissions. I am not satisfied that the Department has a present legal entitlement under the RTI Act to access, produce or control the use or physical possession of, a Minister’s, or Ministerial officer’s, Google account and the information captured by that account, including location data. I would note at the outset that the applicant’s submissions appear to be directed at establishing a right of access to the location tracking data of Ministerial staff (pursuant to their employment terms and conditions), rather than the Premier. The basis upon which the applicant contends that any Google account location tracking data relating to the Premier (if it exists) is a document of the Department is unclear. I assume that the applicant is seeking to argue that, because the Department supplies Information Technology (IT) hardware (including mobile phones), as well as IT infrastructure and support to Ministers, the requested information should properly be regarded as a document of the Department because the Department has an entitlement to control the physical possession of the Premier’s phone (and, presumably, the information accessible via the phone). I do not accept the correctness of that proposition for the reasons outlined in the Carmody decisions concerning the meaning of ‘physical possession’, as discussed above. For the reasons explained more fully below, regardless of the fact that both the Premier and her staff may use Department-issued mobile phones, I am not satisfied that Google Maps location data that may be captured and accessible via those phones is information that can properly be regarded as being in the physical possession, or under the control, of the Department. In terms of physical possession, location data collected via a person’s Google account is not physically stored on the government-issued device – the device is simply a means by which the account-holder can access and view the information. The data is stored either in the Cloud or via the Google Maps app and can only be accessed by the account-holder logging in to their Google account. While location tracking data captured by a Google account may be able to be accessed via a government-issued device,[9] I do not accept that the information is in the physical possession of the Department. For the reasons discussed in the Carmody decisions, as noted above, I am not satisfied that the Department is legally able to produce that information and provide an access applicant with access to it under the RTI Act. The Department advised that Ministerial officers are not required to hold a Google account as part of their employment duties, and that a Google account is not provided as part of the suite of products offered to Ministerial officers. The Department further advised that any official communication relating to Ministerial portfolio-related business that is received in a private email account must be forwarded to the official ministerial email account within 20 days of receipt of the email, and that if a response is required, a Ministerial email account should be used to respond. This supports the Department’s position that where a Ministerial officer chooses to have a Google account (or any other private email account, etc), it is Departmental policy that it is not to be used for work-related purposes. It is therefore properly regarded as being held by the person in a private capacity unless it can be demonstrated otherwise. The applicant disputes the view that there is an insufficient connection between Google Maps data that may be captured by a Ministerial officer’s government-issued mobile phone and the performance by an officer of their work duties. He argues that where a person is physically located when they are working may be relevant to the discharge of their employment obligations such as to give their employer a right of access to data on their phone that captures this information (presumably, even if that data is captured by an account held by the officer in a private capacity). He also relies upon the fact that he is seeking information related to the use of a government vehicle, which provides another employment-related connection. I accept that there may be circumstances where an employee’s location is relevant to the discharge of their work duties. Where that is the case, however, the onus lies on the employer to establish, in its terms and conditions of employment, a right of access to such information. In this case, the Department has confirmed that Ministerial staff who are issued with a mobile phone are not required, as part of their employment terms and conditions,[10] to hold a Google account, or to have location tracking turned on at all times during work hours. It has also confirmed that, even if this data were to be captured by an employee’s Google account, there is no specific provision in the terms and conditions of employment to establish a right of access to the data. In the absence of such a provision, I am not satisfied that there is sufficient evidence before me to establish a legal entitlement to access such data, notwithstanding that the person may be using a government-issued phone. The fact that location data tracking information is not required to be captured by Ministerial staff and made available to their employer indicates that it is not regarded as relevant to the discharge of employment-related duties. Furthermore, presumably not all Ministerial staff members are issued with mobile phones. There would therefore be no capacity to track the location of those officers during work hours, lending support to the Department’s position that location tracking data is not regarded as information connected to the discharge of employment duties, and that officers are not required, as part of their terms and conditions of employment, to capture it and make it accessible. The applicant contends that there is a general legal entitlement to give a Ministerial officer a lawful and reasonable direction to disclose information from their Google accounts, regardless of whether or not there is an explicit provision in their terms and conditions of employment. I accept that there is an implied term in every contract of employment that requires an employee to obey the lawful and reasonable directions of their employer.[11] Whether or not a direction to disclose location tracking data captured by a Google account held by an employee in a private capacity would constitute a ‘lawful and reasonable direction’ is not a question within OIC’s jurisdiction. It will depend on the circumstances surrounding the issuing of the direction and the reasons for it.[12] But, in any event, whether or not such a direction can lawfully be issued in particular circumstances does not equate to establishing a right of access to such information under the RTI Act. As the Information Commissioner has previously stated: I accept that it was the legislature's intention that an agency should take steps to bring into its physical possession, for the purpose of dealing with a valid FOI access application, any requested document in respect of which the agency has a present legal entitlement to possession. However, I do not accept that it was the legislature's intention that an agency should have to take some additional step in order to put itself into a position where it has a legal entitlement to take possession of a document, in order to respond to an FOI access application for that document.[13] (My emphasis.) Formulating a reasonable direction and establishing its lawfulness would, in my view, comprise an ‘additional step’ of the kind the Information Commissioner has identified as being insufficient to amount to a present legal entitlement to possession. Finding In summary, for the reasons explained, to the extent that the information that the applicant seeks to access exists, I am not satisfied that it would be contained in a document of the Department within the meaning of section 12 of the RTI Act. DECISION I affirm the decision under review that the access application falls outside the scope of the RTI Act because it does not request access to ‘documents of an agency’ as defined in section 12 of the RTI Act. The right of access contained in section 23(1) of the RTI Act is therefore not enlivened. 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: 28 February 2023 APPENDIX Significant procedural steps Date Event 6 September 2022 OIC received the external review application OIC requested preliminary information from the Department 8 September 2022 OIC received preliminary information from the Department 15 September 2022 OIC advised the parties that the external review application had been accepted 5 October 2022 OIC requested further information from the Department 14 November 2022 OIC received the requested information from the Department 22 November 2022 OIC communicated a preliminary view to the applicant 8 December 2022 OIC received a submission from the applicant [1] Application dated 6 July 2022. [2] Decision dated 11 August 2022. [3] See Christie and Queensland Industry Development Corporation [1993] QICmr 1; (1993) 1 QAR 1 at [5] to [16]. It is well-established that it is within the power of a merits review body to decide whether its own jurisdiction has been enlivened. [4] 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 the HR Act, section 11. 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. 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. This is because in observing and applying the law prescribed in the RTI Act, as I have done in this case, an RTI decisionmaker 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.’[5] OIC letter dated 5 October 2022. [6] Email of 14 November 2022. [7] Letter dated 22 November 2022. [8] See, for example, Carmody v Information Commissioner & Ors (No 4) [2018] QCATA 17 at [66].[9] This assumes that the officer’s device has location services turned on; that the officer has a Google account to which they have signed in; and that they have opted in to ‘Location History’ in their account. [10] Ministerial staff are employed under the Ministerial and Other Office Holder Staff Act 2010 (Qld). Section 10(1) provides that a person is employed on the terms and conditions stated in the person’s contract of employment. [11] Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374.[12] What is reasonable in the circumstances is essentially a question of fact and a range of factors may be relevant: see Briggs v AWH (2013) IR 231 159; [2013] FWCFB 3316. See also The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan [1938] HCA 44; (1938) 60 CLR 601 at 622: But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.[13] Price and the Nominal Defendant [1999] QICmr 3; (1999) 5 QAR 80 at [27].

queensland

court_judgement

Queensland Information Commissioner 1993-

V12 and Gold Coast Hospital and Health Service [2019] QICmr 57 (10 December 2019)

V12 and Gold Coast Hospital and Health Service [2019] QICmr 57 (10 December 2019) Last Updated: 9 January 2020 Decision and Reasons for Decision Citation: V12 and Gold Coast Hospital and Health Service [2019] QICmr 57 (10 December 2019) Application Number: 314462 and 314616 Applicant: V12 Respondent: Gold Coast Hospital and Health Service Decision Date: 10 December 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - UNLOCATABLE AND NONEXISTENT DOCUMENTS - applicant contends additional documents exist - whether agency has taken all reasonable steps to locate 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) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - legal professional privilege - communications between agency staff and legal advisers - whether the information would be privileged from production in a legal proceeding on the ground of legal professional privilege - whether the improper purpose exception to legal professional privilege is enlivened - sections 47(3)(a) and 48 and schedule 3, section 7 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST - documents relating to the applicant and their interactions with the agency - personal information and privacy - agency’s management functions - whether disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary This decision relates to two separate access applications made by the applicant to the Gold Coast Hospital and Health Service (Health Service) under the Information Privacy Act 2009 (Qld) (IP Act). In the First Application, which is the subject of external review 314462, the applicant applied[1] for access to: All types of communications - to and from [a named employee of the Health Service] about [the applicant] or referring to [the applicant]. All types of communications - to and from [a named employee of the Health Service] about [the applicant] or referring to [the applicant] especially communications involving any of the following: OHO, OIC, CCC, [three named agency employees], OCP, Qld Ombudsman, [two named Health Service employees] QPS, [seven named Health Service employees]. The Health Service located 142 pages and decided[2] to refuse access in full to 48 pages and parts of 48 other pages. In the Second Application, which is the subject of external review 314616, the applicant applied[3] for access to: All emails to and from [three named employees of the Health Service] about [the applicant] or referring to [the applicant’s] matters, for the time period 20/04/2014 - 11/04/2019. The Health Service located 8 pages and decided[4] to refuse access to parts of 3 pages. The applicant applied[5] to the Office of the Information Commissioner (OIC) for external review of the Health Service’s two decisions which refused access to information and raised concerns about the sufficiency of the searches conducted by the Health Service. During the course of the external reviews, OIC negotiated with the Health Service for the release to the applicant of further information within the located documents.[6] In addition, as a result of further searches in response to the applicant’s sufficiency of search concerns, the Health Service located an additional 101 pages (Additional Documents) responding to the First Application and agreed to release some of this information to the applicant. For the reasons set out below, I: vary the Health Service’s decision in external review 314462 by finding that: access to further documents may be refused on the basis that they are nonexistent or unlocatable access to information may variously be refused on the grounds that it comprises: exempt information on the basis that it is subject to legal professional privilege; or information the disclosure of which would, on balance, be contrary to the public interest affirm the Health Service’s decision in external review 314616 by finding that: access to further documents may be refused on the basis that they are nonexistent or unlocatable access to information may be refused on the ground that it comprises information the disclosure of which would, on balance, be contrary to the public interest. Background Significant procedural steps relating to these external reviews are set out in the Appendix. Reviewable decision The decisions under review in external reviews 314462 and 314616 are the Health Service’s decisions dated 18 February 2019 and 17 May 2019 respectively. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and appendix). The applicant provided extensive submissions during the two reviews. I have considered all this material and have included in this decision only those parts which I consider have relevance to the issues to be determined in these external reviews. Information in issue As noted at paragraphs 7 and 8 above, the Health Service agreed to release further inform[7]tion to the applicant7 and located the Additional Documents, agreeing to release some of this informa[8]ion to the applicant.8 Thus, that information is no longer in issue in these reviews. The remaining Information in Issue is set out at paragraphs 36, 48 and 49 below. Issues for determination The issues arising for determination in these external reviews are whether: further documents sought are nonexistent or unlocatable; and access to the Information in Issue may variously be refused on the grounds that: it is exempt from disclosure on the basis it is subject to legal professional privilege (Category A information) disclosure of the following types of information would, on balance, be contrary to the public interest: other individuals’ personal information (Category B Information); and information relating to the Health Service’s management of its staff (Category C Information). Nonexistent or Unlocatable information Relevant Law Under the IP Act, an applicant has a general right to access documents of an agency to the extent they contain the individual’s personal information.[9] However, this right is subject to grounds for refusal of access.[10] Under the Right to Information Act 2009 (Qld) (RTI Act), access to a document may be refused if the document is nonexistent or unlocatable.[11] A document is nonexistent[12] if there are reasonable grounds to be satisfied that the document does not exist. A document is unlocatable[13] if it has been or should be in the agency’s possession and all reasonable steps have been taken to find it, but it cannot be found. Where circumstances that account for nonexistent and unlocatable documents are adequately explained by an agency, it will not be necessary for the agency to conduct additional searches. On external review, if an applicant contends that all relevant documents have not been located, then the applicant must show there are reasonable grounds to believe that the agency or Minister has not searched properly to locate all documents. A mere assertion that more documents should have been created and/or located is not sufficient to found a reasonable belief as to the existence of further relevant documents. Findings First Application In seeking an external review of the First Application, the applicant submitted:[14] There are attachments missing...there should be emails, texts or discussions by [two named Health Service employees]...there should be notes on calls...the reviews by other radiologists... and emailed opinions of [named doctors] CT report...are missing...there should be a CT review report. I note that in response to the access application, both named Health Service employees were requested to conduct searches for documents relevant to the First Application. As a result of these searches, 142 pages were located and considered in the Health Service’s decision. During the course of the external review, and in response to the applicant’s specific sufficiency of search concerns, the Health Service conducted further searches, with the assistance of Queensland Health IT,[15] of all electronic correspondence using the applicant’s full name as the search term. These searches located an additional 83 pages.[16] In relation to the applicant’s specific concern about attachments missing from documents located and considered in the Health Service’s decision about the First Application, the Health Service’s further searches during the external review located 18 pages comprising these attachments.[17] The Health Service submitted[18] that it ‘is not surprising’ that no further information was located, other than as set out at paragraphs 22 and 23 above, as ‘the large majority of patient information and correspondence pertaining to patients is contained on the patient’s medical re[19]rds.’ Further,19 ‘it is highly unlikely that [the two named Health Service employees] communicated directly with external agencies.’ I acknowledge the information management practices and processes of the Health Service generally, the Health Service’s submissions about the practices and processes of its employees and the breadth of the searches conducted. In the absence of evidence pointing to the existence of further documents, I am satisfied that all reasonable searches for documents responding to the First Application, including attachments, emails, text messages and discussions, have been conducted, and that no further documents exist. Second Application In seeking an external review of the Second Application, the applicant submitted:[20] Highly inadequate searches... [the first named Health Service employee] was investigated many times so for there to be no email by [them] is unbelievable. [The second named Health Service employee] was reported for sexually assaulting me yet not a single email from [them]... I note that in response to the Second Application, the Health Service conducted searches of the email accounts of the three named Health Service employees, with the assistance of Queensland Health IT. As a result of these searches, 8 pages were located and considered in the Health Service’s decision. On 16 October 2019, Assistant Information Commissioner Rickard conveyed a preliminary view to the applicant indicating that it appeared on the face of the documents located and searches conducted by the Health Service that no reasonable basis existed to require the Health Service to undertake further searches. In response, the applicant submitted:[21] You did not consider the tendency and prolific history of crime, corruption, patient rape, victimisation, and cover up by this hospital. They need much greater transparency. The lawyers are concealing the methods communicated with and by those medical practitioners investigated. You needed to find out if the lawyer conducting the processing tricked me into a scope that deliberately excluded the communication methods used in my complaints of rapes and torture and serious crimes in that hospital. EMR is not the main method of communication. ...I do not accept these are sufficient searches or that the sources where my data is held has been honestly disclosed. ... YOU HAVE NOT UNCOVERED THE METHOD OF COMMUNICATION USED BY DOCTORS AND NURSES WHEN THEY ARE DISCUSSING BEING REPORTED OR CONSPIRING TO CAUSE UNLAWFUL WOUNDING ON A COMPLAINANT PATIENT. This is unreasonable and your faith in [the Health Service] in the face of continuous serious breaches of ethics and predatory conduct shows bias and Wednesbury unreasonableness. ... [Named Health Service employee] is not a professor and has never published anything. [They have] a political honorary title only. Do not refer to [them] as Professor... [Named Health Service employee] showed [they] emailed continuously and ran a conspiracy with CCC, OHO ..., and QHRC... [Named Health Service employee] made fun of patients raped inside [their] hospital, when [they] had one raped patient, who was raped inside the hospital on multiple separate occasions spanning years criminally prosecuted despite [their] being suicidal on admission to the hospital BEFORE being raped. These grubs do not deserve the trust to turn in their text messages and diary entries themselves. It beggars belief that there are no records showing how they organised the ... corruption shown by their group email to have a corrupt regulator clear them and undermine treatment and redress for harmed patients, and families of the dead. [Named Health Service employee] asked CCC to treat me as a vexatious complainant. [Named Health Service employee] has shown contempt for patients and the public deserve to know. [Named Health Service employee] and lawyers were concerned about my PID and requests for the draft decision by OHO into 28 baby deaths at GCUH in 9 months, which was the work of the perpetrator writing up the decision into the regulator investigating them. These documents are missing. It is my understanding that the applicant’s submissions contend that the Health Service, and particular employees within the Health Service, are deliberately withholding information that is being sought by the applicant. However, on careful consideration of the information before me, including the information released to the applicant and the information in issue, the applicant’s contentions do not appear to be supported. Further, there is nothing before me to suggest that the Health Service’s submissions about its searches and its practices and procedures relating to information management (as set out at paragraph 24 above) are not credible. In these circumstances, I am satisfied that all reasonable searches for documents responding to the Second Application have been conducted, and that it is not necessary for any further searches to be undertaken. Accordingly, I find that access to further documents responsive to the First and Second Applications may be refused on the basis that the documents sought are nonexistent. Legal professional privilege - Category A information Relevant law Access to information may also be refused where information is exempt.[22] Information will be exempt where it would be privileged from production in a legal proceeding on the basis that it is subject to legal professional privilege.[23] 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.[24] Legal professional privilege can extend to copies of non-privileged documents where they are attached to privileged communications,[25] and to internal client communications repeating legal advice, whether verbatim or in substance, or gathering information necessary in order to seek legal advice.[26] When the requirements set out in paragraph 32 above are met, legal professional privilege is established. However, qualifications and exceptions t[27]privilege27 may, in particular circumstances, affect the question of whether information attracts or remains subject to it, and therefore whether it is exempt under the RTI Act. Findings While the legislation[28] prevents me from providing a detailed description of information which is claimed to be exempt, I can say that the Category A Information[29] comprises: advice which was sought or received from a suitably qualified and independent legal advisor the communications were between staff of the Health Service and in-house legal counsel or external legal counsel, and were for the dominant purpose of seeking and/or providing legal advice; and there is no evidence indicating that the communications were not confidential or that privilege has otherwise been waived. In seeking an external review, the applicant submitted:[30] If medical treatment caused me a disability and is still untreated this should not be hidden under the guise of legal privilege as a hospital has mandatory reporting of doctor errors to the... patient in its and doctors' code of ethics. During the course of the external review, the applicant further submitted:[31] The [Health Service] lawyers are concealing the majority of my IP. They are furthering crime so I do not accept privilege applies, I do not accept that any method this hospital uses should be secret... The fact that so many pages were hidden by senior inhouse lawyers ... goes to show a much more stringent pro disclosure decision should have been made. The fact that only lawyers are allocated to my IP applications indicates a cover up. It appears from the applicant’s submissions at paragraphs 36 and 37 above that the applicant is suggesting that the application of legal professional privilege to the Category A Information would be in furtherance of an improper purpose (concealing corrupt or criminal actions). For the improper purpose exception to legal professional privilege to apply a communication must be made in pursuit of an illegal or improper purpose.[32] In summarising an established line of relevant case law the Assistant Information Commissioner in Secher and James Cook University[33] explained that: 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. .... 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.”[34] I have carefully considered the Category A Information and the applicant’s submissions at paragraphs 36 and 37 above. I am satisfied that the contents of the Category A Information do not evidence the applicant’s view that Health Service employees, including those employed as legal advisors, obtained or gave legal advice for the purpose of hiding corruption, reprisals or otherwise illegal activity. There is no evidence in the information before me that the particular communications that comprise the Category A Information were made in preparation for, or in furtherance of, an illegal or improper purpose. Accordingly, I find that the improper purpose exception does not apply to preclude the application of legal professional privilege to the Category A Information. On the basis of the above, I find that the Category A Information is subject to legal professional privilege; and that improper purpose is not made out; and that the information is therefore exempt information under schedule 3, section 7 of the RTI Act and access to it may be refused. Where information is found to be exempt, there is no scope under the legislation to take into account public interest arguments because Parliament has decided that it would be contrary to the public interest to disclose exempt information. In addition, the Information Commissioner does not have the power to direct that access be given to information that is found to be exempt.[35] Contrary to public interest - Category B and C information Relevant law Access to documents may also be refused to the extent they comprise information the disclosure of which would, on balance, be contrary to the public interest.[36] The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. 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.[37] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[38] identify factors irrelevant to the public interest and disregard them identify factors in favour of disclosure of information identify factors in favour of nondisclosure of information; and decide whether, on balance, disclosure of the information would be contrary to the public interest. Findings The Category B information comprises mobile telephone numbers,[39] and names of public service officers in the context of their direct email addresses.[40] The Category C information comprises information relating to the management of staff.[41] Irrelevant factors No irrelevant factors have been taken into account in my decision. Factors favouring disclosure The Health Service must be transparent and accountable in how it deals with members of the public. However, I do not consider that the disclosure of the Category B and C Information would advance the Health Service’s accountability and transparency in any significant way, particularly in light of the information which has been disclosed to the applicant in response to the First and Second Applications. Also, as regards the Category B Information, I note that it comprises no more than email and mobile contact details of public service officers and the information which has been disclosed to the applicant includes the names, position description (including work area) and land line phone numbers of those public service officers. I therefore afford the accountability and transparency factors favouring disclosure[42] low weight. I also consider that disclosure of the Category C Information would enhance the accountability and transparency of the Health Service or reveal reasons for a government decision and background information that informed the decision.[43] However, I am satisfied that the weight to be given to each of these factors is reduced significantly by the information already disclosed to the applicant. Accordingly, I afford these factors low weight in the circumstances. Factors favouring nondisclosure The RTI Act recognises that disclosing an individual’s personal information[44] to someone else can reasonably be expected to cause a public interest harm[45] 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.[46] The Category B and C Information appear in documents about the applicant but comprise solely the personal information of third parties. While this information relates to public service officers, I do not consider that it is routine work information.[47] Disclosure of the Category B Information would allow officers to be contacted directly outside of work hours, thereby permitting potential contact with a public service officer when off duty and/or engaged in private activity. Disclosure of the Category C Information would disclose private details about support available and/or provided to staff in relation to matters outside their routine work matters. I consider that disclosure of information of the nature of the Category B and C information gives rise to a reasonable expectation of intrusion into the officers’ private lives or ‘personal sphere’. Accordingly, I afford these two factors favouring nondisclosure moderate weight for both the Category B and C Information. The nature of the Category C Information also gives rise to factors favouring nondisclosure where disclosure could reasonably be expected to prejudice the management function of an agency,[48] and cause a public interest harm where disclosure could have a substantial adverse effect on the management by an agency of an agency’s staff.[49] The Category C Information comprises information relating to the management of staff, disclosing private details about support available and/or provided to staff of the Health Service. If this type of information is disclosed under the IP Act, where there can be no restriction on its use, dissemination or republication, I consider that it could reasonably be expected to make staff reluctant to seek support and, in turn, prejudice the Health Service’s ability to manage its staff. In these circumstances, I am satisfied that disclosure of the Category C Information would cause both a public interest harm and prejudice to the Health Service’s management functions. Accordingly, I afford significant weight to each of these nondisclosure factors. Balancing the public interest I have considered the pro-disclosure bias in deciding access to information.[50] On balance, I find that the nondisclosure factors outweigh the disclosure factors in relation to the Category B and C Information and accordingly, access to the Category B and C information may be refused on the basis that its disclosure would, on balance, be contrary to the public interest.DECISION For the reasons set out above, I: vary the Health Service’s decision in external review 314462 regarding the First Application by finding that: access to further documents may be refused on the basis that they are nonexistent or unlocatable access to information may variously be refused on the grounds that it comprises: exempt information on the basis that it is subject to legal professional privilege; or information the disclosure of which would, on balance, be contrary to the public interest affirm the Health Service’s decision in external review 314616 regarding the Second Application by finding that: access to further documents may be refused on the basis that they are nonexistent or unlocatable access to information may be refused on the ground that it comprises information the disclosure of which would, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.Assistant Information Commissioner CorbyDate: 10 December 2019 APPENDIX Significant procedural steps Date Event 18 February 2019 OIC received the applicant’s application for external review 314462. 20 February 2019 OIC notified the Health Service and the applicant that the application for external review 314462 had been received and requested procedural documents from the Health Service. OIC received emailed submissions from the applicant. 21 February 2019 OIC received emailed submissions from the applicant. 27 February 2019 OIC received the requested documents from the Health Service in relation to external review 314462. 6 March 2019 OIC received emailed submissions from the applicant. 7 March 2019 OIC received emailed submissions from the applicant. OIC notified the Health Service and the applicant that the application for external review 314462 had been accepted, and requested the following from the Health Service: a copy of the acknowledgement letter sent to the applicant a copy of the documents located; and any records of the searches conducted. 8 March 2019 OIC received emailed submissions from the applicant. 13 March 2019 OIC received the requested documents from the Health Service in relation to external review 314462. 15 March 2019 OIC received two emailed submissions from the applicant. 29 March 2019 OIC conveyed a written preliminary view to the Health Service in relation to external review 314462. 3 April 2019 OIC received a submission from the Health Service in relation to external review 314462. 4 April 2019 OIC sought a further submission from the Health Service in relation to external review 314462. OIC received emailed submissions from the applicant. 11 April 2019 OIC received a submission from the Health Service in relation to external review 314462. 15 April 2019 OIC received emailed submissions from the applicant. 26 April 2019 OIC received emailed submissions from the applicant. 17 May 2019 OIC received the applicant’s application for external review 314616. OIC received two emailed submissions from the applicant. 20 May 2019 OIC received emailed submissions from the applicant. 21 May 2019 OIC notified the Health Service and the applicant that the application for external review 314616 had been received and requested procedural documents from the Health Service. 22 May 2019 OIC received the requested documents from the Health Service in relation to external review 314616. 28 May 2019 OIC received emailed submissions from the applicant. 30 May 2019 OIC conveyed a written preliminary view to the Health Service in relation to external review 314462. 31 May 2019 OIC notified the Health Service and the applicant that the application for external review 314616 had been accepted, and requested the following from the Health Service: a copy of the documents located; and any records of the searches conducted. 3 June 2019 OIC received the requested documents from the Health Service in relation to external review 314616. 18 June 2019 OIC received emailed submissions from the applicant. 12 July 2019 OIC received a submission from the Health Service in relation to external review 314462. 25 July 2019 OIC sought a further submission from the Health Service in relation to external review 314462. 1 August 2019 OIC received a submission from the Health Service in relation to external review 314462. 5 August 2019 OIC received emailed submissions from the applicant. 8 August 2019 OIC received emailed submissions from the applicant. 26 August 2019 OIC received emailed submissions from the applicant. 27 August 2019 OIC received emailed submissions from the applicant. 28 August 2019 OIC conveyed a written preliminary view to the Health Service in relation to both external reviews. OIC received two emailed submissions from the applicant. 4 September 2019 OIC received a submission from the Health Service in relation to both external review reviews. 9 September 2019 OIC received emailed submissions from the applicant. 11 September 2019 OIC received emailed submissions from the applicant. 12 September 2019 OIC received emailed submissions from the applicant. 13 September 2019 OIC received emailed submissions from the applicant. 17 September 2019 OIC received emailed submissions from the applicant. 19 September 2019 OIC received emailed submissions from the applicant. 25 September 2019 OIC wrote to the applicant about their external reviews. 26 September 2019 OIC received emailed submissions from the applicant. 16 October 2019 OIC conveyed a written preliminary view to the applicant in relation to both external reviews. OIC received two emailed submissions from the applicant. 17 October 2019 OIC asked the Health Service to release further information to the applicant as agreed. 23 October 2019 OIC received the Health Service’s confirmation that the further information had been sent to the applicant. [1] Application dated 11 January 2019.[2] Decision subject of external review 314462 dated 18 February 2019.[3] Application dated 10 April 2019.[4] Decision subject of external review 314616 dated 17 May 2019.[5] For external reviews 314462 and 314616, the applications for external review are dated 18 February 2019 and 17 May 2019 respectively.[6] Email from the Health Service dated 4 September 2019 in response to correspondence from OIC dated 28 August 2019.[7] Contained within 33 pages (9-11, 14-15, 17-18, 20, 22-23, 25, 28, 34, 37, 40, 42, 44-45, 48-49, 58-59, 61, 63, 72-73, 77, 83-84, 89, 111, 120 and 128) and parts of 58 pages (1-5, 39, 62, 64-71, 85-88, 90-110, 112-119, 121-127, 129, 132 and 133) in relation to external review 314462 and 3 pages (3-4 and 8) in relation to external review 314616.[8] Contained within 43 pages (5, 7-8, 12, 14, 16-18, 21-22, 25, 29-31, 34-35, 37-38, 40-42, 46-47, 53-54, 58-59, 69-70, 76-78, 82-86, and 96-101) and parts of 51 pages (1-4, 6, 9-11, 13, 15, 19-20, 23-24, 26-28, 32-33, 36, 39, 43-45, 48-52, 55-57, 60-68, 71-75, 79-81, and 87-88).[9] Section 40 of the IP Act.[10] Section 67(1) of the IP Act provides that access to a document may be refused on the same grounds upon which access to a document could be refused under section 47 of the RTI Act. [11] Sections 47(3)(e) and 52(1) of the RTI Act.[12] Section 52(1)(a) of the RTI Act.[13] Section 52(1)(b) of the RTI Act.[14] Email dated 18 February 2019 at 6:10pm.[15] The Health Service’s submission dated 12 July 2019 states: ‘Queensland Health IT are best suited to conduct these searches as they are able to remotely search all electronic correspondence held by Queensland Health staff for the designated search term, being the full name of the applicant. This includes deleted or archived correspondence This search method is considered more reliable that contacting individuals directly and requesting they conduct their own searches...’[16] Comprising pages 1-83 of the Additional Documents.[17] Comprising pages 84-101 of the Additional Documents.[18] Submission dated 12 July 2019.[19] Submission dated 12 July 2019.[20] Email dated 17 May 2019 at 2:24pm (for 314616).[21] Emailed submissions dated 16 October 2019 at 4:55 pm.[22] Section 47(3)(a) of the RTI Act.[23] Schedule 3, section 7 of the RTI Act. [24] Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [9].[25] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (Propend). [26] Brambles Holdings v Trade Practices Commission (No. 3) [1981] FCA 83; (1981) 58 FLR 452 at 458-459; Komacha v Orange City Council (Supreme Court of New South Wales, Rath J, 30 August 1979, unreported).[27] Such as waiver or improper purpose.[28] Section 121 of the IP Act and section 108 of the RTI Act.[29] Consisting of page 134 of the initial documents and pages 89-95 of the Additional Documents in relation to External review 314462.[30] Emailed application for external review dated 18 February 2019 at 6:10 pm.[31] Emailed submissions dated 16 October 2019 at 4:55 pm.[32] R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141.[33] (Unreported, Queensland Information Commissioner, 6 June 2012).[34] See Shaw and Department of Justice and Attorney-General [2014] QICmr 33 at [16]; see also Propend at 591-592 and Murphy and Treasury Department [1998] QICmr 9; (1998) 4 QAR 446 at 31-43.[35] Section 118(2) pf the IP Act. [36] Section 47(3)(b) of the RTI Act.[37] However, there are some recognised public interest considerations that may apply for the benefit of an individual. [38] Section 49(3) of the RTI Act. [39] Consisting of: • External review 314462: pages 39, 62, 64-71, 86-88, 92-95, 98, 100-102, 106-109, 112, 114-117, 121-124 and 129 of the initial documents and pages 4, 36, 39, 43, 45, 49, 52, 57, 60, 63, 68, 74 and 88 of the Additional Documents; and • External review 314616: page 8.[40] Consisting of: • External review 314462: pages 1-2, 4, 39, 62, 64-71, 86-88, 92-95, 98, 100-102, 106-109, 112, 114-117, 121-124, 129 and 132 of the initial documents and pages 1-3, 6, 9-11, 13, 15, 19-20, 23-24, 26-28, 32, 44, 48, 50-51, 55, 56, 60-62, 64-67, 71-73, 75, 79-81 and 87-88 of the Additional Documents; and • External review 314616: page 8.[41] Consisting of: • External review 314462: pages 85-86, 88, 90-92, 96-97, 99, 103-106, 109-110, 113-114, 118-119, 124-127 and 133 of the initial documents and page 33 of the Additional Documents; and • External review 314616: page 4.[42] Schedule 4, part 2, items 1 and 3 of the RTI Act. [43] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act.[44] Personal information is defined at section 12 of the IP Act: ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’[45] Schedule 4, part 4, section 6(1) of the RTI Act. [46] Schedule 4, part 3, item 3 of the RTI Act. [47] Routine personal work information is information that is solely and wholly related to the routine day to day work duties and responsibilities of a public sector employee, such as the fact of authorship of a work document or a work responsibility. Generally, it is not considered to be contrary to the public interest to disclose routine personal work information. However, it is considered to be contrary to the public interest to disclose sensitive personal information of public sector employees, such as complaints made by or about a public sector employee and reasons why an officer is accessing leave entitlements of any kind or when they have taken, or intend to take, leave.[48] Schedule 4, part 3, item 19 of the RTI Act.[49] Schedule 4, part 4, section 3(c) of the RTI Act.[50] Section 44 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Daglish and Department of Natural Resources and Water [2006] QICmr 3 (24 January 2007)

Daglish and Department of Natural Resources and Water [2006] QICmr 3 (24 January 2007) Decision and Reasons for Decision Application Number: 210094 Applicant: L and J Daglish Respondent: Department of Natural Resources and Water Decision Date: 24 January 2007 Catchwords: Application for extension of time in which to lodge external review application – section 73(1)(d) of the Freedom of Information Act 1992 – merits of substantive application for review regarding sections 36, 44(1) and 50(c) of the Freedom of Information Act 1992 – application refused Contents Background .............................................................................................................. 2 Application for extension of time in which to make an application for external review................................................................................................................................. 4 Decision .................................................................................................................... 10 Reasons for Decision Background 1. The applicants seek an extension of time, under section 73(1)(d) of the Freedom of Information Act 1992 (Qld) (FOI Act), in which to make an application for external review of the internal review decision of the Department of Natural Resources and Water (DNRW) to refuse to grant them access to documents they sought in an FOI access application dated 2 April 2006. 2. By application dated 2 April 2006, the applicants sought access, under the FOI Act, to: Background material used to determine KRA 71 (State Planning Policy for Protection of Extractive Resources – draft), including but not limited to: 1. Extractive Resource, 2. Extractive Resource Description, 3. Significance, 4. Separation Area, 5. Special Considerations, 6. Environmental Considerations, and 7. Impact on neighboring properties. Including any paper or material thing on which there is writing, marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and any disc, tape or other article or any material from which sounds, images, writing or messages are capable of being reproduced. Any paper or material thing on which there is writing, marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and any disc, tape or other article or any material from which sounds, images, writing or messages are capable of being reproduced that either directly on indirectly makes reference to 451 West Mt Cotton Rd and/or 122 Fabian Rd and/or the owner of the properties either during the drafting of, or subsequent to the release of, the State Planning policy for Protection of Extractive Resources – draft. With respect to KRA 71, any material that has been produced subsequent to the release of the draft State Planning policy for protection of Extractive Resources, including but not limited to: 1. Extractive Resource, 2. Extractive Resource Description, 3. Significance, 4. Separation Area, 5. Special Consideration, 6. Environmental Considerations, and 7. Impact on neighboring properties. Including any paper or material thing on which there is writing, marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and any disc, tape or other article or any material from which sounds, images, writing or messages are capable of being reproduced. Any paper or material thing on which there is writing, marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and any disc, tape or other article or any material from which sounds, images, writing or messages are capable of being reproduced that either directly on indirectly makes reference to the decision making process that lead to the decision not to directly notify owners of properties affected by the State Planning policy for Protection of Extractive Resources – draft. Any paper or material thing on which there is writing, marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and any disc, tape or other article or any material from which sounds, images, writing or messages are capable of being reproduced that either directly on indirectly makes reference to the response to be given to enquiries and/or variation and/or clarification of such response, relating to the assessment made by the EPA of KRAs included in the State Planning policy for Protection of Extractive Resources – draft. 3. By letter dated 4 August 2006, Mr Rob Zubrinich, Manager, Administrative Review of DNRW, decided to grant the applicants access to the folios located subject to the deletion of matter exempted under sections 36, 44 and 50 of the FOI Act. 4. By letter dated 21 August 2006, the applicants applied for internal review of Mr Zubrinich’s decision. 5. By letter dated 26 September 2006, Mr Ken Davies, Director, Executive and Administrative Services, affirmed Mr Zubrinich’s decision. 6. By letter dated 3 November 2006, the applicants applied to this office, under Part 5 of the FOI Act, for external review. 7. By telephone conversation on 7 November 2006, staff of this office contacted DNWR to obtain samples of the documents said by DNRW to contain exempt matter. 8. By letter dated 15 November 2006 I advised the applicants that their application for external review was made outside the timeframe provided by section 73(1)(d) of the FOI Act. I advised the applicants that they could, if they wished to do so, apply to the Information Commissioner for an extension of time pursuant to section 73(1)(d) in which to make their application for external review. I also advised the applicants of the principles to be considered in deciding whether or not to grant an extension, as considered in the matter of Re Young and Workers’ Compensation Board of Qld [1994] QICmr 11; (1994) 1 QAR 543 (Re Young), and asked that they provide me with submissions relevant to those principles, in the event that they sought an extension of time. 9. By letter dated 29 November 2006 the applicants provided submissions as to why an extension should be granted. Application for extension of time in which to make application for external review 10. Section 73(1)(d) of the FOI Act provides: 73 Applications for review (1) An application for review must— ... (d) be made 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. 11. The principles which apply to the exercise of the discretion to extend time for lodging an application for review were considered by Information Commissioner Albietz in Re Young. At paragraph 22 of that decision, Commissioner Albietz 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 and explanation for the delay 12. Section 73(1)(d) requires that any application for external review in this case should have been lodged by 26 October 2006, such that the application for external review was 13 days late. This is a relatively short period. 13. By way of explanation for the delay, the applicants stated in their submission dated 26 November 2006 that they were sent documents in multiple lots requiring a lot of reading. The applicants also stated that DNRW took five months in giving them the documents. In my view, the fact that there was a delay on the part of the agency in making its initial decision and the fact that there were a lot of documents for the applicants to read did not affect the applicants’ ability to apply external review within the required 28 days. I note that the applicants made their internal review request within the required 28 days, even though they were not at that stage in full receipt of all the documents. 14. In my view, although the delay in applying for external review was relatively short, the applicants have not provided me with a reasonable explanation for the delay. Prejudice to other parties 15. I do not consider that any substantial prejudice would be suffered by DNRW, were the applicants to be granted an extension of time. As discussed by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at page 350, the mere absence of prejudice to the respondent is not enough to justify the grant of an extension. 16. Although the applicants have not identified any prejudice that would be occasioned to them by a refusal to grant an extension, it is clear that if an extension is not granted, the applicants will not be entitled to have the internal review decision externally reviewed. 17. However, in view of the fact that no explanation has been given for the delay and in view of the merits of the applicant’s substantive application, the fact that the applicant will not be entitled to have the internal review decision externally reviewed does not of itself justify granting the extension of time. Merits of the substantive application 18. In applying the third principle articulated in Re Young, my task is to consider the merits of the substantive application for review, including whether the applicant has grounds of substance for challenging the decision under review with respect to one or more documents. 19. As stated above, staff of this office asked DNWR to provide me with copies of some of the documents claimed to be exempt or containing segments of matter claimed to be exempt. I have now examined the sample documents provided. I am of the view that the matter claimed to be exempt by DNRW may be sorted into four categories, as considered below. Category 1 20. The first category consists of matter exempted under section 44(1) of the FOI Act, comprising the private addresses and telephone numbers of persons who made submissions to DNRW. 21. By telephone conversation on 12 December 2006, Mr L Daglish advised staff of this office that the applicants were not seeking access to personal affairs matter, such as names, addresses and contact details of other persons, appearing on the folios in issue. 22. Accordingly, that matter is not in issue, and I have not considered it in this decision. Category 2 23. These documents consist of matter DNRW claims to be exempt under section 36 of the FOI Act. 24. Section 36 of the FOI Act provides: 36 Cabinet matter (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 or extract from, or part of a copy of or extract from, matter mentioned in paragraphs (a) to (f). 25. Information Commissioner Albietz has discussed the application of section 36 of the FOI Act, in its present form, in a number of cases, e.g., Re Beanland and Department of Justice and Attorney-General [1995] QICmr 38; (1995) 3 QAR 26; Re Little and Department of Natural Resources [1996] QICmr 2; (1996) 3 QAR 170; Re Ryman and Department of Main Roads [1996] QICmr 21; (1996) 3 QAR 416; and Re Lindeberg and Department of Families, Youth & Community Care [1997] QICmr 8; (1997) 4 QAR 14. 26. The application of section 36 of the FOI Act turns on what are essentially questions of fact. Those provisions confer exemption merely by membership of a defined class or category, irrespective of whether disclosure of the particular matter in issue would have any prejudicial consequences. An agency can establish that matter is exempt under section 36(1) merely by proving the facts which bring the matter in issue within one of the defined classes or categories. Moreover, section 36(1) is not subject to a public interest balancing test, which means that no account is to be taken, in the application of those provisions, of other public interest considerations which might favour (even overwhelmingly favour) disclosure of particular matter which falls within one of the defined classes or categories of exemption in section 36(1). 27. Having examined samples of documents claimed to be exempt under section 36(1), I consider that the applicants do not have a reasonably arguable case in relation to this category of documents. The documents are Ministerial briefing notes in relation to a matter that, on the face of the documents, was proposed to be submitted to Cabinet by a Minister, in accordance with section 36(1)(c)(ii) of the FOI Act. Category 3 28. The third category of documents consists of matter the disclosure of which would infringe the privilege of Parliament. Section 50 of the FOI Act provides that: 50 Matter disclosure of which would be contempt of Parliament or contempt of court Matter is exempt matter if its public disclosure would, apart from this Act and any immunity of the Crown ... (c) infringe the privileges of (i) Parliament; or ... 29. The laws of Parliamentary privilege are to be found in: the Constitution of Queensland 2001, section 9; and the Parliament of Queensland Act 2001 (principally Chapter 2). 30. Section 8 of the Parliament of Queensland Act 2001 is the most significant source of privilege for present purposes. It provides: 8 Assembly proceedings can not be impeached or questioned (1) The freedom of speech and debates or proceedings in the Assembly can not be impeached or questioned in any court or place out of the Assembly. (2) To remove doubt, it is declared that subsection (1) is intended to have the same effect as article 9 of the Bill of Rights (1688) had in relation to the Assembly immediately before the commencement of the subsection. 31. The meaning of "proceedings in the Assembly" is set out in section 9(1) and section 9(2) of the Parliament of Queensland Act 2001: 9 Meaning of "proceedings in the Assembly" (1) "Proceedings in the Assembly" include all words spoken and acts done in the course of, or for the purposes of or incidental to, transacting business of the Assembly or a committee. (2) Without limiting subsection (1), "proceedings in the Assembly" include— (a) giving evidence before the Assembly, a committee or an inquiry; and (b) evidence given before the Assembly, a committee or an inquiry; and (c) presenting or submitting a document to the Assembly, a committee or an inquiry; and (d) a document tabled in, or presented or submitted to, the Assembly, a committee or an inquiry; and (e) preparing a document for the purposes of, or incidental to, transacting business mentioned in paragraph (a) or (c); and (f) preparing, making or publishing a document (including a report) under the authority of the Assembly or a committee; and (g) a document (including a report) prepared, made or published under the authority of the Assembly or a committee. 32. Accordingly, the central issue for consideration under section 50(c)(i) of the FOI Act is whether the preparation of the exempt matter was an act done for the purposes of, or incidental to, transacting business of the Assembly. 33. In Halsbury's Laws of England 4th Ed. Vol. 34 para. 1486, the following observations are made: An exact and complete definition of 'proceedings in Parliament' has never been given by the courts of law or by either House. In its narrow sense the expression is used in both Houses to denote the formal transaction of business in the House or in committees. It covers both the asking of a question and the giving of written notice of such question, and includes everything said or done by a member in the exercise of his functions as a member in a committee of either House, as well as everything said or done in either House in the transaction of parliamentary business. In its wider sense 'proceedings in Parliament' has been used to include matters connected with, or ancillary to, the formal transaction of business. A select committee of the Commons ... stated in its report that it would be unreasonable to conclude that no act is within the scope of a member's duties in the course of parliamentary business unless it is done in the House or a committee of it and while the House or committee is sitting. 34. In Attorney General of Ceylon v De Livera [1963] AC 103 at 121, the Judicial Committee of the Privy Council, in reviewing the scope of the protection of privilege in the UK, observed: It is impossible to regard [a Member's] only proper functions as a Member as being confined to what he does on the floor of the House itself. In particular, in connection with his approaches to or relations with ministers whether or not on behalf of one of his own constituents it is recognised that his functions can include actions other than the mere putting down and asking of a parliamentary question. 35. The operation of Article 9 of the Bill of Rights, as extended by the Commonwealth equivalent to section 9 of the Parliament of Queensland Act 2001 (namely section 16 of the Parliamentary Privileges Act 1987 (Cth)) was considered by the Queensland Court of Appeal in O'Chee v Rowley (1997) 142 FLR 1. The defendant, a Senator, resisted the production of certain documents in defamation proceedings on the ground of Parliamentary privilege. Allowing for the impact of section 16(2) of the Parliamentary Privileges Act 1987 (Cth), McPherson JA (Moynihan J concurring) restated Article 9 as follows: That [... acts done ... for the purposes of or incidental to the transaction of the business of a House] ought not to be impeached or questioned in any court or place out of Parliament. 36. Then, in stating the effect of paragraph (c) of section 16(2) of the Parliamentary Privileges Act 1987 (Cth), McPherson JA stated a further version of Article 9 applicable to the preparation of documents as follows: The preparation of a document for purposes of or incidental to the transacting of any ... business (of a House) shall not be impeached or questioned in any court or place out of Parliament. 37. McPherson JA also considered the meaning of the word "impeached" in Article 9, having observed that it was not easy to see how requiring production of documents could be said to involve "questioning" the Senator on his preparation of them. After collecting a number of dictionary meanings, including meanings contemporary in 1688, his Honour expressed the view that the "impeachment" limb of Article 9 requires that "preparation of a document for purposes of or incidental to the transacting of the business of a House is not to be impeded, hindered or prevented (first meaning); or is not to be detrimentally or prejudicially, affected or impaired (second meaning)". 38. Describing the prospective operation of the privilege, his Honour said: Only the more courageous individuals are prepared to speak their minds knowing full well they will suffer for it afterwards. It is equally to the cause of parliamentary freedom of speech and debate in future that art. 9 of the Bill of Rights is directed. Suffering pains and penalties for exercising a right or freedom is calculated to have a deterrent impact on the next occasion on which the right or freedom falls to be exercised. Section 16(2) of the Parliamentary Privileges Act recognises that the immunity extends to preparing documents and, more generally, to other acts for purposes of or incidental to the transacting of House business. There must (one may hope) be few parliamentarians who do not at some time in their careers take steps to assemble or record information in writing for purposes of or incidental to transacting business in the House by using it in debate, at question times, or in other parliamentary proceedings. ... ... requiring Senator O'Chee to produce for inspection documents of the kind listed in section B of his affidavit, for which Parliamentary privilege is claimed, has an obvious potential to deter him and other parliamentarians from preparing or assembling documentary information for future debates and questions in the House. ... ... By s.16(2) of the Parliamentary Privileges Act proceedings in parliament include the preparation of a document for purposes of or incidental to the transacting of any business of a House. More generally, such proceedings include all acts done for such purposes, together with any acts that are incidental to them. Bringing documents into existence for such purposes; or, for those purposes, collecting or assembling them; or coming into possession of them, are therefore capable of amounting to 'proceedings in Parliament'. Senator O'Chee has sworn that, in relation to the documents in section B of his affidavit, he did such things for those purposes. To order him to produce those documents would be to hinder or impede the doing of such acts for those purposes. ... 39. The documents in issue in this matter are Parliamentary briefs. I have examined a sample from those documents, and it is apparent that it was prepared by officers of DNRW for use by the Minister in an appearance in Parliament. The document is headed “Parliamentary Brief” and contains details of the relevant topic, a recommended response and relevant background information. I am of the opinion that the matter in issue would qualify for exemption under section 50(c)(i) of the FOI Act. I consider that the applicants do not have a reasonably arguable case in relation this category of documents. Category 4 40. The fourth category consists of documents that fell outside the scope of the applicants’ FOI access application dated 2 April 2006. Ms Sharron Campbell of DNRW advised staff of this office that the matter claimed to be outside the scope of the applicants’ application related to KRA 72, not KRA 71 as the applicants requested in their FOI access application. 41. Having examined the wording of the applicants’ FOI access application, I agree with Mr Davis’ internal review decision that such matter would fall outside the scope of the applicant’s FOI access application and they are therefore not entitled to obtain access to it under the FOI Act. Decision 42. For the reasons set out above, I consider it appropriate to decline to exercise the discretion conferred on me by section 73(1)(d) of the FOI Act to allow a longer period of time for the applicant to make an application for review, under Part 5 of the FOI Act, of DNRW’s decision to refuse access to the documents sought by the applicants’ application to DNRW dated 2 April 2006. 43. I have made this decision as a delegate of the Information Commissioner, under section 90 of the Freedom of Information Act 1992 (Qld). ________________________ M GittinsAssistant Information Commissioner Date: 24 January 2007

queensland

court_judgement

Queensland Information Commissioner 1993-

Palmer and Townsville City Council [2019] QICmr 43 (3 October 2019)

Palmer and Townsville City Council [2019] QICmr 43 (3 October 2019) Last Updated: 24 October 2019 Decision and Reasons for Decision Citation: Palmer and Townsville City Council [2019] QICmr 43 (3 October 2019) Application Number: 314149 Applicant: Palmer Respondent: Townsville City Council Decision Date: 3 October 2019 Catchwords: ADMINISTRATIVE LAW - MERITS REVIEW - time at which material facts are to be considered ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - BREACH OF CONFIDENCE - agreement between agency and another entity - parts of communications between agency and others - 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 applied[1] to Townsville City Council (Council) under the Right to Information Act 2009 (RTI Act) for access to the ‘Agreement executed by the Mayor of the City of Townsville...with Imperium3 on or about 3 June 2018’, together with communications between the Mayor and/or staff, and representatives of various entities. Council located a seven-page Memorandum of Understanding (MoU), and six pages of communications (Correspondence). By decision dated 14 August 2018, Council refused access to all of this information on the grounds it comprised exempt information, and information the disclosure of which would, on balance, be contrary to the public interest. The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision. Council agreed to release parts of the Correspondence to the applicant during the review, while the applicant did not pursue access to certain other parts of both the Correspondence and the MoU. For the reasons explained below, I set aside Council’s decision as it relates to the information remaining in issue. In substitution, I find that those parts of the MoU and Correspondence remaining in issue are not exempt information under the RTI Act, nor would their disclosure, on balance, be contrary to the public interest. Background The MoU and Correspondence relate to a proposal by a consortium headed by Imperium3 Pty Ltd (Imperium3) to develop and operate a battery manufacturing plant in Townsville. By letter dated 20 March 2019, Council advised me that it wished to conduct third party consultation with Imperium3, in an attempt to informally resolve this review. I agreed to that suggestion, and Council wrote[2] to Imperium3 to this effect. Imperium3 did not reply to that correspondence.[3] I then considered it appropriate to consult with Imperium3 directly. We twice wrote to Imperium3, inviting that company to raise any objections it may wish to make to the disclosure of the MoU and Correspondence, and to apply to participate in the review.[4] The first of these letters, dated 21 May 2019, also stated that if we received no reply to our correspondence, we would proceed on the basis that Imperium3 did not object to disclosure. No reply was received to that letter. However, Council subsequently advised[5] that it had separately communicated with Imperium3 in relation to the review,[6] and that Imperium3 had informed Council that it did object to disclosure. In view of this advice, I once more wrote to Imperium3 by letter dated 20 June 2019, again offering it the opportunity to make submissions and apply to participate in the review. This letter advised Imperium3 that if no reply was received, I would proceed with the review on the information before me, and not attempt any further consultation with Imperium3. Imperium3 did not reply to my 20 June 2019 letter. Significant procedural steps relating to the external review are as otherwise set out in the Appendix. Reviewable decision The decision under review is Council’s decision dated 14 August 2018. 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 comprises: the MoU, excluding signatures appearing on the final page;[7] and segments of information appearing on the six pages of Correspondence (other than non-Council email addresses and mobile telephone numbers, and information released during the review).[8] Issues for determination The issues for determination are whether the information in issue comprises: exempt information,[9] as information the disclosure of which would found an action for breach of confidence under schedule 3, section 8(1) of the RTI Act; and/or information the disclosure of which would, on balance, be contrary to the public interest.[10] Relevant law 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 the access.[11] The Act is to be applied and interpreted to further this primary object.[12] 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 the RTI Act,[13] including grounds on which access may be refused.[14] These grounds relevantly allow an agency to refuse access to information to the extent it comprises exempt information,[15] and/or information disclosure of which would, on balance, be contrary to the public interest.[16] The grounds are to be interpreted narrowly,[17] and the RTI Act is to be administered with a pro-disclosure bias.[18] Additionally, in a review of this kind, the agency ‘who made the decision under review has the onus of establishing that the decision was justified or that the information commissioner should give a decision adverse to the applicant’.[19] Council therefore bears the onus in this review. It is also convenient here to set out a general statement of principle applicable to the type of merits review conducted by the Information Commission when externally reviewing an agency decision under the RTI Act. This is the principle that the Information Commissioner must decide cases according to the material facts and circumstances which apply at the time the Information Commissioner comes to make the external review decision. I have stated this principle at the outset, as the converse proposition underpins many of Council’s submissions. In its 5 August 2019 submissions, for example, it contends that: From a factual perspective, we consider that the Decision Notice issue date of 14 August 2018 is the latest time that the assessment of whether an action for breach of confidence would have founded could be made under the exemption in Schedule 3, section 8(1) of the RTI Act, and correspondingly, under this external review (including whether material is or may already be in the public domain at the relevant time under ...the MOU). Under an external review process, the decision that is subject to review is an original decision or an internal review decision. While an external review may determine that the relevant decision is varied, amended or substituted, the OIC is still required to review a decision as made and in this sense is subject to the same temporal considerations that applied to the relevant decision. This means that, for example, in reviewing whether an original decision-maker's decision on the application of Schedule 3, section 8(1) of the RTI Act, the OIC is reviewing the assessment that was made by the original decision-maker in considering whether the disclosure of the relevant information in issue would found, in hypothetical terms, an action for a breach of confidence if released. While additional information arising since the making of an original decision can be taken into account in the external review process, the matter that is subject to the review is the question of whether such an action could be instituted at the time the decision was made. To take an alternative approach and assess the capacity to found an action for a breach of confidence at the time the external review decision was made would be contrary to the notion of conducting a "review of a decision". Elsewhere in those submissions, Council submits: ...we have been unable to identify any provision in the RTI legislation and/or case law decisions considering the relevant provisions that suggests...any public information released after the date of the [decision under review] can strictly be taken into account in assessing whether an action for breach of confidence would found in this matter. In a letter dated 20 August 2019, I set out the position on external review as stated in paragraph 21 above, referring Council to Information Commissioner Albietz’s comments in Beanland and Department of Justice and Attorn[20]-General,20 whe[21] he said:21 ... 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 [or, by extension, an agency makes its decision on an access application]. Paragraph 35 of Woodyatt[22] as referred to in the above passage provides, as far as is relevant:[23] As to the law to be applied by a tribunal which, like the Commonwealth Administrative Appeals Tribunal (the Commonwealth AAT) or the Queensland Information Commissioner, is empowered to conduct a full review of the merits of an administrative decision under challenge (see, respectively, s.43(1) of the Administrative Appeals Tribunal Act 1975 Cth and s.88(1) of the FOI Act), the respondent has referred me to the passage (well known to practitioners in this field) from Re Costello and Secretary, Department of Transport [1979] AATA 184; (1979) 2 ALD 934, at pp.943-4, which has been approved in many subsequent cases (see, for example, Commonwealth of Australia v Esber [1991] FCA 223; (1991) 101 ALR 35, an appeal from the Commonwealth AAT to a Full Court of the Federal Court of Australia, per Davies J at p.37). From that passage a number of propositions can be distilled. A tribunal, empowered to conduct a full review of the merits of an administrative decision under challenge, ordinarily has regard to the relevant facts and circumstances as they stand at the date of its decision, and ordinarily applies the law in force at the date of its decision. ... I did not expect this to be an issue of controversy, as the relevant principle is well-settled and has been recognised and applied in Queensland in an FOI/RTI context for more than two decades. Accordingly, I did not invite Council to make submissions in reply to my letter explaining the principle. It nevertheless did so. In a letter dated 27 August 2019, Council maintained its view that, in an external review under the RTI Act, I am constrained to have regard to facts applying as at the time Council made the decision under review. Council’s unsolicited submissions on this point – which I feel obliged to address – refer to various High Court and Administrative Appeal Tribunal cases.[24] Generally speaking, these cases note – as the Information Commissioner did in Beanland – that a given statute may impose temporal limits on the scope of merits review in a particular case. Council argues that the RTI Act imposes such limits: The RTI Act indicates that the rights of an agency decision-maker to conduct an 'internal review' are not temporally limited by information or matters 'as they stood' at the time the original decision-maker made their decision as section 80(2) [of the] RTI Act states that: On an internal review of a decision, the reviewer must make a new decision as if the reviewable decision had not been made. In Council's view, the above-mentioned provision would permit the agency reviewer to consider information and matters completely afresh and that arises or becomes known after the date of the original decision. However, no such wording is apparent in the provisions of Pt 9 of the RTI Act concerning external review. The rights granted to applicants under section 87 of the RTI Act on 'external review' are to 'have the decision reviewed' by the OIC in circumstances where the onus is placed on the agency of establishing that the decision was justified'. We take this to mean the decision 'was justified' by reference to relevant facts and circumstances at the time the decision under review was made. We also note that whilst section 105 of the RTI Act allows the Information Commissioner to decide any matter in relation to the access application ‘that could, under this Act, have been decided by an agency or Minister’, it does not provide that the Information Commissioner is to proceed on the basis that the reviewable decision 'has not been made'. Similarly, the Information Commissioner when examining the operation of the 'commercial affairs' exemption on external review in Re Cannon and Australian Egg Farms (1994) 1QAR 491 [56] said: "The information in issue must have commercial value to an agency or another person at the time that an FOI decision-maker comes to apply [the exemption] ..." [emphasis added] The reference in the Schedule 3 exemption to 'would found an action for breach of confidence' also appears indicative of placing a temporal limitation on the information and evidence available to be considered by the OIC upon external review. ... Concluding Remarks Based on the above case law analysis, and considering the language in the RTI Act itself, we consider that the nature of the decision to be made by the OIC in this particular matter does indicate that the OIC's attention is to be confined to the state of evidence as at a particular time when considering an action for breach of confidence 'would found', in particular. I do not accept Council’s arguments. I see no reason to question Information Commissioner Albietz’s approach as set out in Woodyatt and Beanland, nor to depart from that approach in conducting an external review under the RTI Act. Further, I see nothing in the authorities cited by Council in its submissions on this issue that is inconsistent with my proceeding in this manner. None precludes such an approach; in fact, they appear to expressly endorse its legitimacy, subject only to possible statutory limitations that may exist from case to case. Council referred me, for example, to paragraph [99] of Hayne and Heydon JJ’s judgment in Shi v Migration Agents Registration Authority,[25] a case concerning interpretation of, relevantly, provisions of the Administrative Appeals Tribunal Act 1975 (AAT Act) analogous to sections 105(1) and 110(1) of the RTI Act. It is worth setting out not just that paragraph, but several surrounding paragraphs (footnotes omitted): The Tribunal's task In reviewing MARA's decision to cancel the appellant's registration, the Tribunal was empowered (by s 43(1) of the AAT Act) to exercise all the powers and discretions conferred by the Migration Act on MARA. The questions for the Tribunal in reviewing the cancellation decision were first, whether the Tribunal was satisfied that either of the s 303(1) grounds said to be engaged in this case was made out, and secondly, whether the Tribunal should exercise the powers given by s 303(1) to cancel or suspend the appellant's registration or to caution him. That is, the first questions for the Tribunal were whether it was satisfied that the appellant "is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance" and whether it was satisfied that the appellant had not complied with the Code of Conduct. MARA's contention, in this Court and in the courts below, that the question for the Tribunal was whether the correct or preferable decision when MARA made its decision was to cancel the appellant's registration, should be rejected. It finds no footing in the relevant provisions. To frame the relevant question in the manner urged by MARA would treat the Tribunal's task as confined to the correction of demonstrated error in administrative decision-making in a manner analogous to a form of strict appeal in judicial proceedings. But that is not the Tribunal's task. 98. It has long been established that: "The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal." (emphasis added) And MARA accepted in argument in this Court that in conducting its review the Tribunal was not limited to the record that was before MARA. It submitted, however, that the Tribunal had to consider the circumstances "as appear from the record before it as they existed at the time of the decision under review". Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation. The AAT Act provides for the review of decisions by a body, the Tribunal, that is given all of the powers and discretions that are conferred on the original decision-maker. As Brennan J rightly pointed out in an early decision of the Tribunal, not all of the powers that the Tribunal may exercise draw upon the grant of powers and discretions to the primary decision-maker: "A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal's order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise." But subject to that qualification, the Tribunal's task is "to do over again" what the original decision-maker did. Nothing in the provisions of the Migration Act fixed a particular time as the point at which a migration agent's fitness to provide immigration assistance was to be assessed. Unlike some legislation providing for pension entitlements, in which the critical statutory question is whether a criterion was met or not met at a particular date, such as the date of cancellation of entitlements, the provisions of s 303 of the Migration Act contained no temporal element. It follows that when the Tribunal reviews a decision made under s 303, the question which the Tribunal must consider (is the Tribunal satisfied that the person concerned is not a fit and proper person to give immigration assistance?) is a question which invites attention to the state of affairs as they exist at the time the Tribunal makes its decision. MARA's argument to the contrary should have been rejected in the courts below. The RTI Act confers powers on the Information Commissioner in a manner equivalent to the AAT Act: section 105(1) of the RTI Act, like section 43(1) of the AAT Act, allows the Information Commissioner to decide any matter in relation to an access application that could, under the RTI Act, have been decided by an agency. Section 110(1) of the RTI Act, meanwhile, obliges the Information Commissioner to make a written decision either affirming, varying, or setting aside an agency decision, in the same way section 43(1) of the AAT Act obliges the AAT.[26] Absent some clear indication to the contrary – a ‘statutory constraint’, to quote the words of Hayne and Heydon JJ – it seems to me that the general position in an external review under the RTI Act will therefore be as it is under the AAT Act: that is, the position clearly set out in Woodyatt and Beanland.[27] Or, as Kirby J stated it in Shi:[28] When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. When, therefore, the Tribunal elects to make "a decision in substitution for the decision so set aside", as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard. The RTI Act contains no ‘statutory constraints’ of the kind mentioned in Shi; none of the matters raised by Council can, in my view, fairly be read as comprising a ‘clear indication’ that there should be any variation from the usual approach set out in Woodyatt and Beanland. The relevant portion of section 87 of the RTI Act is set out in full at paragraph 19 above – it does not begin and end in the manner quoted by Council, but by obliging an agency in Council’s position to establish that the Information Commissioner should give a decision adverse to an applicant, envisages the taking into account of matters as at the date of any decision by the Information Commissioner. Commissioner Albietz saw no reason to construe the materially similar FOI predecessor provision in the manner contended [29] Council.29 Nor do I in relation to section 87 of the RTI Act. Similarly, I do not accept that I should read the differences between sections 80(2) and 105 of the RTI Act as giving rise to a ‘clear indication’ that external review should be temporally confined: section 105 of the RTI Act, identical to the FOI provision it replaced and which was before the Information Commissioner in Woodyatt and Beanland,[30] accommodates the default approach explained by Information Commissioner in each of those cases. If these decisions are, as Council appears to contend, insufficient to demonstrate this proposition, then it should be clear from Shi, which, as noted, establishes that the Commonwealth analogue of section 105 of the RTI Act requires consideration of facts and circumstances as they apply at the time a reviewing body comes to make its decision. There was nothing in equivalent provisions of the AAT Act that Hayne and Heydon JJ could identify as imposing such a limitation. Nor is there anything that I can identify in the RTI Act. References to the language of particular exemption provisions, meanwhile, seems to be neither here nor there: schedule 3, section 8(1) of the RTI Act, cited by Council, is worded in the present tense.[31] Equally, in referring to an ‘FOI decision maker’, the Information Commissioner was, in the passage from Cannon and Australian Quality Egg Farms[32] cited by Council, doing no more than referring to whoever was charged with considering given circumstances at a particular point in time – an agency decision maker, an internal reviewer, or the Information Commissioner on external review. And even if he was not, those comments, made in May 1994, would clearly have been displaced by the unambiguous February 1995 statement of applicable principle in Woodyatt, followed and affirmed in Beanland later that same year.[33] The general approach stated in each of those latter decisions was formulated in a statutory context substantially similar, if not identical, to that applying under the RTI Act. That approach is conformable with the purpose and object of the RTI Act,[34] and consistent with the authorities cited by Council.[35] Given this, I am, as noted, satisfied that the Woodyatt approach should be maintained for the purposes of merits review conducted under Part 9 of the RTI Act; there is, in short, no ‘statutory basis for confining’ an external review conducted under Part 9 in the manner contended by Council. I will now address the substantive issues in this review. Findings Breach of Confidence Exemption Council, as noted, decided that the information in issue comprised exempt information under schedule 3, section 8(1) of the RTI Act. That provision provides that information is exempt information if its disclosure would found an action for a breach of confidence (Breach of Confidence Exemption). The test for exemption under 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 said to be owed to that plaintiff by an agency such as Council.[36] Council contends that, under the MoU, it is contractually obliged to Imperium3 to keep the information in issue confidential, and that disclosure would therefore breach that obligation, founding an action for breach of confidence. It relies on an equitable obligation of confidence in the alternative. There is no question that the Breach of Confidence Exemption will accommodate actions for breach of confidence founded on either of the above bases – equity, or contract.[37] I must therefore address the entirety of Council’s claims in this regard. In doing so, it would be preferable to set out the clause of the MoU on which Council bases its contractual claim – the Confidentiality Clause – in full in these reasons. That clause is, however, itself information claimed to be exempt and/or contrary to the public interest to disclose, and I am unable to do so.[38] I have therefore discussed it and the nature of the MoU in general terms, in a manner that avoids any direct disclosure but nevertheless conveys their thrust and effect. Contractual obligation of confidence Concerning contractual obligations of confidence, in B and BNRHA Information Commissioner Albietz said: [39] In the context of s.46(1)(a) the word "confidence" must be taken to be used in its technical, legal sense, thus: "A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose.” (F Gurry "Breach of Confidence" in P Finn (Ed.) Essays in Equity; Law Book Company, 1985, p.111.) My references to a cause of action for breach of a contractual obligation of confidence must be understood in this sense. A contractual term requiring that certain information be kept secret will not necessarily equate to a contractual obligation of confidence: an issue may arise as to whether an action for breach of the contractual term would satisfy the description of an "action for breach of confidence" (so as to fall within the scope of s.46(1)(a) of the FOI Act). An express contractual obligation of confidence ordinarily arises in circumstances where the parties to a disclosure of confidential information wish to define clearly their respective rights and obligations with respect to the use of the confidential information, thereby enabling the parties to anticipate their obligations with certainty. A mere promise to keep certain information secret, unsupported by consideration, is incapable of amounting to a contractual obligation of confidence, and its effectiveness as a binding obligation would depend on the application of the equitable principles discussed in more detail below. I recognise the express language used in the Confidentiality Clause as regards the imposition of obligations. It is not, however, clear that there has been any exchange of consideration moving in support of this clause. In the absence of same, the Confidentiality Clause appears to be a ‘mere promise incapable of amounting to a contractual obligation of confidence’. I raised this concern with Council during the review.[40] Council submitted in reply:[41] In relation to the OIC’s queries as to whether consideration has passed, TCC wish to inform the OIC that at a practical level, each of the parties to the MOU have devoted considerable time, money and effort to progress the matters outlined in the MOU since its signing, and continue to do so as evidenced in the various media reports and ASX releases that were issued at or subsequent to the signing of the MOU. For example, Magnis Resources [an entity I understand has an interest in Imperium3] issued a trading halt and a price sensitive release on 5 June 2018 which specifically highlighted the importance of the MOU in ‘fast tracking’ the project and acknowledges that the Council has ‘hired a highly experienced dedicated resource to wholly focus on facilitating the fast tracking of key milestones’ and then again on 27 August 2018 (after the Decision Notice was issued), Magnis noted that the Council was ‘compiling site information’ .... Similarly, in relation to the ASX Media Release referenced by the OIC... Imperium3 Chairman ... thanked and acknowledged “Townsville City Council for the continuous support provided towards our project in Townsville....” While some of the above may be relevant to a consideration of whether an equitable obligation exists, I do not accept that this submission answers the doubt raised in paragraph 48. Council, as noted, bears the onus in this review. On this point, I am not satisfied that it has discharged that onus. My view is that the Confidentiality Clause does not establish a contractual obligation requiring Council to keep confidential any of the information in issue. Having said that, I note that mutual promises may be sufficient to support a contract.[42] It may be that within the MoU[43] there is an exchange of such promises or commitments, sufficient to give the Confidentiality Clause the force of contract. Council has not made any such submission. Nevertheless, in the interests of completeness I will further consider the position, in the event the conclusion in the preceding paragraph is incorrect. MoU Assuming, then, that there has been a movement of consideration sufficient to give the Confidentiality Clause the force of contract, I accept that the clause is drawn broadly enough to cover the MoU (I have considered the Correspondence separately below). In the particular circumstances of this case, however, I am not satisfied that a court would enforce the Confidentiality Clause in support of an action for breach of confidence as against Council, at the suit of Imperium3. Having regard to relevant judicial comment, I consider that where, as here, one party to a claimed contractual obligation of confidence is a government agency with a concomitant duty to account to the public it represents, the law will imply a qualification on any such obligation to the extent that may be necessary to serve that duty. As Brennan J stated in Esso Australia Resources Ltd v Plowman (Esso):[44] Where a party is in possession of a document or information and is under a duty at common law or under statute to communicate the document or information to a third party, no contractual obligation of confidentiality can prohibit the performance of that duty... ...[relevant public authorities] have a duty – possibly a legal duty...but at least a moral duty ... – to account to the public for the manner in which they perform their functions. Public authorities are not to be taken, prima facie, to have bound themselves to refrain from giving an account of their functions in an appropriate way: sometimes by giving information to the public directly, sometimes by giving information to a Minister, to a government department or to some other public authority. Brennan J’s judgment in Esso was subsequently invoked by Finn J of the Federal Court in Hughes Aircraft Systems International v Airservices Australia,[45] His Honour noting that: [the relevant government agency] ... operated in the constitutional environment of responsible government. This necessarily entails that it was accountable in some measure to the public: see Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 37-38 per Brennan J ... Parties who contract with government agencies must, in matters of confidentiality, be taken to have done so subject to such lawful rights of access to information in the agency's hands as our laws and system of government confer on others. It is not necessary for me to consider here the efficacy (if any) of an attempt by contract to exclude, for example, such a minister's right, and hence to exclude some part of the machinery of an agency's accountability: cf the views of Brennan J in Esso Australia Resources Ltd v Plowman, above. Finally, I note Kirby J’s observation in Commonwealth of Australia v Cockatoo Dockyard Pty Ltd:[46] ‘Can it seriously be suggested that ... private agreement can...exclude from the public domain matters of legitimate public concern?’[47] In this case, I consider it is important to bear in mind the fact that, objectively assessed, the MoU is not information solely imparted by and proprietary to Imperium3, such as trade secrets, intellectual property or other commercially sensitive information it has entrusted to Council in exchange for a contractual promise by Council not to disclose that information.[48] Rather, it is a mutual agreement co-authored – and thus essentially co-owned – by Council, and the broader community Council represents. That community has, in my view, a legitimate concern in gaining access to what its representatives have agreed to and communicated on its behalf. Accordingly, even if the Confidentiality Clause is capable of imposing a contractual obligation, I am not persuaded that Council has established that disclosure by it of the MoU under the right of access conferred by section 23 of RTI Act would comprise a breach of that obligation. Council resists the above finding, essentially arguing that the case law from which the judicial observations noted at paragraphs 54-56 are derived from factual and legal contexts distinct from statutory information access schemes such as the RTI Act. Given the broad language with which these observations is expressed, however, I consider them expansive enough to apply beyond the particular contexts in which each were delivered. In other words, I consider that principles of the kind extracted in paragraphs 54-56 may permissibly be extended to applications for access to documents made under a statute, the purpose of which is to provide a right of access to information in government [49]ssession or control.49 This is particularly so, where those documents are, as here, a direct by-product of government[50]ction and agreement,50 disclosure of which would allow the community to fully scrutinise and understand what government has entered into on its behalf. Such an approach would seem to be consistent with the High Court’s requirement that the translation of private law confidentiality principles sufficiently accommodates the scope and purpose of public law regimes into which those principles may need to be imported: in this case, the information access regime established by the RTI Act.[51] Indeed, to find otherwise would appear to be tantamount to granting agencies such as Council the licence, through appropriately-worded clauses, to ‘exclude some part of the machinery of an agency’s accountability’: ie, the very statute by which Parliament intended to ‘emphasise and promote the right to government information’.[52] In this vein, I cannot accept Council’s 9 May 2019 submissions as to the effect of one of the subclauses to the Confidentiality Clause,[53] which provision can arguably be read as a purported renunciation by Council, in the absence of third party permission, of the former’s authority to disclose information under the RTI Act. [54] Council does not require the permission of any entity to disclose information in its possession or under its control, as requested by way of a valid application for access under the RTI Act. This is because it has the express authority of Parliament to do so, as embodied in the decision-making powers conferred on Council by Chapter 3, Part 5 of the Act, and the explicit discretion to release information, even where grounds for refusal might otherwise exist.[55] On this point, it is worth setting out in full the observations of the Information Commissioner in B and BNRHA as to the relationship between the RTI Act’s predecessor, the FOI Act, and the general law of confidence: It appears that a government agency cannot by agreement or conduct bind itself so as to guarantee that confidential information imparted to it will not be disclosed under the FOI Act. Thus, a Full Court of the Federal Court of Australia in Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 241; (1992) 108 ALR 163 at p.180 was prepared to say: "Prior to the coming into operation of the FOI Act, most communications to Commonwealth Departments were understood to be confidential because access to the material could be obtained only at the discretion of an appropriate officer. With the commencement of the FOI Act on 1 December 1982, not only could there be no understanding of absolute confidentiality, access became enforceable, subject to the provisions of the FOI Act. No officer could avoid the provisions of the FOI Act simply by agreeing to keep documents confidential. The FOI Act provided otherwise." This statement is correct also in respect of the Queensland FOI Act, but it perhaps requires some further explanation. A government agency may become subject to an obligation of confidence under the general law, enforceable at the suit of the confider. It is well recognised, however, 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 Gurry at p.359; Smorgon and Australia & NZ Banking Group Limited & Ors; Commissioner of Taxation & Ors and Smorgon & Ors [1976] HCA 53; (1976) 134 CLR 475 at 486-90. Section 21 of the FOI Act is a provision of this kind. It confers a legally enforceable right to be given access "under this Act" to documents of an agency and official documents of a Minister. An obligation of confidence may continue to bind the government undisturbed, until such time as an application is made under s.25 of the FOI Act for access to the relevant confidential information, whereupon the obligation of confidence may potentially be overridden. The right conferred by s.21 of the FOI Act, however, is expressed to be "subject to this Act". The FOI Act itself sets out a scheme whereby an agency or Minister dealing with an application for access to documents made under s.25, is conferred by s.28(1) with a discretion to refuse access to exempt matter or an exempt document. This means that, notwithstanding that a document satisfies all of the criteria for exemption under one of the exemption provisions in Part 3 Division 2, an agency or Minister nevertheless has a discretion to disclose the document to an applicant for access under the FOI Act with the benefit of the protections conferred by Part 6 of the FOI Act in respect of that disclosure (in particular s.102 provides in effect that no action for breach of confidence will lie in respect of the authorising or giving of access where the access was required or permitted by the Act to be given). On the other hand, if a document meets the criteria set out in one of the exemption provisions in Part 3, Division 2 of the FOI Act, an agency or Minister is entitled to exercise the discretion conferred by s.28(1) to refuse access to the exempt matter or exempt document. Thus, the fact that disclosure of a particular document would found an action for breach of confidence under the general law is a test which, if satisfied, will permit an agency or Minister to exercise its discretion under s.28(1) to refuse access to the particular document. An agency or official cannot, however, by a contractual or other undertaking fetter the exercise of a discretionary power conferred by statute by binding the agency or official to exercise the discretion in a particular way (see Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia [1977] HCA 71; (1977) 139 CLR 54 per Mason J at p.74-75: "To hold otherwise would enable the executive by contract in an anticipatory way to restrict and stultify the ambit of a statutory discretion which is to be exercised at some time in the future in the public interest or for the public good"). Thus, information held by a government agency subject to an enforceable obligation of confidence can be disclosed to an applicant for access under the FOI Act, through a lawful exercise of the s.28(1) discretion by an officer authorised to make such a decision in accordance with s.33 of the FOI Act. (In theory, the obligation of confidence would remain enforceable under the general law, apart from the occasions when it was overridden by a lawful disclosure made under the FOI Act. However, an obligation of confidence may itself be rendered unenforceable if the confidential information subsequently passes into the public domain. Section 102(2) of the FOI Act may be of significance in this regard.) This explains the Full Federal Court's comment in Searle Australia Pty Ltd v PIAC that there could be no understanding of absolutely confidentiality, and that no officer could avoid the provisions of the Commonwealth FOI Act simply by agreeing to keep documents confidential. I should add that when reviewing a decision under Part 5 of the Queensland FOI Act, the Information Commissioner does not have the discretionary power possessed by Ministers or agencies to permit access to exempt matter: see s.88(2) of the FOI Act. The above analysis would seem to apply equally to the RTI Act, in view of the provisions noted above – particularly the express discretion to disclose information, even where grounds for refusing access might otherwise exist.[56] Accordingly, to the extent the relevant subclause might in any way purport to exclude those powers or fetter that discretion, it would, as noted, appear to be of no effect.[57] Correspondence Much of the information remaining in issue on these pages comprises individuals’ names and business contact particulars. In its 5 August 2019 submissions, Council indicated that, at least as regards names, ‘the redactions made by Council were on the basis of privacy matters.’ I have addressed ‘privacy matters’ below, in dealing with contrary to public interest arguments. For the sake of completeness, however, it is necessary that I also deal with the possible application of the Breach of Confidence Exemption to this information, given the decision under review applies the provision to all information.[58] Most of the information remaining in issue in the Correspondence pre-dates the MoU,[59] and any contractual obligations it may purport to impose, relevantly, the segments remaining in issue on the first, second, fifth and sixth Correspondence pages. It therefore appears that the only basis on which disclosure of this latter information might qualify for exemption under the Breach of Confidence Exemption of the RTI Act is pursuant to an equitable obligation of confidence. This is dealt with below. Council accepts ‘that some parts of the Correspondence pre-date the signing of the MOU’.[60] It goes on, however, to submit that: ...as identified in Gurry on Breach of Confidence at 4.14, it is well accepted that the Courts will enforce an oral contract or an oral and partly written contract in relation to the confidentiality surrounding certain information particularly in this case given the parties’ long history and past practice of treating as confidential all information shared between TCC and the various legal entities that form part of the Imperium3 consortium, including I3PL..’ The above contention may of itself be correct. Council’s submissions following this statement do not, however, evidence any such ‘oral contract or an oral and partly written contract’, but assert, in broad-brush terms, that ‘discussions and negotiations’ between Council and Imperium3 or related entities were conducted on the basis of a ‘high degree of confidentiality’. Considerations of this kind may be relevant in assessing whether an equitable obligation of confidence exists; they fall short, however, of permitting a conclusion that contractual obligations were established in advance of the execution of the MoU. Although not argued by Council and, in view of its onus, thus not strictly necessary for me to consider, there is in theory another basis on which those parts of the Correspondence pre-dating the MoU might attract contractual protection: by way of an implied contractual relationship, so as to bring this pre-MoU information within the ambit of the Confidentiality Clause or some broader contractual obligation of confidence. As the Information Commissioner recognised in B and BNRHA, the law may construct an implied contract around parties not otherwise in a subsisting contractual relationship.[61] Having regard to the specific information in question in this case – being names, published business addresses and contact particulars, and on the sixth page, comment as to the execution of agreements,[62] rather than commercial intelligence or information of value to Imperium3, communicated with a view to winning Council’s custom – I do not accept that it would do so here. Accordingly, I cannot see that segments pre-dating the MoU can be the subject of any contractual obligation of confidence. As for the segments post-dating the MoU, these essentially comprise three personal names and a company name. As noted, Council has stated that, at least as regards the first names, it refused access to these ‘on the basis of privacy matters’, matters dealt with later in these reasons. Assuming, however, that the entirety of the Correspondence information remaining in issue is prima facie subject to the Confidentiality Clause – and that that clause amounts to something more than a mere promise – there are two further reasons its disclosure would not breach the Confidentiality Clause. The first is an express exception to the clause, permitting disclosure of information that might otherwise have attracted its operation, but which is public. As matters presently stand,[63] the information remaining in issue on these pages appears to fall within this exception.[64] The second is the exception the law would, in my view, read into the Confidentiality Clause, as explained at paragraphs 54-58 above. With whom and about what Council was communicating, in making or proposing arrangements and/or having discussions at on behalf of the community, is a matter of legitimate public concern. Equitable obligation of confidence The Information Commissioner has historically identified five cumulative criteria as being necessary to establish an equitable obligation of confidence, as follows:[65] (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) 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 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.[66] In this case, I cannot see that it is a matter I need to address, as I consider that Council’s claim for an equitable obligation of confidence binding it in favour of Imperium3 fails, if not at the second cumulative requirement stated in paragraph 81, then at the third requirement, (c). I raise the matter of detriment, only to signal that this is an issue in relation to which RTI administrators should anticipate further development and clarification. Addressing requirements (a)-(c), both the MoU and the Correspondence can be specifically identified. Requirement (a) is met. As for the second requirement, (b), to satisfy this criteria it must be shown that the ‘circumstances are of sufficient gravity’[67] to warrant equitable protection: ... the principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain (which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it. ... The second limiting principle is that the duty of confidence applies neither to useless information, nor to trivia.[68] I have recorded above my view that the Correspondence information is, as a matter of fact, public. It does not possess the ‘necessary quality of confidence’ and cannot, therefore, form the basis of an equitable obligation of confidence. As regards the MoU, there is nothing before me to suggest that that document is itself in the public domain, although matters to which it relates have, as noted, been the subject of fairly extensive reportage and public comment. Given this, I did in preliminary correspondence with Council question whether the MoU was possessed of sufficient ‘intrinsic importance’[69] to attract the operation of an obligation of conscience binding Council not to disclose the MOU. I will proceed on the basis it does, and that as regards the MoU, requirement (b) is satisfied. I am not, however, persuaded that requirement (c) is satisfied – whether as regards the MoU or, if my view as to the lack of secrecy concerning the Correspondence information is incorrect, that latter information. Requirement (c) requires that 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.[70] In B and BNRHA,[71] the Information Commissioner stated that, when considering this requirement:[72] ...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. 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’.[73] Regarding the Correspondence, there is nothing on the face of these communications themselves[74] to suggest that those parts remaining in issue were made subject to any agreed understanding as to their confidence. As discussed above, most of the information remaining in issue on these pages pre-dates the MoU and the agreement as to confidentiality embodied in that document’s Confidentiality Clause. Additionally, in view of its age and generally routine nature, I am not persuaded that an obligation of confidence ought reasonably be inferred from the circumstances[75] of any of this information’s communication[76] – noting, once again, the lack of any direct submission from Imperium3 to the contrary, the party (or ‘plaintiff with standing’) whose interests any obligation would protect. The several names on the third and fourth pages of the Correspondence, meanwhile, do post-date the MoU and the shared intention as to confidentiality reflected in its Confidentiality Clause. However, that, and any general concerns as to confidentiality Council submits have pervaded its dealings with Imperium3 and associates,[77] are but two factors to be taken into account in assessing whether these names were communicated in confidence. More pertinent, in my view, is the nature and lack of sensitivity of this information:[78] these names are not, as alluded to above,[79] information Imperium3 or its membership appear to regard as secret,[80] and thus not information Council ought to regard itself as being conscience-bound to keep confidential. As for the MoU, I am obviously cognisant of the Confidentiality Clause, reflecting an intention on the part of Imperium3 and Council to protect information that may have been imparted to the former by the latter. I further acknowledge Council’s submissions as to the negotiating context in which the MoU was developed, which it contends was ‘characterized by emphasizing the high degree of confidentiality to be afforded’ relevant negotiations.[81] Additionally, I note Council’s submissions[82] that it may have discussed matters related to the transaction envisaged in the MoU in a closed meeting,[83] although I am not persuaded this fact of itself should be accorded especial significance in assessing whether equity would bind Council to keep the MoU confidential. On Council’s submissions and its own available materials,[84] that closed meeting did not concern the MoU, but a proposed allocation of Council land to Imperium3 for use by the latter and/or related entities, in their business operations. Noting again the restriction imposed on me by section 108(3) of RTI Act, I am limited in the detail I can give on this point. It is sufficient to note that I cannot see that disclosure of the MoU[85] would reveal matters Council may have been concerned to keep confidential by way of its closed meeting. I also note Council’s advice[86] that Imperium3 understood the MoU would be kept confidential, and has raised with Council concerns as to its release. While I accept this, I think it fair and reasonable to take into account the fact that Imperium3 has not, despite express invitation, actually pressed any such concerns directly with me during the course of this review. This causes me to question the extent of its current concerns in this regard, and, assuming some do exist, discount their weight in evaluating all relevant circumstances in this case. I have reached the above conclusion, fully conscious, particularly, of Council’s 5 August 2019 submissions to the contrary, in which Council sets out what it perceives to be matters from which I should infer that the MoU is a matter of commercial importance to Imperium3, irrespective of its own lack of submissions in this review to that effect. The MoU may, as Council submits, have been a matter of some sensitivity to Imperium3 and its constituent members at prior points in time. Council refers to trading suspensions requested by listed entities associated with Imperium3, at or around the time of the MoU’s execution: to my mind, this suggests that it was the fact of the signing of the MoU and the potential impact of this occurrence on share pricing, rather than the contents of that document, that was a matter of perceived sensitivity. Additionally and in any event, I am, as discussed extensively earlier in these reasons, required to determine questions of access having regard to facts and circumstances as they currently stand, and can only make such a determination based on the information before me, including that which review participants (and those invited to participate) have elected to put by way of evidence and submissions. Taking into account the amount of information concerning Imperium3 and related entities’ Townsville proposal that is now in the public domain, and without the benefit of any direct representations from that company to the contrary,[87] I do not think it unreasonable to infer that any commercial sensitivity Imperium3 may once have wished to have protected (whether from this applicant or more generally) has, from its perspective, now abated.[88] Further, even if it had been put to me directly and forcefully, Imperium3’s position, while undoubtedly relevant, is by no means determinative. As the observations of the senior judges above make clear, a party in Imperium3’s position ‘must, in matters of confidentiality, be taken to have done so subject to such lawful rights of access to information in the agency's hands as our laws and system of government confer on others.’[89] Turning to considerations telling against the imposition of an equitable obligation of confidence, first is the nature of the information actually comprising the MoU: information which, objectively assessed, appears possessed of no obvious commercial or other sensitivity. As I have alluded to earlier, it is not the case, for example, that the MoU embodies intellectual property, trade secrets or commercial intelligence communicated by Imperium3 to Council, disclosure of which could be expected to allow a competitor[90] to ‘look over the shoulder’ of Imperium3,[91] or confer a ‘leg up’ or commercial advantage on the former that it would not otherwise enjoy. It is a relatively standard ‘agreement to agree’. Also pertinent is the fact that the MoU is not, as I have noted, information proprietary or exclusive to Imperium3 that was in turn given to Council on the understanding Council would hold it confidentially. Rather, it is an agreement created conjointly with, and thus, in practical terms, ‘co-owned’[92] by Council: and, as a consequence, the broader community in whose interests Council acts. Further, 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, permissibly have regard to public interest considerations:[93] [82] ...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.) In this case, as discussed further below, the decision under review accurately identifies several public interest considerations telling in favour of disclosure of the information in issue. These can be coupled with the public interest in informing the community of Council operations, and the general public interest in promoting access to information in government possession or control. With these considerations in mind, I am satisfied that, having regard to ‘the mix of all the relevant circumstances’[94] applicable in this particular case, conscionable conduct would not require Council, as a public authority with a duty to account to the community, to keep confidential from that community a high-level agreement to agree of which Council is co-signatory, nor parts of routine communications[95] issued or fielded by the local community’s principal local government representative (the Mayor), in discharge of her official duties and presumably at some public expense. This is a finding made in full acknowledgement of the fact that, as Council submits and I have noted above, there is a deal of information otherwise in the public domain, as made available by Council itself or Imperium3 and/or its members. To the extent such information has been published by Council, it is to be commended. It still remains the case, however, that Council is accountable to the community for agreements it enters on its behalf and, when all relevant circumstances are taken into account – including, in this context, the pro-disclosure bias with which the RTI Act is to be administered, Parliament’s express mandate that grounds for exemption be read narrowly, and the lack of any requirement that an access applicant justify the making of a particular application – I am not persuaded equity would restrain Council from making such agreements available to members of the community, nor parts of communications concerning such agreements, of the kind in issue in this case. The information in issue is not exempt information under the Breach of Confidence Exemption. Contrary to the public interest Council 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 under the RTI Act.[96] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[97] and explains the steps that a decision-maker must take, as follows:[98] 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. I have taken no irrelevant factors into account in making my decision. ‘Could reasonably be expected’ 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:[99] 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’:[100] ... “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. I have kept the above in mind in identifying public interest considerations for and against disclosure of the information in issue. Council identified three public interest factors favouring disclosure, deciding that disclosure of the information in issue could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability[101] contribute to positive and informed debate on important issues or matters of serious interest; and[102] ensure effective oversight of expenditure of public funds.[103] I agree that, together with the general public interest in promoting access to government-held information,[104] each of the above factors favours disclosure in this case. I consider it reasonable to expect that disclosure of the information in issue will help to promote discussion of Council’s involvement in and support for the Imperium3 proposal, enhance Council’s accountability for that support, and by maximising the available information, foster informed debate on an important issue: Council backing of a private proposal, with an aim to achieving beneficial economic outcomes. While Imperium3’s proposal does not, on the information before me, involve expenditure of public funds, it is, as noted, proposed to allocate Council land to the consortium, something I consider the third factor listed above is broad enough to accommodate. If it is to be read narrowly, then there is in any event a strong public interest in disclosing information that helps to give the full picture of what it is Council is staking community resources against, and which can help to ensure effective oversight of allocation of public resources. In addition to the above considerations, I consider that, as a product of Council deliberation, negotiation, communication and agreement, disclosure of the information in issue could also reasonably be expected to inform the community of Council operations: another factor favouring disclosure in the public interest.[105] Council afforded the first and third considerations listed in paragraph 116 significant weight, and the second moderate weight. I agree with these weightings, and adopt them for the purposes of this decision. As for the additional considerations I have identified – the general public interest in promoting access to government-held information, and in informing the community of Council operations, I afford these, too, substantial weight, embodying as each does the strong public interest in ensuring government in Queensland, including local government, is conducted as transparently as possible.[106] Factors favouring nondisclosure In the decision under review, Council found that disclosure of the information in issue could reasonably be expected to: cause a public interest harm, through disclosure of personal information (PI Harm Factor)[107] cause a public interest harm through disclosure of deliberative process information (DP Harm Factor)[108] prejudice a deliberative process (DP Prejudice Factor)[109] prejudice business, commercial or financial affairs;[110] and give rise to the confidential communications public interest harm factor set out in schedule 4, part 4, section 8 of the RTI Act (the CCHF), and prejudice Council’s ability to obtain confidential information.[111] On external review, Council also contended that a consideration favouring nondisclosure was the fact that matters related to the information in issue were considered in a closed council meeting, held under section 275 of the Local Government Regulation 2012 (Qld) (LG Regulation). I will address each of these in turn. Disclose personal information Council decided that the PI Harm Factor operated to favour nondisclosure in this case. That factor provides that disclosure of information ‘could reasonably be expected to cause a public interest harm if disclosure would disclose personal information of a person, whether living or dead.’ Council’s decision does not particularise the information to which it contends the harm factor applies. As noted above, however, in its submissions dated 5 August 2019, it stated that redactions in the Correspondence were made ‘on the basis of privacy matters.’ Having independently reviewed the information in issue, I have identified information comprising personal information across all pages of the Correspondence – generally, names of officers of Imperium3 or associated entities.[112] There is also a limited amount of personal information in the execution clauses on the last page of the MoU – again, names. I accept that disclosure of this personal information would give rise to the PI Harm Factor. It is then necessary for me to evaluate the extent of public interest harm that could be expected to result from that disclosure, and balance that harm against considerations favouring disclosure.[113] The personal information contained in the Correspondence concerns sophisticated businesspersons, with public profiles and whose roles as proponents of the facility the subject of the MoU is a matter of public record.[114] None of this information appears particularly secret, sensitive, or private, and I do not consider its disclosure would cause any significant public interest harm. Two of the three names in the MoU, meanwhile, are Council officers, and thus public officials – Council has not sought to argue a case for the application of the relevant harm factor to these names. To the extent the PI Harm factor may apply, I consider that any public interest harm presumed to follow disclosure of the names of public officers appearing in a routine, official context would be minimal. The third name in the MoU is that of an Imperium3 representative, one of those also identified in the Correspondence. The considerations explained in paragraph 129 apply equally to this instance of the same personal information – its disclosure would occasion no significant public interest harm. In summary, I consider that the public interest harm resulting from disclosure of any personal information would be marginal, and that the PI Harm Factor warrants correspondingly minimal weight in balancing the public interest. I should also make clear that I do not accept that disclosure of any of this personal information could reasonably be expected to prejudice protection of any individual’s right to privacy. This is a separate nondisclosure factor, set out in schedule 4, part 3, item 3 of the RTI Act. Council did not rely on this factor in the decision under review. Its reference to ‘privacy matters’ in submissions quoted above means that I should, as a matter of prudence, nevertheless address it. 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.[115] In this case, Council’s election not to rely on this factor in the decision under review was, in my view, correct: this information falls outside any ‘personal sphere’ of businesspersons named in the Correspondence and MoU – it concerns the public business activities and aspects of relevant individuals’ lives, rather than their personal or private domains. I can see no basis for finding that disclosure of information of this kind could reasonably be expected to prejudice protection of any individual’s right to privacy. Similarly, I see no scope for the operation of the privacy nondisclosure factor to either of the Council officer names contained in the MoU – they appear in the context of the occupation of public roles and discharge of public duties, not relevant individuals’ ‘personal spheres’. In the event the findings in paragraphs 134 and 135 were incorrect, I would be required to weight the privacy nondisclosure factor. In view of the nature of this information and the business or official, rather than personal, context in which it appears, I would give the factor minimal weight. Affecting confidential communications The CCHF will only arise if: 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 nondisclosure factor requires only that disclosure could reasonably be expected to prejudice an agency’s ‘ability to obtain confidential information’. The repealed FOI Act contained an exemption provision, section 46(1)(b), which was stated in materially similar terms as the CCHF. The Information Commissioner’s comments on the application of that predecessor provision can therefore be applied when considering the application of the CCHF. In considering the first requirement for its application – confidentiality – the Information Commissioner observed in B and BNRHA: In my opinion, this criterion 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). As discussed above, those parts of the Correspondence remaining in issue do not seem to be of a confidential nature, and thus not information that may be the subject of the CCHF. As for the MoU, as noted above in discussing the Breach of Confidence Exemption, I accept this document may be regarded as confidential. I am also prepared to accept that the second requirement for the application of the CCHF, communication in confidence, is met. In this context, this phrase requires evidence of mutual agreement that relevant information is to be treated in confidence.[116] Whether or not it actually establishes contractual or equitable obligations, the mere presence of the Confidentiality Clause would seem to evidence a mutual understanding it would be kept confidential. I am not, however, persuaded that Council has justified a finding that the third requirement is met. Any information contained in the MoU (or, indeed, the Correspondence) has been communicated to Council by Imperium3 with a view, at least in part, to the latter securing Council support for the proposed project, including obtaining from Council the benefit of an allocation of land for the establishment of local operations. I acknowledge that this benefit will apparently be given by Council in exchange for a stake in the Imperium3 project.[117] Nevertheless, it is reasonable to conclude that the proposed allocation of land will be of material assistance to Imperium3. As the Information Commissioner has previously noted:[118] 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. I do not consider it reasonable to expect that disclosure of any of the information in issue that may have been communicated to Council by Imperium3 or associated entities would cause a substantial number of prospective business proponents – standing to benefit from an allocation of real property – to be ‘more reticent’[119] to communicate similar information to the public agencies proposing to extend such a benefit in the future. Nor, by extension, do I consider disclosure in these circumstances could reasonably be expected to prejudice Council or any other agency’s ability to obtain any such confidential information. Accordingly, I am not satisfied that disclosure of the MoU (or the information remaining in issue in the Correspondence) could reasonably be expected to prejudice either: supply of like information to Council in the future; or Council’s ability to obtain such information, as is necessary to enliven schedule 4, part 3, item 16 of the RTI Act. These factors do not, therefore, apply to favour nondisclosure of the information in issue. If this analysis is incorrect, it would be necessary to weight the CCHF and associated nondisclosure factor. If this is so, I would, in view of: the considerable amount of material in the public domain about Imperium3 and associated entities’ Townsville proposal, and Council’s involvement in and support for same; and the fact the information in issue does not, as noted, appear to embody any intellectual property or commercially sensitive information, give each only minimal weight. Deliberative process information As noted, Council decided that disclosure of the information in issue could reasonably be expected to: cause a public interest harm through disclosure of deliberative process information;[120] and prejudice a deliberative process.[121] The DP Harm Factor provides that disclosure of information could reasonably be expected to cause a public interest harm through disclosure of: an opinion, advice or recommendation that has been obtained, prepared or recorded; or a consultation or deliberation that has taken place, in the course of, or for, the deliberative processes involved in the functions of government. The DP Harm Factor cannot apply to purely factual material.[122] Additionally, and importantly, it only covers information ‘which can properly be characterised as opinion, advice or recommendation, or a consultation or deliberation, that was directed towards the deliberative processes, or as they are sometimes referred to... the “pre-decisional thinking processes” of an agency or Minister.’ [123] Council merely asserted the application of the DP Harm Factor: in neither its decision nor its submissions during the course of this review did it articulate an argument as to how any of the information remaining in issue could be characterised as opinion, advice, recommendation, consultation or deliberation of a type that may be subject to the operation of the DP Harm Factor. Given it carries the onus, the absence of any submissions would seem sufficient to justify a finding by me that the DP Harm Factor can have no application. I have nevertheless turned my mind to the DP Harm Factor’s potential operation. Having done so, I cannot see that it can have any application to any of the information remaining in issue. The MoU cannot be characterised as an ‘opinion’, ‘advice’ or ‘recommendation’, or ‘consultation’ or ‘deliberation’. It is a finalised, not ‘pre-decisional’, document, embodying a concluded ‘agreement to agree’. Its disclosure would not, therefore, result in disclosure of an opinion, advice, recommendation, consultation or deliberation that has taken place in the course of, or for, the deliberative processes involved in the functions of government. The DP Harm Factor cannot apply to favour nondisclosure of the MoU. As for the Correspondence, much of the information remaining in issue on these pages comprises factual information – names and business particulars, for example. This information is expressly excluded from the ambit of the DP Harm Factor. In fact, the only information that might arguably be characterised as an opinion or advice, recommendation, consultation or deliberation are the three segments of information redacted from the sixth page of the Correspondence. I cannot see, however, that such opinion or advice was obtained for ‘the deliberative processes involved in the functions of government’. There is no evidence before me that it was taken into account in Council or any other government’s ‘pre-decisional thinking processes’, nor that it was ‘obtained’ in the course of or for any deliberative process involved in the functions of government. The DP Harm Factor cannot, therefore, apply to favour nondisclosure of this information. In the event the findings in the preceding paragraphs are incorrect, and the information in issue could be said to comprise information within the ambit of the DP Harm Factor, then that factor presumes that disclosure of this information would give rise to a public interest harm. It would then be necessary to consider the extent of the resultant public interest harm, and assess its weight in balancing the public interest. My view is that, when the nature and age of the information is taken into account, together with: the fact that issues raised in the three segments on the sixth page of the Correspondence have been overtaken by the passage of time (such as the signing of the MoU and other agreements); and, again, the amount of information about the MoU, the Townsville proposal, Council’s role, and the proponents’ intentions that is publicly available,[124] that public interest harm would be slight. I would afford it minimal weight. As for the DP Prejudice factor, Council will no doubt be required to engage in future deliberative processes, assuming Imperium3’s proposal progresses. What Council has not done, however, is establish how disclosure of an agreement to agree, the fact and broad effect of which has been publicly reported, or dated information of the kind remaining in issue in the Correspondence, could reasonably be expected to prejudice any such future processes. Bearing in mind the considerations stated in paragraph 157, I do not consider Council has discharged its onus. The DP Prejudice Factor does not apply to favour nondisclosure of any of the information in issue. Again, if I am incorrect in this conclusion, and it is necessary to consider this factor in balancing the public interest, I would give it minimal weight in view of the nature of the information in issue and the considerations summarised in paragraphs 157 and 158. Prejudice business and other affairs Council decided that disclosure of the information in issue could reasonably be expected to ‘prejudice’ the ‘business affairs’ of an entity, citing schedule 4, part 3, item 2 of the RTI Act.[125] The ‘entity’ identified in the decision under review as the entity whose affairs Council decided may be prejudiced is an entity not in any way associated with matters the subject of the access application; I assume this was a typographical error, and the intended reference was to Imperium3. Council’s reasoning makes broad-brush claims as to the putative prejudice, asserting that disclosure of the information in issue would ‘result in a competitive disadvantage for the Entity’ by according ‘competitors and service providers with a clear commercial advantage to the detriment of the Entity’. Beyond these general assertions, however, Council’s reasons do not explain or evidence how disclosure of the particular information in issue before me could result in such detriment. In the absence of such explanation, and/or submissions from the ‘entity’ standing to incur any detriment or prejudice, I consider that there is insufficient information before me to permit a finding that disclosure of the information in issue could reasonably be expected to give rise to any of the prejudices identified in schedule 4, part 3, item 2 of the RTI Act. As I have noted above, the information in issue lacks any obvious commercial sensitivity, and I am not satisfied that this nondisclosure factor applies in the circumstances of this case. In the interests of completeness, I should note that Council’s decision did 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.[126] Additionally, it did not claim that it apprehended any prejudice to or adverse effect on its own business, professional, commercial or financial affairs were the information in issue to be disclosed. It did, however, in the decision under review paraphrase some of the language of these related nondisclosure and harm factors.[127] Further, in its submissions dated 5 August 2019, Council quoted a passage from the Information Commissioner’s decision of Cannon,[128] in a context suggesting it did harbour concerns disclosure may impinge on Council’s own affairs:[129] Drawing the line between disclosure of information which promotes an appropriate level of accountability and public scrutiny of a government agency operating in a competitive commercial environment, and disclosure which unduly impedes the effective pursuit of that agency’s operations, will often involve fine questions of judgment. Given this, it seems necessary that I turn my mind to the potential application of each of these additional considerations, and whether relevant affairs of Council might be prejudiced or adversely affected by disclosure of the information in issue. I am satisfied none of schedule 4, part 3, items 2 or 15, or schedule 4, part 4, section 7(1)(c) of the RTI Act applies to favour nondisclosure in this case: whether by reference to the affairs of Imperium3 or related entities, Council, or any other person, entity or agency. The reasoning at paragraphs 161-163 above is, in the absence of a clearly articulated case by either the agency with the onus of proving its claims, or the entity standing to be prejudiced or adversely affected, sufficient to dispose of any argument that disclosure of the information in issue could reasonably be expected to prejudice the trade secrets, business affairs or research of Imperium3, or adversely affect that entity’s business affairs. I am similarly unpersuaded that disclosure could prejudice or adversely affect Council’s business or related affairs. In considering the identically-worded FOI predecessor to schedule 4, part 4, section 7(1)(c) of the RTI Act,[130] the Information Commissioner explained that it: should apply only to the extent that an agency is engaged in a business undertaking carried on in an organised way for the purpose of generating income or profits, or is otherwise involved in an ongoing operation involving the provision of goods or services for the purpose of generating income or profits.[131] Given the similarity in wording, I consider that the two business affairs nondisclosure factors[132] may, at least to the extent they address business, professional, commercial or financial affairs,[133] also be fairly read in the manner explained by the Information Commissioner above: they only apply to information concerning agency activities or affairs that are carried on in a business-like fashion for the purpose of generating income or profits. The decision cited by Council, Cannon, concerned affairs of this kind: the affairs of an entity responsible for the marketing and sale of Queensland-produced eggs into an open and competitive commodity market. I question whether Council’s activities, in agreeing to explore the possibility of providing public support for Imperium3’s proposed Townsville operations, can be regarded as a ‘competitive commercial’ activity that might stand to be prejudiced by disclosure of any of the information in issue. On the contrary, it strikes me as activity of a fundamentally governmental, rather than commercial, character.[134] Council has not specified how it could, in conducting preliminary negotiations with Imperium3, be said to be operating in a for-profit, business-like fashion or a ‘competitive commercial environment’ of the kind considered in Cannon, and in the absence of such explanation, I am not persuaded that this is the case. In any event, I do not consider this case to be one of ‘fine judgment’. I do not think it reasonable to conclude that disclosure of either an agreement to agree nor the limited amount of information remaining in issue in the Correspondence will impede the ‘effective pursuit’ by Council or any other entity of their operations, howsoever they may be characterised, whether as regards the Imperium3 proposal, or more generally. Council has placed nothing before me that would allow me to conclude otherwise. To repeat, then, I am not satisfied that any of the business affairs nondisclosure or harm factors apply to favour nondisclosure of any of the information in issue. Assuming, once again, that any or all of these factors did arise to be balanced, I would give each only minimal weight, for reasons explained above: broadly, Imperium3’s lack of direct submission as to any prejudice it might conceivably suffer, the absence of any detailed submissions from Council as to apprehended prejudice or adverse effect, the quantity of information in the public domain, and the now-dated nature of the Correspondence information. Information considered in closed Council meeting Finally, Council has relied on the fact that certain matters relating to Imperium3’s proposals were discussed in a closed meeting under section 275 of the LG Regulation. I considered a similar argument in ABC.[135] In that case, however, the specific information in issue (or at least its substance) had been the subject of consideration in closed meeting. In the present case, what I understand was considered by Council in closed session was not the information in issue, but a separate issue – the proposal to allocate Council land for use by Imperium3 or associated entities. As discussed in paragraph 96, I cannot see that disclosure of any of the information in issue would infringe the confidentiality of the relevant closed meeting. Accordingly, I do not consider the occurrence of this closed meeting gives rise to a consideration favouring nondisclosure of that information. If this conclusion is wrong, I would be required to allocate a weight to this ‘closed meeting’ consideration. I approached this task in ABC as follows: It is, of course, then necessary to give weight to that consideration. In doing so, it is relevant to bear in mind that while in legislating section 275 of the LG Regulation Parliament may, as TCC decided, have recognised a ‘public interest in ensuring that certain matters discussed by Council should not be publically disclosed’, in enacting the RTI Act – particularly: • the right of access enshrined in section 23, and section 6, overriding any other provisions in other Acts prohibiting disclosure – Parliament has also determined that there is a prevailing public interest in enabling public access to information in the government’s possession or under the government’s control, including that in the possession or under the control of local governments. This is a right that has existed in Queensland in one enactment or another for more than 25 years, and one the existence of which I expect all local governments would be aware – such that they would appreciate that information discussed in closed session, insofar as it falls to be recorded in a document as defined in the RTI Act, may be subject to disclosure in accordance with that right. In the circumstances, I afford this consideration telling against disclosure of the Term Sheet modest weight. In this case, given the relatively peripheral connection between Council’s closed meeting and the information in issue, I would afford this consideration even less weight, and give it only minimal weight. Balancing the public interest I have identified above several factors or considerations favouring disclosure of the information in issue, which I consider warrant moderate to substantial weight. As against this, I am not satisfied that any factors or considerations operate to favour nondisclosure of the information in issue – apart from the PI Harm Factor, to a limited amount of personal information.[136] Where multiple factors apply to favour disclosure of information – some substantial – and none tell against, there is obviously no basis for finding that disclosure of that information would, on balance, be contrary to the public interest. Accordingly, I find that disclosure of any non-personal information in issue would not, on balance, be contrary to the public interest. As regards personal information, I am satisfied that the public interests in furthering access to government-held information, and promoting Council openness and accountability, displace the minimally-weighted PI Harm Factor. The balance of the public interest therefore favours disclosure of relevant information, and its disclosure would not, on balance, be contrary to that public interest in the particular circumstances of this case. In the event my identification of factors and considerations favouring nondisclosure may be incorrect, and some or all discussed above do apply to the information in issue, then I nevertheless remain of the view that disclosure would not, on balance, be contrary to the public interest. I have accorded relevant factors and considerations favouring nondisclosure notional weightings above. These weightings would be insufficient to displace the general public interest in promoting access to government-held information, and the three substantial and one moderately-weighted factor favouring disclosure that I have identified.DECISION I set aside the decision under review dated 14 August 2018. In substitution, I find that Council has not demonstrated that the decision under review was justified, or that I should give a decision adverse to the applicant. No grounds exist for refusing access to the information in issue. Louisa LynchActing Information CommissionerDate: 3 October 2019 APPENDIX Significant procedural steps Date Event 10 September 2018 OIC received the applicant’s external review application. 11 September 2018 OIC notified Council and the applicant that the review application had been received and requested procedural documents from Council. 18 September 2018 OIC received the requested documents from Council. 9 October 2018 OIC notified Council and the applicant that the application for external review had been accepted. OIC requested the Information in Issue from Council. 5 November 2018 OIC received the requested documents from Council. 19 February 2019 OIC conveyed a written preliminary view to Council, advising that there were no grounds for refusing access to the Information in Issue. 6 March 2019 Council requested a 10-day extension of time to respond to OIC’s preliminary view. OIC granted an extension of time to 20 March 2019. 20 March 2019 OIC received Council’s submissions advising that Council intended to consult with relevant third parties. 22 March 2019 OIC accepted Council’s proposal to consult with third parties. 23 April 2019 Council requested an extension of time. OIC granted an extension of time to 10 May 2019. 9 May 2019 OIC received Council’s advice on third party consultation and submissions in reply to OIC’s 19 February 2019 preliminary view. 21 May 2019 OIC wrote to Imperium3 by way of formal consultation. 4 June 2019 OIC conveyed a second preliminary view to Council. 13 June 2019 OIC received from Council submissions in reply to OIC’s second preliminary view. 18 June 2019 OIC received further correspondence from Council, concerning contact with Imperium3. 20 June 2019 OIC wrote to Council concerning consultation with Imperium3. Council responded to OIC’s letter of same date. OIC wrote again to Imperium3 by way of consultation. 3 July 2019 Council notified OIC advising of preparedness to disclose some information. 9 July 2019 OIC wrote to Council, asking it to arrange disclosure of information. OIC further wrote to the applicant’s representatives, asking they advise whether the applicant continued to seek access to information remaining in issue. 16 July 2019 The applicant’s solicitor advised OIC that the applicant continued to seek access to the remaining Information in Issue. 23 July 2019 OIC conveyed another written preliminary view to Council, reiterating that there were no grounds for refusing access to most of the Information in Issue. OIC conveyed a written preliminary view to the applicant’s solicitors, advising that the personal information of other individuals could be refused. 5 August 2019 OIC received submissions in reply from Council. 20 August 2019 OIC wrote to Council and the applicant as to the status of the review, advising that some personal information no longer remained in issue, and confirming that the next step would comprise a formal decision. 27 August 2019 OIC received further submissions from Council. 2 September 2019 OIC wrote to the applicant, conveying a preliminary view that access to some additional personal information may be refused. 6 September 2019 OIC wrote to Council seeking clarification as to some of the information in issue. Council replied, providing the requested clarfication. 24 September 2019 OIC wrote to Council and the applicant, confirming personal information the subject of OIC’s 2 September 2019 letter to the applicant no longer remained in issue. [1] Access application dated 5 July 2018.[2] Letter dated 23 April 2019, supplied to me by Council on 17 May 2019.[3] Council submissions dated 9 May 2019 (received 10 May 2019), paragraph 7.1.[4] Section 89(2) of the RTI Act.[5] Letter and submissions dated 13 June 2019. Similar advice was contained in letters from Council dated 18 and 20 June 2019.[6] Ie, further to its 23 April 2019 letter, to which it had received no reply.[7] See my letter to the applicant’s solicitors dated 2 September 2019, conveying my preliminary view that access to these signatures may be refused and advising that if I did not hear from the applicant by 11 September 2019, I would proceed on the basis he accepted this preliminary view and these signatures would not remain in issue. No reply was received.[8] See my letters to the applicant’s representatives dated 23 July 2019 and 20 August 2019, the first in similar terms to the letter described in footnote 7, the second confirming information remaining in issue. Copies of both the MoU and Communications, marked so as to depict information not in issue, will accompany the copy of these reasons to be forwarded to Council.[9] Section 47(3)(a) of the RTI Act.[10] Section 47(3)(b) of the RTI Act.[11] Section 3(1) of the RTI Act.[12] Section 3(2) of the RTI Act.[13] Section 23(1) of the RTI Act.[14] Section 47 of the RTI Act.[15] Section 47(3)(a) and 48 of the RTI Act.[16] Section 47(3)(b) and 49 of the RTI Act.[17] Section 47(2)(a) of the RTI Act.[18] Section 44 of the RTI Act.[19] Section 87(1) of the RTI Act.[20] [1995] QICmr 38; (1995) 3 QAR 26.[21] At [58]. Emphasis added.[22] Woodyatt and Minister for Corrective Services [1995] QICmr 1; (1995) 2 QAR 383. Emphasis added.[23] The current review involves no question of changes to legislation, accrued rights, or the application of section 20 of the Acts Interpretation Act 1954 (Qld), to which the balance of this extracted paragraph was directed.[24] Shi v Migration Agents Registration Authority (2008) HCA 31 (Shi); Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066 (28 November 2008); Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 (Frugtniet).[25] Citation above, footnote 24. [26] Unlike section 110(1) of the RTI Act, section 43(1) of the AAT Act also confers a power on the AAT to remit matters for reconsideration; section 110(1) of the RTI Act does not contain this power, but I cannot see that this divergence is of any consequence for the purposes of determining the time at which material facts are to be taken into account. [27] Similarly, the High Court’s recent decision in Frugtniet seems to take Council’s case nowhere: as is expressly stated in the very passage cited by Council, merits review is, absent exceptional circumstances, to be conducted ‘as if the original decision-maker were deciding the matter at the time that it is before the AAT’: [15].[28] [41]. [29] Section 81 of the FOI Act.[30] The FOI Act was reprinted in the period between these decisions (Reprint 4 to Reprint 5); the relevant provision, section 88(1), was unaltered. [31] And in his lead decision on its interpretation and application, B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (B and BNRHA), Commissioner Albietz appears to have envisaged that whether the exemption is established is a matter to be determined at time the particular decision falls to be made – whether by ‘the primary decision maker, internal reviewer, or external review authority, as the case may be.’ [85]. See also [71(i)]. The provision analysed in B and BNRHA, section 46(1)(a) of the repealed FOI Act, was, as far as is relevant, identical to schedule 3, section (8)(1) of the RTI Act.[32] [1994] QICmr 9; (1994) 1 QAR 491 (Cannon).[33] November 1995.[34] Shi, at [51] (Kirby J).[35] In this regard, see 44ZNEO and Department of Health (Unreported, Queensland Information Commissioner, 31 March 2010), the Information Commissioner citing Shi in support of the position that ‘the OIC, as a body empowered to conduct a full review of the merits of an administrative decision under challenge, is entitled to consider the facts as they are at the time of its decision.’: [75].[36] B and BNRHA, at [44].[37] Ramsay Health Care Ltd v Information Commissioner & Anor [2019] QCATA 66 (Ramsay).[38] Section 108(3) of the RTI Act. Similarly, in view of the constraint imposed by section 108(3), I have taken a guarded approach when relying on public sources of information which may duplicate information in in issue in this review.[39] At [45].[40] Letter dated 23 July 2019.[41] Submissions dated 5 August 2019.[42] Perry v Anthony [2016] NSWCA 56 at [26] citing Dunlop Pneumatic Tyre Co Ltd v Selfridge and Co Ltd [1915] UKHL 1; [1915] AC 847, at 855.[43] The general nature and effect of which is described in my letter to Council dated 19 February 2019, at page 2.[44] (1995) 183 CLR 10, at 35, 37-38.[45] [1997] FCA 558; (1997) 146 ALR 1 (Hughes), at 88-89, cited with approval in Seeney and Department of State Development (2004) 6 QAR 354 (Seeney), at [199].[46] (1995) 36 NSWLR 662.[47] At 675. [48] And Imperium3 has not, as noted, sought to argue to the contrary.[49] And which, as noted, is to be administered with a pro-disclosure bias, with grounds for refusing access to be read narrowly: paragraph 18.[50] Noting here Parliament’s recognition that ‘the community should be kept informed of government’s operations...’: RTI Act Preamble, section 1(c).[51] Minister for Immigration and Citizenship v Kumar [2009] HCA 10, cited in Ramsay, at [74].[52] RTI Act Preamble, section 3. [53] Paragraphs 4.5 and 4.5.[54] Noting, apart from anything else, that this particular subclause would not appear to extend to either the Correspondence or the MoU, for reasons explained at footnote 10 to my letter to Council dated 23 July 2019. [55] Expressed generally in section 44(4) of the RTI Act, and more specifically at sections 47(2)(b), 48(3) and 49(5). Additionally, an agency in Council’s position deciding or otherwise electing to disclose information enjoys express statutory protection from, relevantly, any action for a breach of confidence: section 170(1)(c) of the RTI Act. The only step an agency may be obliged to take as regards external third parties is to obtain their views as to potential disclosure of requested information, under section 37 of the RTI Act: those views in no way binding the agency.[56] Sections 47(2)(b) and 48(3) of the RTI Act.[57] See also Westfield Management Ltd v AMP Capital Property Nominees Ltd [2012] HCA 54, at [46].[58] Council’s 5 August 2019 submissions also state a claim for exemption of the Correspondence under the Breach of Confidence Exemption. [59] The MoU was apparently signed on 3 June 2018 - a proposition with which Council agrees (5 August 2019 submissions). [60] 5 August 2019 submissions.[61] At [48].[62] Now seemingly an issue of little sensitivity, given relevant agreements have been finalised and publicised – as noted in my letter to Council dated 19 February 2019, the only information of any obvious substance in the Correspondence appears to be a certain segment on the sixth page, which has been reported or published in a number of sources (see, for example, sources noted at footnotes 10 and 11 to that letter).[63] The thrust of Council’s submissions on this issue being, as I understand, that I should be confining myself to considering what may have been in the public domain at the date of its, rather than my, decision: a proposition which, as explained above, I do not accept.[64] See footnote 1 to my 29 July 2019 letter to Council for sources of and references to some of this information, including the status of the company name. See also footnote 20 to my letter to Council dated 23 July 2019, and sources cited at footnotes 10 and 11 of my 19 February 2019 letter to Council. The hyperlinks cited in footnote 1 of my 29 July 2019 letter are no longer accessible. I have, however, included with the copy of these reasons forwarded to Council copies of other materials obtained by OIC from the public domain, demonstrating public accessibility of some of this information. Additionally, since the date of those letters further material has come to my attention publicising the execution of the MoU, which includes information Council claims is confidential – relevant material will also be included with the copy of these reasons forwarded to Council.[65] B and BNRHA, [57]-[58].[66] Ramsay, at [91]-[96]. For the position where the ‘hypothetical plaintiff’ is a government entity, see B and BNRHA, at [110], citing The Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44, and which analysis I do not understand to have been disturbed by Ramsay, particularly in view of the fact that that decision expressly quotes the material passage of Mason J’s judgment in Fairfax, from which relevant principles derive (Ramsay, at [75]).[67] Coco v A N Clark (Engineers) Ltd [1969] RPC 41, at 47-48 (Megarry J), as cited in B and BNRHA, at [68].[68] Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109 at p.282, per Lord Goff, as cited in B and BNRHA, at [67].[69] See el Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172 (18 July 2007), at [133].[70] B and BNRHA, [76]-[102].[71] At [84].[72] 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 pp 302-4. See also Ramsay, at [79].[73] Pearce and Qld Rural Adjustment Authority; Various Landholders (Third Parties) (1999) 5 QAR 242 at [84].[74] I acknowledge that Pages 1 and 5 contain a typical ‘boilerplate’ email disclaimer referring to confidentiality. Given the small size and positioning of this text at the foot, rather than the commencement, of relevant communications, and its generic and equivocal terms, I do not regard it as reflecting a serious request that the information redacted from the emails in which it appears be held confidentially.[75] Including general concerns as to confidentiality Council submits accompanied all negotiations between it and Imperium3 (touched on again below at paragraph 95, in discussing the MoU). [76] As the Information Commissioner recognised might be done in an appropriate case: B and BNRHA, at [89]. [77] See, for example, Council’s 13 June, 20 June and 5 August 2019 submissions.[78] Relevant considerations: B and BNHRA, [82], cited at paragraph 90 above, and remembering that my primary finding as regards this information is that it is not actually secret, and thus does not satisfy cumulative requirement (b), let alone requirement (c).[79] Paragraph 77.[80] Which would appear to be a relevant consideration: see B and BNRHA at [87], paraphrasing Gurry’s observations that ‘...in assessing whether a confidant ought to have known that a disclosure was made for a limited [confidential] purpose, the courts will take into account the confider's own attitude and conduct with respect to preserving the secrecy of the allegedly confidential information.’[81] 5 August 2019 submissions. A similar point is made in its 13 June 2019 submissions, and at paragraph 4.8(c) of its 9 May 2019 submissions.[82] See paragraph 4.8(d) of Council’s 9 May 2019 submissions.[83] Under section 275 of the Local Government Regulation 2012 (Qld).[84] Relevant materials to accompany the copy of these reasons to be sent to Council. [85] Or, indeed, any of the information in issue.[86] As related, for example, in Council’s letter and accompanying submissions dated 13 June 2019, and its 18 and 20 June 2019 letters.[87] The entity which would appear to be that best placed to press any such concerns.[88] In drawing these conclusions, I am not concluding that Imperium3 has consented to disclosure of the information in issue, such as to amount to its waiving or releasing Council from any claim to confidentiality Imperium3 might claim to be owed. Council’s 13 June and 5 August 2019 submissions go to some length to rebut any such suggestion, which I had ventilated in 4 June 2019 correspondence to Council. [89] Finn J in Hughes, cited in full at paragraph 55.[90] Whether the applicant, or more generally.[91] News Corporation v NCSC (1984) 57 ALR 550, cited in Council’s 5 August 2019 submissions. [92] This phrase was used in the UK Court of Appeal in Murray v Yorkshire Fund Managers Ltd [1997] EWCA Civ 2958; [1998] 1 WLR 951 (Murray); I included that citation in making this point of practical ‘co-ownership’ in correspondence with Council during the review. Council has taken issue with the reference to Murray; as I understand that decision, it is authority for the proposition that information developed jointly may be the subject of an equitable obligation of confidence restraining one of its ‘co-owners’ (see Australian Broadcasting Corporation and Townsville City Council; Adani Mining Pty Ltd (Third Party) & Ors [2019] QICmr 7 (12 March 2019), at [43] (ABC)). This is a proposition I would have thought Council would be inclined to adopt, given past doubts expressed by the Deputy Information Commissioner as to whether documents which have come about as negotiation between a government and a third party, such as the MoU, could be said to have been ‘communicated’ by the third party: Aries Tours Pty Ltd and Environmental Protection Agency (Unreported, Queensland Information Commissioner, 28 March 2002), at [55]. In any event, I am using the phrase and concept of ‘co-ownership’ here in an ordinary, natural sense. [93] Ramsay, at [82].[94] Ramsay at [82], quoted in full above at 104.[95] Ie, the information remaining in issue in the Correspondence.[96] Section 47(3)(b) of the RTI Act.[97] Schedule 4 of the RTI Act sets out non-exhaustive lists of potentially relevant considerations. The phrase ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests, although there are some recognised public interest considerations that may apply for the benefit of an individual: Chris Wheeler, ‘The Public Interest: We Know It's Important, But Do We Know What It Means’ [2006] AIAdminLawF 2; (2006) 48 AIAL Forum 12, 14.[98] Section 49(3) of the RTI Act.[99] B and BNRHA at [154]-[160].[100] 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.[101] Schedule 4, part 2, item 1 of the RTI Act. There is judicial authority that the expression ‘the Government’ as used in this item refers to the ‘elected government of the day’: Carmody v Information Commissioner & Ors [2018] QCATA 14, [151]-[152] (as against, in that case, ‘the judiciary’). As local government is elected, the phrase would seem broad enough to operate in the current context. If, however, ‘the Government’ is to be read as referring to elected State ‘Government’, then bearing in mind the list of factors in schedule 4 of the RTI Act is not exhaustive, I would have regard to a separate and distinct consideration favouring disclosure, in identical terms as this item but referring instead to ‘local government’ instead of ‘the Government’.[102] Schedule 4, part 2, item 2 of the RTI Act.[103] Schedule 4, part 2, item 4 of the RTI Act.[104] Implicit, for example, in the preamble to the RTI Act, section 3 of the RTI Act, and the pro-disclosure bias stated in section 44 of the RTI Act.[105] Schedule 4, part 2, item 3 of the RTI Act, adopting and applying the comments in note 101 above, in the event this particular consideration is to be confined to state executive government only.[106] A public interest reflected in the very existence of the RTI Act, and Parliament’s recognition that in a ‘free and democratic society there should be open discussion of public affairs’, that information ‘in the government’s possession or under the government’s control is a public resource’, and that ‘the community should be kept informed of government’s operations...’: RTI Act, Preamble, sections 1(a)-(c). [107] Schedule 4, part 4, section 6 of the RTI Act.[108] Schedule 4, part 4, section 4 of the RTI Act.[109] Schedule 4, part 3, item 20 of the RTI Act.[110] Schedule 4, part 3, item 2 of the RTI Act.[111] Schedule 4, part 3, item 16 of the RTI Act.[112] Noting that any personal information of Council officers or employees in these Correspondence pages has been released, and is not in issue, while the applicant did not, as noted, seek to press for access to mobile telephone numbers and non-Council email addresses.[113] See generally section 49 of the RTI Act, and particularly subsection (4), which provides that ‘the fact that 1 or more schedule 4, part 4 harm factors of the relevant factors favouring nondisclosure is a harm factor does not of itself mean that, on balance, disclosure of the information would be contrary to the public interest.’[114] See particularly material referred to at footnote 64.[115] Paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ (Report No. 108, August 2008) vol 1, 148 [1.56].[116] B and BNRHA at [152]. [117] The website of one of the Imperium3 consortium members notes that ‘400 hectares’ has been ‘offered for small equity stake in project’: http://magnis.com.au/batteries-gigafactories/townsville-australia (accessed 17 September 2019).[118] B and BNRHA at [161].[119] Council’s 9 May 2019 submissions, paragraph 5.4.[120] Schedule 4, part 4, section 4(1) of the RTI Act – the DP Harm Factor. [121] Schedule 4, part 3, item 20 of the RTI Act – the DP Prejudice Factor.[122] Schedule 4, part 4 section 4(3)(b) of the RTI Act.[123] Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 (Eccleston), at [30]. Eccleston concerned section 41(1) of the repealed FOI Act, but these comments are relevant to the interpretation of this aspect of the DP Harm Factor, worded identically. [124] See particularly materials cited at footnotes 62 and 64.[125] Paragraph 3.6(a) of the decision under review.[126] Schedule 4, part 4, section 7(1)(c) will apply where disclosure of information would disclose information concerning the business, professional, commercial or financial affairs of an agency or another person could reasonably be expected to have an adverse effect upon those affairs or prejudice the future supply of information of this type to government. As regards this latter harm – prejudice to supply of information – I am not satisfied there is any basis to conclude it would be reasonably likely to occur: see paragraphs 142-143 (noting that I cannot see how it could arise by reference to Council’s, rather than Imperium3 or some other external entity’s, affairs).[127] Eg, by referring to ‘adverse effect’. In its 5 August 2019 submissions, Council also made an incidental reference to the information in issue being of ‘commercial value’ to Imperium3 and associates. Schedule 4, part 4, section 7(1)(b) of the RTI Act recognises that a public interest harm will arise where disclosure would disclose information that has a commercial value to an agency or another person, and could reasonably be expected to destroy or diminish the commercial value of that information. The meaning of ‘commercial value’ in this context was explained by the Information Commissioner in Cannon, at [54]-[55]: either that information is valuable for the purposes of carrying on commercial activity, or there exists a genuine arm’s length buyer prepared to pay for the information. In the absence of any developed submissions from Council on this point, or any at all from Imperium3, I am not prepared to find that the specific information in issue before me has any commercial value within the meaning of this factor.[128] Citation at footnote 32[129] At [110].[130] Section 45(1)(c).[131] Seeney, at [93].[132] That is, schedule 4, part 3, items 2 and 15 of the RTI Act.[133] There is nothing before me to suggest private affairs, or trade secrets or research would be prejudiced by disclosure (and Council has not sought to argue same), and I have therefore confined my consideration of each to the extent they encompass business, professional, commercial or financial affairs. [134] See Seeney, at [49]-[51], observations made in a comparable context. [135] [141]-[145].[136] For the sake of completeness, I should note that in submissions dated 13 June 2019, Council relayed to me Imperium3’s concerns as to the identity of the applicant, and the use he may intend to put any information that may be accessed. Information access processes of the kind set down in the RTI Act are generally regarded as both ‘applicant and motive blind’ (S v the Information Commissioner [2007] UKIT EA/2006/0030, at [19]), and applicant identity and motive are irrelevant considerations: State of Queensland v Albietz [1996] 1 Qd R 215 and Australian Workers’ Union and Queensland Treasury; Ardent Leisure Limited (Third Party) [2016] QICmr 28 (28 July 2016), [40]-[41] and Schedule 4, part 1 items 2 and 3 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

H89 and Metro North Hospital and Health Service [2021] QICmr 18 (4 May 2021)

H89 and Metro North Hospital and Health Service [2021] QICmr 18 (4 May 2021) Last Updated: 19 August 2021 Decision and Reasons for Decision Citation: H89 and Metro North Hospital and Health Service [2021] QICmr 18 (4 May 2021) Application Number: 315348 Applicant: H89 Respondent: Metro North Hospital and Health Service Decision Date: 4 May 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - DOCUMENTS NONEXISTENT OR UNLOCATABLE - applicant contends further documents exist - whether agency has taken all reasonable steps to locate documents - whether access may be refused on the basis that the documents do not exist or are unlocatable - whether access may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST - access refused to information about other individuals - personal information and privacy - whether disclosure would, on balance, be contrary to 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 Metro North Hospital and Health Service (MNHHS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to various documents, as detailed in Annexure A, relating to her medical and mental health records held by MNHHS. 2. MNHHS located 176 pages and decided[2] to refuse access to information contained within parts of 4 pages on the ground that disclosure would, on balance be contrary to the public interest (Information in Issue). The remaining information was released to the applicant.[3] 3. The applicant applied[4] to the Office of the Information Commissioner (OIC) for external review of the decision refusing access to the Information in Issue and raised concerns that MNHHS had failed to locate all relevant documents. 4. For the reasons set out below, I affirm MNHHS’s decision and find that access to information in this review may be refused on the following grounds: further documents responsive to the access application are nonexistent or unlocatable; and disclosure of the Information in Issue would, on balance, be contrary to the public interest. Background 5. The applicant has previously sought access to various documents relating to her medical and mental health records held by MNHHS. That previous access application was the subject of external review 314266, which was finalised by a written decision on 27 March 2020.[5] 6. Significant procedural steps taken during the current external review are set out in Annexure B of this decision. Reviewable decision 7. The decision under review is MNHHS’ decision dated 18 March 2020. Evidence considered 8. During this external review, the applicant requested[6] that OIC take into account submissions made by the applicant in relation to her previous external review, which involved similar information and issues to those for determination in this review.[7] I have considered all this material on reaching my decision on the issues to be determined in this external review. 9. In reaching my decision, I have had regard to the submissions, evidence, legislation and other material referred to throughout these reasons (including footnotes and Annexures). 10. 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 IP Act and Right to Information Act 2009 (Qld) (RTI Act).[9] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. Information in issue 11. As set out at paragraph 2 above, the Information in Issue is contained within parts [10] 4 pages.10Allegations by the applicant relating to bias and procedural fairness 12. Before addressing the issues for determination, I will first deal with preliminary issues raised by the applicant. 13. On 5 November 2020, after completing a preliminary assessment of the issues in this review, Assistant Information Commissioner Rickard wrote to the applicant to explain that she had formed a preliminary view (OIC’s preliminary view letter) that: MNHHS had taken all reasonable steps to locate the information requested in the access application and access to further documents may be refused on the ground they are nonexistent or unlocatable; and access to the Information in Issue may be refused on the ground that disclosure would, on balance, be contrary to the public interest. 14. The applicant was also advised that if she did not accept the preliminary view, she was invited to lodge a submission in support of her case. 15. In response to OIC’s preliminary view letter, the applicant provided a submission raising a number of concerns relating to the processes adopted by OIC in dealing with her external review:[11] 1. Information Privacy Act 2009 (Old) requires the commissioner on publication of decisions to arrange to have any information contrary to public interest information not disclosed. ... I submit the publication of my name on any decision is contrary to public interest information... ... 2. It is generally accepted, as a minimum, 10 clear business days following receipt of documents is maybe considered giving procedural fairness. This practice has previously been objected to and sometimes more reasonable times to respond e.g. 20 business days were advised - these objections now are to no avail, whilst reverting to grossly unfair practices. This letter dated and postmarked as (Thursday) 5 November 2020, requiring a submission by (Thursday) 19 November, 2020 gives ten business days following the date the letter is written. The letter was received on Monday 9 November 2020 (the probable earliest delivery by Australia Post) and my calculation would suggest 10 clear business days to provide a submission would be Tuesday, 24 November 2020. 3. Communications regarding this application for external review leave a lot to be desired - taking into account the Office of Information Commissioner's (OIC) planned pandemic management's method of dealing with any correspondence/external review lodgment etc (considered 'a nonsense') ... ... I propose dealing with the contents of the matters relevant to the External Review in a later submission The submission regarding Lack of Procedural Fairness [is] incomplete and will be dealt with in a later submission. ... 4. All External Review 314266 submissions and annexures thereto are required to be part of this external review. These submissions were ignored in External Review 314266. I require these submissions are not again ignored ... 5. Copies of submissions from MNHHS- Health Service have not been provided. ... 6. Identification of the files as to being file one or two in External Review 314266 are required. It is essential previous submissions and annexures from external review 314266 are included in this external review and a greater provision of procedural fairness is required, together with MNHHS - Health Service submissions and response to queries. Please provide notification of these requirements being met. Then provide a more reasonable time frame in which to provide further submissions. 16. I wrote to the applicant on 25 November 2020 rejecting the contention that she had not been afforded procedural fairness in this process and advised her that: her name would be anonymised in our written decision her submissions, including annexures, relating to external review 314266 would be considered in this review to the extent they are relevant to the issues being considered in this review while OIC does not provide copies of submissions to other participants in an external review, where a submission is made that is relevant to the issues being decided, and will negatively affect another external review participant, that submission will be communicated to other participants to afford procedural fairness a submission of this nature was received from MNHHS in relation to this review and was consequently communicated to the applicant in OIC’s preliminary view letter; and an extension until 16 December 2020 was granted for the applicant to provide a response to OIC’s preliminary view letter. 17. In response, the applicant repeated her previous submissions noted at paragraph 15 and furt[12]r stated:12 Following from the incomplete submission regarding this preliminary view; OIC's advisement dated (Thursday) 25 November 2020 (post stamped Friday 26 November 2020), (received Monday 30 November 2020 stating: 'my letter of 19 November 2020 raises a number of issues regarding this external review'. ... OIC's advisement of 26 November 2020 states: I note OIC's statement: 'You contend ... you have not been afforded procedural fairness in this process. This contention is rejected'. OIC have not offered any substantive reasons as to why this contention is rejected. Only to state more 'nonsense and piffle': 'acknowledging the passage of time sine [sic] your application was received, OIC's letter dated 5 November 2020 set out Assistant Information Commissioner Rickard's preliminary view on the issues we are considering in this review and reasons for her view. You were provided with an opportunity to provide a submission supporting your case should you not agree to resolve this review informally' How can OIC prepare a preliminary view without having any input from myself? Nor provide copies of MNHHS - TPCH Health Services' submissions? Nor consider the submissions in the earlier External Review [3]14266 (Under appeal to QCAT APL ...) How is your statement 'you will consider these submissions in this review to the extent they are relevant to the issues being considered in this review' providing procedural fairness? I have requested all submissions are to be considered not those you decided are relevant to the issues being considered in this review. How can OIC proceed to prepare a preliminary view contrary to the provisions of the IP Act wherein there is a mandatory requirement to attempt to settle an external review? This was not attempted in any way, shape or form under any circumstances whatsoever. I now refute totally your rejection and will continue to outline my reasons in following submissions. ... The submissions were not considered in external review 314266; you indicate you will consider these submissions in this review to the extent they are relevant to the issues being considered in this review. With respect, may I suggest OIC is not across the issues in either this external review nor external review 314266 (on appeal to QCAT APL ...); I have no faith in OIC deciding the relevance of prior submissions. ... OIC's advisement of 26 November 2020 states: I note your request to be provided with a copy of any submissions OIC has received from Metro North Hospital and Health Service (the Health Service). While we do not provide copies of submissions to other participants in an external review, where a submission contains information relevant to the issues being decided, and will negatively affect another external review participant, that information will be communicated to other participants in order to afford procedural fairness. Information of this nature contained within submissions received from the Health Service in relation to this review is set out within OIC's Letter. This is more nonsense; there is no other participant to this external review. OIC continually state: OIC is an independent body that conducts merit-based reviews of specific government decisions on access to, and amendment of, documents. As an independent body we review decisions in a fair and unbiased way. OIC also advises submissions from other parties are to be made available to all participants. I question: how do these practices, procedures and policies contribute to the provision of procedural fairness or OIC's independence? It seems very obvious OIC are demonstrating there is a culture - some OIC's officers: are always right; do not make mistakes; do not know what is right; are prejudicially biased including 'motivationally' focussing on private, personal, partisan interests of the decision maker/s and possibly those of third parties. I will suggest this type of behaviour is rife across the whole of government. I ask: Do OIC Officers, either individually or collectively, know what is 'Right'? I ask: Are OIC Officers infallible i.e. they do not make mistakes? I ask: Are OIC Officers, either individually or collectively, prejudicially biased including motivationally focussing on private, personal, partisan interests of the decision maker/s and possibly those of third parties? I ask: What policies, practices, procedures and guidelines OIC have in place making sure all OIC Officers: know what is 'Right'; do not make mistakes; are not prejudicially biased including motivationally focussing on private, personal, partisan interests of the decision maker/s and possibly those of third parties? ... ... Identification of the files as to being file one or two in External Review 314266 are required. It is essential all previous submissions and annexures from external review 314266 are included in this external review and a greater provision of procedural fairness is required, together with MNHHS - Health Service submissions and response to queries. Please provide notification of these requirements being met. Then provide a more reasonable time frame in which to provide further submissions. OIC's advisement of 26 November 2020 states: I note your advice that you intend to make further submissions in support of your case. Please provide you [sic] submissions to OIC by 16 December 2020. This additional time takes into account any postal delays that may be experienced. This is a grossly inadequate time frame and a further instance of a lack of procedural fairness in relation to providing submissions. Without knowing: to what extent you propose to consider submissions in external review 314266 I am left with no other alternative than to re submit submissions. what is in MNHHS - TPCH Hospital Service's submissions, I am placed at a serious disadvantage. Which files the information in this review relates to external review 314266 I am unable to provide the information I feel is missing. Please be advised OIC have had this external review since 7 April 2020 and you proceed to issue a preliminary view on 5 November 2020 (received 9 November 2020) without any input from myself... OIC expected submissions in response by 19 November 2020 accompanied with a threat to proceed to formally resolve the review taking away any appeal rights if this date is not complied with OIC then say you will consider submissions in external review 314266 to the extent they are relevant in this external review without being across the issues in either review; OIC fail to provide copies of MNHHS - TPCH Hospital Services submissions claiming there are other participants and advising you have notified me by way of the preliminary view of these submissions OIC fail to provide details of the files in this review as they relate to the files in external review 314266 Now, further expecting a submission by 16 December 2020. There is no procedural fairness; no independence in conducting this review; with seemingly bias both internally at OIC and the MNHHS – TPCH Health Service – I suggest the bias in [sic] not even apprehended bias. As a minimum an extension is required until at least Monday, 1 February 2021. 18. On 14 January 2021, Assistant Information Commissioner Rickard wrote to the applicant and advised her that: to ensure procedural fairness, it is the practice of OIC to issue a preliminary view letter to an adversely affected party which appraises them of the issues under consideration and affords them the opportunity to put forward any further information they consider relevant to those issues a preliminary view may assist in resolving an external review OIC was not able to provide the applicant with further guidance on whether the PDF’s located in response to this access application correspond with file one or two as received by the applicant in response to the access application the subject of external review 314266; and an extension until 8 February 2021 was granted to respond to OIC’s preliminary view letter. 19. The applicant subsequently requested[13] two further extensions to provide her response to OIC’s preliminary view letter, which were granted.[14] 20. In her submission dated 1 March 2021, the applicant again raised issues relating to bias and failure to provide procedural fairness:[15] Perception of Bias or apprehended Bias ... ... I object to your statements 'further relevant information', and 'their consideration to the extent they are relevant to the issues'. Where is your authority to decide if my submissions will be considered further relevant information and/or their consideration to the extent they are relevant to the issues? Please Note: All of my submissions are relevant. If you treat my submissions in any way as being irrelevant your office fails in its statutory obligations to review an agency decision in an unbiased and independent manner- 'demonstrating the correct decision has been made'. These are incidences of people in Office of Information Commissioner's (OIC) organization demonstrating they are: always right; never make mistakes; do not know what is right; are prejudicially biased including 'motivationally' focusing on private, personal, partisan interests of the decision maker/s and possibly those of third parties particularly when reviewing decisions of agencies; and their decision makers being protected as work colleagues. ... Failure to Provide Procedural Fairness ... It seems OIC has already made [its] final decision in external review 315348. OIC continues to demonstrate the final decision in external review 315348 has already been decided by 'preliminary view' dated 5 November 2020. OIC demonstrates there is no intention of entertaining any other possible outcome regardless; officer's responses to matters raised continually refer to statements in the 'preliminary view' dated 5 November 2020; OIC demonstrates being biased and lacking independence in this external review; particularly as there are many incidences of people in OIC's organization demonstrating they are: always right; never make mistakes; do not know what is right; are prejudicially biased including 'motivationally' focusing on private, personal, partisan interests of the decision maker/s and possibly those of third parties particularly when reviewing decisions of agencies; and their decision makers being protected as work colleagues. ... OIC's response 14 January 2021 is more 'nonsense and piffle (as well as rhetoric and spin)' to these particular issues raised in partial submission (Part II) dated 7 December [2020] ... This continually constant rhetoric and spin is contrary to all principles of procedural fairness both according to the IP Act and common law - these statements are contradictory in the extreme. OIC is not: listening to the applicant; comprehending the applicant's written English word; prepared to entertain any other possibility and continues to say MNHHS - Health Service (TPCH) and OIC are always right; and never wrong - therefore demonstrating to the highest possible degree there is a lack of independence and are prejudicially biased including 'motivationally' focusing on private, personal, partisan interests of the decision makers and possibly those of third parties particularly when reviewing decisions of agencies; and their decision makers being protected as work colleagues ... The failure to provide procedural fairness in this external review has continued ... 21. I have considered the applicants allegation of bias generally against officers of OIC, 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’.[16] 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.[17] 22. 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.[18] In order to ensure procedural fairness (as required by both the IP Act[19] 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 participant. This appraises that participant of the issues under consideration and affords them the opportunity to put forward any further information they consider relevant to those issues. 23. In this review, the participants are the applicant and MNHHS. As set out at paragraphs 13-14 above, Assistant Information Commissioner Rickard conveyed OICs preliminary view to the adversely effected participant, the applicant, by letter dated 5 November 2020. (In this regard, I note that it is OIC’s usual practice to email correspondence to participants in an external review, however, in this matter the applicant has requested that all correspondence be sent [20] her postal address.20 Given this, there are delays in the applicant receiving our correspondence.) The applicant was advised that she could respond to OIC’s preliminary view letter and provide additional information supporting her case, which would be considered and may [21]fluence the outcome.21 I consider that this advice demonstrates that Assistant Information Commissioner Rickard was not so committed to her preliminary view that her conclusions were already formed and incapable of alteration, whatever evidence or arguments may be prese[22]ed by the applicant.22 24. For this decision, I have reviewed the entirety of the applicant’s submissions, including the submissions provided by the applicant in external review 314266, and carefully considered them to the extent they are relevant to the issues for determination. Apart from this external review regarding which I am a delegate of the Information Commissioner,[23] I have not to my knowledge dealt with the applicant in any capacity, and cannot identify any conflict of interest in my dealing with her application for review of MNHHS’ decision. I do not consider that the fact that the applicant has made allegations of bias generally against officers of OIC 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[24] might not bring an impartial and unprejudiced mind to the resolution of this matter. Issues for determination 25. I will now turn to a consideration of the issues for determination in this review. The issues for determination are: Sufficiency of search - whether access to further documents sought in response to the access application may be refused on the basis that they are nonexistent or unlocatable. Contrary to the public interest - whether access to the Information in Issue may be refused on the ground that its disclosure would, on balance, be contrary to public interest. Sufficiency of search Relevant law 26. Under the IP Act, a person has a right to be given access to documents of an agency or Minister.[25] However, this right is subject to provisions of the IP Act and RTI Act including the grounds on which an agency or Minister may refuse access to documents.[26] 27. Access to a document may be refused if the document is nonexistent or unlocatable.[27] 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.[28] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[29] 28. To be satisfied that documents are nonexistent, a decision-maker must rely on their particular knowledge and experience and have regard to a number of key factors including:[30] 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.[31] 29. When proper consideration is given to relevant factors, it may be unnecessary for searches to be conducted. However, if an agency or Minister relies on searches to justify a decision that the documents do not exist, all reasonable steps must be taken to locate the requested documents. The key factors identified above are also relevant to a consideration of whether an agency of Minister has taken all reasonable steps before concluding that documents are unlocatable.[32] Findings 30. In her external review application, the applicant contended[33] that insufficient searches had been conducted by the agency and that MNHHS had not provided her with her complete medical records. The applicant also stated[34] that the ‘documents released do not identify which file the information comes from — without this identification I am not able to detail the information possibly missing.’ 31. On external review, MNHHS explained that:[35] after receiving the access application, the applicant was advised that MNHHS considered the current access application was for documents that had not previously been considered in response to her previous access application, which was at the time the subject of external review 314266 searches were conducted of the Consumer Integrated Mental Health Application (CIMHA), the Viewer tool, the applicant’s paper medical record, Outlook and with the Consumer Liaison Officer; and the searches resulted in the location of 176 pages. 32. OIC’s preliminary view letter[36] to the applicant set out Assistant Information Commissioner Rickard’s preliminary view, following a preliminary assessment of the information before her, that the searches undertaken by MNHHS for documents which respond to the access application were reasonable and she had not been able to identify any additional searches that could reasonably be conducted for responsive documents. Assistant Information Commissioner Rickard also acknowledged the applicant’s concern about not being able to identify where the information located originated from and noted that MNHHS had itemised her requests within the decision and provide the documents to her in separate PDF documents corresponding with those items. 33. In response, the applicant continued to submit that ‘[i]dentification of the files as to being file one or two in External Review 314266 [is] required’.[37] The applicant also submitted:[38] Scope of Documentation sought The application for access to Metro North Hospital and Health Services - The Prince Charles Hospital failed to address the request of Queensland Health [CIMHA] records. OIC is also failing to address this issue i.e. ignoring the inclusion of the specific documents in the application/s both for access and external review. Applicant's Submission Part VI External Review 314266 dated 28 February 2020 - page 1 of 3 states: I wish to draw your attention to matters OIC have ignored in this external review: OIC's failure to obtain (via: extending the scope of the access request) all Consumer Integrated Mental Health Application (CIMHA) (Electronic) records - that is the designated patient record for the purposes of the Mental Health Act 2016 (Old) (i.e. records of Queensland Health, as opposed to TPCH CIMHA scanned records)- as advised by Manager, Mental Health Act Administration Team 26 July 2019. OIC's Preliminary View 11 July 2019 evidences these records exist. Applicant's Submission-Part V dated 31 January 2020 (Item 23, page 6 of 55) and providing additional evidence of their existence (electronic records) (via General Practitioner Viewer) (Item 25, pages 6-7 of 55). 34. In relation to the access application being for documents generated since the applicant’s previous request, MNHHS’s decision stated:[39] Your requests have been itemised to assist with releasing the documents to you. I have collated updated documents generated since the prior release in October 2018, in addition to the documents you have requested. It appears that parts of the request have been provided to you in your previous application released to you in October 2018. I confirm that this application is for documents that have not been previously been provided to you, however I am releasing some documents to you again as they are listed in your request that you have referenced under heading “Additional Evidence of missing CIMHA (electronic records) via General Practitioner viewer” of your request” [sic]. 35. Although not raised by MNHHS in the decision, I consider that it was open to MNHHS to refuse to deal with the access application to the extent it was for documents previously requested under section 62(3)(b)(i) or (d)(i) of the IP Act. 36. In relation to the applicant’s request that OIC identify whether the PDF’s located in response to this access application correspond with file one or two as received by the applicant in response to the access application the subject of external review 314266, I do not consider that OIC’s function in relation to this external review extends to answering questions about the documents released to the applicant by MNHHS. Rather, the issues to be considered in this review are those set out in paragraph 25 above, being whether: access to further documents sought in response to the access application may be refused on the basis that they are nonexistent or unlocatable; and access to the Information in Issue may be refused on the ground that its disclosure would, on balance, be contrary to public interest. 37. Further, in the decision on external review 314266 Assistant Information Commissioner Martin noted that MNHHS had explained that:[40] a patient’s medical records can be found on both their electronic and paper files; the lack of exact chronology can be accounted for by the adding of records from electronic applications to the paper files; and there have been various filing systems used at the hospital in recent years, eg. using different dividers and this affects how the paper file is set out in older records. 38. Given the above, I consider that ‘gaps’, in a chronological sense, can be anticipated in the applicant’s paper medical file taking into account the way it is managed as described by MNHHS. Therefore, even if the applicant knew whether the documents located in response to the current application were from file one or file two as received by the applicant in response to the access application the subject of external review 314266, I do not consider that this would assist the applicant in any significant way to make a submission about what documents are ‘possibly missing’ in response to the current access application. I am also satisfied that there is no reason to discredit the search efforts of MNHHS as set out above as there is nothing before me to suggest that MNHHS has not been genuine in the searches conducted. 39. As set out at paragraph 31 above, MNHHS conducted searches within CIMHA for documents responding to the current access application. The applicant’s assertion that MNHHS and OIC have ‘failed to address the request of Queensland Health [CIMHA] records’ is not supported by the searches conducted by MNHHS. Other than this assertion, the applicant has not provided any independent evidence or cogent arguments pointing to the existence of further documents. In the absence of any such evidence or argument pointing to the existence of further documents and in light of the searches conducted by MNHHS and the scope of the applicant’s access application, I am satisfied that all reasonable searches for documents in response to the access application have been conducted. On this basis, access to further documents responsive to the access application may be refused on the ground that the documents sought are nonexistent or u[41]ocatable.41 Contrary to the public interest Relevant law 40. An agency may also refuse access to information where its disclosure would, on balance, be contrary to the public interest.[42] 41. In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[43] 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. 42. 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[44] and Parliament’s requirement that grounds for refusing access to information be interpreted narrowly.[45] Findings Irrelevant factors 43. No irrelevant factors arise in the circumstances of this case and I have not taken any into account in reaching my decision. Factors favouring disclosure 44. Public interest factors favouring disclosure will arise if disclosure could reasonably be expected to enhance the accountability and transparency of MNHHS regarding its dealings with members of the public including, for example, by revealing background or contextual information to decisions.[46] The Information in Issue comprises information provided by third parties to healthcare professionals. I accept that disclosing this information would advance these factors to some degree. However, I do not consider that the disclosure of the Information in Issue would advance MNHHS’s accountability and transparency in any significant way, particularly given the applicant has already been provided with access to a significant amount of information by MNHHS and the nature of the Information in Issue is that it provides more insight into the personal information of third party individuals than the decisions and actions of MNHHS. I am satisfied that the information which has been disclosed to the applicant furthers her understanding of what information was available to MNHHS and provides background information to her interactions with staff at the hospital and that this understanding would not be significantly improved upon disclosure of the Information in Issue. Accordingly, I afford these three factors favouring disclosure low weight. 45. I acknowledge that the Information in Issue also contains the applicant’s personal information[47] and forms part of her medical records. I acknowledge that her health care information is a matter at the core of her personal sphere, and therefore I have afforded significant weight to the public interest factor in favour of disclosure where the information is the personal information of the applicant. 46. The applicant raised concerns that the Information in Issue had not been fact-checked and that the complaints are ‘erroneous; and spurious; and scurrilous; and defamatory’.[48] Given these concerns, I have considered the factor that favours disclosure which arises where disclosure could reasonably be expected to reveal that information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.[49] The Information in Issue records third parties’ concerns and opinions about the applicant’s mental health. While such information is, by its very nature, shaped by factors such as the individuals’ memories, impressions and points of view and is inherently subjective, this does not mean that it is necessarily incorrect or unfairly subjective, or that disclosure of the information could reasonably be expected to reveal this. For this public interest factor to apply, it is not sufficient to show that the applicant disputes the opinions/concerns. I have carefully reviewed the Information in Issue and I am satisfied that its disclosure could not reasonably be expected to reveal that it is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant. Accordingly, I consider that this factor carries no weight. 47. I have also considered the applicant’s concerns about her treatment by the hospital, and her submission that she has not been given the opportunity to repudiate the views contained in the Information in Issue. Factors favouring disclosure will arise if disclosure could reasonably be expected to: allow or assist inquiry into possible deficiencies in the conduct or administration of an official[50] reveal or substantiate that an agency or official has engaged in misconduct, or negligent, improper or unlawful conduct[51] advance fair treatment in accordance with the law in dealings with agencies;[52] or contribute to the administration of justice generally (including procedural fairness) or for a person.[53] 48. As noted above, the Information in Issue is comprised of opinions/concerns of third party individuals who contacted the MNHHS with concerns about the applicant and does not provide any information of substance concerning the conduct of MNHHS or the hospital. It reveals only that the MNHHS made notes about the concerns expressed by the third party individuals. Accordingly, in the circumstances of this matter, I do not consider that disclosure of the Information in Issue gives rise to the factors set out at paragraph 47 above. Factors favouring nondisclosure 49. The RTI Act recognises that disclosing an individual’s personal information to someone else can reasonably be expected to cause a public interest harm[54] 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.[55] 50. The applicant submits:[56] There is no third party participant in this external review under any circumstances - The complaints are: anonymous i.e. the complainants cannot be identified under any circumstances; cannot be sent notices; cannot be a party to any legal claim; fictitious; and not authorized by the Committee Minutes of ... Society. I submit it is in the public interest because: allowing this nonsense the agency and OIC are both condoning and perpetuating by making of anonymous mental health complaints on a whim and a fancy without being fact checked, regardless of the complaints being erroneous; and spurious; and scurrilous; and defamatory. Documents including minutes verifying ... Society committee members did not authorize such a mental health complaint; as well as the only name volunteered of '[A]' is not a committee member are included in External Review 314266 Submission Part VI dated 28 February 2020 pages 1-3 together with chronology and annexures 1 - 27. These documents were ignored in their entirety in External Review 3[1]4266 as OIC's decision was made and sent out as a matter of convenience and expediency. 51. While the Information in Issue appears within the applicant’s medical records, it also comprises the personal information of third parties who are readily identifiable from that information. Given the sensitive nature of the information and the circumstances of its provision to MNHHS, I am satisfied that disclosure would disclose private details about the third parties, thus giving rise to a reasonable expectation of intrusion into their private life or ‘personal sphere’.[57] Accordingly, I afford these two factors favouring nondisclosure significant weight. 52. A further factor favouring nondisclosure arises where disclosure of the Information in Issue could reasonably be expected to prejudice an agency’s ability to obtain confidential information.[58] I am satisfied that people who provide information to health care professionals do so with an expectation of confidentiality. The very nature of the information is such that it is sensitive and provided with the purpose of informing the hospital so that they can treat a current or future patient. I acknowledge that the applicant considers the information provided to be inaccurate, and that she has a number of concerns about the hospital’s response to the information provided. However, even where the content of the information is disputed, disclosure of that information could reasonably be expected to discourage other individuals from coming forward with confidential information to the hospital, or hospitals in general, in the future. Given the importance of healthcare professionals being fully informed to provide appropriate care, I afford this factor significant weight. Balancing the factors 53. I have considered the pro-disclosure bias in deciding access to information.[59] On balance, I consider the nondisclosure factors[60] outweigh the disclosure factors[61] in relation to the Information in Issue. Accordingly, access to the Information in Issue is refused on the basis that its disclosure would, on balance, be contrary to the public interest.[62]DECISION 54. I affirm MNHHS’s decision to refuse access to the Information in Issue under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. I also refuse access to the nonexistent or unlocatable information under section 67(1) of the IP Act and sections 47(3)(e) and 52(1) of the RTI Act. 55. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.Assistant Information Commissioner CorbyDate: 4 May 2021 ANNEXURE A Terms of the access application Records pertaining to: All [of the applicant’s] Medical and Mental Health All Complaints/Incidents made by [the applicant] including those to Customer Liaison Officers (CLO) – (Not provided previously) Queensland Health's Consumer Integrated Mental Health (CIMHA) electronic records – designated patient record for the purposes of the Mental Health Act 2016 (Qld) (i.e. records of Queensland Health, as opposed to [the hospital’s] CIMHA scanned Records) as advised by Manager, Mental Health Administration Team 26 July 2019 (Not provided previously) Privacy Application filled out by [hospital] Staff datedAgencies: Department of Health; and ... HospitalAll information, documents, correspondence, photos, phone calls, emails, file notes, memos, discussions, reports regarding the records held by Queensland Health and ... Hospital and/or any other information of any nature whatsoever excepting that already provided under a previous application dated 26 September 2018 (Access Decision - Number: IA ... October 2018 - ... UR Number: ...) currently awaiting an external review decision. Anything else that may be on the file or the data base or held in any other place regardless of the information All submissions made to OIC regarding previous RTI external review applicationThe complete file – in no way limiting it and to include the following Department of Health documentation as viewed on a General Practitioner Viewer and stating 'Expand for details':Additional Evidence of missing CIMHA (electronic records) via General Practitioner viewer: 13 July 2009 21:15 –14 July 2009 07:30, [named individual] ... Hospital Mental Health Service Organisation 21 May 2010 08:54 – 21May2010 13:17 [named individual] ... Hospital 19 Jun 2012 20:32 – 19 June 2012 22:47 [named individual] ... Hospital 19 June 2012 20:45 – 23 July 2012 14:00 [named individual] ... Mental Health Services Organisation (2 Pages) 25 Dec 2015 17:31 – 25 Dec 2015 20:34 [named individual] ... Hospital 7 Sep 2018 18:00 – 18 Sep 18:08 [named individual] ... Hospital Mental Health Service Organisation 20 Sep 2018 13:31 – 24 Sept 2018 13:46 [named individual] ... Hospital Mental Health Service Organisation 4 Oct 2018 12:24 – 10 Oct 2018 17:07 [named individual] ... Hospital Mental Health Service Organisation 7 Nov 2019 17 :51 – Outpatient Department – Episode Number ... ANNEXURE B Significant procedural steps Date Event 8 April 2020 OIC received the application for external review dated 6 April 2020. 27 April 2020 OIC notified MNHHS that the application for external review had been received and requested procedural documents. 28 April 2020 OIC received the requested procedural documents from MNHHS. 11 May 2020 OIC notified MNHHS that the application for external review had been accepted and requested: a copy of the documents located clearly showing the information to which access was refused any records of the searches conducted additional information regarding the processing of the application. 12 May 2020 OIC prepared correspondence to the applicant notifying her that the external review application had been accepted. As the applicant requested correspondence by post only, OIC was unable to post the correspondence to the applicant at this time due to measures put in place in response to the COVID-19 pandemic. 13 May 2020 OIC received the requested documents and a submission addressing the searches conducted and additional information requested from MNHHS. 21 July 2020 OIC wrote to the applicant explaining delays in processing her external review due the closure of the office in response to the COVID-19 pandemic and enclosed the letter to the applicant dated 12 May 2020. 9 October 2020 OIC wrote to MNHHS requesting that: officers of MNHHS who conducted searches for documents responding to the access application complete search certifications; and MNHHS provide a submission about its searches for documents responding to the access application, including the outcome of any additional searches required. 21 October 2020 OIC received the requested search certification and submission from MNHHS. 5 November 2020 OIC conveyed a preliminary view to the applicant. 19 November 2020 OIC received a submission from the applicant. 25 November 2020 OIC wrote to the applicant providing a response to concerns raised in her 19 November 2020 submission and granted an extension of time to respond to the preliminary view. 7 December 2020 OIC received a further submission from the applicant. 18 December 2020 OIC received a further submission from the applicant. 6 January 2021 OIC notified the applicant that it would proceed to issue a decision to finalise the review. 14 January 2021 OIC wrote to the applicant providing a response to concerns raised in her 7 December 2020 submission and granted an extension of time to respond to the preliminary view. 8 February 2021 OIC received a request for a further extension to enable the applicant to respond to the preliminary view. 10 February 2021 OIC wrote to the applicant and granted an extension of time to respond to the preliminary view. 22 February 2021 OIC received a request for a further extension to enable the applicant to respond to the preliminary view. OIC wrote to the applicant and granted an extension of time to respond to the preliminary view. 1 March 2021 OIC received a further submission from the applicant. [1] Access application received by MNHHS on 28 February 2020.[2] Decision dated 18 March 2020.[3] Contained within 172 pages and parts of 4 pages.[4] External review application received 8 April 2020. [5] H89 and Metro North Hospital and Health Service [2020] QICmr 18 (27 March 2020).[6] Submissions to OIC dated 19 November 2020, 7 December 2020 and 1 March 2021.[7] Submissions to OIC dated 12 November 2018, 18 March 2019, 7 June 2019, 12 June 2019, 5 July 2019, 5 September 2019, 31 January 2020, 2 March 2020 and 4 March 2020 (including attachments) in relation to external review 314266. [8] Section 21 of the HR Act. [9] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[10] Comprising page 1 of the pages located relating to Item 10 of the access application and pages 1-3 of the pages located relating to Item 12 of the access application.[11] Submission to OIC dated 19 November 2020.[12] Submission dated 7 December 2020. [13] By letters dated 8 February 2021 and 22 February 2021.[14] Until 22 February 2021 and 1 March 2021 respectively.[15] Submission to OIC dated 1 March 2021.[16] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. See also Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [31] per Gummow ACJ, Hayne, Crennan and Bell JJ.[17] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [20] per Kiefel, Bell, Keane and Nettle JJ. [18] Section 108 of the IP Act.[19] Section 110 of the IP Act.[20] As set out in her application for external review. I also note that in external review 314266, the applicant indicated that she did not want to receive correspondence via email.[21] Footnote 1. of OIC’s preliminary view letter to the applicant dated 5 November 2020.[22] With reference to the test for prejudgment noted in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J.[23] Under section 139 of the IP Act.[24] As a delegate of the Information Commissioner under section 139 of the IP Act.[25] Section 40 of the IP Act.[26] 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.[27] Section 67(1) of the IP Act and sections 47(3)(e) and 52 of the RTI Act.[28] Section 52(1)(b) of the RTI Act.[29] Section 52(1)(a) of the RTI Act.[30] PDE and The University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE). PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld), the requirements of which are replicated in section 52 of the RTI Act. [31] PDE at [37] - [38].[32] Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [20] - [21].[33] Submission to OIC dated 6 April 2020.[34] Submission to OIC dated 6 April 2020.[35] Submission to OIC dated 13 May 2020 and record of searches conducted on 28 February 2020 provided to OIC by email on 21 October 2020.[36] Letter dated 5 November 2020.[37] Submissions to OIC dated 19 November 2020 and 7 December 2020.[38] Submissions to OIC dated 1 March 2020.[39] At page 2.[40] H89 and Metro North Hospital and Health Service [2020] QICmr 18 (27 March 2020) at [36].[41] Under section 67(1) of the IP Act and sections 47(3)(e) and 52(1) of the RTI Act.[42] Section 67(1) of the IP Act and section 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. See Chris Wheeler, ‘The Public Interest: We Know It's Important, But Do We Know What It Means’ [2006] AIAdminLawF 2; (2006) 48 AIAL Forum 12, 14-16.[43] Section 49(3) of the RTI Act.[44] Section 44 of the RTI Act.[45] Section 47(2) of the RTI Act.[46] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act. [47] 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’ – see definition in schedule 5 of the RTI Act and section 12 of the IP Act.[48] Submissions to OIC dated 8 April 2020 and 1 March 2021.[49] Schedule 4, part 2, item 12 of the RTI Act.[50] Schedule 4, part 2, item 5 of the RTI Act.[51] Schedule 4, part 2, item 6 of the RTI Act.[52] Schedule 4, part 2, item 10 of the RTI Act.[53] Schedule 4, part 2, item 16 and item 17 of the RTI Act.[54] Schedule 4, part 4, section 6(1) of the RTI Act. [55] Schedule 4, part 3, item 3 of the RTI Act. [56] Submission to OIC dated 1 March 2021.[57] 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 (Volume 1), released 30 May 2008, at [1.56]. Cited in Balzary and Redland City Council; Tidbold (Third Party) [2017] QICmr 41 (1 September 2017) at [28].[58] Schedule 4, part 3, item 16 of the RTI Act. I have also considered schedule 4, part 4, section 8, however I am not satisfied this factor applies to all of the Information in Issue in this review.[59] Section 64 of the IP Act. [60] Schedule 4, part 2, items 1, 3, 5, 6, 7, 10, 11, 12, 16 and 17 of the RTI Act.[61] Schedule 4, part 3, items 3 and 16 and part 4, sections 6(1) and 8 of the RTI Act.[62] Under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Lis-Con Concrete Constructions Pty Ltd and Queensland Treasury and Trade [2012] QICmr 59 (13 November 2012)

Lis-Con Concrete Constructions Pty Ltd and Queensland Treasury and Trade [2012] QICmr 59 (13 November 2012) Last Updated: 27 August 2013 Decision and Reasons for Decision Application Number: 311111 Applicant: Lis-Con Concrete Constructions Pty Ltd Respondent: Queensland Treasury and Trade Decision Date: 13 November 2012 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION – REFUSAL OF ACCESS – EXEMPT INFORMATION – DISCLOSURE PROHIBITED BY ACT – applicant sought access to information held by Office of State Revenue – taxation information – whether access can be refused under section 47(3)(a) of the Right to Information Act 2009 (Qld) – whether disclosure of information is prohibited by schedule 3 section 12(1) of the Right to Information Act 2009 (Qld) and part 8 of the Taxation Administration Act 2001 (Qld). REASONS FOR DECISION Summary The applicant applied under the Right to Information Act 2009 (Qld) (RTI Act) to the Office of State Revenue (OSR) for documents concerning or relating to the applicant or its director which were sent, received or created by OSR to, from or relating to specified persons. Queensland Treasury and Trade (Treasury)[1] identified 252 pages in response to the access application (Information in Issue) and, on internal review, refused access to all documents on the basis that the information was exempt because its disclosure: was prohibited under the Taxation Administration Act 2001 (Qld) (TA Act); and could reasonably be expected to prejudice a person’s fair trial. Treasury also found that disclosure of the Information in Issue would, on balance, be contrary to the public interest. The applicant applied to the Office of the Information Commissioner (OIC) for external review of Treasury’s decision. Treasury’s decision is affirmed and access to the Information in Issue is refused on the basis that it comprises exempt information as its disclosure is prohibited by part 8 of the TA Act. Significant procedural steps relating to the application are set out in the appendix to this decision. Reviewable decision The decision under review is Treasury’s internal review decision dated 6 July 2012. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and appendix). Scope The applicant sought to limit the scope of the external review[2] to information provided to OSR: without any threat of compulsion (unsolicited information); and/or for a collateral purpose not relating to the administration of a taxation law (collateral purpose information). I do not consider it is possible for me to determine whether persons have provided information to OSR for a collateral purpose not relating to the administration of a taxation law. In addition, reducing the scope of the external review as requested by the applicant may reveal details of information which Treasury claims is exempt, by indicating to the applicant whether or not there is unsolicited information or collateral purpose information contained within the 252 pages identified by Treasury as responsive to the access application.[3] Accordingly, I have not limited the scope of the external review as requested by the applicant but have reviewed Treasury’s internal review decision to refuse access to the 252 pages.[4] Information in Issue The Information in Issue is the information identified at paragraph 2 above. Relevant law Access must be given to a document unless disclosure would, on balance, be contrary to the public interest.[5] Schedule 3 of the RTI Act sets out information which Parliament considers is exempt from disclosure on the basis that disclosure would, on balance, be contrary to the public interest.[6] Schedule 3, section 12(1) of the RTI Act provides that information is exempt if its disclosure is prohibited by a number of listed provisions, including: Taxation Administration Act 2001, part 8, so far as it applies to personal confidential information under that Act. The main purpose of the TA Act is to make general provision about the administration and enforcement of revenue laws.[7] Part 8 of the TA Act relates to confidentiality of information. Relevantly, section 111(1) of the TA Act provides that an official[8] must not disclose confidential information acquired by the official in the official’s capacity to anyone else other than under part 8 of the TA Act. Schedule 2 of the TA Act sets out the following definitions used in part 8 of the TA Act: confidential information means information disclosed to, obtained by, or otherwise held by, an official under or in relation to a tax law. personal confidential information, for a person, means confidential information that— (a) identifies, or is likely to identify, the person; or (b) discloses matters about the person’s affairs. As noted above, I am constrained in the extent to which I can discuss the Information in Issue in these reasons because Treasury maintains that it is exempt.[9] However, the Information in Issue is generally made up of documents held by OSR which relate to the applicant. To be exempt under schedule 3, section 12 of the RTI Act, the Information in Issue must: (a) be ‘personal confidential information’ as defined in schedule 2 of the TA Act (b) be prohibited from disclosure under part 8 of the TA Act; and (c) not be subject to the exception listed in schedule 3, section 12(2) of the RTI Act. Findings Is Treasury entitled to refuse access to the Information in Issue? Yes, for the reasons that follow. Application of part 8 of the TA Act Is the Information in Issue ‘personal confidential information’? Having carefully reviewed the Information in Issue, I am satisfied it comprises information disclosed to, obtained by or otherwise held by officials within OSR under, or in relation to a tax law and is therefore ‘confidential information’ for the purposes of the TA Act. I am also satisfied that the Information in Issue: identifies or is likely to identify persons—both individuals and corporations; and/or discloses matters about the affairs of those persons, such as their financial, taxation and business affairs. The Acts Interpretation Act 1954 (Qld) (AI Act) provides that the term ‘person’ includes an individual and a corporation.[10] The AI Act further provides that it applies to all Acts[11] and that its operation may be displaced, wholly or partly, by a contrary intention appearing in any Act.[12] The operation of the relevant provisions of the AI Act has not been expressly displaced for the purposes of the definition of ‘personal confidential information’, nor do I find any evidence of a contrary intention in the provisions of the TA Act. The applicant submits that unsolicited information and collateral purpose information does not relate to OSR’s investigation into the applicant, and therefore, cannot be considered ‘confidential information’ for the purposes of the TA Act. I cannot confirm whether the Information in Issue relates to an investigation by the OSR, nor can I confirm whether the Information in Issue contains unsolicited information or collateral purpose information.[13] I am satisfied that there is no requirement that information relate to an investigation in order to fall within the definition of ‘confidential information’. I am also satisfied that the TA Act does not exclude unsolicited information or collateral purpose information from the definitions of ‘confidential information’ or ‘personal confidential information’. Accordingly, I am satisfied that the Information in Issue is ‘personal confidential information’ for the purposes of Part 8 of the TA Act. Does part 8 of the TA Act prohibit disclosure? Section 111(1) of the TA Act prohibits an official from disclosing confidential information acquired by the official in the official’s capacity other than under part 8. I am satisfied that the Information in Issue was acquired by OSR officials in their official capacity. The Commissioner of State Revenue has the discretion to disclose confidential information under the TA Act in specified circumstances, as set out in section 111(2)-(4) of the TA Act. However, there is no provision under the TA Act or the RTI Act which allows the Information Commissioner to exercise this discretion on behalf of the Commissioner of State Revenue. I am therefore satisfied that disclosure of the Information in Issue is prohibited by part 8 of the TA Act. Application of schedule 3, section 12 of the RTI Act Does the exception in schedule 3, section 12(2) of the RTI Act apply? No. Schedule 3, section 12(2) of the RTI Act permits disclosure of otherwise exempt information if the information is personal information for the applicant. Personal information is defined in section 12 of the Information Privacy Act 2009 (Qld)[14] 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. [emphasis added] Section 36 of the AI Act provides that the term ‘individual’ means a natural person. Accordingly, only individuals can have personal information for the purpose of the RTI Act. As the applicant is a corporation, not a natural person, the exception in schedule 3, section 12(2) of the RTI Act cannot apply. The applicant submits that the sole director and shareholder of the applicant was personally involved in making the access application and should be given the benefit of the exception in section 12(2) of the RTI Act. While I acknowledge the applicant’s director personally authorised the making of the access application, the access applicant was the corporation, Lis-Con Concrete Constructions Pty Ltd, rather than the individual director. Accordingly, I am satisfied that the exception in schedule 3, section 12(2) of the RTI Act does not apply. Is the Information in Issue exempt from release under schedule 3 section 12(1) of the RTI Act? Yes. On the basis of the matters set out above, I am satisfied that the Information in Issue is personal confidential information for the purposes of part 8 of the TA Act, and that its disclosure is prohibited by section 111(1) of the TA Act. The Information in Issue is therefore exempt from disclosure under schedule 3, section 12(1) of the RTI Act. As I am satisfied that the Information in Issue is exempt under schedule 3, section 12(1) of the RTI Act, it is not necessary for me to consider the remaining exemption and public interest claim raised by Treasury. DECISION For the reasons set out above, I affirm Treasury’s decision and find that access may be refused on the basis that the Information in Issue comprises exempt information in accordance with schedule 3, section 12 of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ Lisa Meagher Acting Assistant Information Commissioner Date: 13 November 2012 APPENDIX Significant procedural steps Date Event 29 March 2012 Treasury received the access application. 21 May 2012 Treasury refused access to the Information in Issue under section 47(3)(a) of the RTI Act (initial decision). 14 June 2012 The applicant applied to Treasury for internal review of the initial decision. 6 July 2012 Treasury varied the initial decision and refused access to the Information in Issue under sections 47(3)(a) and 47(3)(b) (internal review decision). 19 July 2012 The applicant applied to OIC for external review of the internal review decision. 23 July 2012 OIC notified the applicant and Treasury that the external review application had been accepted and asked Treasury to provide OIC with a copy of the Information in Issue. 7 August 2012 OIC received a copy of the Information in Issue. 10 August 2012 OIC requested Treasury provide an additional document relevant to the review, and Treasury provided the additional document to OIC. 11 October 2012 OIC conveyed to the applicant the preliminary view that the Information in Issue comprises exempt information under schedule 3, section 12 of the RTI Act. OIC invited the applicant to make submissions. 31 October 2012 The applicant advised OIC that it did not accept the preliminary view and provided submissions. [1] OSR forms part of Treasury. [2] In its external review application dated 19 July 2012 and submission to OIC dated 31 October 2012.[3] Sections 107 and 108 of the RTI Act require the Information Commissioner to ensure that information that is claimed to be exempt is not disclosed to an applicant or an applicant’s representative during the external review or in the reasons for a decision on an external review. [4] Section 85 of the RTI Act provides that a person affected by a reviewable decision may apply to have the decision reviewed by the Information Commissioner. Schedule 6 of the RTI Act provides that a ‘reviewable decision’ includes a decision refusing access to a document under section 47 of the RTI Act. [5] Sections 44(1) and 48(1) of the RTI Act.[6] See also section 48 of the RTI Act.[7] Section 3(1) of the TA Act.[8] Defined in schedule 2 of the TA Act as ‘a person who is, or has been a public service employee or other person, performing functions under or in relation to the administration or enforcement of a tax law.’[9] Section 108(3) of the RTI Act.[10] Sections 36 and 32D(1) of the AI Act.[11] Section 2 of the AI Act. [12] Section 4 of the AI Act.[13] Section 108 of the RTI Act. [14] Schedule 6 of the RTI Act adopts this definition.

queensland

court_judgement

Queensland Information Commissioner 1993-

News Corp Australia Pty Ltd and Gympie Regional Council [2019] QICmr 34 (28 August 2019)

News Corp Australia Pty Ltd and Gympie Regional Council [2019] QICmr 34 (28 August 2019) Last Updated: 17 September 2019 Decision and Reasons for Decision Citation: News Corp Australia Pty Ltd and Gympie Regional Council [2019] QICmr 34 (28 August 2019) Application Number: 314155 Applicant: News Corp Australia Pty Ltd ACN 163 992 774 Respondent: Gympie Regional Council Decision Date: 28 August 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST INFORMATION - information about a review of Council water and sewerage services - accountability and transparency - informed debate on important issues - prejudice to business and commercial affairs of entities - prejudice future supply of information to Council - whether disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to Gympie Regional Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to documents relating to a review of Council’s water and sewerage operations (Water and Sewerage Documents) and the Mary Valley Rattler Project (Railway Documents).[1] Council decided to refuse access to the relevant documents on the basis that disclosure would, on balance, be contrary to the public interest, based upon Council’s concern that disclosure would contravene certain provisions of the Local Government Act 2009 (Qld) (LG Act) and the Local Government Regulations 2012 (Qld) (LG Regulation). The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision.[2] The applicant did not contest my view that 11 documents located by Council fell outside the scope of the application[3] and that access may be refused[4] to the Railway Documents and certain personal information within the Water and Sewerage Documents.[5] Council maintains its objection to disclosure of the remaining information in the Water and Sewerage Documents and has the onus of establishing that its decision to refuse access to that information was justified.[6] During the review, I sought the disclosure views of two third parties[7] in respect of one of the Water and Sewerage Documents (Report). One third party objected to disclosure of the Report and the other third party objected to disclosure of certain information within the Report. Both third parties declined to participate in the review, however, I have considered the responses of each third party as relevant evidence in reaching my decision.[8] For the reasons set out below, I vary Council’s decision and find that disclosure of the information remaining in issue would not, on balance, be contrary to the public interest. Reviewable decision and evidence considered The decision under review is Council’s decision dated 11 September 2018. Significant procedural steps taken during the external review are set out in the Appendix. Evidence, submissions, legislation and other material I have considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). Background The minutes of Council’s meetings[9] confirm that: in a closed session of the meeting held on 7 September 2016, Council deferred consideration of a water and sewerage review agenda item to its next meeting; and on 28 September 2016, after considering a water and sewerage review agenda item in a closed session of the meeting, Council carried a motion that it: Applies the principles of commercialisation as outlined in S28 of the Local Government Act Regulations to its Water and Sewerage operation. Adopts the structure as described in the report. Advises the Department of Environment and Heritage Protection of its actions. Develops terms of reference for the establishment of a Water and Sewerage Technical Advisory Board. In its 2016-2017 Annual Report, Council also confirmed that:[10] Council restructured the water and sewerage branch to form a Water Business Unit in September following a review of water and sewerage operations. ... The establishment of the Water Business Unit enables alignment with commercial principles and that risks are managed effectively. Information in issue The information remaining in issue (Information in Issue) comprises the Water and Sewerage Documents, apart from portions of personal information within them. The Information in Issue consists of three documents, including two documents tabled at Council’s meetings on 7 September 2016 and 28 September 2016, and the Report, authored by a third party retained by Council to undertake a review of its water and sewage operations. Each of these documents relate to the review of Council’s water and sewage operations in the 2016/2017 financial year.[11] Issue for determination On external review, Council notified OIC[12] that one of the third parties ‘strongly opposed’ disclosure of the Report, on the ground its disclosure would found an action for breach of confidence and therefore comprised exempt information.[13] However, Council did not itself contend that any part of the Information in Issue comprised exempt information. As noted in paragraph 6, I sought the disclosure views of this third party. The third party did not provide any evidence or contentions to suggest that disclosure of the Report would found an action for breach of confidence. Instead, the third party contended that disclosing some limited information within the Report—which does not form part of the Information in Issue—would, on balance, be contrary to the public interest.[14] As no evidence has been advanced to suggest that the Information in Issue comprises exempt information, it is unnecessary for me to address the application of the breach of confidence exemption in these reasons for decision.[15] Council also indicated during the external review that I should consult with further third parties as they were also identified in the Information in Issue. These third parties were senior officers of Council at the time and the Information in Issue relates to their roles with Council. I did not consult with these other third parties as there was no reasonable expectation that disclosure of the Information in Issue would be of concern to them.[16] Council’s submissions indicate that it seeks to refuse access to the Information in Issue on the basis that disclosure would, on balance, be contrary to the public interest.[17] Accordingly, I consider this the issue for determination in this review.[18] Relevant law The RTI Act confers on an individual a right to access documents of an agency.[19] This right of access is subject to certain limitations, including grounds for refusal of access.[20] Access to information may be refused where its disclosure would, on balance, be contrary to the public interest.[21] 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.[22] In the decision under review, Council refused access to the information and therefore, in this review, Council has the onus of establishing that its decision refusing access to Information in Issue was justified or that the Information Commissioner should give a decision adverse to the applicant.[23] Findings No irrelevant factors arise in the circumstances of this case and I have not taken any into account in making my decision.[24] 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[25] and Parliament’s requirement that grounds for refusing access to information be interpreted narrowly[26] in reaching this decision. Factors favouring disclosure 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[27] contribute to positive and informed debate on important issues or matters of serious interest[28] inform the community of the Government’s operations, including, in particular, the policies, guidelines, codes of conduct followed by the Government in its dealings with members of the community[29] ensure effective oversight of expenditure of public funds[30] allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official;[31] and reveal the reason for a government decision and any background or contextual information that informed the decision.[32] Water and sewerage management is one of the primary services Council delivers to the local community. There are important public health impacts in providing this service, as recognised by Council’s obligations as a Water Service Provider under the Water Supply (Safety and Reliability) Act 2008 (Qld). For the financial year ended 30 June 2017, Council’s water and sewerage management affected nearly 30,000 properties and involved an operational budget of $15.3 million, capital projects in progress of $10.2 million and infrastructure to the value of $227 million.[33] As noted in paragraphs 10 and 11, a review of Council’s water and sewerage services led to Council’s September 2016 resolution to commercialise these services and restructure them ‘as described in the report’. That is, the review led to Council deciding to fundamentally change how it would deliver water and sewerage services. The decision to restructure and commercialise Council’s water and sewerage services was made in a closed meeting.[34] Apart from confirming that its water and sewerage services have been restructured,[35] Council has disclosed limited details about why the restructure and commercialisation of these services was required and the actions it has taken to implement the September 2016 resolution.[36] I consider that Council is accountable for the actions it has taken in respect of the various matters raised in the review of its water and sewage services and whether, or not, Council’s actions have been successful in dealing with those matters. I am therefore satisfied that disclosing the Information in Issue could reasonably be expected to enhance Council’s accountability and transparency, as it would: demonstrate how Council responded to any deficiencies identified in its water and sewerage services and otherwise demonstrate how Council addressed the review recommendations; and reveal background and contextual information to Council’s decision to restructure and commercialise its water and sewerage services. Given the large number of people impacted by Council’s water and sewerage services, the essential nature and health implications of those services and the significant level of expenditure involved in providing those services, I consider Council’s September 2016 resolution is a matter of serious public interest. I also note that, subsequent to Council’s resolution, concerns about the lack of information explaining the reasons for the restructure and how the water and sewerage services would be operated post restructure were raised in local media reporting.[37] Reflecting a wider community interest in local government transparency and accountability, I note that, following the tabling of the Belcarra Report, the Queensland Government announced that it is pursuing a ‘rolling Local Government reform agenda ... aimed at increasing transparency and accountability’.[38] A Bill to amend certain local government legislation, including the LG Regulation, was introduced to Parliament on 1 May 2019 as part of that reform agenda,[39] however, the State Government has indicated it will also give consideration to ‘tightening controls around the topics council may discuss in closed meetings’ and ensuring ‘resolutions and minutes have enough information for the community to understand why councils have made decisions’.[40] Given the limited information which has been released about the decision to restructure and commercialise these essential Council services, I am satisfied that disclosing the Information in Issue, could reasonably be expected to promote open discussion of public affairs and contribute to positive and informed debate on a matter of serious interest. In the circumstances, and given the content of the Information in Issue goes directly to the decision making processes and conduct of Council business, I am satisfied that the public interest factors listed at paragraph 23, carry significant weight in favour of disclosure. Factors favouring nondisclosure Disclosure prohibited by an Act Where disclosure of information is prohibited by an Act, this gives rise to a factor favouring nondisclosure.[41] Council submits[42] this factor deserves ‘high weighting’ because disclosure of the Information in Issue would contravene section 200(5) of the LG Act. A local government employee is prohibited, under section 200(5) of the LG Act, from releasing information that they know, or should reasonably know, is information which is confidential to the local government and which the local government wishes to keep confidential. A similar nondisclosure obligation is imposed upon Councillors.[43] The minutes for Council’s 7 and 28 September 2016 meetings confirm that: the meetings were closed pursuant to section 275 of the LG Regulation in respect of the water and sewerage review agenda items; and ‘all matters and all documents (whether in hard copy, electronic, optical, visual or magnetic form) discussed, raised, tabled and/or considered whilst the meeting is closed and “in committee” are confidential to the Council and the Council wishes to keep them confidential’. In the context of the LG Act prohibitions, as the Information in Issue was discussed, raised, tabled and/or considered at Council’s 7 and 28 September 2016 meetings, it is information considered confidential to Council. On this basis, I consider this factor favouring nondisclosure applies to the Information in Issue. Council contends[44] that this is a ‘strong factor favouring nondisclosure’ because of the legislative prohibitions on disclosure and the penalties associated with any breach of confidentiality.[45] The RTI Act overrides the provisions of other Acts prohibiting disclosure of information,[46] except in the case of those provisions listed in schedule 3, section 12 of the RTI Act. The disclosure prohibitions in the LG Act are not included in schedule 3, section 12 of the RTI Act. Section 170(1) of the RTI Act confirms that no action for breach of confidence lies against an officer because of the authorising or giving of access under the RTI Act, where that officer acted in the genuine belief that the access was required or permitted to be given under the RTI Act. I note that Council’s reason for considering the water and sewerage review agenda item in closed meetings (and identifying the supporting information for the agenda items as being confidential to Council) was that it related to industrial matters affecting employees.[47] I acknowledge that, at the time, Council’s considerations would have had a significant impact on the employment of some Council staff. However, almost three years have passed since Council made its restructuring decision and, in that time, Council has publicly confirmed that the restructure has been implemented. It is therefore reasonable to assume that any industrial matters associated with the review, and implemented restructure, have been finalised and the nominated basis for considering information about the organisational review in a closed meeting is no longer relevant. In this regard, I note that I have not seen any evidence from Council or the consulted third parties to indicate that disclosure of the Information in Issue could be expected to prejudice a currently ongoing industrial action. Taking these matters into account, I afford low weight to this factor favouring nondisclosure. Business affairs The RTI Act recognises that the public interest will favour nondisclosure of information where disclosure could reasonably be expected to: prejudice the private, business, professional, commercial or financial affairs of entities[48] prejudice business affairs of an agency or person;[49] and 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 (business harm factor).[50] The Information in Issue generally relates to a Council initiated review of its water and sewerage services. Given this, I am not satisfied that disclosure of the Information in Issue could reasonably be expected to prejudice the future supply of business information of this type to government. Accordingly, I do not consider that this aspect of the business harm factor applies. Council submits that disclosure of the Information in Issue would ‘likely prejudice the private business and professional affairs’ of certain former employees.[51] Establishing a reasonable expectation of prejudice or adverse effect requires more than simply asserting that disclosure will result in prejudice or adverse consequences. 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.[52] Council has not detailed the nature of the claimed prejudice, nor has it explained how such prejudice could reasonably be expected to arise from disclosure of the Information in Issue, or any particular part of it. Given Council’s concerns and the content of the Information in Issue, I sought the disclosure views of two third parties and, as noted above, neither third party elected to participate in the review. For this reason, I have sought to summarise each third party’s concerns in a way that does not identify them. In responding to OIC, one of the consulted third parties strongly disagreed with the water and sewage review process and the contents of the Report. For this reason, I accept that that the matters raised in the review of Council’s water and sewerage services may not have been endorsed by all individuals who were involved in or affected by the review. However, it is not clear, on the material before me, how any prejudice to, or adverse effect on, the private, business and professional affairs of any entity or individual would ‘likely’ arise from disclosure of the Information in Issue, particularly given the organisational review, and Council’s decisions which arose from it, occurred almost three years ago and, in that time, Council has implemented the restructure of its water and sewerage services. On this basis, while I consider these factors may apply to the Information in Issue, they deserve only low weight. 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);[53] and the information is of a confidential nature and was communicated in confidence and disclosure could reasonably be expected to prejudice the future supply of information of this type (Confidential Harm Factor).[54] Council submits[55] that: ‘[w]hen undertaking any form of review where open and honest communication from participants is critical to the validity of the outcomes of the review, maintaining the confidence of all participants to the process is vital if the prospect of future review outcomes are to sustain any hope of legitimacy’ participants to the water and sewage review were advised that ‘their contributions would be held in confidence by Council’; and public release of information about the review ‘would see Council’s ... credibility questioned along with a significant impact to [Council’s] capacity to obtain information in confidence in the future’. The Information in Issue includes information about Council’s water and sewerage infrastructure and its legislative obligations as a Water Service Provider—I consider that such information cannot be characterised as information of a confidential nature. Council has not provided any evidence to support the claimed obligation of confidence it owed to review interviewees. In this regard, Council directed me to consult one of the third parties in relation to confidentiality undertakings made by that third party.[56] When consulted directly on external review, that third party did not provide any submissions or evidence to support Council’s concerns in this regard.[57] I also note that the Information in Issue does not attribute any particular information provided during the review process to any specific review participant nor does it identify which parts of the review findings are based upon specific participant feedback. 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 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 Council’s ability to obtain confidential information or the future supply of this type of information. Council has not detailed the nature of the claimed ‘significant impact’ to its capacity to obtain confidential information in the future or how that impact would arise from disclosing the Information in Issue. Taking into consideration that the information obtained for the Council initiated organisational review was not attributed to specific review participants within the Information in Issue, I am not satisfied that disclosure of the Information in Issue would significantly impact the ability of Council to obtain information from participants in future organisational reviews. On this basis, I afford these factors favouring nondisclosure low weight. Personal information and privacy 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.[58] The RTI Act also recognises that disclosing personal information[59] of a person could reasonably be expected to cause a public interest harm.[60] Council submits[61] that the Report includes information which, ‘in a regional local government context’, may clearly identify individuals and statements attributable to those persons and disclosing that information could reasonably be expected to prejudice the protection of their right to privacy. A small amount of personal information, such the names of Council’s Executive Management Team[62] and the work titles of review participants, appears in the Information in Issue, however, I am satisfied that the Information in Issue does not attribute any particular information provided during the review process to any specific review participant. I note that information relating to the day-to-day work duties and responsibilities of a Council officer may generally be disclosed under the RTI Act, despite it falling within the definition of personal information.[63] As the personal information within the Information in Issue appears in the context a Council initiated organisational review, I am satisfied that this particular personal information is related to the day-to-day work activities of Council officers. It is reasonable to expect that any organisational review initiated by Council would involve members of the Executive Management Team, members of the business unit, which was the subject of the review and other individuals who directly interacted with that business unit. On this basis, I am satisfied that disclosure of the work titles of participants to the water and sewerage services review would only identify that individuals in these positions participated in the review process and this would not disclose the content of any information such individuals provided to the review. In the event that the position title of each officer would lead to them being identified individually, as Council submits,[64] I consider that the only information about them that is revealed is that they participated in an organisational review of their work unit. Given the nature of the personal information within the Information in Issue, I am satisfied that very little harm would result from its disclosure and therefore, I attribute only low weight to the factor favouring nondisclosure in respect of that personal information. 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’.[65] Disclosing the Information in Issue will identify, by work title, individuals who participated in Council’s water and sewerage review. As noted above, it is reasonable to expect that individuals in those positions would participate in such a review. On this basis, I consider disclosure of this personal information would not be a significant intrusion into the privacy of those individuals and I afford low weight to the privacy factor favouring nondisclosure. 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.[66] Taking into consideration the nature of this information and the passage of time since the water and sewerage review was conducted and considered by Council, I cannot see how disclosing the Information in Issue could, for example, impede the administration of justice, generally or for a person,[67] prejudice the management function or conduct of industrial relations by an agency[68] or prejudice a deliberative process of government.[69] 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. Conclusion For the reasons set out above, I am satisfied that disclosing the Information in Issue could reasonably be expected to enhance Council’s accountability and transparency by demonstrating how Council addressed the water and sewerage review recommendations, including any identified deficiencies in Council’s services, and provide background information to Council’s resolution to restructure and commercialise its water and sewerage services. I am also satisfied that disclosure would promote open discussion of public affairs and contribute to positive and informed debate on matters of serious public interest. In the circumstances of the case, I afford each of these factors significant weight in favour of disclosure. While the Information in Issue was considered in closed meetings of Council, almost three years have passed since Council resolved to restructure and commercialise its water and sewerage services and, in that time, Council has implemented the restructure. On this basis, I afford low weight to the factor favouring disclosure concerning the LG Act disclosure prohibitions. I am also 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. I similarly afford low weight to the prejudice and harm that could reasonably be expected to arise from disclosure of the business and personal information within the Information in Issue. On balance, I find that the factors favouring disclosure outweigh the factors favouring nondisclosure in this case. Accordingly, I find that disclosure of the Information in Issue would not, on balance, be contrary to the public interest. DECISION I vary 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.Shiv MartinAssistant Information CommissionerDate: 28 August 2019 APPENDIX Significant procedural steps Date Event 12 September 2018 OIC received the application for external review. 2 October 2018 OIC notified the applicant and Council that it had accepted the external review application and asked Council to provide information. 4 October 2018 OIC received the requested information from Council. 15 November 2018 OIC wrote to the applicant about documents falling within the scope of the application. 28 February 2019 OIC asked Council to provide further information. OIC also received Council’s submissions. 1 March 2019 OIC conveyed a preliminary view to Council and asked Council to obtain the disclosure views of a third party in respect of one document. 7 March 2019 OIC received requested information from Council. 20 March 2019 OIC received the disclosure views of the third party. 25 March 2019 OIC received Council’s submissions. 17 April 2019 OIC conveyed a preliminary view to each of the applicant and Council and invited them to provide submissions if they did not accept the preliminary view. OIC also conveyed a preliminary view to two third parties about one document and invited them to provide submissions if they did not accept the preliminary view. OIC also asked the third parties to indicate whether they wished to participate in the review. 18 April 2019 OIC received submissions from a third party. 23 April 2019 OIC received submissions from the other third party. 7 May 2019 OIC received Council’s further submissions. 23 May 2019 OIC conveyed a further preliminary view to Council and invited Council to make final submissions if it did not accept the preliminary view. 30 May 2019 OIC received further submissions from Council. 4 June 2019 OIC wrote to Council and the applicant to confirm a decision would be issued to finalise the review. 18 June 2019 OIC received Council’s confirmation that it required the issue of a decision. [1] The access application is dated 6 September 2019 and was made by the applicant’s regional media outlet, the Gympie Times. [2] External review application dated 12 September 2019. [3] As identified by letter to the applicant dated 15 November 2018. [4] Under sections 47(3)(a) and 47(3)(b) of the RTI Act, as set out in OIC’s letter to the applicant dated 17 April 2019. [5] As a result, this information does not form part of the information being considered in these reasons for decision. [6] Under section 87 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). [7] Pursuant to section 37 of the RTI Act. [8] Under section 89(2) of the RTI Act, a person whose views were sought under section 37 of the RTI Act may apply to participate in the external review. As neither third party sought to participate in this external review, the identities of these third parties are not disclosed.[9] Council’s minutes may be accessed via Council’s website at <https://www.gympie.qld.gov.au/minutes>. [10] At page 16 of the Annual Report, which is accessible via Council’s website at: <https://www.gympie.qld.gov.au/documents/40005057/41307257/Annual%20Report%202016-2017.pdf>. [11] Section 108(3) of the RTI Act provides that the Information Commissioner must not, in a decision, or in reasons for a decision, include information that is claimed to be contrary to public interest information. For this reason I am unable to provide any further description of these documents in my reasons for decision.[12] Submissions dated 25 March 2019. [13] Under schedule 3, section 8 of the RTI Act (breach of confidence exemption). [14] OIC agreed with the third party’s contentions that this information comprised the personal information of other individuals and the access applicant agreed to not to proceed with seeking access to this information.[15] However, for completeness, I note that, having given careful consideration to the provisions of schedule 3 to the RTI Act, I am satisfied that the Information in Issue does not comprise exempt information. [16] Under section 37(1) of the RTI Act.[17] Council submissions dated 25 March 2019, 7 May 2019 and 29 May 2019.[18] Sections 47(3)(b) and 49 of the RTI Act.[19] Section 23 of the RTI Act.[20] Grounds for refusal of access are set out in section 47 of the RTI Act. [21] Section 47(3)(b) and 49 of the RTI Act. The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.[22] As set out in section 49 of the RTI Act. [23] Under section 87 of the RTI Act. [24] Set out in schedule 4, part 1 of the RTI Act.[25] Section 44 of the RTI Act.[26] Section 47(2) of the RTI Act.[27] Schedule 4, part 2, item 1 of the RTI Act. [28] Schedule 4, part 2, item 2 of the RTI Act. [29] Schedule 4, part 2, item 3 of the RTI Act. [30] Schedule 4, part 2, item 4 of the RTI Act. [31] Schedule 4, part 2, item 5 of the RTI Act. [32] Schedule 4, part 2, item 11 of the RTI Act. [33] Pages 6, 7 and 16 of Council’s 2016-2017 Annual Report. Similar information appears in a ‘Report on Water Business Unit 2016/17’, which is available on Council’s website at: <https://www.gympie.qld.gov.au/documents/40005057/41304478/Water%20Business%20Unit%20Annual%20Report%202016-17.pdf>. [34] Under section 275 of the LG Regulation, a local government may resolve to close a meeting to members of the public where it considers necessary to discuss certain identified matters. Council’s meeting minutes refer to the closed sections of the meetings as being ‘in committee’. [35] As referred to in paragraph 11. [36] For example, in its ‘Report on Water Business Unit 2016/17’, Council noted: ‘The purpose of the new structure will enable alignment with commercial principles, improve confidence that our expenditure is prudent and efficient and that we are managing our risks effectively’. [37] To avoid revealing the Information in Issue, I am unable to provide further details of this media reporting in these reasons for decision. [38] Refer to the statements of the Minister for Local Government, Minister for Racing and Minister for Multicultural Affairs dated 5 March 2019 and 1 April 2019, which are accessible at <http://statements.qld.gov.au/Statement/2019/3/5/local-government-reform-on-the-agenda> and <http://statements.qld.gov.au/Statement/2019/4/1/consultation-informs-local-government-reforms> . Details of the proposed reform agenda are accessible at <http://www.dlgrma.qld.gov.au/local-government-reform.html> .[39] Namely, the Local Government Electoral (Implementing Stage 2 of Belcarra) and Other Legislation Amendment Bill 2019. [40] Refer to <http://www.dlgrma.qld.gov.au/local-government-reform.html> . [41] Schedule 4, parts 3, item 22 of the RTI Act. [42] Submissions dated 25 March 2019. [43] Section 171(3) of the LG Act. Additionally, on 27 March 2013, Council adopted a ‘Councillor Confidentiality Procedure’ (Procedure), which obliges Councillors not to disclose confidential information—defined in section 7 to include all information relating to the matters discussed during a closed meeting—‘unless and until Council resolves to the contrary’. Refer to pages 169-173 of Council’s minutes for the meeting on 27 March 2013, which are accessible at: <https://www.gympie.qld.gov.au/documents/40005057/40024731/2013-03-27%20Ordinary%20Meeting%20Minutes.pdf>. [44] Submissions dated 25 March 2019. [45] The maximum penalty nominated in both sections 171 and 200(5) of the LG Act, is 100 penalty units or 2 years imprisonment. [46] Section 6 of the RTI Act.[47] Section 275(1)(b) of the LG Regulation permits the closure of a local government meeting to discuss industrial matters affecting employees. Council’s minutes confirm that this was the basis on which the September 2016 meetings were closed in respect of the water and sewerage review agenda items.[48] Schedule 4, part 3, item 2 of the RTI Act. [49] Schedule 4, part 3, item 15 of the RTI Act; section 32D(1) of the Acts Interpretation Act 1954 (Qld) provides that ‘a reference to a person generally includes a reference to a corporation as well as an individual’. [50] Schedule 4, part 4, section 7(1)(c) of the RTI Act. [51] Submissions dated 25 March 2019. [52] 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. [53] Schedule 4, part 3, item 16 of the RTI Act.[54] Schedule 4, part 4, item 8 of the RTI Act.[55] Submissions dated 25 March 2019. [56] Submissions dated 7 May 2019. [57] As noted in paragraph 14, the third party instead contended that disclosing some limited personal information within the Report would, on balance, be contrary to the public interest. [58] Schedule 4, part 3, item 3 of the RTI Act.[59] ‘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’.[60] Schedule 4, part 4, item 6(1) of the RTI Act.[61] Submissions dated 25 March 2019. [62] The members of Council’s Executive Management Team are identified by their names and titles on Council’s website. [63] Agency documents can also contain personal information of officers, which is not routine work information: Underwood and Department of Housing and Public Works (Unreported, Queensland Information Commissioner, 18 May 2012) at [60]. [64] Council submissions dated 7 May 2019. [65] 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].[66] 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.[67] Schedule 4, part 3, items 8 and 9 of the RTI Act. [68] Schedule 4, part 3, item 17 and schedule 4, part 4, item 3(c) and (d) of the RTI Act. [69] Schedule 4, part 3, item 20 and schedule 4, part 4, section 4 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

ALE and Central Queensland University; W (Third Party) [1997] QICmr 21 (20 January 1997)

ALE and Central Queensland University; W (Third Party) [1997] QICmr 21 (20 January 1997) 'ALE' & 'RBA' and Central Queensland University; W (Third Party) (S 9/95; S 10/95, 20 January 1997, Information Commissioner) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) REASONS FOR DECISION Background Application for review no. S 9/95 is a 'reverse FOI' application by a staff member (whom I shall refer to as "Applicant 1") of the Faculty of .... of the respondent, the Central Queensland University, who seeks review of the respondent's decision to grant [W] (also a staff member of the same Faculty) access under the Freedom of Information Act 1992 Qld (the FOI Act) to a memorandum from Applicant 1 to the Dean of the Faculty. Application for review no. S 10/95 is a 'reverse FOI' application by another staff member (whom I shall refer to as "Applicant 2") of the same Faculty, who seeks review of the respondent's decision to grant [W] access under the FOI Act to a memorandum from Applicant 2 to the Dean of the Faculty. In each case, the applicant for review contends that the memorandum in issue comprises exempt matter under s.40(c), s.44(1), s.46(1)(a) and s.46(1)(b) of the FOI Act. Anonymity is necessary because both applicants for review assert that their identities are exempt from disclosure to [W] under the FOI Act. The memoranda in issue deal with similar topics, and the grounds for exemption put forward by the applicant in each case are similar. It is appropriate to deal with the two cases together. The University has explained the background to [W's] initial FOI access application as follows: In 1994 the Vice-Chancellor received complaints from a number of academic staff of the Faculty of ... against the Dean, .... . [W] was one of the complainants. The Vice-Chancellor convened a small panel to consider the allegations. At a hearing of the panel with [the Dean], [the Dean] tabled a rebuttal of the allegations and, in support of his statements, attached a number of letters and memos. [The documents in issue were among the attachments to the rebuttal.] [W] and the other complainants were given a copy of [the Dean's] rebuttal but not the attachments. ... By letter dated 11 October 1994, [W] sought access, under the FOI Act, to any documents cited in the Dean's rebuttal which referred to [W]. Under s.51 of the FOI Act, the University consulted a number of persons, including the present applicants for review. Following consultation, Mr K G Window, Registrar of the University, determined that [W] should be given access to a number of documents, including the documents now in issue. The applicants for review each lodged separate applications for internal review of Mr Window's decision, in so far as it concerned the memoranda they had respectively authored, claiming exemption under one or more provisions of s.40, s.44(1) and s.46(1) of the FOI Act. With respect to the document authored by Applicant 1 (document 1), Professor R J Breakspere of the University wrote to Applicant 1 after the 14 day period for making an internal review decision had expired, indicating that, because no decision had been made within time, Mr Window's decision was deemed to be affirmed under s.52(6). With respect to the document authored by Applicant 2 (document 2), Professor Breakspere determined that the document was not exempt under s.41(1), s.44(1) or s.46(1). In considering the application of the public interest balancing test incorporated in s.46(1)(b) of the FOI Act, Professor Breakspere stated: It is in the public interest that the University conducts its staff relations in a fair, open and above-board way. If documents are held in the University which are critical of the behaviour or performance of a staff member, then it is in that staff member's interest and in the interest of the University as a whole that the staff member be aware of those criticisms, be given the opportunity to respond to them, and to modify his behaviour and improve his performance if necessary. By letters dated 16 January 1995, Applicant 1 and Applicant 2 then applied to me for external review, under Part 5 of the FOI Act, of the deemed decision by the respondent affirming Mr Window's initial decision, and of Professor Breakspere's internal review decision, respectively. External review process [W] was notified of the reviews and he applied for, and was granted, status as a participant in them (see s.78 of the FOI Act). The document in issue in each external review was obtained and examined. Document 1 is a memorandum from Applicant 1 to the Dean dated 6 June 1994. In it, Applicant 1 describes matters relating to interaction between [W] and two students (as to the manner in which the two students were performing in their first fieldwork, practical teaching sessions) and raises concerns with the Dean about particular aspects of [W's] work performance. It is expressed to be written in response to a request from the Dean to put concerns about [W] to the Dean in writing. Document 2 is a memorandum from Applicant 2 to the Dean dated 2 June 1994. Its subject matter is similar in nature to the subject matter of document 1. Letters to Applicant 1 and Applicant 2 were forwarded from my office on 25 August 1995 and 29 August 1995, respectively, conveying the preliminary views formed after an initial assessment of the documents in issue, i.e., that the documents in issue did not comprise exempt matter under any of the provisions of the FOI Act raised by the applicants. In the event that the applicants did not accept those preliminary views, they were invited to lodge a written submission, and/or evidence, in support of their contentions that the memoranda they had respectively authored comprised exempt matter under the FOI Act. The applicants were asked to lodge any evidence, on which they wished to rely, in the form of sworn affidavits or statutory declarations. Neither applicant accepted the preliminary views conveyed to them, and both provided written submissions to me. However, since receiving the preliminary views conveyed to them, neither applicant has sought to argue that s.40(a), s.40(b) or s.40(d) of the FOI Act applies to the documents in issue. I take this as tacit acceptance that those exemption provisions cannot apply to the documents in issue. Having examined the documents in issue, I am satisfied that there is simply no basis for the application of s.40(a), s.40(b) or s.40(d) of the FOI Act to the documents in issue in these reviews, and I find that the documents in issue are not exempt matter under any of those exemption provisions. I arranged for the exchange of written submissions, and responses to them, between the participants. Some submissions by the applicants were edited so as to delete matter which is claimed by the applicants to be exempt, including matter which might reveal the identities of the applicants. None of the written submissions were supported by evidence on oath or declaration, a factor which, having regard to all the relevant circumstances, may affect the credence or the weight to be accorded to assertions of fact made in the written submissions. I list below the written submissions of the participants made in the course of these external reviews: submissions made by Applicant 1: external review application dated 16 January 1995 submission dated 9 March 1995 submission dated 6 October 1995 submission dated 29 February 1996 submission dated 23 April 1996 submissions made by Applicant 2: external review application dated 16 January 1995 submission dated 4 October 1995 submission dated 29 February 1996 submissions made by, or on behalf, of [W]: submission dated 28 November 1995 submission dated 28 March 1996. The University has not made any further submissions in the course of these external reviews and has been content to rely on the reasons for decision given to the applicants by Mr Window and Professor Breakspere to justify its determinations. Section 81 of the FOI Act provides that in a review under Part 5 of the FOI Act, the agency which made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant. In the present case, therefore, the formal onus remains on the University to justify its decision that the documents in issue are not exempt from disclosure to [W] under the FOI Act. The University can discharge this onus, however, by satisfying me that any one of the necessary elements which must be established, to attract the application of each of the exemption provisions relied on by the applicants, cannot be made out. Thus, the applicant in a "reverse-FOI" case, while carrying no formal legal onus, must nevertheless, in practical terms, be careful to ensure that there is material before the Information Commissioner from which I am able to be satisfied that all elements of the exemption provisions relied upon are established. Relevant provisions of the FOI Act The following provisions of the FOI Act are relevant to my decision: 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; ... 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. 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. 46.(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. The applicants have, in their written submissions, contended that the documents in issue comprise exempt matter under s.40(c), s.44(1), s.46(1)(a) and s.46(1)(b) of the FOI Act. I will first consider the application of s.46(1), before proceeding to consider other exemption claims. Application of s.46 of the FOI Act I consider that parts of both documents in issue are excluded from exemption under s.46(1) by virtue of s.46(2). In Re "B" and Brisbane North Regional Health Authority (1994)[1994] QICmr 1; 1 QAR 279, at p.292 (paragraph 35), 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). In Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60, I undertook a detailed analysis of s.41 of the FOI Act, in which I stated (at pp.70-71; paragraphs 27-29) that the critical words in s.41(1)(a) are "deliberative processes involved in the functions of government". (The word "government" is given a non-exhaustive definition in s.7 of the FOI Act and includes an agency and a Minister.) The words in question extend to cover deliberation for the purposes of any decision-making function of an agency. They do not, however, cover the purely procedural or administrative functions of an agency. One passage in particular has come to be accepted as correctly explaining the meaning of the term "deliberative processes" involved in the functions of an agency. In Re Waterford and Department of Treasury (No. 2) [1984] AATA 67; (1984) 5 ALD 588 at 606; [1984] AATA 67; 1 AAR 1 at 19-20, the Commonwealth Administrative Appeals Tribunal (comprising Deputy President Hall, Mr I Prowse and Professor Colin Hughes) said: The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. (See also Re James and Australian National University [1984] AATA 501; (1984) 2 AAR 327 at p.335; the relevant passage is reproduced in Re Cairns Port Authority and Department of Lands [1994] QICmr 17; (1994) 1 QAR 663 at p.685; paragraph 44). Parts of the documents in issue comprise a recounting by the respective authors of factual matters. However, other parts of the documents in issue answer the description of "opinion, advice or recommendation that has been obtained, prepared or recorded ... in the course of, or for the purposes of, the deliberative processes involved in the functions of government" (in this instance, deliberative processes with respect to the University's personnel management functions) and hence comprise matter of a kind mentioned in s.41(1)(a) of the FOI Act. Those parts are the second and third last paragraphs of document 1, and the third, fifth, seventh (except for the penultimate sentence of the seventh paragraph, which is a purely factual statement), ninth and tenth paragraphs of document 2. By virtue of s.46(2), s.46(1) does not apply to matter of a kind mentioned in s.41(1)(a) unless its disclosure would found an action for breach of confidence owed to a person or body other than the persons or bodies mentioned in s.46(2)(a) and (b). Documents 1 and 2 were written by officers of the respondent University to the Dean of their Faculty about administrative matters falling within the core functions of the Faculty. In my opinion, it is clear on their face that the documents in issue were written by their respective authors in their capacities as officers of the University. I find wholly unconvincing the attempts, in the applicant's written submissions, to convince me that the documents in issue were written by the authors in a personal capacity. (Applicant 1, in his written submissions, argued that he was not directed by the Dean to provide document 1 and was under no obligation as an officer of the University to do so (the second proposition is dubious for reasons indicated at paragraphs 31-32 below) - but these factors are hardly determinative of the capacity in which he wrote document 1). I find that documents 1 and 2 were written by Applicant 1 and Applicant 2, respectively, in their capacities as officers of the respondent University. Hence, the parts of the documents in issue identified in the last sentence of paragraph 17 above are not eligible for exemption under s.46(1) of the FOI Act, by virtue of s.46(2). It is necessary that I consider the application of s.46(1) to the balance of the documents in issue. Section 46(1)(a) In Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279, I considered in detail the elements which must be established in order for matter to qualify for exemption under s.46(1)(a) of the FOI Act. The test for exemption is to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, possessed of appropriate standing to bring a suit to enforce an obligation of confidence said to be owed to that plaintiff, in respect of information in the possession or control of the agency or Minister faced with an application, under s.25 of the FOI Act, for access to the information in issue (see Re "B" at pp.296-297, paragraph 44). In this instance, there is an identifiable plaintiff in each case, i.e., Applicant 1 and Applicant 2, who would have standing to bring an action for breach of confidence. There is no suggestion in the present cases of a contractual obligation of confidence arising from the circumstances of the communication of the information in issue from the applicants to the Dean, as a representative of the management of 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 cumulative criteria which must be established: (a) it must be possible to specifically identify the information in issue, in order to establish that it is secret, rather than generally available information (see Re "B" at pp.303-304, paragraphs 60-63); (b) the information in issue must possess "the necessary quality of confidence"; i.e., the information must not be trivial or useless information, and it must possess a degree of secrecy sufficient for it to be the subject of an obligation of conscience, arising from the circumstances in or through which the information was communicated or obtained (see Re "B" at pp.304-310, paragraphs 64-75); (c) the information in issue must have been communicated in such circumstances as to fix the recipient with an equitable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it (see Re "B" at pp.311-322, paragraphs 76-102); (d) it must be established that disclosure to the applicant for access under the FOI Act would constitute a misuse, or unauthorised use, of the confidential information in issue (see Re "B" at pp.322-324, paragraphs 103-106); and (e) it must be established that detriment is likely to be occasioned to the original confider of the confidential information in issue if that information were to be disclosed (see Re "B" at pp.325-330, paragraphs 107-118). I am satisfied that the information which is claimed to be confidential can be identified with specificity. As to the second criterion listed above, I am satisfied that [W] is not aware of the precise contents of the documents in issue. I note that the documents have been passed on by the Dean to other officers of the University for the purposes of the Dean's rebuttal of complaints. While this fact may have relevance to my assessment of the third criterion, it does not, in my opinion, constitute a sufficiently wide distribution to deprive the documents in issue of "the necessary quality of confidence" for the purposes of satisfaction of the second criterion: see Re "B" at p.306, paragraph 71(b), and Attorney-General's Department and Australian Iron and Steel Pty Ltd v Cockroft [1986] FCA 35; (1986) 10 FCR 180. I have a conceptual difficulty in respect of those parts of the documents in issue (the third and fourth paragraphs of document 1, and the fourth and sixth paragraphs of document 2) which set out a factual account of statements made by [W]. Presumably, the applicants would assert the accuracy of those accounts. It is problematical whether equity can be invoked to protect from disclosure to [W], on the basis that it is confidential information vis-à-vis [W], an account of statements made by [W]. I do not propose to explore this issue further, since I am satisfied that criterion three cannot be established in respect of the documents in issue, for reasons explained below. With respect to criterion three, the question of 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.302-303: see Re "B" at p.316 (paragraph 84) and pp.314-316 (paragraph 82). In his submission dated 6 October 1995 (at p.2), Applicant 1 asserts that: Before putting my comments in writing, the Dean indicated his specific undertaking to maintain the confidentiality of authorship of the document. It was clearly evident at the time of writing that what would be written would be held in confidence, particularly the source of the information. I would never have reduced the elements of our private conversation to writing had I nothad the Dean's assurance that the source of the information would remain confidential between us. While Applicant 1 contends that all of document 1 is exempt under s.46(1)(a), the only assertion of an express assurance relates to the confidentiality of the identity of Applicant 1 as a source of information. [W] challenged whether such an assurance would have been made, given the circumstances of the case, but Applicant 1 has repeated the assertion that an assurance of confidentiality was given with respect to the identity of Applicant 1. It should, however, be noted that no evidence by way of affidavit or statutory declaration (either from Applicant 1 or the Dean) has been put forward by Applicant 1 to support the assertion which [W] challenged, and accordingly its evidentiary value is limited. Applicant 1 also stated in his submission dated 6 October 1995 (at p.2): ... the Dean made known to me that in order for him to act on my concerns expressed orally and in confidence, he required them to be reduced to a written form. Clearly then, Applicant 1 would not have written and submitted document 1 to the Dean, if he had not wanted action taken by the management of the University in respect of his concerns. I also note that, in his submission dated 29 February 1996, Applicant 1 states: As I have previously implied, in writing the document my expectation was that the Dean might take action regarding the situation I described to him, particularly as it affected the affairs of the students of the Faculty who were the subject of this document. I, therefore, concur with the Deputy Information Commissioner's preliminary view in this regard when he states that: In the circumstances, it would seem quite possible and indeed logical that one step which the Dean would take on receiving the document in question would be to put matters to [W], ask for his explanation and, if satisfied that there had been some failing on his part, encourage him to perform better in the future. There is nothing on the face of document 1 or document 2 which suggests that the contents of the documents, or their authors' identities were intended to be treated as confidential. Applicant 1 asserts that the Dean gave him an assurance of some kind in respect of keeping confidential Applicant 1's identity as the author of document 1. (Whether the assurance was absolute, or conditional, or something along the lines of "I will do my best to keep your name out of it" is unknown to me - there is simply no evidence before me on the point). Applicant 1 makes no similar claim of an express assurance of confidentiality in respect of the contents of document 1. Applicant 1 must therefore be asserting that the relevant circumstances surrounding the communication of document 1 from Applicant 1 to the Dean gave rise to an obligation of confidence binding on the University not to use or disclose its contents in a manner not authorised by Applicant 1 (see Re "B" at pp.318-319, paragraphs 89-90, and 93). Even assuming that some kind of express assurance as to confidentiality of identity was given by the Dean to Applicant 1, that would amount to one relevant factor, which must be examined in the light of all the relevant circumstances, to determine whether equity would impose an obligation of confidence binding on the University. In my opinion, when regard is had to all the relevant circumstances, equity would not impose an obligation of confidence binding the University not to disclose to [W] the contents of document 1, or the identity of its author. I have reached the same view in respect of document 2, since the relevant circumstances surrounding its communication to the Dean are not materially different. Applicant 2 asserts that document 2 was "provided to the Dean on the verbal understanding by the Dean to me that the memo would be held in confidence" (submission dated 4 October 1995) and seeks support for this assertion in Mr Windows' finding that the memorandum was "communicated in confidence". (I note that Mr Window's finding is not binding on me.) Again, I note that Applicant 2's assertion of an express assurance of confidentiality was not supported by affidavits or statutory declarations, by himself and/or the Dean, attesting to the material facts, and his assertion is of limited evidentiary value. Applicant 2 also went on to say: Indeed you are correct in assuming on page 5 [of the preliminary views letter from my office] that even though I supplied the information to the Dean in confidence, that I could reasonably have the expectation that the matter would be dealt with by the Dean and [W]. However, my understanding was that the issues raised in my memo would be addressed, as they have been as mentioned above, and not details cited in the memo or the memo itself provided to [W]. This assumption was reinforced by the verbal acknowledgment given to me by the Dean. Applicant 2 had earlier in his submission asserted that "[W] has had opportunity to deal with the issue of practicum supervision with the Dean, the issue raised in the memo, on a number of occasions and in a number of forums". Documents 1 and 2 describe an aspect of [W's] performance as a staff member of the University which the authors considered was incorrect and/or inappropriate, and which had the potential to have a detrimental effect on two students of the University. The applicants, as staff members of the University, had a positive duty to act in their employer's best interests, a duty which extended to an obligation to disclose relevant information which they received in their capacities as employees of the University: see Re Shaw and The University of Queensland (Information Commissioner Qld, Decision No. 95032, 18 December 1995, unreported), at paragraphs 55-57. Clearly, information regarding a failing in the performance of the duties of a staff member in the assessment of, and guidance given to, students must be regarded as information of significance to the achievement of the core functions of the University. Moreover, it is information of a kind which, in my opinion, the University would have been obliged to investigate, and, if satisfied of its substance, the University would have been obliged to take appropriate corrective measures. The material before me indicates that documents 1 and 2 were provided at the direct request of the Dean for the purposes of his administration of the Faculty. The fact that the Dean may have voiced his requirements as a request rather than a direction or that the information may have been volunteered (although in accordance with the duty owed to the University) for the better running of the University does nothing, in my view, to take the supply of information outside of the work context. I find it difficult to accept that the information contained in documents 1 and 2, which the applicants had a duty to disclose to their employer, could be the subject of a legally binding duty of confidence owed by the employer to the applicants. To my mind, the most significant of the relevant circumstances which I must consider (in determining whether the relevant circumstances were such as to give rise to an equitable obligation of confidence), is the use or uses to which the Dean and the University were likely to put the information supplied by the applicants (and which should reasonably have been in the contemplation of the applicants at the time they communicated the information): see Re "B" at p.319, paras 92-93. In my view, upon receiving documents 1 and 2 (both of which were clearly forwarded to the University with the intention that they should be acted upon), the University was obliged to proceed to investigate and verify the substance of the concerns raised in the documents, and (if necessary) take corrective action, while acting in accordance with procedures that were fair to all concerned, including not only the students whose position was allegedly under threat of being unfairly prejudiced, but also [W]. Since the concerns expressed in both document 1 and document 2 were predicated on certain factual matters recounted in those documents, I consider that elementary fairness required that those factual matters be put to [W] to establish whether he accepted that they constituted a reasonably fair and accurate account of the relevant facts, or whether he asserted that the documents contained inaccurate, incomplete or misleading accounts. The very nature of the information recorded in the documents in issue is, in my opinion, such that it could not have been fairly put to [W] without inevitably disclosing the identities of the authors of the documents in issue. Both applicants acknowledge that one option open to the Dean on receipt of the documents in issue was to raise with [W] the matters of concern recorded in them. (Indeed, the applicants assert that the Dean has tried to raise the matter with [W], but [W] has avoided discussing the issue). In my view, any reasonable person in the position of the applicants would have anticipated that one of the options for the Dean, in the proper management of his staff, would have been to provide [W] with copies of the documents in issue and ask for his response. Even if the Dean chose to summarise the complaints rather than providing copies of the documents to [W], the nature of the complaints, and the evidence on which they depended, was such that the identities of the applicants would, in my opinion, have inevitably been disclosed. While no doubt cases would arise in the administration of a University Faculty where the Dean could take appropriate action on a complaint against a Faculty member without disclosing the source of the complaint (e.g., where the complainant is able to point to documentary evidence which independently verifies the basis for complaint), I do not consider that this is such a case. The context in which the information was obtained by the applicants was such that the taking of appropriate action in respect of the information should reasonably have been understood as being likely to involve the disclosure of their identities, and of the contents of documents 1 and 2. In my opinion, the University came under a duty to take appropriate action in respect of the information conveyed in documents 1 and 2. There were wider interests involved than just the interests of the authors of those documents. While I consider that equity may have required that the University treat documents 1 and 2 in confidence as against the world at large, I consider that equity would have imposed no restraint on any limited disclosure of documents 1 and 2 that was necessary or appropriate for the purpose of taking appropriate action in respect of the matters raised in documents 1 and 2. In particular, I consider that equity would not impose an obligation of confidence restraining the University from disclosing documents 1 and 2 to [W]. The applicants also argue that a document signed by a number of staff members (which I will refer to as "the petition": see paragraph 45 below) shows a general expectation among members of the Faculty that matter of this type will be kept confidential. The petition is framed in general terms; it does not direct itself to the contents of the specific documents in issue. It notes that there are "different levels of confidentiality which apply in different situations". It refers to a number of specific work-related tasks in which information is supplied, none of which coincide with the situation in this case. I do not consider that the petition is of any assistance to the applicants in establishing an understanding of confidentiality between the University and the applicants in respect of any part of the documents in issue, which would preclude their supply to [W]. Its general nature, and its acknowledgment that expectations vary, cannot form a basis for a finding of a general understanding of confidentiality which would extend to the specific documents in issue. In my view, an assessment of the whole of the relevant circumstances leads me to find that the respondent University was not fixed with an equitable obligation of confidence not to disclose the documents in issue to [W]. I therefore find that documents 1 and 2 do not comprise exempt matter under s.46(1)(a) of the FOI Act. Section 46(1)(b) In Re "B" at p.337 (paragraph 146), I indicated that, in order to establish the prima facie ground of exemption under s.46(1)(b) of the FOI Act, three cumulative requirements must be satisfied: (a) the matter in issue must consist of information of a confidential nature; (b) that was communicated in confidence; (c) the disclosure of which could reasonably be expected to prejudice the future supply of such information. If the prima facie ground of exemption is established, it must then be determined whether the prima facie ground is displaced by the weight of identifiable public interest considerations which favour the disclosure of the particular information in issue. In his original decisions, Mr Window determined that the two documents in issue were communicated in confidence and that their disclosure may prejudice the future supply of such information, but decided that disclosure of each would, on balance, be in the public interest. In the preliminary views letters from my office to the respective applicants, the view was expressed that the memoranda may not have been communicated in confidence for the purposes of s.46(1)(b), and that disclosure might not reasonably be expected to prejudice the future supply of such information. Communicated in confidence At paragraphs 152-153 of my decision in Re "B", I made the following comments with regard to the phrase "communicated in confidence": 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 matters discussed at paragraphs 103 and 104 above concerning the scope or extent of an obligation of confidence will also be relevant to the extent of the mutual understanding as to confidence for the purposes of s.46(1)(b), i.e. it is a question of fact whether in the circumstances it was or must have been the intention of the parties that the recipient should be at liberty to divulge the information to a limited class of persons which may include a particular applicant for access under the FOI Act. Likewise the matters discussed at paragraphs 105 and 106 above concerning the confider authorising the disclosure of information previously communicated in confidence are also relevant here. As I have indicated above, there is nothing on the face of the documents in issue to suggest that they were communicated in confidence. Both applicants have asserted that they understood that the documents were communicated in confidence and have asserted that the Dean gave them an assurance of confidentiality in some form. But there is no satisfactory evidence before me on which to base a finding that an express mutual understanding of confidence existed between the Dean, representing the management of the University, and Applicants 1 and 2, or a finding as to its scope or limits. As to whether there were circumstances indicative of a common implicit understanding of confidence, I have referred above (at paragraphs 26-27, 29-35) to a number of factors which lead me to believe that it was not reasonable for the applicants, in the circumstances, to form an expectation that the documents would be held in confidence as against [W]. I note, too, that the Dean seems to have used the documents for purposes other than simply dealing with the issues raised in them, having passed them on to more senior University administrators in defence of allegations made against him by [W] and other staff of the Faculty. Once in control of the University officers conducting that inquiry, it was open to them to put the material adverse to [W] to him for response, if that was considered necessary or appropriate for the proper conduct of the inquiry, in accordance with the legal duty to follow fair procedures. (It appears that this did not in fact occur, although I note that the inquiry was terminated before its completion.) It is trite law that an understanding or obligation of confidence may lapse with the passage of time, or be overridden by supervening events or materially changed circumstances. If there once was a mutual understanding of confidence between the Dean and the applicants with respect to the documents in issue, it appears that it no longer existed as a mutual understanding by the time that [W] lodged his access application under the FOI Act. In all the circumstances, I find that the second requirement for exemption under s.46(1)(b) is not satisfied, and that the documents in issue are therefore not exempt under s.46(1)(b) of the FOI Act. Prejudice to future supply of information In response to the preliminary view conveyed to them, in letters from my office, that disclosure of the documents in issue would not prejudice the future supply of such information, the applicants supplied a petition, which appears to have been signed by 16 persons. The petition refers to the signatories as members of the staff of the Faculty, although only some of them have actually included their position within the Faculty. I set out the text of that petition below: We, the undersigned members of staff of the Faculty of ..., Central Queensland University, write to you in the context of the possibility of documents written by us as officers of this agency in confidence to the Dean being made available through provisions of the Freedom of Information Act. While we respect and support the need for processes affecting staff members' livelihood and advancement being open within limits carefully worked out, we also note that there are different levels of confidentiality which apply in different situations. Academic work in general relies strongly on peer advice and participation in matters such as refereeing work for publication, staffing selection, promotion, resource allocation for research, conference attendance and the like. These processes in this Faculty are open to elected members and some officers by virtue of their position; they follow proper procedures and their procedures are visible to others. However, the content of what they do is in confidence between the different layers of the committees and those responsible for implementation. The candidate (e.g. for promotion) is normally given copies of material pertaining to them, but usually not with names for colleagues participating attached. If there is no provision for in-confidence written advice to the Dean which can then be acted upon in the proper manner (e.g. by reference to the individual staff or student concerned) then an important aspect of peer review is lost. This prejudices the likelihood of future supply of information, especially in difficult incidents or sensitive matters, including funding, reputation, policy directions and/or assessment. Given the large number of issues arising with staff and students, it would be impossible, and probably inadvisable, for the Dean to deal with all of these orally, and thus some form of writing would be required. If matters that we cover in documents written by us as staff members in confidence to the Dean of the Faculty relating to staff or student performance are to be made available without opportunity for the author to maintain anonymity, then we have to consider that we need to refrain from supplying such documents to the Dean. Particularly in such a small faculty as ours, anonymity cannot be guaranteed, even if names are removed from discussion. In the last eighteen months, evidence suggests that anonymity has not been possible to maintain in the face of FOI requests. If each time that there is a disagreement with a decision FOI is used as a recourse by the aggrieved staff member, then not only will the process be lengthened, potentially disadvantaging other members of staff, but also staff such as ourselves will be reluctant to offer to serve on committees or perform other tasks which require judgements to be communicated. This would disrupt the proper operations of the Faculty, adding additional stress in a time of higher workloads and increased diversity of demand on the sector. We submit that we would need to refrain from supplying such information to the Dean. The first thing to note about the petition is that it does not relate specifically to the documents in issue. It is a general statement of principle by the staff members concerned and it acknowledges "that there are different levels of confidentiality which apply in different situations". As far as the law is concerned, each case must be determined on its own merits, and that is what I have done in respect of the particular documents in issue in this case. Caution is indicated with respect to predictions of prejudice to the future supply of like information based on the comments of a small number of staff asked to sign a general statement of principle. If one is discussing information supplied by an employee to management relating to work performance of that employee or his or her colleagues, then to assert that disclosure of such information will prejudice the future supply of like information is really to assert that a significant number of staff of the organisation will refuse to carry out their lawful obligations as employees. It is essentially an admission that the constitution of the staff involved lacks the qualities necessary to carry out their duties as public officers in the provision of information to the management of the organisation. No doubt many staff would prefer, if possible, to avoid the possibility of confrontation over comments made to the Dean about the performance of another staff member. However, that is quite a different thing than actually deciding to refrain from providing information where provision of that information is considered necessary in the interests of students and the University generally. I am not satisfied that a significant number of academics would refrain from doing their duty in this regard, merely because of disclosure of the documents in issue in this external review. I am not satisfied that requirement (c) referred to in paragraph 38 above is established with respect to documents 1 and 2, and accordingly, on this basis too, those documents do not qualify for exemption under s.46(1)(b) of the FOI Act. I have discussed the balance of public interest considerations in detail in relation to s.40(c) and s.41(1) below. Even if I had concluded that the matter in issue was communicated in confidence, and that there might be some prejudice to the future supply of like information, I would find that the factors favouring disclosure to [W] are sufficient to outweigh the public interest factors favouring non-disclosure of the documents in issue, in this case. Application of s.40(c) of the FOI Act I have previously discussed the application of s.40(c) of the FOI Act in my decisions in Re Pemberton and The University of Queensland (1994) 2 QAR 293, Re Murphy and Queensland Treasury & Ors (Information Commissioner Qld, Decision No. 95023, 19 September 1995, unreported) and Re Shaw and The University of Queensland (Information Commissioner Qld, Decision No. 95032, 18 December 1995, unreported). The focus of the s.40(c) exemption is on the management or assessment by an agency of the agency's personnel. The exemption will be made out if it is established that disclosure of the matter in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by the University of its personnel, unless disclosure of the matter in issue would, on balance, be in the public interest. The correct approach to the application of the phrase "could reasonably be expected to" is explained in Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 8; (1994) 1 QAR 477 at p.515 (paragraphs 62-63). The test embodied in that phrase calls for the decision-maker to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural expectations) and expectations which are reasonably based, i.e., expectations for the occurrence of which real and substantial grounds exist. 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 claimed by the applicants could reasonably be expected to follow from disclosure of the documents in issue, I must then determine whether those adverse effects, either individually or in aggregate, constitute a substantial adverse effect on the management or assessment by the University of its personnel. As I noted in Re Pemberton (at paragraph 122), I consider that, where the Queensland Parliament has employed the phrase "substantial adverse effect" in s.40(c), s.40(d), s.47(1)(a) and s.49 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 Administrative Appeals Tribunal remarked (at p.129, paragraph 21) that: "the onus of establishing a substantial adverse effect is a heavy one ...". If I find that disclosure of the whole or any part of the documents in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by the University of its personnel, then with respect to that matter, I must consider whether disclosure would nevertheless, on balance, be in the public interest. Claimed adverse effects The lengthy submissions of the applicants in this regard can be distilled into two claimed adverse effects: they claim that the ability of the Dean to receive confidential information relevant to the management and assessment of staff will be compromised through disclosure of the documents; and they contend that relations between staff of the Faculty will be soured by release of the documents in issue. I accept, as a matter of general principle, that there may be communications between the employees and the management of an organisation (or indeed between managers of an organisation) in respect of which it would be better for the management of the organisation if they were kept secret. The test for exemption under s.40(c) of the FOI Act, however, is an onerous one, as I have indicated above. Each case must be judged on its merits and its particular circumstances, with relevant factors including the use that is intended to be made of the information communicated, and what obligations (whether imposed by legal requirements, published policy guidelines of the relevant agency, or even the dictates of good management practice) exist with respect to disclosure to persons whose interests are liable to be affected by the communication or by action taken in response to it. In this case, I do not consider that disclosure of the documents in issue to [W] would lead a significant number of staff of the University to refrain from carrying out their obligations, as employees, in the provision of information to management, or to be more guarded in the information which they give to management (see paragraph 48 above). As I said in Re Shaw (at paragraph 32): ... if a person takes it upon himself or herself to complain about shortcomings in other staff, the interests of the University in the effective management of its personnel will be best served if that complaint is made in a form that will withstand scrutiny (including by the person complained against, who, if the University proposes to take action on the complaint, will ordinarily be entitled to know the substance of the complaint), i.e., a complaint framed in careful and temperate language, and supported by particulars of the evidence which substantiates the basis for complaint. Frank and honest opinion can still be, and preferably should be, expressed in this way. I do not consider that the prospect of disclosure of a complaint to the subject of the complaint could reasonably be expected to have an adverse effect on the management or assessment by the University of its personnel, let alone a substantial adverse effect. I note in this regard that, in my opinion, the concerns raised in the documents in issue were proper matters to be raised with the management of the University, and they were framed in careful language, supported by details of the evidence which substantiated the basis for complaint (at least so far as it was known to the applicants - whether it constituted all relevant evidence was a matter for inquiry by the management of the University). The complaints were made to the management of the University in such circumstances as, in my opinion, to attract the protection of qualified privilege under the law of defamation. On the material before me, I cannot see why the applicants apprehend such difficulty in standing by their complaints. I am not satisfied that disclosure of the documents in issue to [W] could reasonably be expected to have a substantial adverse effect on the management or assessment by the University of the University's personnel. I am prepared to accept, however, that the task of constructively addressing problems of the kind raised in the documents in issue has greater prospects of success through co-operative effort if the process remains confidential to the parties involved. It may well be the case that disclosure of a document like the documents in issue to an outside party could reasonably be expected to have the prejudicial consequences contemplated by s.40(c). In Re Pemberton at paragraph 154, I said: ... Section 40 [of the FOI Act] is an exemption provision of a kind where it is ordinarily proper, in assessing the relevant prejudicial effects of disclosure of the matter in issue to have regard to the effects of disclosure 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). Rather than agitate issues as to whether this is an appropriate case for departure from the ordinary approach, or whether (applying the ordinary approach) a substantial adverse effect on the management or assessment by the University of the University's personnel could reasonably be expected, I prefer to state my finding that, applying the principles explained in Re Pemberton at paragraphs 164-193, I am satisfied that disclosure of document 1 to [W] would, on balance, be in the public interest. [W's] involvement in, and concern with, the information in document 1 gives rise to a public interest in his having access to what is recorded about him. I have discussed the relevant public interest considerations in more detail at paragraphs 71-74 below. I should also note, however, my complete agreement with the comments of Professor Breakspere quoted at paragraph 4 above. As to the suggestion that disclosure of the documents in issue would have an adverse effect on staff relations and therefore cause problems for the management of staff within the Faculty, the submissions put before me make it clear that there are already significant differences of opinion between members of the staff of the Faculty. I do not consider that disclosure of the documents in issue would contribute to any major escalation of problems involving staff relations within the Faculty, such as to amount to a substantial adverse effect. I think it is important to note that the University itself does not contend that disclosure of the documents will have an adverse effect on its management or assessment of its staff. I note that both applicants (Applicant 1 at paragraph 3.3 of his submission dated 29 February 1996, and Applicant 2 in the second last paragraph of his submission dated 29 February 1996) have referred to a fear of intimidatory behaviour being directed at them by [W], based on some past incidents involving [W], of which particulars are given. The incidents referred to in the material before me do not strike me as being so serious in nature as to afford a basis for a finding that disclosure of the documents in issue to [W] could reasonably be expected to have a substantial adverse effect on the management by the University of its personnel. I am satisfied that the documents in issue are not exempt from disclosure to [W] under s.40(c). Application of s.41(1) of the FOI Act Although s.41(1) was not relied upon in the applicants' written submissions, I am prepared to consider its application to the documents in issue, given my findings (at paragraph 17 above) that substantial segments of the documents in issue comprise matter which falls within the terms of s.41(1)(a) of the FOI Act. The balance of the documents in issue, however, comprises merely factual matter which, by virtue of s.41(2)(b) of the FOI Act, is not eligible for exemption under s.41(1). Whether the matter which falls within s.41(1)(a) is exempt depends on whether its disclosure would be contrary to the public interest, in terms of s.41(1)(b). The fact that matter falls within s.41(1)(a) carries no presumption that its disclosure would be contrary to the public interest: see Re Eccleston at p.68, paragraph 22. 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 or a 'reverse FOI' applicant can establish that disclosure of the relevant deliberative process matter would be contrary to the public interest. In Re Trustees of the De La Salle Brothers and Queensland Corrective Services Commission (Information Commissioner Qld, Decision No. 96004, 4 April 1996, unreported), I said (at paragraph 34): The correct approach to the application of s.41(1)(b) of the FOI Act was analysed at length in my reasons for decision in Re Eccleston, where I indicated (see p.110; paragraph 140) that an agency or Minister seeking to rely on s.41(a) needs to establish that specific and tangible harm to an identifiable public interest (or interests) would result from disclosure of the particular deliberative process matter in issue. It must further be established that the harm is of sufficient gravity that, when weighed against competing public interest considerations which favour disclosure of the matter in issue, it would nevertheless be proper to find that disclosure of the matter in issue would, on balance, be contrary to the public interest. In Applicant 1's application for internal review, the solicitors for Applicant 1 contended that four public interest factors discussed in the decision of the Commonwealth Administrative Appeals Tribunal in Re Howard and Treasurer of the Commonwealth of Australia [1985] AATA 100; (1985) 3 AAR 169, apply in the present case. These are: (i) the higher the office of the persons between whom the communications passed and the more sensitive the issues involved in the communication, the more likely it will be that communications should not be disclosed; (ii) disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to public interest; (iii) disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest; (iv) disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision maker and may prejudice the integrity of the decision making process. The applicants have made lengthy submissions suggesting that disclosure of the documents in issue would be contrary to the public interest. However, all of them tend to support one of the categories of purported public interest factors referred to above. In Re Eccleston (at pp.98-110, paragraphs 105-139), I considered in detail the relevance of these four factors to the question of the balance of the public interest. With respect to the first criterion (see Re Eccleston at pp.102-103, paragraphs 120-122) I indicated that the mere fact of a document being a high level communication does not make its disclosure contrary to the public interest. In any event, with all due respect, the communications embodied in the documents in issue cannot be properly characterised as communications between the holders of high office, in terms of the hierarchy of government. I would also consider that the sensitivity of the issues involved in the communication should be assessed at the lower end of the scale. I do not consider that this can be regarded as a public interest factor of any significant weight favouring non-disclosure of either document in issue. With respect to the second criterion referred to above, it is my view that claims of this nature should be disregarded unless a very particular factual basis is laid for the claim that disclosure will inhibit frankness and candour in future communications of a like kind, and that tangible harm to the public interest will result from that inhibition (see Re Eccleston at pp.106-107, paragraphs 132-134). I have discussed this point above in relation to the question of whether disclosure is likely to prejudice the future supply of information. I do not consider that a particular factual basis which would sustain a claim of this type has been established. As to the third and fourth points quoted in paragraph 64 above, I have made comments in Re Eccleston at pp.107-109 (paragraphs 136-138); however, I am satisfied that these points simply do not apply to the matter now under consideration, which is not matter of the kind contemplated in those criteria, when they were formulated in Re Howard. None of the matter in issue comprises "possibilities considered", and its disclosure would not unfairly disclose the reasons for a decision subsequently taken. The only public interest consideration favouring non-disclosure of the documents in issue, of the existence of which I am satisfied, is that which I have identified in paragraph 58 above. Against this must be weighed the public interest considerations favouring disclosure of the documents in issue. Applicant 1 argues that there is "absolutely no public interest in the document under consideration". Applicant 1 suggests that in order to be in the public interest for it to be released, it is necessary to show that there is a significant public interest issue in its disclosure and that this is simply absent in the present case. I consider that there are a number of public interest factors favouring disclosure to [W] of the documents in issue. There is first a public interest in enhancing the accountability of the University as a public authority. Disclosure of the documents would give an indication of a perception which had arisen in the eyes of two staff members that another staff member had failed in one aspect of the performance of his duties. Disclosure of the documents in issue would make the public aware of this perceived deficiency and would enable members of the public to question what steps the University had taken to address the issue, either by confirming that there was in fact no problem, or, if they did point out a problem, by taking appropriate action. These would be key documents in establishing whether the Dean and the University authorities had acted properly to ensure that the University was providing the best services possible to students. Another factor favouring disclosure would be the public interest in the accountability of [W] as a staff member of the University. Whether the public interest considerations identified in this paragraph are sufficient to balance or outweigh the public interest consideration favouring non-disclosure which is identified at paragraph 58 above, is difficult to judge. However, when account is taken of the additional public interest considerations which favour disclosure of the matter in issue to the particular applicant for access, [W], I consider that the balance of public interest clearly favours disclosure to [W]: in this regard, see, generally, Re Pemberton at pp.368-377, paragraphs 164-193. There is a public interest in allowing [W] access to matter which suggests that his performance has in some way been deficient, in order to allow him to correct any deficiency. As a staff member of the University, [W's] salary is paid by the public purse and the public have a right to expect that [W] will make all endeavours to ensure that his performance in the provision of services to students and the public generally is kept at as high a level as possible. If he is not made aware of perceived deficiencies in his performance, he cannot correct them. Apart from these general public interest considerations, there is also a public interest in [W] having access to adverse matter relating to him which remains on University records. The matter has already been used by the Dean in order to support his case to the University authorities. The documents have therefore come to the notice of not only the Dean but also other senior officers of the University. If they are to remain on University records, it is in the public interest that [W] have access to them in order that he can respond to them if he considers that they are incorrect, or can take note of them if the criticisms have merit. In my view, the public interest factors favouring disclosure of the matter in issue to [W] clearly outweigh any public interest factors which might favour non-disclosure. I find that none of the matter contained in the documents in issue is exempt matter under s.41(1) of the FOI Act. Section 44(1) of the FOI Act 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 the relevant variations of that phrase) as it appears 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: 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 matter in question. At paragraphs 91-102 of Re Stewart, I discussed the distinction which has been drawn between matter concerning personal affairs and matter concerning employment affairs. Nothing in the body of the documents in issue concerns the personal affairs of the applicants. The applicants describe events which took place in an employment context and raise concerns relating to the actions of [W] in the carrying out of his duties as a staff member of the Faculty. As I have indicated above (see paragraphs 18 and 32), I consider that the matter was reported to the Dean as a part of the employment activities of the applicants, (see, generally, in this regard, Re Pope and Queensland Health (1994) 1 QAR at pp.658-660, paragraphs 110-116). The applicants have submitted that their signatures on the documents in issue fall within the terms of s.44(1), and that there is no public interest in [W] having access to their signatures. In Re Stewart at p.257 (paragraph 80), I set out a list of examples of matter which had been held to fall within the meaning of the phrase "information concerning the personal affairs of a person", in cases which I considered to have been correctly decided. One of the examples listed was a person's signature (as distinct from a person's name): see Re Corkin and Department of Immigration and Ethnic Affairs (1984) 2 AAR 214. I consider that disclosure of the signatures of the applicants would disclose information concerning the personal affairs of the applicants, and that their signatures are therefore prima facie exempt matter under s.44(1) of the FOI Act. I do not consider that there is any public interest factor favouring disclosure which would outweigh the public interest in non-disclosure. I therefore find that the signature of each applicant is exempt matter under s.44(1) of the FOI Act. I note that the identities of the authors of the documents are made plain elsewhere in the documents, so there is no suggestion that [W] will not be made aware of the identities of the authors because of deletion of their signatures. There are also a number of references in the documents in issue to two students. The matter in issue which concerns the two students must properly be characterised as information concerning the personal affairs of the two students - it concerns matters such as their performance in their University course, and comments on their personal attributes. This matter is prima facie exempt from disclosure under s.44(1) of the FOI Act, subject to the application of the public interest balancing test incorporated in s.44(1). 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 ... . I have noted above, at paragraphs 59 and 71-74, that there are a number of public interest considerations favouring disclosure to [W] of the documents in issue. In my view, the documents can be edited in a way that would provide [W] with sufficient information to satisfy the public interest considerations favouring disclosure, while also satisfying the public interest in protecting the privacy of the students concerned. (I note that [W] would be able to identify the students concerned, but s.44(1) is an exemption provision which is ordinarily to be applied by reference to the effects of disclosure to the world at large, and deletion of the students' names will afford them a measure of privacy protection.) This can be achieved by deleting the following matter: from document 1 - the names of the students, the nationality of one student, and the school at which they attended fieldwork; and from document 2 - the whole of the second paragraph, the names of the students, and the school at which they attended fieldwork. I do not consider that [W's] understanding of the documents will be appreciably lessened by the removal of this material from the documents in issue. The public interest in [W] having access to the parts of the matter described above is not, in my view, sufficient to outweigh the public interest in protecting the privacy of the students. I therefore find that it is exempt matter under s.44(1) of the FOI Act. Apart from the signatures of the applicants and the matter referred to in paragraph 81 above, I find that the documents in issue do not comprise exempt matter under s.44(1). Decision In application for review no. S 9/95, I vary the decision under review (being the deemed decision of the University under s.52(6) of the FOI Act), in that I find that the signature of Applicant 1, the names of the students, the nationality of one student, and the school at which the students attended fieldwork, comprise exempt matter under s.44(1) of the FOI Act, which may (in accordance with s.32 of the FOI Act) be deleted from the document in issue in that review. I find that the balance of the document in issue in that review is not exempt from disclosure to [W] under the FOI Act. In application for review no. S 10/95, I vary the decision under review (being the decision of Professor Breakspere dated 22 December 1994) in that I find that the signature of Applicant 2, the whole of the second paragraph, the names of the students, and the school at which they attended fieldwork, comprise exempt matter under s.44(1) of the FOI Act, which may (in accordance with s.32 of the FOI Act) be deleted from the document in issue in that review. I find that the balance of the document in issue in that review is not exempt from disclosure to [W] under the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Stiles and Queensland Urban Utilities [2021] QICmr 5 (16 February 2021)

Stiles and Queensland Urban Utilities [2021] QICmr 5 (16 February 2021) Last Updated: 30 August 2022 Decision and Reasons for Decision Citation: Stiles and Queensland Urban Utilities [2021] QICmr 5 (16 February 2021) Application Number: 314600 Applicant: Stiles Respondent: Queensland Urban Utilities Decision Date: 16 February 2021 Catchwords: ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT - REFUSAL OF ACCESS - EXEMPT INFORMATION - LEGAL PROFESSIONAL PRIVILEGE - information about applicant’s dispute with agency - communications between the agency’s internal legal advisors and agency officers - whether information would be privileged from production in a legal proceeding - dominant purpose of communications - whether in-house legal advice was independent - Schedule 3, section 7 of the Right to Information Act 2009 (Qld) and section 67(1) of the Information Privacy Act 2009 (Qld) – whether access may be refused under section 47(3)(a) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to Queensland Urban Utilities (QUU) under the Information Privacy Act 2009 (Qld) (IP Act) for access to documents relating to his property and his account with QUU.[1] In relation to the documents located, QUU decided[2] to: grant access to 327 pages refuse access to 44 part-pages on the basis that disclosure, would, on balance be contrary to the public interest pursuant to section 47(3)(b) of the Right to Information Act 2009 (Qld) (RTI Act)[3] refuse access to six part-pages and 152 whole pages pursuant to schedule 3, section 7 of the RTI Act; and delete eight part-pages on the basis the information was not relevant to the applicant’s access application.[4] On internal review, QUU upheld its original decision, however it did locate further documents which it disclosed to the applicant.[5] In relation to the further documents located by QUU, QUU decided to: grant access to 8 pages; and refuse access to 7 part-pages on the ground that disclosure, would on balance be contrary to the public interest pursuant to section 47(3)(b) of the RTI Act. The applicant applied to the Office of the Information Commissioner (OIC) for external review of this decision.[6] During the external review process, the applicant raised concerns about the sufficiency of the searches undertaken by QUU to locate documents in response to his access application. At OIC’s behest QUU conducted further searches and located additional documents which were disclosed to the applicant.[7] Accordingly, the applicant’s sufficiency of search concerns were resolved during the external review process and do not form part of this decision. For the reasons set out below, I vary QUU’s decision and find that access to three pages and four part-pages 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 schedule 3, section 7 of the RTI Act. Background The applicant had a longstanding dispute with QUU concerning his driveway. In an effort to resolve the dispute QUU entered into a confidential settlement with the applicant.[8] Subsequently, the applicant made a complaint to QUU about perceived delays in QUU complying with the terms of the settlement agreement. Significant procedural steps in the external review are set out in the Appendix to this decision. Reviewable decision The decision under review is QUU’s internal review decision dated 26 March 2019. 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). Human Rights Act 12. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act),[9] particularly the right to seek and receive information.[10] 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.[11] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation[12]: ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[13] Information in issue On external review, OIC facilitated the release of additional information to which QUU had previously refused access as follows:[14] 50 part-pages, comprising the names, email addresses and landline phone numbers of QUU employees;[15] and 12 part-pages and 143 full pages, comprising communications that were not subject to legal professional privilege.[16] In relation to the remaining information to which QUU refused access on the ground that disclosure would, on balance, be contrary to the public interest (contrary to the public interest information),[17] the applicant indicated in the course of the external review that he did not seek access to that information.[18] Accordingly, the contrary to the public interest information does not form part of this external review decision. As noted above, during the external review, the applicant raised several concerns about the sufficiency of QUU’s searches to locate documents responsive to his access application. As a result, OIC requested QUU to conduct searches for further documents on three occasions. QUU located further documents which were disclosed to the applicant. Accordingly, the applicant’s sufficiency of search concerns were resolved during the external review process. The only information that remains to be addressed in this decision therefore is the information which was claimed to be exempt information on the ground of legal professional privilege.[19] The number of pages subject to this exemption claim was reduced during the external review, when, in the interests of informally resolving the review, QUU decided to waive privilege to 24 pages and provided the applicant with copies of those communications. Consequently, the Information in Issue for the purposes of this decision is three whole pages[20] and four part-pages which are claimed to be subject to legal professional privilege and therefore exempt from disclosure.[21] Issue for determination Accordingly, in this decision, the question for consideration is whether access to the Information in Issue may be refused on the basis that it comprises exempt information.[22] Relevant law The IP Act confers on an individual a right to access documents of an agency, to the extent they contain the individual’s personal information.[23] However, this right of access is subject to limitations, including grounds for refusal of access.[24] Access may be refused to documents to the extent that they comprise exempt information.[25] 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.[26] 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 of establishing legal professional privilege at common law.[27] 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).[28] When these requirements are met, legal professional privilege is established. Qualifications and exceptions may, in particular circumstances, affect whether information attracts or remains subject to legal professional privilege.[29] Legal professional privilege may protect communications between salaried employee legal advisors 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 advisor and client, which secures to the advice an independent character, notwithstanding the employment.[30] Findings Confidential communications and Dominant purpose The information in Issue consists of: communications between a QUU in-house legal advisor and a QUU Stakeholder Engagement Coordinator; and a communication from a QUU in-house legal advisor to multiple recipients within QUU, namely an officer in Commercial Recovery, a Stakeholder Engagement Coordinator and other QUU employees within the Finance Department.[31] In each communication advice is sought or provided in relation to the dispute with the applicant. Legal advice has been broadly interpreted to extend to all ‘professional advice as to what a party should prudently or sensibly do in the relevant context’.[32] The applicant submits:[33] On further inspection of Page 490, at the bottom of the page below the redaction there appears an email signature where the logo appears larger than the Special Council’s [sic] full email and signature logo appearing at the top of the same page. This larger size email signature logo also appears on Page 493 and Page 480 in the email signature of [a Stakeholder Engagement Coordinator]. Page 493 is the first page of the email chain that starts with a purely commercial account request from [a Stakeholder Engagement Coordinator]. Therefore it is obvious to me that the redacted email on Page 490 is authored by [a Stakeholder Engagement Officer] and not authored by the Special Council [sic]. I understand from the applicant’s submission that he is contending that if a communication is not authored by a legal advisor it cannot be subject to legal professional privilege, as he believes the email was authored by a QUU Stakeholder Engagement Coordinator. Legal professional privilege does not only protect communications from a legal advisor, it will also protect communications to a legal advisor if the three requirements for legal professional privilege are satisfied. I am satisfied that the three requirements for legal professional privilege are made out in relation to the part of page 490,[34] to which the applicant refers, namely: the communication was made in the course of a lawyer-client relationship the communication was and remains confidential; and the communication was made for the dominant purpose of seeking or providing legal advice or for use in existing or reasonably anticipated legal proceedings. In reaching the conclusion that the communication at page 490 satisfies the three requirements for legal professional privilege, I have taken into account that the communication was created for the dominant purpose of seeking legal advice and was created in the course of a professional relationship, namely that the in-house legal adviser was being consulted in his/her professional capacity as a lawyer. Further there is no evidence that the communication has been disclosed to the applicant nor to any other party outside of QUU and therefore was and remains confidential. Similarly, the applicant also submits:[35] Pages 475 and 476 redacted are 2 pages of an email chain where both pages are completely redacted from what appears to be at least two authors. I understand from the applicant’s submission he is contending that legal professional privilege does not attach to communications involving more than one author. By its very nature, an email chain would usually have more than one author. As noted at paragraph [26], legal professional privilege does not only protect communications from a legal advisor, it may also protect communications to a legal advisor if the three requirements for legal professional privilege are satisfied. I am satisfied that the pages redacted from the email chain comprise communications to and from a legal advisor, in which the dominant purpose of the communication is to seek or provide legal advice. Alternatively, the applicant may be contending that privilege to the communications may have been waived on the basis the communications have been disseminated within QUU and are therefore no longer confidential. Legal professional privilege extends to internal communications which forward or repeat legal advice or requests for legal advice, whether verbatim or in substance. Consequently, I find that the circulation of communications which convey or record privileged communications among relevant officers within an entity such as QUU are necessary in order for the entity to seek and consider legal advice and does not constitute waiver of privilege.[36] Further the applicant submits:[37] On Page 490 the redaction appears to be an email from [a Stakeholder Engagement Coordinator]. Up until the point of the redaction in the email, the dominate [sic] purpose of the email chain is a request for account details of a commercial nature. No date is shown at the top of Page 490 even though To and Subject are shown. No legal advice is requested or legal work recorded in the email chain pages shown. Pages 473 and 474 part redacted are 2 pages of an email chain where the email has no legal advice requested and the dominate [sic] purpose is the recording of phone discussions. Page 522 part redacted is the first page of a 2 page email chain where the dominate [sic] purpose is the documenting of a phone discussion regarding account payment of a commercial nature. No legal advice is requested or legal work recorded in the email chain pages shown. I understand from the applicant’s submission, that he is contending that as the parts of the email chains disclosed to the applicant record telephone discussions or request account details and therefore were not created for the dominant purpose of seeking or providing legal advice, that all of the communications within the email chain should be disclosed to him. While legal professional privilege can apply to the entirety of a chain of emails, legal professional privilege can also attach to an individual communication within a chain of emails. I am satisfied that the communications that have been redacted from the email chains were made for the dominant purpose of seeking or providing legal advice. Based on the above, I am satisfied that the Information in Issue comprises confidential communications between in-house legal advisors and other QUU officers made for the dominant purpose of seeking or giving legal advice. Professional relationship and independence The applicant submitted that he does not consider that legal professional privilege attaches to communications to and from in house legal advisors.[38] The High Court of Australia has established that legal professional privilege may protect communications between salaried employee legal advisors of a government department or statutory authority and his/her employer as client (including communications through other employees of the same employer) provided there is a professional relationship of legal advisor and client, which secures to the advice an independent character notwithstanding the employment.[39] The Information Commissioner has consistently applied this reasoning when considering the position of legal officers employed within Queensland government agencies.[40] A lawyer employed by a government agency or an ‘in-house’ lawyer may claim privilege on behalf of his or her employer as the client.[41] However, an in-house lawyer will not have the required degree of independence if their advice is affected by their personal loyalties, duties and interests.[42] Having reviewed the Information in Issue, I note that in each instance the legal advice was provided directly between the legal advisor and the respective officer within the Chief Executive Office or Commercial Recovery unit. There is no evidence before me to indicate that the advice was provided in a manner that differed from the usual practice of obtaining and/or providing in-house legal advice. I also note that having considered all of the information located by QUU in response to the applicant’s access application, there is nothing to suggest that in providing the advice comprised in the Information in Issue, the in-house legal advisors were subject to duress or interference arising from their employment relationships. I am satisfied that the legal advisors who provided the legal advice (comprised in the Information in Issue) were appropriately qualified legal practitioners who provided the advice with the requisite degree of independence from QUU. The applicant further submitted:[43] On Page 107 of Attachment 1C dated 11 September 2015 [QUU Officer’s] email signature states Senior Legal Council [sic] OCEO. On Page 531 dated 23 November 2015, in the first email from [QUU Officer], the signature states Special Council [sic] and Acting Board Secretary of the OCEO below the statement “general carriage of the various issues”. Acting Board Secretary implies a commercial role. On Page 132 of Attachment 1C the email draws a clear distinction between OCEO and Legal Services Team. From this submission, I understand the applicant is contending that QUU Counsel was not acting as a legal advisor in the documents that have been disclosed to him and therefore by implication QUU Counsel was not providing legal advice in the communications that have not been disclosed to him. I do not consider that the changes in the job title of QUU Counsel, changed the role played by Counsel in the communications, namely that of legal advisor, such that the communications are no longer subject to legal professional privilege.[44] Having reviewed the Information in Issue, I am satisfied that the communications were made in the course of a lawyer-client relationship and that Counsel was acting in a legal capacity. For the reasons set out above, I am satisfied that the Information in Issue meets each of the requirements of legal professional privilege. Accordingly, I find that the Information in Issue is exempt information, on the basis that it would be privileged from production in legal proceedings on the ground of legal professional privilege, and therefore access to it may be refused under section 47(3)(a) of the RTI Act.DECISION I vary the decision under review and find that access to three pages and four part-pages 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 schedule 3, section 7 of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.Assistant Information Commissioner CorbyDate: 16 February 2021 APPENDIX: SIGNIFICANT PROCEDURAL STEPS Date Event 2 May 2019 OIC received the application for external review of QUU’s decision. 3 May 2019 OIC notified the applicant and QUU that the application had been received and requested procedural documents from QUU. 13 May 2019 OIC received the requested documents from QUU. 15 May 2019 OIC informed the applicant and QUU that the application for external review had been accepted. OIC requested QUU to provide the documentation relevant to the application. 31 May 2019 OIC received the documents relevant to the application from QUU. 12 June and 12 July 2019 OIC updated the applicant. 23 July 2019 and 26 July 2019 OIC provided the applicant with an update by telephone and discussed the applicant’s sufficiency of search concern. 29 July 2019 OIC received an email from the applicant providing copies of the attachments referred to in his external review application. 5 August 2019 OIC conveyed a preliminary view to QUU. OIC also requested QUU carry out further searches in response to the applicant’s sufficiency of search concern. 20 August 2019 OIC provided the applicant with an update by telephone. 23 August 2019 Response to OIC’s preliminary view received from QUU. 5 September 2019 The applicant contacted OIC to raise concerns about the further information released to him by QUU and raising further sufficiency of search concerns. 10 September 2019 OIC required QUU to provide OIC with a copy of the further information provided to the applicant. OIC also requested QUU carry out further searches in response to the applicant’s sufficiency of search concerns. 11 September 2019 OIC provided an update to the applicant. 18 September 2019 OIC received a response from QUU to the queries raised during the telephone call on 10 September 2019. 27 September 2019 The applicant contacted OIC requesting an update. 30 September 2019 OIC received an email from the applicant, detailing his concerns about the further information disclosed to him by QUU. 2 October 2019 OIC received a telephone call from the applicant to discuss his concerns. 9 October and 21 October 2019 OIC provided the applicant with an update. 8 November 2019 OIC conveyed a further preliminary view to QUU, requested QUU to release additional information and carry out further searches. 2 December 2019 OIC received QUU’s response to OIC’s further preliminary view dated 8 November 2019. 6 December 2019 OIC wrote to the applicant to provide an update. 29 January 2020 OIC wrote to QUU requiring release of documents and further information. 29 January 2020 OIC wrote to the applicant to provide an update. 19 February 2020 OIC received QUU’s response to its letter dated 29 January 2020. 28 February 2020 OIC wrote to QUU to ascertain whether in releasing the further information to the applicant, it had waived privilege to 24 pages of information. 3 March 2020 OIC received confirmation from QUU that it had waived privilege to 24 pages of information. 4 March 2020 OIC conveyed a preliminary view to the applicant that: access may be refused to 28 pages and 5 part-pages on the basis the information comprised exempt information[45] QUU had taken reasonable steps to locate any further information in response to the applicant’s sufficiency of search concerns; and the dates on which emails had been sent had been disclosed to the applicant.OIC also provided the applicant with an explanation in relation to his concerns that pages were missing from the documents disclosed to him by QUU. 17 March 2020 to 22 April 2020 Various correspondence between OIC and the applicant in which the applicant sought and received clarification about the documents released to him by QUU and requested extensions in which to provide submissions. 22 April 2020 and 5 May 2020 OIC received submissions from the applicant. 6 May 2020 OIC wrote to QUU requesting it release missing pages from email chains referred to by the applicant. 19 May 2020 OIC received a response from QUU. 27 May 2020 OIC wrote to QUU requesting it to release the duplicate copies of information to the applicant (subject to the redaction of information subject to legal professional privilege). OIC conveyed a second preliminary view to the applicant. 28 May 2020 OIC received confirmation from QUU that it had disclosed the duplicate copies of information to the applicant. 5 June 2020 OIC received an email from the applicant seeking clarification of the views provided in OIC’s second preliminary view dated 27 May 2020. 15 June 2020 OIC wrote to QUU requesting it to forward a further copy of a duplicate email to the applicant. 16 June 2020 OIC received confirmation from QUU that it had disclosed a further copy of the duplicate email to the applicant. 16 June to 13 July 2020 Various correspondence between OIC and the applicant, in which the applicant sought and received clarification about comments in OIC’s preliminary view and OIC’s process. 23 July 2020 OIC provided an update to the applicant. 18 August 2020 OIC contacted QUU to provide an update. QUU indicated that it may be willing to offer an informal resolution proposal. 19 August to 26 August 2020 Various correspondence between OIC and QUU, in which OIC clarified the information remaining in issue. 28 August 2020 OIC wrote to the applicant advising of QUU’s informal resolution proposal. 4 September to 8 September 2020 Various correspondence between OIC, the applicant and QUU in relation to the redaction of a signature block that the applicant sought access to. 11 September to 14 September 2020 Various correspondence between OIC and the applicant in relation to the applicant’s proposed counteroffer to QUU’s informal resolution proposal. 17 September 2020 OIC contacted QUU to advise it of the applicant’s counteroffer in relation to its informal resolution proposal. 18 September 2020 OIC received an email from QUU in which it stated it did not agree to the applicant’s counteroffer. 28 September 2020 OIC provided an update to the applicant. 6 October to 26 October 2020 Various correspondence between OIC and the applicant in which the applicant sought and received clarification about the content of OIC’s letters dated 11 September 2020 and 28 September 2020. [1] For the time period 1 July 2014 to 21 December 2018.[2] Decision dated 29 January 2019.[3] Section 67 of the IP Act provides that access to information may be refused on the same grounds as under section 47 of the RTI Act. This decision will refer to the relevant RTI Act grounds for refusal.[4] Section 88 of the IP Act. Although I note that the marked-up copy of the documents provided to OIC on 31 May 2019 refers to the information as being ‘out of scope’.[5] Internal review decision dated 26 March 2019.[6] External review application received on 2 May 2019.[7] Consisting of 85 pages initially provided to the applicant on 23 August 2019. Information located by QUU as a result of further searches – comprising 161 pages disclosed to the applicant on 19 February 2020 – “Attachment 1B” and “Attachment 1C”. [8] QUU’s letter to OIC dated 31 May 2019.[9] The HR Act came into force on 1 January 2020.[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] This also includes 16 pages that QUU indicated that it intended to waive legal professional privilege to. Letter to OIC dated 31 May 2019.[15] On the basis that this information comprises routine personal work information and therefore disclosure would not, on balance, be contrary to the public interest.[16] On the basis that the information did not comprise exempt information pursuant to schedule 3, section 7 of the RTI Act. [17] Comprising information at pages 154, 229, 233, 234, 235, 299, 332, 333, 334, 339, 341, 342, 345, 346, 348, 349, 354, 355, 356, 360, 363, 368, 391, 392, 413, 564, 565, 583 and 584 of Attachment 1A and pages 43, 48, 51, 52, 56, 58, 64, 69, 70, 72, 74, 76, 77, 82, 85, 89, 93, 94, 95, 98, 100, 102, 110, 112, 113, 143, 144, 149 and 150 of Attachment 1C. Provided to the applicant by QUU on 19 February 2020.[18] Email to OIC dated 6 October 2020.[19] Schedule 3, section 7 of the RTI Act.[20] Pages 475-476 and 494 of Attachment 1A redacted from the information disclosed to the applicant on 19 February 2020.[21] Pages 473, 474, 490 and 522 of Attachment 1A redacted from the information disclosed to the applicant on 19 February 2020.[22] Sections 47(3)(a), 48 and schedule 3 section 7 of the RTI Act.[23] Section 40(1)(a) of the IP Act. Section 12 of the IP Act defines personal information as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.[24] Grounds for refusal of access are set out in section 47 of the RTI Act. Section 67(1) of the IP Act provides that access to information may be refused under the IP Act on the same grounds as in section 47 of the RTI Act.[25] Section 47(3)(a) of the RTI Act.[26] Section 48(2) of the RTI Act.[27] Ozcare and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 13 May 2011) at [12]. [28] 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]. [29] Such as waiver or improper purpose.[30] Waterford v Commonwealth [1987] HCA 25; (1986) 163 CLR 54 (Waterford) at 95 per Mason and Wilson JJ.[31] I am satisfied that this communication accords with the findings in TEC Headland Pty Ltd v The Pilbara Infrastructure Pty Ltd [2020] WASC 364 at [26] and [29] in relation to a communication from a lawyer to more than one addressee that contains legal advice. [32] ABW Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 at page 45.[33] Email to OIC dated 22 April 2020.[34] Contained in Attachment 1A, which QUU disclosed to the applicant on 19 February 2020.[35] Email to OIC dated 5 May 2020.[36] The following cases regarding circulation of privileged information within a corporation are analogous: Komacha v Orange City Council (unreported, Supreme Court of New South Wales, 30 August 1979); Brambles Holdings Ltd v Trade Practices Commission (No.3) [1981] FCA 83; (1981) 58 FLR 452 at 458-459; GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2000] FCA 593 at [9]- [10]; Arrow Pharmaceuticals Ltd v Merck & Co Ltd [2004] FCA 1131; Seven Network Ltd v News Ltd [2005] FCA 864 at [56]; and Seven Network Ltd v News Ltd [2005] FCA 1342 at [26]. [37] Email to OIC dated 5 May 2020.[38] Telephone discussion with OIC on 9 October 2019.[39] Waterford per Mason and Wilson JJ at paragraph 7 of their Honours’ judgment.[40] Potter and Brisbane City Council (1994) QAR 37; F60XCX and Department of Natural Resources and Mines [2017] QICmr 19 (9 June 2017); Gapsa and Department of Transport and Main Roads (Unreported, Queensland Information Commissioner, 12 April 2013); Hillier and Redland City Council (Unreported, Queensland Information Commissioner, 9 June 2011).[41] Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 530-531.[42] Seven Network News v News Ltd [2005] FCA 1551; (2005) 225 ALR 672 at 674.[43] Email to OIC dated 22 April 2020.[44] Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82.[45] Although OIC acknowledged that QUU had waived privilege to some of this information and provided its view that access may be refused to the remaining information (Information in Issue).

queensland

court_judgement

Queensland Information Commissioner 1993-

HNS and Department of Health [2002] QICmr 8 (25 March 2002)

HNS and Department of Health [2002] QICmr 8 (25 March 2002) "HNS" and Queensland Health (S 102/00, 25 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, "HNS", was the District Manager of a Health Service District (the District) for several years in the 1990's. Written complaints were made to the Minister for Health and to Queensland Health about the applicant and other staff of the District. Written complaints were also made to the local Member of Parliament, who passed them on to the Minister for Health. The Director-General of Queensland Health and Dr J G Youngman, Deputy Director-General (Health Services) met with the local Community Consultative Committee. A number of concerns about the conduct and performance of the applicant were raised at that meeting. Dr Youngman then notified the applicant that he was placing her and the executive managers of the local hospital on a three month performance assessment. At the conclusion of the performance assessment, Dr Youngman commended the leadership and management of the applicant and the executive management in addressing the issues raised during the performance assessment. Queensland Health received further expressions of concern about the performance of the applicant. Following discussions with Queensland Health management, the applicant accepted a transfer to the Corporate Office of Queensland Health in Brisbane in the role of Principal Policy Officer. The applicant initially viewed the offer of this transfer by Queensland Health as "an offer of support following the various unfounded allegations etc. that had been made against me since becoming District Manager ...". However, she was subsequently notified of a grievance that had been lodged against her before the offer of a transfer was made, and became dissatisfied with the way that Queensland Health had handled the grievance and other complaints relating to her. By letter dated 24 January 2000, the applicant sought access under the FOI Act to correspondence received or sent by the Minister for Health concerning her. The application was transferred to Queensland Health (pursuant to s.26 of the FOI Act) as the Minister's Office held no relevant documents. By e-mail dated 4 April 2000, the applicant extended the scope of her FOI access application to include correspondence to and from Queensland Health's Corporate Office. By letter dated 20 April 2000, Ms S Heal of Queensland Health informed the applicant that she had located 114 pages that were responsive to the terms of the applicant's amended FOI access application. Ms Heal decided to disclose 67 pages to the applicant in full, and to disclose a further 6 pages subject to the deletion of some segments of matter. Ms Heal decided that the remaining 41 pages were exempt from disclosure. The applicant applied for internal review of Ms Heal's decision by letter dated 4 May 2000. As no reply was received from Queensland Health within the 14 day time limit prescribed by s.52(6) of the FOI Act, the applicant applied to the Information Commissioner (by letter dated 19 May 2000) for review, under Part 5 of the FOI Act, of Queensland Health's deemed affirmation of Ms Heal's decision. External review process Copies of the documents in issue were obtained and examined. They are largely letters of complaint, or letters which contain adverse comments, about the applicant (and about other staff), and replies. In her application for internal review, the applicant raised the possible application of s.15 of the Public Service Regulation 1997 Qld, which confers on public service employees certain rights of access to information about the performance of their duties. Queensland Health was asked about this issue, but indicated that at all relevant times the applicant was employed under the Health Services Act 1991 Qld, not as a public service employee under the Public Service Act 1996 Qld, so that the Public Service Regulation did not apply to her. On the material before me, I accept that that was the case. However, Queensland Health also advised that it had in place an administrative policy (a copy of which was provided to this office) which said, in effect, that employees under the Health Services Act would be accorded entitlements to access information about themselves and their performance similar to those provided for in the Public Service Regulation. Queensland Health contended, however, that disclosure under its administrative policy was discretionary, and that there were circumstances in which it would exercise that discretion in favour of the non-disclosure of information adverse to an employee, if such disclosure could have negative consequences. Queensland Health also provided copies of consultation letters sent to third parties (in accordance with s.51 of the FOI Act), and of the responses from the third parties, objecting to the disclosure to the applicant of matter in issue. I sought and obtained further information about the administration of Queensland Health's access policy and about the particular circumstances of this case. I also wrote to seven third parties to ascertain whether or not they still objected to disclosure to the applicant of the documents in issue which concerned them. Five objected to disclosure. Two indicated that they no longer objected to disclosure of letters they had written, subject to the deletion of a small amount of matter which identified other third parties. Queensland Health withdrew its objection to disclosure of those letters with deletions, and they have been made available for access by the applicant. The further information provided by Queensland Health in support of its claim for exemption was provided to the applicant for comment, and she responded by a written submission dated 22 December 2000. Queensland Health's response to that submission, along with edited copies of submissions made by third parties, were provided to the applicant, who lodged a final submission dated 3 August 2001. In reaching my decision, I have taken into account the following material: the contents of the documents in issue; Ms Heal's initial decision, dated 20 April 2000; Queensland Health's submissions dated 7 November 2000 and 1 June 2001; the applicant's submissions dated 22 December 2000 and 3 August 2001; [the local Member of Parliament's] statement in Parliament on ...; submissions from third parties dated 9, 12, 19 and 21 March 2001. Matter remaining in issue The matter remaining in issue is described in the attached Schedule. It can be divided into two categories: (a) letters to the Minister, to [the local Member of Parliament], or to Queensland Health, from staff of the District (I will refer to the staff as persons A, B and C respectively); and (b) letters to the Premier or the Minister, from members of the public in the District area, a letter from a member of the public to the local Member of Parliament which was forwarded to Queensland Health, and the names of the authors of those letters where they appear in other documents (I will refer to the members of the public as persons D and E respectively). Queensland Health contends that the matter remaining in issue is exempt from disclosure under s.40(c), s.44(1) and/or s.46(1)(b) of the FOI Act. Application of s.46(1)(b) of the FOI Act Each of persons A to E has been consulted by my office. Each objected to disclosure of the information that they provided. Each contended that they had provided the information on the basis of an understanding that it would be treated in confidence. Persons A, B, D and E also contended that their identities as sources of information should remain confidential. (The majority of the letter from person C, including the signature block, was disclosed to the applicant as a result of the initial decision. The applicant is therefore aware of the identity of person C. The only matter in issue in that letter is two paragraphs which refer to the applicant.) Section 46(1)(b) and s.46(2) of the FOI Act provide: 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. (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 person in the capacity of— a Minister; or a member of the staff of, or a consultant to, a Minister; or an officer of an agency; or (b) the State or an agency. 19. Matter will be exempt under s.46(1)(b) 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 at least equals that of the public interest considerations favouring disclosure. (See Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at pp.337-341; paragraphs 144-161.) From my examination of the matter in issue, I am satisfied that none of it is excluded from eligibility for exemption under s.46(1), by the operation of s.46(2). The members of the local community (persons D and E) do not fall into any of the categories specified in s.46(2)(a). On the other hand, persons A, B and C did communicate information in their capacities as officers of an agency. The letters in issue consist of segments of factual matter (which is not excluded from eligibility for exemption under s.46(1) of the FOI Act), and segments of opinion, which would be excluded from eligibility for exemption under s.46(1) if the opinion had been obtained, prepared or recorded in the course of, or for the purposes of, the deliberative processes involved in the functions of government. However, I am satisfied that those segments of opinion were not obtained, prepared or recorded in such circumstances. When the letters in issue were written, there was no relevant deliberative process under way or in contemplation, whether by Queensland Health, the Minister for Health or the District (cf. Re Mentink and Queensland Corrective Services Commission [1997] QICmr 33; (1997) 4 QAR 545 at p.555, paragraphs 32-33). The authors of the letters were endeavouring to draw attention to matters of concern so that some action might be initiated by Brisbane-based senior management of Queensland Health. None of the matter in issue, therefore, is matter of a kind mentioned in s.41(1)(a) of the FOI Act, and hence the matter in issue is eligible for exemption under s.46(1)(b) of the FOI Act. Information of a confidential nature At an early stage in this review, the applicant contended that she had previously been provided with a number of complaints, in order to allow her to respond. This claim was put to Queensland Health and, by letter dated 7 November 2000, Ms D Bowman responded: A review of the relevant files discloses that, in relation to each of the letters received by Queensland Health which are in issue, the replies were prepared by staff in Corporate Office, Queensland Health. There is no record of any of the letters in question having been referred to the [District] for [the applicant's] comment, or for any other reason. The applicant has not subsequently sought to contend that she was given access to any of the particular letters in issue, although I acknowledge that, in the circumstances, it would not be possible for the applicant to identify specific letters beyond giving a general description of their content as she recalls it. Nevertheless, there is insufficient evidence before me to support a finding that the applicant has been given access to any of the particular letters that are in issue in this external review (other than the letter from person C, parts of which have been disclosed under the FOI Act). I therefore find that the information recorded in the matter in issue, including the identities of persons A, B, D and E, is information of a confidential nature. Communicated in confidence The following is a summary of relevant principles with respect to requirement (b) above, taken from the Information Commissioner's decisions in Re "B" at pp.338-339 (paragraphs 149-153) and Re McCann and Queensland Police Service [1997] QICmr 10; (1997) 4 QAR 30 at paragraphs 21-24, 33-34 and 57-58: (a) The phrase "communicated in confidence" is used in the context of s.46(1)(b) to convey a requirement that there be mutual expectations that the relevant information is to be treated in confidence. (b) The first question is whether there is reliable evidence of an express consensus (for example, the seeking and giving of an express assurance, written or oral, that the relevant information would be treated in confidence) between the supplier and the recipient as to confidential treatment of the information supplied. (c) If there is no evidence of an express consensus, the relevant circumstances attending the communication of the information in issue must be examined to ascertain whether they evidence a need, desire or requirement, on the part of the supplier of the information, for confidential treatment, which, in all the relevant circumstances, the supplier could reasonably expect of the recipient, and which was understood and accepted by the recipient, thereby giving rise to an implicit mutual understanding that confidentiality would be observed. (d) If there was an express or implicit mutual understanding that information would be treated in confidence, it may also be necessary to construe the true scope of the confidential treatment required in the circumstances, e.g., whether it was or must have been the intention of the parties that the recipient should be at liberty to disclose the information to a limited class of persons, or to disclose it in particular circumstances; see, for example, the usual implicit exceptions to an understanding that confidential treatment would be accorded to information conveyed for the purposes of a law enforcement investigation, that are identified in Re McCann (see paragraph 28 below). (e) An obligation or understanding of confidence is ordinarily owed by the recipient of the information for the benefit of the supplier of the information. This means that the supplier may waive the benefit of the obligation or understanding of confidence, including waiver by conduct of the supplier that is inconsistent with a continued expectation of confidential treatment on the part of the recipient. In Re Holt and Education Queensland [1998] QICmr 4; (1998) 4 QAR 310 and Re Chambers and Department of Families, Youth and Community Care; Gribaudo (Third Party) [1999] QICmr 1; (1999) 5 QAR 16, the Information Commissioner discussed the possibility that sections 15 and 16 of the Public Service Regulation (or their equivalents) may override any understanding of confidentiality in respect of information that is subject to the disclosure requirements stipulated in those provisions. Although those provisions did not apply to the applicant, a Queensland Health policy stated: Generally, access to any documents by a current employee of Queensland Health, which relates to their interest as an employee, will be provided under an administrative access scheme provided by this policy. This policy provides for employees of District Health Services similar provisions to those prescribed by sections 15 and 16 of the Public Service Regulation. Queensland Health addressed the relevance of this policy at some length in its letter dated 7 November 2000. I accept Queensland Health's contention that a policy does not have the same binding legal force as a legislative requirement (which, to the extent necessary to comply with the legislative requirement, will override an obligation or an understanding of confidence). Nevertheless, the existence of the policy is a factor to be considered in deciding in each case whether or not a mutual understanding of confidence existed. In that regard, Queensland Health submitted: Queensland Health regularly receives information, submitted by health consumers and other community members, who wish to express concerns about the provision and standard of public sector health services, as well as from officers of the Department expressing views about the conduct or performance of other officers. Particularly in smaller communities, it is considered that individuals may well have a valid concern about the negative ramifications for their future health care at the hands of health service District staff, if it becomes known that they have previously lodged complaints about health service employees with whom they have had dealings. Many written complaints about health service employees (including some of the documents in issue in the present case) are directed to the Office of the Minister for Health, or the Office of the Director-General. There is no mechanism in place, either in the Central Correspondence Unit, or in the Corporate Office Human Resource Unit, to require that letters of complaint are brought to the attention of the employee(s) concerned before being placed on departmental files. While it may well be appropriate to put to an employee the substance of complaints (from members of the public or other employees), where the complaints are considered valid and are to be pursued further, it will not always be necessary, or appropriate, to reveal the complainant's identity. In such circumstances, the complainant's legitimate expectation of confidentiality can be respected, while still affording natural justice to the employee who is the subject of complaint. Staff in the Employment Relations and Strategies Unit advise that even in the context of formal investigations of matters such as workplace bullying/discrimination or suspected misconduct, information provided to investigators is not always released to the subject of the investigation. ... For reasons including the matters set out above, Queensland Health views the Policy as a statement of general intent only, which is administered in practice in the manner which is considered to strike the appropriate balance between the interests and legitimate expectations of all parties concerned in a particular case. The purpose of the policy referred to in paragraph 25 above, was clearly to provide for disclosure to staff of Queensland Health (whose employment was not governed by the Public Service Act and Public Service Regulation) of adverse comments about their performance of their duties. In light of the submissions by Queensland Health, those employees might feel entitled to ask why such a policy was put in place, if Queensland Health does not follow procedures designed to ensure that the policy is ordinarily complied with. Nevertheless, I accept, as a matter of law, that an agency policy statement does not have binding force, and may be departed from in an appropriate case. Hence the policy referred to in paragraph 25 above cannot be relied upon as having an effect of overriding, or forestalling the recognition of, an obligation or understanding of confidence. Even if an understanding of confidentiality is established, it will frequently be subject to conditions or exceptions permitting limited disclosure. In Re McCann, at pp.53-54, paragraph 58, the Information Commissioner said: I consider that there are three main kinds of limited disclosure which, in the ordinary case, ought reasonably to be in the contemplation of parties to the communication of information for the purposes of an investigation relating to law enforcement. Unless excluded, or modified in their application, by express agreement or an implicit understanding based on circumstances similar to those referred to in the preceding paragraph, I consider that the following should ordinarily be regarded as implicitly authorised exceptions to any express or implicit mutual understanding that the identity of a source of information, and/or the information provided by the source, are to be treated in confidence so far as practicable (consistent with their use for the purpose for which the information was provided) - (a) where selective disclosure is considered necessary for the more effective conduct of relevant investigations ... (b) where the investigation results in the laying of charges, which are defended, and, in accordance with applicable rules of law or practice ... the prosecutor must disclose to the person charged the evidence relied upon to support the charges; and (c) where selective disclosure is considered necessary - (i) for keeping a complainant ... informed of the progress of the investigation; and (ii) where the investigation results in no formal action being taken, for giving an account of the investigation, and the reasons for its outcome, to a complainant ... The language of exception (b) above contemplated a criminal investigation. The comparable exception in a disciplinary/grievance investigation would be where disclosure is necessary to accord procedural fairness to a person whose rights or interests would be adversely affected by the findings/outcome of the investigation, including a person who is subsequently charged with a breach of discipline. In the present case, no disciplinary/grievance investigation was initiated against the applicant. It might have been open to senior management of Queensland Health to initiate an investigation into some of the allegations, if it considered them to have any substance. However, it was decided to address the perceived problems in the District in a more generalised way, through a performance assessment of the senior managers. Issues of the kind raised in the documents in issue pose difficult problems for senior managers of a Department, who are physically distant from the relevant workplace. The competing interests of a number of stakeholders must be taken into account, with priority always given to striving to ensure the optimum workplace conditions to facilitate delivery of the best possible medical and associated services to the local community. It is important that senior Departmental managers, who are remote from Districts where services are delivered to citizens, have mechanisms that enable them to be alerted to serious difficulties or potential difficulties that could impact on efficient and effective service delivery in remote Districts, so that they have the opportunity to take remedial or preventative action. It is important that they be able to provide channels for communication, by citizens or staff in remote Districts, about perceived serious difficulties or potential difficulties, and important too that citizens or staff not be unduly inhibited from seeking to communicate serious concerns. If the serious concerns relate to the performance of District managers, then junior staff seeking to raise concerns may feel vulnerable to recrimination, subtle forms of retaliation, et cetera, from District managers. In my view, the Brisbane-based senior managers of Queensland Health who received the letters in issue from concerned staff of the District would have understood and accepted the desire of staff for confidentiality (and I note again that specific requests for confidentiality were made by the relevant staff), and would also have appreciated that the best chance of preserving satisfactory working relationships in the District (in the interests of effective service delivery to the local community) lay with according confidentiality so far as possible. The last qualification is significant, however. While I am satisfied (having regard to the circumstances indicated above) that there was a mutual understanding (between the authors of the letters and Queensland Health) that the letters were communicated in confidence, that understanding was necessarily conditional, in that it must have been implicitly understood that Queensland Health was authorised to make any disclosure considered necessary (including disclosure to comply with requirements of procedural fairness) for the purpose of taking action in respect of the matters of concern raised in the letters. This condition or exception is significant, since staff or citizens lodging complaints must appreciate that they cannot rely on a blanket protection of confidentiality to impugn managers at will, with mischievous or ill-considered complaints. Nevertheless, a wide discretion is properly reserved to the senior Departmental managers receiving such complaints to assess the most effective method of substantiating and addressing them. In many instances (as contemplated by the policy referred to in paragraph 25 above), the most appropriate and efficient response by management will be to provide the relevant officer with a copy of the complaint, hear their response, and explore a co-operative approach to any improvements in performance, or modification of behaviour, that is considered necessary. However, where complaints are received from junior staff against a senior manager in a relatively small workplace, considerations of the kind adverted to in paragraphs 32-33 above may mean that a more circumspect approach to addressing the matters of complaint is warranted. As to the letters in issue from Persons D and E, I accept Queensland Health's contention (see the passage quoted at paragraph 26 above) that, particularly in smaller communities, individuals may well have a valid concern about potential adverse/discriminatory treatment in their future health care needs if it were known that they had lodged complaints about health service employees. I am satisfied that the same conditional understanding of confidentiality existed in respect of the letters received by Queensland Health from Persons D and E. It would certainly have been open to Queensland Health management, in response to the information supplied by Persons A, B and E, to provide at least the substance of each individual allegation to the applicant, and to allow her to respond to each in turn. That is what the applicant sought when she had her solicitors contact Queensland Health to obtain particulars of the concerns raised. However, this was not the only management option open to Queensland Health in dealing with the concerns raised about the applicant. For the most part, Queensland Health chose not to address individual allegations by way of separate investigation. Rather, the concerns raised prompted the Director-General and Dr Youngman to meet with the local Community Consultative Committee. Following on from concerns raised at that meeting, Dr Youngman sent a letter notifying the applicant that she was to be placed on a three month performance assessment, and advising her in general terms of areas for improvement. Queensland Health therefore did not find it necessary to disclose to the applicant the identity of, or any of the information provided by, persons A, B or E. Given that approach, the condition (in the conditional understanding of confidentiality) that would have permitted disclosure if Queensland Health considered it necessary for the purpose of dealing appropriately with any issues of substance raised in the documents in issue, was never triggered. I find that there is a continuing mutual understanding of confidence between Queensland Health and each of persons A, B and E, that neither the matter in issue, nor the identity of the suppliers of that information, should be disclosed to the applicant. The only matter in issue authored by person C is a segment of a letter written by person C as a representative of staff at the District. The letter was not written in order to have any action taken against the applicant. Rather, it was written to seek intervention from the Minister in the restructuring of the District. The references to the applicant in that letter are incidental to that purpose. The letter is not marked "Confidential" but the concern of its author about attribution of comments to her is made clear when, in the final paragraph, the author asks that her name be kept confidential. As I noted above, the bulk of the letter, including matter that identifies the author, has been disclosed to the applicant. The only matter remaining in issue is two paragraphs which refer specifically to the applicant. While the comments were written on behalf of staff, I accept that attribution of the particular comments in issue to person C would give rise to the same concerns referred to in paragraph 33 above. I can see no reason why the management functions of the Minister, or Queensland Health, would have required that the references in issue be put to the applicant for response. I find that there is a continuing mutual understanding between person C and the Minister (which extends to Queensland Health) that the information in question be kept confidential. The information provided by person D chiefly concerned the administration of a health facility in the District, but did include some adverse references to the applicant. The complaints were made some time before the transfer of the applicant to Brisbane. While they may have formed a small part of the background of complaints which were referred to by Queensland Health management prior to the agreed transfer of the applicant, I am not satisfied that there was any legal requirement of procedural fairness which would have required Queensland Health to disclose the complaints, or the identity of the complainant, to the applicant. I find that there is a continuing mutual understanding of confidence between Queensland Health and person D with respect to the information recorded in the letters in issue. Prejudice to the future supply of information There is a real question as to whether this requirement can be satisfied with respect to information provided by the complainants who were staff of the District: persons A, B and C. In Re "B" at page 341, paragraph 161, the Information Commissioner said: 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 confider whose confidential information is being considered for disclosure, could reasonably be expected to refuse to supply such information in the future, but by reference to whether disclosure could reasonably be expected to prejudice future supply of such information from a substantial number of the sources available or likely to be available to an agency. Staff at the District owed duties of good faith and fidelity to their employer, which would encompass an obligation to disclose to their employer any information, acquired in the capacity of employee, which the employer might reasonably require for the better management of its operations: see Re Shaw and The University of Queensland [1995] QICmr 32; (1995) 3 QAR 107 at paragraphs 55-56, and the cases there cited. If the information in the letters from persons A, B and C had been provided in response to a request from their employer (including, for example, a requirement that they provide information to a grievance or disciplinary investigation), I think it is clear this third requirement for exemption under s.46(1)(b) could not be satisfied. There may be an argument that there is a valid distinction to be made in the case of information that is volunteered, rather than requested, especially where the information draws attention to matters of serious concern, which the agency may not learn about if staff were inhibited from volunteering the information. However, since there is some doubt about the issue (in particular, whether the words "such information" in s.46(1)(b), permit reliance on the voluntary supply of information as part of the characterisation of the information in issue, when an employer could require the supply of the same information), I propose to deal with the letters communicated by staff members under s.40(c) of the FOI Act. Queensland Health, and persons D and E, contend that disclosure of their identities or information supplied by them would discourage members of the public from bringing similar concerns to the attention of Queensland Health in future. At paragraph 73 of Re McCann, the Information Commissioner stated: ... Co-operation by members of the community with investigators involved in law enforcement, through the supply of relevant information, is essential to successful enforcement of the law, but there is no doubt that it can impose burdens on members of the community who co-operate (e.g., ranging from inconvenience and imposition on their time, to anxiety at possible harassment or retributive action). While many quite properly regard it as their civic duty (and something which is ultimately for the benefit of the community) to co-operate with agencies engaged in law enforcement, there are many others who prefer not to get involved. Preserving goodwill and co-operation with members of the community can be a delicate balancing act for law enforcement agencies. While their sources of information will generally accept that disclosure of information they supply, which is adverse to a subject of investigation, may become necessary for reasons referred to in paragraphs 57-61 above, disclosure which is not necessary for those reasons could, in my opinion, be reasonably expected to prejudice the future supply of such information from a substantial number of sources available, or likely to be available, to law enforcement agencies. While those comments were made in the context of law enforcement investigations, I consider that they are also relevant, mutatis mutandis, to obtaining information from members of the public about alleged faults or failings in government administration or service delivery, in circumstances where there are significant adverse comments about an individual public sector officer. The matters referred to in paragraph 36 above are also relevant in this regard. I consider that disclosure of the information supplied by, or the identities of, persons D and E, contrary to understandings of confidentiality held by them, could reasonably be expected to prejudice the future supply of like information to the Minister or to Queensland Health. Public interest balancing test The applicant contended that Queensland Health failed to accord her natural justice in a number of ways. She referred to the High Court decision of Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564. While that case discusses the general principles which give rise to a legal requirement of procedural fairness, I should note that there is no suggestion in the present case that any adverse information about the applicant is to be published, as was the case in Ainsworth. The applicant contended: I believe that in the position of District Manager ..., I had a legitimate expectation to be informed of complaints, so that I could take any remedial action that was necessary to ensure that I was fulfilling my obligations under my conditions of employment. Failure on the part of Queensland Health to supply such information to me, I believe affected my reputation and ultimately my employment status with Queensland Health, as well as impacting upon the way I was perceived as a District Manager by various staff, community members and my supervisors. I have referred above (see paragraph 38) to the circumstances in which Dr Youngman informed the applicant that she was to be placed on a performance assessment. I am not satisfied that considerations of procedural fairness required Queensland Health to give the applicant the opportunity to respond to individual complaints before she was placed on a three month performance assessment. It was certainly necessary for Queensland Health to provide the applicant with sufficient information as to the requirements of the performance assessment in order to allow her to take appropriate action. However, in the circumstances of the case, I am satisfied that Dr Youngman's letter dated ... 1998 provided sufficient information in that regard. Nor do I consider that disclosure of all complaints against the applicant was a legal requirement of procedural fairness prior to offering her the transfer. The applicant argued that comments by Ms Robson of Queensland Health support a contention that the offer of a transfer can be seen as a criticism by Queensland Health of her performance, or as a disciplinary measure (see page 3 of the submission dated 22 December 2000). I am not satisfied that that is the case. I am satisfied that the transfer was a consensual arrangement. The applicant was an officer of considerable standing in Queensland Health as a District Manager, and could reasonably be expected to be capable of assessing her situation and making a considered decision as to what option best suited her. I am not satisfied that disclosure of all complaints or allegations made against the applicant by third parties was a necessary step prior to offering a transfer. The applicant suggested that the medical concept of "informed consent" of a patient was somehow applicable or adaptable to her circumstances in a way which would require Queensland Health to notify her of all complaints against her before offering her a transfer. Clearly, her knowledge of complaints previously made against her was sufficient to induce the applicant to accept the transfer. It is difficult to see how the disclosure of the existence of further complaints, or the details of those complaints, could have been expected to have influenced the applicant to make a different decision. I do not consider that there is a general requirement to accord procedural fairness in respect of adverse information about a person held on agency files, in the absence of some proposal to take action adverse to the rights or interests of that person based on the particular information. I do recognise a general public interest consideration favouring disclosure of adverse matter about an identifiable individual held on agency files, but that does not arise from any legal requirement of procedural fairness. The applicant contended that officers of Queensland Health who are in a position to make decisions affecting the applicant are, or will become aware of, the adverse comments by the third parties, and that any further dealings with, or relevant to, the applicant are likely to be influenced by that knowledge, with adverse consequences for the applicant's career. The applicant also contended that some complaints had been investigated by the CJC and found to be unsubstantiated. She said it was detrimental to her reputation and interests for similar allegations not to be disclosed to her, so that they remain unanswered. I consider that both these points are aspects of the public interest in the subject of adverse information on agency files having access to that information. I acknowledge that the likelihood of continuing contact by the applicant with Queensland Health (as she seeks to obtain, or undertakes, employment with Queensland Health in the future) adds weight to that public interest consideration. In most instances, it is preferable that at least the substance of complaints is disclosed to the relevant officer, so that he/she has the opportunity to address it. This serves the public interests in fair treatment of the individual, and in taking steps to remedy any shortcomings in the performance of individual officers (with a view to improving their service to the public). However, in this instance, it would not be possible to disclose the substance of particular complaints without identifying the complainants. The applicant has been given information about the general nature of the complaints made against her, through Dr Youngman's letter to her dated .... I also note that one of the third parties made the following submissions, which the applicant did not seek to contradict by way of reply: The complaints or facts presented to the Minister were well known to [the applicant], some for many years, through the many representations made by her staff, individuals, committees, public meetings, community meetings with the Director and Deputy Director of Health, other Department of Health staff, the two Unions, the AWU and the Queensland Nurses Union. The Deputy Director of Health was regularly in contact with [the applicant]. Several departmental people were sent out to investigate and report back to the department. Dr Youngman's letter to the applicant describes in general terms the areas where improvements in performance were sought. I accept that disclosure of individual instances referred to in the letters would have been useful to the applicant in allowing her to assess, and improve, her management and leadership of the District. However, I also acknowledge that to disclose the individual complaints made may well have led to heightened tensions within the District. Bearing that in mind, it appears that Dr Youngman attempted to give the applicant general information which would allow her to take steps to address perceived deficiencies, while not disclosing the identities of, or information provided by, individual complainants. While I consider that there is a public interest in disclosure of adverse comments about the applicant, and in particular of comments which would allow her to consider and improve her management and leadership, I find that the weight of that public interest has been significantly reduced by the general information which has been provided to the applicant. Turning to the individual complaints, the information supplied by person D largely concerned the administration of the health care facility in the District, and sought improvement in relation to the administration of that facility rather than any specific action against the applicant. The information supplied by person E was calculated to lead investigators to a particular line of inquiry, but one which would not have required the disclosure of the identity of, or the information supplied by, person E. I am satisfied that no legal requirement of procedural fairness required disclosure to the applicant of the identities of persons D and E, or of the information they supplied. I recognise a public interest in upholding the continuing understanding of confidentiality with persons in the position of persons D and E, in order to maintain good faith with the public of Queensland and to promote the continued supply of information to the Minister for Health and to Queensland Health about matters relevant to their functions. The applicant has already been advised of the general nature of various complaints and expressions of concern made in relation to the applicant as District Manager of the District. In the circumstances of this case, I find that the public interest considerations favouring disclosure to the applicant of the matter in issue concerning persons D and E are insufficient to outweigh the public interest considerations favouring non-disclosure. I therefore find that the matter in issue communicated by persons D and E is exempt matter under s.46(1)(b) of the FOI Act. Application of s.40(c) of the FOI Act Section 40(c) of the FOI Act provides: 40. Matter is exempt 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. The Information Commissioner explained and illustrated the correct approach to the interpretation and application of s.40(c) of the FOI Act in Re Pemberton and The University of Queensland (1994) 2 QAR 293, Re Murphy and Queensland Treasury [1995] QICmr 23; (1995) 2 QAR 744, Re Shaw, and Re McCann. In applying s.40(c) of the FOI Act, I must determine: whether any adverse effects on the management or assessment by Queensland Health of its personnel could reasonably be expected to follow from disclosure of the matter in issue; and if so, whether the adverse effects, either individually or in aggregate, constitute a substantial adverse effect on the management or assessment by Queensland Health of its personnel. The adjective "substantial" in the phrase "substantial adverse effect" means grave, weighty, significant or serious (see Re Cairns Port Authority and Department of Lands [1994] QICmr 17; (1994) 1 QAR 663, at pp.724-725, paragraphs 148-150). If the above requirements are satisfied, I must then consider whether the disclosure of the matter in issue would nevertheless, on balance, be in the public interest. The phrase "could reasonably be expected to" requires a reasonably based expectation, that is, an expectation for which real and substantial grounds exist. A mere possibility, speculation or conjecture is not enough. In this context "expect" means to regard as likely to happen. (See Re "B", at pp.339-341, paragraphs 154-160, and the Federal Court decisions referred to there.) Substantial adverse effect I decided above that there are continuing mutual understandings of confidentiality between Queensland Health on the one hand, and each of persons A, B and C on the other. In the circumstances of this case, I am satisfied that any unwarranted breach of the understandings of confidential treatment held by person A, B or C, a considerable time after Queensland Health has taken steps to address the issues raised, could reasonably be expected to have a substantial adverse effect on the management or assessment by Queensland Health of its personnel, through the apparent breach of trust involved, and by inhibiting members of staff from raising serious concerns about the performance of District managers with senior management of the Department. Public interest balancing test The discussion of the public interest considerations undertaken in respect of s.46(1)(b) at paragraphs 47-55 above is also relevant when considering the application of the public interest balancing test in s.40(c). The considerations discussed in paragraphs 32-33 above are also relevant in weighing against disclosure of the letters received from members of staff of the District. I am not satisfied that there was any legal requirement of procedural fairness that required Queensland Health to disclose to the applicant the information provided by persons A, B or C or the identities of persons A or B. As I noted above, there is a public interest in disclosure to a person of adverse information about the person held on agency records. However, I find that the public interest considerations favouring disclosure of this matter do not outweigh the public interest consideration raised by satisfaction of the other elements of s.40(c), and the public interest in maintaining the continued supply of information to the Minister and Queensland Health. I find that matter in issue sent by persons A, B and C is exempt matter under s.40(c) of the FOI Act. DECISION I decide to vary the decision under review (identified at paragraphs 7-8 above) by finding that: the matter in issue specified at paragraph 15(a) above is exempt matter under s.40(c) of the FOI Act; and the matter in issue specified at paragraph 15(b) above is exempt matter under s.46(1)(b) of the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Waratah Coal Pty Ltd and Department of State Development, Infrastructure and Planning [2012] QICmr 66 (10 December 2012)

Waratah Coal Pty Ltd and Department of State Development, Infrastructure and Planning [2012] QICmr 66 (10 December 2012) Last Updated: 27 August 2013 Decision and Reasons for Decision Application Number: 311035 Applicant: Waratah Coal Pty Ltd Respondent: Department of State Development, Infrastructure and Planning Decision Date: 10 December 2012 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION ACT – applicant sought access to documents concerning the applicant and the Office of the Coordinator General – whether disclosure of information would infringe the privileges of Parliament under schedule 3, section 6(c)(i) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION ACT – whether information comprises Cabinet matter brought into existence before commencement of the RTI Act under schedule 3, section 1 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION ACT – whether there are reasonable grounds for the agency to be satisfied documents do not exist or are unlocatable – whether the agency has taken all reasonable steps to locate documents – whether access can be refused under sections 47(3)(e) and 52(1)(a) and (b) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Department of State Development, Infrastructure and Planning[1] (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to: All documents and correspondence relating to Waratah Coal Pty Ltd and the Office of the Coordinator General. The Department located 304 pages relevant to the access application. The Department granted the applicant full access to 221 pages and partial access to 31 pages. The Department refused access to the balance of those latter 31 pages, and a further 52 pages in full, on the basis that: segments of information appearing on the 31 pages to which partial access was refused comprised personal information, the disclosure of which would, on balance, be contrary to the public interest; the balance of the documents - the remaining 52 pages - comprised exempt information, as documents either subject to Parliamentary privilege or consisting of Cabinet matter brought into the existence before the commencement of the RTI Act. The applicant applied to the Information Commissioner for external review of the Department’s decision. During the course of external review, the applicant withdrew its application in so far as it concerned the segments of personal information on the 31 pages to which the Department refused partial access. Accordingly that information is no longer in issue in this review. The applicant did, however, raise a concern during the review that the Department may not have identified all relevant documents, giving rise to a ‘sufficiency of search’ issue. For the reasons set out below, the Department is entitled to refuse access to the 52 pages comprising the information in issue, on the basis the information is exempt information. Further, the Department has, in the circumstances of this review, taken all reasonable steps to locate documents relevant to the access application and may refuse access to any additional documents on the basis the documents do not exist. Background Significant procedural steps relating to the access 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 30 March 2012. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). Information in issue The information in issue consists of the 52 pages to which the Department refused access, on the basis the information comprises exempt information. Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[2] However, this right is subject to other provisions of the RTI Act including grounds on which access may be refused.[3] Relevantly, an agency may refuse access to information under the RTI Act if the information is exempt information[4] or if a document is non-existent or unlocatable.[5] Sufficiency of search As noted in paragraph 4, during the course of this review the applicant questioned whether the Department had located all documents relevant to its access application. Specifically, the applicant contended that the Department may have failed to locate documents concerning a meeting between a former Coordinator-General and representatives of the applicant, said to have taken place on 10 Oc[6]ober 2008.6 In support of this contention, the applicant relied [7]n a letter7 from its ‘President and CEO’ to the Coordinator-General, dated 14 October 2008, which relevantly refers to ‘the time spent with our team on Friday 10 October 2008’. The Office of the Information Commissioner (OIC) forwarded a copy of this letter to the Department, and requested it undertake additional searches for relevant documents. Departmental officers consequently reviewed the former Coordinator-General’s electronic and hard copy diaries for 10 October 2008 and surrounding dates, and conducted archival and record searches for relevant agenda and minutes. Despite these searches, no additional documents were found. Indeed, the review of the Coordinator-General’s diaries disclosed no reference to any meeting involving the applicant whatsoever. The Department suggested that this may have been because any meeting (if one occurred) may have been conducted informally, and thus have required no follow up action on the part of the Coordinator-General (which might presumably have resulted in the generation of documents), nor the production of any agenda or minutes. OIC forwarded the Departmental search certifications containing the above information to the applicant. OIC proposed that, at face value, the Department appeared to have undertaken reasonable search efforts appropriate in the circumstances of this case, and that it appeared no relevant documents existed. OIC invited the applicant to lodge further submissions or provide further information concerning the meeting in the event it did not accept this proposition. The applicant has offered no further submissions or information concerning this issue. An agency has an obligation under the RTI Act to locate and deal with all documents responding to the terms a particular access application. An agency is, however, entitled to refuse access to documents which do not exist or cannot be located.[8] A document is nonexistent if there are reasonable grounds for the agency or Minister dealing with the access application to be satisfied that the document does not exist.[9] Where, as in this case, an agency has relied upon searches to demonstrate that relevant documents do not exist, the agency must show that its search efforts have been reasonable in the circumstances, ie, that the agency has taken all reasonable steps to find the documents.[10] There is no reason to question the veracity of the letter tendered by the applicant and its reference to a meeting between representatives of the applicant and the former Coordinator-General having occurred. Nevertheless, in the absence of any additional information or submissions from the applicant (whose representatives were, after all, apparently in attendance at any meeting), I consider that by searching the Coordinator-General’s electronic and physical diaries on and around 10 October 2008, and by further attempting to locate relevant meeting materials such as agenda and minutes, the Department has taken all reasonable steps to locate relevant documents. Accordingly, I am satisfied the Department has taken all reasonable steps to locate these ‘meeting’ documents, and is entitled to conclude they do not exist. Exempt information Is the information in issue privileged information? The Department refused access to 27 pages[11] of the 52 remaining in issue, on the basis their public disclosure would infringe the privileges of Parliament,[12] and that they thus comprise exempt information[13] to which access may be refused.[14] I will refer to these documents as the ‘Privileged Information’. What are the privileges of Parliament? In assessing the application of schedule 3, section 6(c)(i) of the RTI Act, it is firstly necessary to identify Parliamentary privileges that may be susceptible to infringement by public disclosure of information. Section 9 of the Constitution of Queensland 2001 (the Constitution of Queensland) relevantly provides: Powers, rights and immunities of Legislative Assembly (1) The powers, rights and immunities of the Legislative Assembly and its members and committees are— (a) the powers, rights and immunities defined under an Act; and (b) until defined under an Act—the powers, rights and immunities, by custom, statute or otherwise, of the Commons House of Parliament of the United Kingdom and its members and committees at the establishment of the Commonwealth. ... (2) In this section— rights includes privileges. The Parliament of Queensland Act 2001 (Qld) (PQ Act) further defines the ‘powers rights and immunities’ of Parliament[15] as referred to in section 9(a) of the Constitution of Queensland. Section 8 of the PQ Act provides: 8 Assembly proceedings can not be impeached or questioned (1) The freedom of speech and debates or proceedings in the Assembly can not be impeached or questioned in any court or place out of the Assembly. (2) To remove doubt, it is declared that subsection (1) is intended to have the same effect as article 9 of the Bill of Rights (1688) had in relation to the Assembly immediately before the commencement of the subsection. ‘Proceedings in the Assembly’[16] is defined in section 9 of the POQ Act: Meaning of ‘proceedings in the Assembly’ ‘Proceedings in the Assembly’ include all words spoken and acts done in the course of, or for the purposes of or incidental to, transacting business of the Assembly or a committee. Without limiting subsection (1), proceedings in the Assembly include – giving evidence before the Assembly, a committee or an inquiry; and... (c) presenting or submitting a document to the Assembly, a committee or an inquiry; and ... (e) preparing a document for the purposes of, or incidental to, transacting business mentioned in paragraph (a) or (c) ... MacPherson JA analysed Commonwealth privilege provisions materially equivalent to sections 8 and 9 of the PQ Act in Rowley v O’Chee.[17] His Honour noted that the ‘freedom from impeachment’ privilege as contained in the equivalent of section 8(1) of the POQ Act[18] gives rise – when read together with those parts of the definition of ‘proceedings in the Assembly’[19] concerning documents – to a ‘prohibition’ ...that should be read as meaning that “the preparation of a document for purposes of or incidental to the transacting of” the business of the...[Assembly] “ought not to be impeached or questioned in any court” [or place out of the Assembly].[20] His Honour then went on to consider the meaning of the term ‘impeach’ in this context,[21] noting that its use:[22] ...means that preparation of a document for purposes of or incidental to the transacting of the business of the Parliament is not to be impeded, hindered or prevented...or is not to be detrimentally or prejudicially affected, or impaired. [23] (My emphasis.) Applying these principles to the present review, for the Privileged Information to comprise exempt information, I must be satisfied that: the Privileged Information was prepared for the purposes of, or incidental to, the transacting of business of the Parliament, and its public disclosure would, as the Information Commissioner has previously paraphrased the test formulated by MacPherson JA in Rowley v O’Chee:[24] hinder, impede or impair the making of similar communications in the future for the purpose of transacting the business of the [Parliament],[25] and therefore breach or infringe the ‘freedom from impeachment’ privilege enshrined in section 8(1) of the PQ Act. 1. Was the Privileged Information prepared for the purposes of or incidental to the transacting of business of the Parliament? Yes. The documents consist of possible parliamentary questions, proposed responses to same, and associated briefs prepared for specific Parliamentary sitting dates and formatted for use by a Member of the Parliament – the former Deputy Premier – on said dates. I am satisfied the documents therefore comprise documents prepared for the purposes of or incidental to the transacting of Parliamentary business. 2. Would public disclosure of the Privileged Information hinder, impede or impair the making of similar communications in the future for the purpose of transacting the business of the Parliament? Again, yes. I am satisfied public disclosure of these documents under the RTI Act would hinder or impair the production of similar documents in the future, and thus ‘impeach’ proceedings in Parliament. In reaching this view, I have had regard to the decision of Austin J in In the matter of OPEL Networks Pty Ltd (in liq).[26] In that case, His Honour was required to determine whether production of Commonwealth Parliamentary briefing materials (analogous to those in issue in this review) pursuant to court disclosure processes would impeach Parliamentary proceedings. Having adopted the analysis of McPherson JA in Rowley v O’Chee, His Honour went on to find[27] that: compulsory production of these documents would "impeach" (as explained in Rowley v O’Chee) "proceedings in Parliament" (as extensively defined in s 16(2)(c) of the Parliamentary Privileges Act). It seems to me necessarily true, and not dependent upon the evidence of the particular case, that if briefings and draft briefings to Parliamentarians for Question Time and other Parliamentary debate are amenable to subpoenas and other orders for production, the Commonwealth officers whose task it is to prepare those documents will be impeded in their preparation, by the knowledge that the documents may be used in legal proceedings and for investigatory purposes that might well affect the quality of information available to Parliament. To take a step that would have that consequence would, I think, derogate from the force of the Bill of Rights and run contrary to the historical justification for that legislation, so ably sketched by McPherson JA (and see Mees v Road Corporation (2003) 128 FCR 418; [2003] FCA 306, at [75] -[79] per Gray J). I agree with His Honour’s statement of the relevant principles, which I consider equally applicable to a consideration of the scope and application of the Parliamentary privilege exemption under the RTI Act. It is therefore my view that public disclosure of the Privileged Information would – to paraphrase MacPherson JA – have the potential to hinder, impede or impair the preparation or assembly of documentary information for future debates and questions in the [Parliament]’.[28] My view in this regard is reinforced by the fact that, unlike the conditional court processes under consideration in OPEL Networks, disclosure under the RTI Act is essentially unconditional. This unconditional disclosure thus only amplifies the potential for the detrimental consequences against which the Parliamentary privilege exemption is intended to safeguard. As was noted in a similar case arising under the Government Information (Public Access) Act 2009 (NSW):[29] Another relevant consideration is that, while the use of Parliamentary information provided to a court pursuant to court procedures such as discovery and subpoena may be controlled, whereas disclosure of information pursuant to the GlPA Act is necessarily unconditional and therefore cannot be controlled. Accordingly, I consider public disclosure of the Privileged Information under the RTI Act would impeach proceedings in Parliament in the sense as discussed above. Such disclosure would therefore infringe the privileges of Parliament, contrary to schedule 3, section 6(c)(i) of the RTI Act. The Privileged Information therefore comprises exempt information, to which access may be refused under section 47(3)(a) of the RTI Act.[30] Does the balance of the information in issue comprise Cabinet matter brought into existence before the commencement of the RTI Act? Schedule 3, section 1 of the RTI Act provides that information is exempt from disclosure if: it was brought into existence before the commencement of schedule 3, section 1 of the RTI Act; it is mentioned in section 36(1) of the repealed Freedom of Information Act 1992 (Qld) (the FOI Act); and it has not been officially published by decision of Cabinet. This exemption provision therefore effectively imports the requirements of section 36(1) of the FOI Act – the FOI Act’s Cabinet exemption provision – to documents pre-dating 1 July 2009. All of the relevant documents[31] were created prior to this date, and there is nothing before me to suggest they have been officially published by decision of Cabinet. Section 36(1) was a relatively broad provision, relevantly exempting from disclosure information (including drafts) prepared for briefing, or the use of, a Minister or chief executive in relation to a matter: submitted to Cabinet; or that was proposed, or had at any time been proposed to be submitted to Cabinet by a Minister.[32] The relevant documents – i.e, the balance of the information in issue, comprising those 25 pages other than the Privileged Information – consist of Ministerial briefing notes. The Department has stated that the subject matter addressed in these documents was submitted to Cabinet by the former Minister, a statement which I accept.[33] In any event, it is clear from the face of one of the documents that the matter these documents concern was at the least proposed to be submitted to Cabinet.[34] On this basis, I am satisfied the documents in question were created to brief the former Minister about a matter that was submitted, or was proposed to be submitted, to Cabinet. Accordingly, the relevant information comprises information mentioned in section 36(1) of the FOI Act, and is therefore exempt information under schedule 3, section 1 of the RTI Act, to which access may be refused.[35] DECISION I affirm the Department’s decision to refuse access to the information in issue under section 47(3)(a) of the RTI Act, on the basis the information is exempt information under section 48 of the RTI Act, as either: information the public disclosure of which would infringe the privileges of Parliament, within the meaning of schedule 3, section 6(c)(i) of the RTI Act, or information comprising Cabinet matter brought into existence before the commencement of the RTI Act, within the meaning of schedule 3, section 1 of the RTI Act. Further, I find the Department has taken all reasonable steps to locate documents relevant to the access application and may refuse access to relevant documents under section 47(3)(e) and section 52(1)(a) of the RTI Act, on the basis the documents do not exist. ________________________ Jenny Mead Acting Information Commissioner Date: 10 December 2012APPENDIX Significant procedural steps Date Event 18 October 2011 The applicant applied to the Department of State Development, Infrastructure and Planning[36] (Department) for access to all documents relating to Waratah Coal Pty Ltd and the Office of the Coordinator General from September 2008 until March 2009. 30 March 2012 The Department issued a notice of decision to the applicant. 2 May 2012 The Office of the Information Commissioner (OIC) received the applicant’s application for external review of the Department’s decision. 4 May 2012 OIC informed the applicant and the Department that the applicant’s external review application had been accepted. 18 May 2012 The Department provided OIC with documents relevant to the external review. 20 July 2012 OIC requested further information from the Department concerning the Department’s Cabinet exemption claim. 23 July 2012 Department provided additional information concerning Cabinet exemption claim. 3 September 2012 OIC confirmed in writing that the applicant no longer sought access to some information in issue and conveyed a preliminary view on the remaining information in issue, inviting the applicant to provide submissions supporting its case by 19 September 2012 if the applicant did not accept the preliminary view. 10 September 2012 OIC requested the Department conduct additional searches. 13 September 2012 The applicant sought an extension of time to provide submissions in response to OIC’s preliminary view. 3 October 2012 The Department provided OIC with search certifications in response to OIC’s request for the Department to conduct additional searches. 3 October 2012 OIC wrote to the applicant forwarding Departmental search certifications and proposing that, on the basis of those searches, no further relevant documents existed. OIC invited the applicant to provide submissions and/or information as to missing documents by 10 October 2012. 11 October 2012 The applicant requested an extension of time to respond to OIC’s 3 September 2012 and 3 October 2012 correspondence. 15 October 2012 OIC provided an extension of time for the applicant to respond to OIC correspondence. 18 September 2012 The applicant informed OIC that it did not accept OIC’s positions on the issues in this review as conveyed in 3 September 2012 and 3 October 2012 correspondence. 19 November 2012 OIC issued a further preliminary view to the applicant clarifying the basis on which relevant information was said to comprise exempt information as information the public disclosure of which would infringe the privileges of Parliament. OIC invited the applicant to lodge any further, final submissions by 3 December 2012. No further submissions were received. [1] Formerly the Department of Employment, Economic Development and Innovation. [2] Section 23 of the RTI Act. [3] As set out in section 47 of the RTI Act. [4] Section 47(3)(a) and 48 of the RTI Act. [5] Section 47(3)(e) and 52 of the RTI Act. [6] The applicant’s initial query was whether relevant ‘missing’ documents appeared among the 52 documents in issue (which, as OIC confirmed with the applicant, they do not). In the alternative, the applicant contended the Department had failed to locate the documents.[7] Supplied to OIC by the applicant under cover of correspondence dated 7 September 2012.[8] Sections 47(3)(e) and section 52 of the RTI Act. [9] Section 52(1)(a) of the RTI Act.[10] A full exposition of the principles to be applied in sufficiency of search cases can be found in PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at [34]-[38].[11] Relevantly, pages 54-80, as numbered by the Department.[12] Under schedule 3, section 6(c)(i) of the RTI Act.[13] Within the meaning of section 48 of the RTI Act.[14] Under section 47(3)(a) of the RTI Act.[15] Section 36 of the Acts Interpretation Act 1954 (Qld) provides that ‘Parliament’ means ‘Legislative Assembly’.[16] ‘Assembly’ as used in the PQ Act means ‘Legislative Assembly’: section 3 and definition in the schedule to the PQ Act. [17] [2000] 1 Qd R 207.[18] Being article 9 of the Bill of Rights (1688) itself, directly imported via section 16(1) of the Parliamentary Privileges Act 1987 (Cth).[19] His Honour was considering section 16 of the Parliamentary Privileges Act 1987 (Cth), which refers to ‘proceedings in Parliament’, a difference in terminology on which I am satisfied nothing turns.[20] At 222.[21] His Honour essentially set aside the relevance of the ‘questioning’ element of the ‘freedom from impeachment’ privilege in this context, finding that it was not ‘easy to see that requiring [production] of documents for the inspection of another party to litigation can be said to involve “questioning”...preparation of them in any way’.[22] In article 9 of the Bill of Rights (in Queensland, now, as noted, enacted in section 8(1) of PQ Act), when read together with the Commonwealth equivalents of sections 9(1) and 9(2)(a),(c) and (e) of the PQ Act. The relevant Commonwealth provision defining ‘proceedings’ (section 16 of the Parliamentary Privilege Act 1987 (Cth) is worded slightly differently to its Queensland equivalent, section 9(2) of the PQ Act. As with the difference in terminology noted in note 6, I am satisfied this difference is, for present purposes, of no consequence.[23] Rowley v O’Chee, at 222-223.[24] The retrospective and prospective aspects of which immunity were discussed by His Honour at 223-224.[25] Harris and Criminal Justice Commission, (Unreported, Queensland Information Commissioner, 27 July 2001). Although Harris was decided under the repealed Parliamentary Papers Act 1992 (Qld) the definition of ‘parliamentary record’ under that Act and ‘proceedings in the Assembly’ under the Parliament of Queensland Act 2001 are identical.[26] [2010] NSWSC 142.[27] At [118].[28] Rowley v O’Chee, per McPherson J (at 224).[29] Tziolas v NSW Department of Education and Communities [2012] NSWADT 69, at [38].[30] The substance of my reasoning as set out in these paragraphs was conveyed to the applicant in my letter dated 19 November 2012, in which I expressed the preliminary view the Privileged Information comprised exempt information. This letter supplanted an earlier letter dated 3 September 2012, in which I also conveyed the preliminary view the Privileged Information comprised exempt information as information the public disclosure of which would infringe the privileges of Parliament, but on a different basis; relevantly, that public disclosure would infringe Parliament’s authority to publish parliamentary records (as contained in section 50 of the PQ Act). After issuing that latter letter, however, I formed the view the ‘freedom from impeachment’ privilege prescribed in section 8 of the PQ Act was the preferable head of privilege on which to ground the Parliamentary privilege exemption contained in schedule 3, section 6(c)(i) of the RTI Act. In any event, the applicant offered no submissions in response to either preliminary view.[31] Numbered 14-17, 171-187 and 198-201.[32] Section 36(1)(c)(i) and (ii) of the FOI Act.[33] Thus satisfying section 36(1)(c)(i) of the FOI Act.[34] Satisfying the relevant requirements of section 36(1)(c)(ii) of the FOI Act.[35] Section 36(1)(c)(ii) of the FOI Act.[36] Formerly the Department of Employment, Economic Development and Innovation.

queensland

court_judgement

Queensland Information Commissioner 1993-

D45 and Wide Bay Hospital and Health Service [2021] QICmr 63 (30 November 2021)

D45 and Wide Bay Hospital and Health Service [2021] QICmr 63 (30 November 2021) Last Updated: 29 August 2022 Decision and Reasons for Decision Citation: D45 and Wide Bay Hospital and Health Service [2021] QICmr 63 (30 November 2021) Application Number: 315969 Applicant: D45 Respondent: Wide Bay Hospital and Health Service Decision Date: 30 November 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - HEALTHCARE INFORMATION - parent seeking access to child’s mental health records on behalf of child - healthcare information - whether disclosure prejudicial to physical or mental wellbeing of the applicant child - whether disclosure contrary to applicant’s best interests - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(d) and 51 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant[1] applied[2] to Wide Bay Hospital and Health Service (the Health Service) under the Information Privacy Act 2009 (Qld) (IP Act) for access to the child’s medical records, including mental health records. The Health Service located 101 pages relevant to the access application and granted full access to 15 pages and partial access to 30 pages. In respect of the remaining information, the Health Service decided[3] to refuse access to: the remaining parts of 30 pages on the basis that the disclosure of the refused information in these pages would be contrary to the public interest;[4] and mental health records[5] on the basis that it comprised healthcare information which would be prejudicial to the applicant child’s physical or mental health or wellbeing to disclose.[6] The applicant applied[7] to the Office of the Information Commissioner (OIC) for external review of the decision to refuse access to the mental health records. For the reasons set out below, I affirm the Health Service’s decision to refuse access to the mental health records, under section 67(1) of the IP Act and section 47(3)(d) of the RTI Act. Background The decision under review is the Health Service’s decision dated 15 March 2021 to refuse access to the mental health records under section 67(1) of the IP Act and section 47(3)(d) of the RTI Act.[8] Significant procedural steps taken during the external review are set out in the Appendix to this decision. Evidence, submissions legislation and other material I have considered in reaching this decision are identified in these reasons, including the Appendix. During the review,[9] OIC communicated with the Health Service to ascertain whether it would consider providing the parent with contact details of a health practitioner, as part of an informal resolution proposal.[10] These negotiations with the Health Service were ultimately not successful in informally resolving the review. I have had regard to the Human Rights Act 2019 (Qld) (HR Act),[11] particularly the right to seek and receive information.[12] A decision maker will be ‘respecting, and acting compatibly with’ that right and others prescribed in the HR Act when applying the law prescribed in the IP Act and the RTI Act.[13] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[14] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[15] Information in issue The information in issue appears in 56 pages of the applicant child’s mental health records held by the Health Service.[16] Issue for determination The issue for determination is whether access to the mental health records may be refused under section 67(1) of the IP Act and section 47(3)(d) of the RTI Act on the ground that disclosure might be prejudicial to the physical or mental health or wellbeing of the applicant child under section 51 of the RTI Act. 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.[17] 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.[18] Relevantly, access may be refused to an applicant’s relevant healthcare information the disclosure of which might be prejudicial to the physical or mental health or wellbeing of the applicant under section 51 of the RTI Act. ‘Relevant healthcare information’ means healthcare information given by a healthcare professional.[19] A ‘healthcare professional’ means a person who carries on, and is entitled to carry on, an occupation involving the provision of care for a person's physical or mental health or wellbeing.[20] The Information Commissioner[21] has the power to decide any matter in relation to an access application that could have been decided by an agency.[22] Analysis and findings The mental health records contain information relating to clinical assessments of the applicant child undertaken within the Health Service. I am satisfied the mental health records comprise healthcare information provided by healthcare professionals and are therefore, the applicant child’s relevant healthcare information. The parent made submissions in support of disclosure of the mental health records.[23] In their submissions, the parent focused on their desire to obtain a better understanding of the applicant child’s health and wellbeing and stated that they were seeking to check the content of the records against what they had been told by other sources.[24] The parent emphasised that they should have an entitlement to their child’s records in these circumstances. The parent also referred to past Family Court and custody issues and submitted that obtaining access to the records could help to inform decisions relating to a parenting plan. In addition to its decision refusing access to the mental health records, the Health Service also provided more extensive submissions to OIC setting out the evidence it relied on to make its decision.[25] I am limited in the amount of detail that I can disclose about those submissions.[26] The Health Service submitted that in the circumstances, it had concerns that disclosure of the information would ‘influence the mental health of the child’[27] and that that ‘the best interests of the child are at the forefront of any decision made by the Child and Youth Mental Health Team’.[28] The Health Service acknowledged a parent’s right of access to a child’s records but concluded that it is ‘very unlikely in this case that the interests of the child are enhanced by information being made available ... especially as the child is no longer in treatment in this service.’[29] In considering whether the applicant child’s health or wellbeing might be prejudiced by the disclosure of the mental health records, I must consider whether the prejudice is real and tangible as opposed to a fanciful, remote or far-fetched possibility.[30] Based on the evidence available to me, including the content of the mental health records and information provided by the Health Service and appropriately qualified healthcare professional, I find that there is a real and tangible risk that disclosing the mental health records might prejudice the applicant child’s health or wellbeing. For the reasons set out above, I am satisfied that the mental health records comprise the applicant child’s healthcare information and that disclosure might be prejudicial to the physical or mental health or wellbeing of the applicant child.[31]DECISION I affirm the decision of the Health Service and find that access to the mental health records may be refused under section 67(1) of the IP Act and section 47(3)(d) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.K ShepherdActing Right to Information Commissioner Date: 30 November 2021 APPENDIX Significant procedural steps Date Event 25 March 2021 OIC received the external review application. 26 March 2021 OIC notified the Health Service that it had received the application for external review and requested preliminary documents from the Health Service. 30 March 2021 OIC received the preliminary documents from the Health Service. 7 April 2021 OIC notified the applicant that it had received the application for external review and requested that the applicant provide certified evidence of a child-parent relationship. 30 April 2021 OIC received the applicant’s further evidence of a child-parent relationship. 6 May 2021 OIC notified the applicant and the Health Service that the external review application had been accepted. OIC requested the mental health records from the Health Service. 18 May 2021 OIC received the mental health records and submissions from the Health Service. 17 June 2021 OIC conveyed to the applicant a preliminary view that access to the mental health records may be refused on the basis that they contain relevant healthcare information and that disclosure might be prejudicial to the applicant child’s physical or mental wellbeing. OIC asked the Health Service if it would agree to provide contact details of a healthcare practitioner to the child’s parent, as part of the informal resolution process. 29 June 2021 The Health Service advised that it was considering options for informal resolution. 20 July 2021 OIC discussed the preliminary view with the applicant via telephone. OIC received submissions from the applicant via email. 22 July 2021 OIC spoke to the applicant about the external review process and concerns raised in the applicant’s submissions. OIC contacted the Health Service regarding options for informal resolution. 23 July, 5 August, 2 and 6 September 2021 The Health Service communicated with OIC regarding options for informal resolution. 6 September 2021 OIC advised the applicant that informal resolution negotiations with the Health Service had not succeeded and reiterated the preliminary view that access to the mental health records could be refused. 20 September 2021 The applicant confirmed to OIC that they wished to proceed to a formal decision and provided further oral submissions. [1] The access application was made on behalf of a child by a parent of the child under section 45 of the IP Act. In this decision, references to the applicant include references to the child’s parent when acting on behalf of the child in relation to the access application. The IP Act also makes clear that in such circumstances the applicant is taken to be the child rather than the parent (see section 45 of the IP Act and the definition of ‘applicant’ in schedule 5 of the IP Act).[2] Application dated 1 February 2021. [3] Decision dated 15 March 2021.[4] Section 67(1) of the IP Act and section 47(3)(b) of the Right to Information Act 2009 (Qld) (RTI Act).[5] 56 pages.[6] Section 67(1) of the IP Act and section 47(3)(d) and section 51 of the RTI Act.[7] Application dated 20 March 2021 and received by OIC on 25 March 2021. [8] The Health Service’s decision incorporated the decision of the Clinical Director of Mental Health, as the appointed healthcare professional to make a decision on the mental health records.[9] From 17 June until 6 September 2021.[10] In accordance with OIC’s obligations under section 103(1) of the IP Act.[11] Relevant provisions of which commenced on 1 January 2020. [12] Section 21(2) of the HR Act.[13] 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].[14] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic).[15] XYZ at [573].[16] Section 121(3) of the IP Act prohibits me from further describing this information. [17] Section 40 of the IP Act.[18] Section 67(1) of the IP Act allows an agency to refuse access to documents on the grounds set out in section 47 of the RTI Act.[19] Schedule 5 of the IP Act.[20] Schedule 5 of the IP Act provides examples such as a doctor, including a psychiatrist or a psychologist, social worker or registered nurse.[21] Or her delegate under section 139 of the IP Act.[22] Section 118(1)(b) of the IP Act. As such, I have the power to make a decision on the mental health records, under section 47(3)(d) of the RTI Act.[23] External review application dated 20 March 2021 and submissions received by OIC via email dated 20 July 2021 and via telephone on 22 July 2021.[24] Ibid.[25] Submissions dated 18 May 2021 and 3 September 2021.[26] Section 121 of the IP Act.[27] Submission to OIC 18 May 2021.[28] Submission to OIC 3 September 2021.[29] Submission to OIC 3 September 2021.[30] 88OQAO and Wide Bay Hospital and Health Service [2019] QICmr 14 (1 May 2019) at [18].[31] Section 51 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Fairfield Constructions Pty Ltd; Fairfield Land Pty Ltd and Department of Environment and Resource Management (210812) [2009] QICmr 59 (23 December 2009)

Fairfield Constructions Pty Ltd; Fairfield Land Pty Ltd and Department of Environment and Resource Management (210812) [2009] QICmr 59 (23 December 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Numbers: 210811, 210812 Applicants: Fairfield Constructions Pty Ltd Fairfield Land Pty Ltd Respondent: Department of Environment and Resource Management Third Party: C & R Consulting Pty Ltd Decision Date: 23 December 2009 Catchwords: FREEDOM OF INFORMATION – REFUSAL OF ACCESS – EXEMPT MATTER – MATTER RELATING TO TRADE SECRETS, BUSINESS AFFAIRS AND RESEARCH – applicant seeking access to consultant report(s) – whether disclosure would disclose trade secrets of an agency or another person – whether the report(s) are 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 consultant report(s) – 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 report(s) are 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 consultant report(s) – 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 report(s) are exempt under section 45(1)(c) 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 consultant report(s) – whether disclosure would disclose the purpose or results of research – whether disclosure could reasonably be expected to have an adverse effect on an agency or another person by or on whose behalf the research was, is being, or is intended to be, carried out – whether the report(s) are exempt under section 45(3) of the Freedom of Information Act 1992 (Qld) Contents REASONS FOR DECISION Summary 1. On the information available to me, I find that the matter in issue is not exempt from disclosure under section 45(1)(a), 45(1)(b), 45(1)(c) or 45(3) of the Freedom of Information Act 1992 (Qld) (FOI Act). 2. The decision under review is set aside. Background 3. By letter dated 22 October 2008 (FOI Application), Fairfield Land Pty Ltd and Fairfield Constructions Pty Ltd (Applicants), sought access to: All documents relating to the removal of a parcel of land which was amalgamated from Lot 1 on RP 705903 (part) and Lot 2 on RP 715670 (part) from the Environmental Management Register (“EMR”) being contained in 14 volumes of files held by the EPA (your reference IDALIA files BNE327722. 4. In accordance with section 51 of the FOI Act, the Department consulted with Dr Christopher Cuff of C&R Consulting Pty Ltd (Third Party) in relation to the document authored by the Third Party titled “Final Revised Report Vol. 1 and Vol. 2 dated 12 June 2008” (the Report). 5. By letter dated 16 December 2008, the Third Party objected to the release of parts of the Report on the basis that it qualified for exemption under section 45(1) and 45(3) of the FOI Act. 6. On 7 January 2009 (Original Decision), the Department of Environment and Resource Management[1] (Department) advised the Applicants that it had located 2583 folios relating to the request and decided to: • release 1401 folios in full (apart from some matter that was deleted because it was not considered relevant pursuant to section 27(3) of the FOI Act) • refuse access to four folios in full on the basis that they qualify for exemption from disclosure under section 43(1) of the FOI Act • partially refuse access to twenty one folios on the basis that the information contained in these folios qualifies for exemption from disclosure under section 44(1) of the FOI Act • partially refuse access to three folios and refuse access to 863 folios in full on the basis that the relevant information qualifies for exemption from disclosure under section 45(1)(c) of the FOI Act • exclude 268 folios as exact duplicates. 7. By letter dated 2 February 2009 (Internal Review Application), the Applicants sought internal review of the Original Decision by stating that: We hereby request an internal review of the decision of Ms Billington pursuant to section 52 of the Freedom of Information Act (Qld). We believe that the information in issue should not be exempt under section 45(1)(c) or section 45(3) on the following grounds... 8. On 12 February 2009 (Internal Review Decision), Paul Arthur, Corporate Counsel of the Department, decided to uphold the Original Decision and also decided that the information qualified for exemption from disclosure under section 45(1)(b) of the FOI Act. 9. By letter dated 17 March 2009 (External Review Application), the applicants sought external review of the Internal Review Decision. 10. As the two applicant companies seek access to the same information and are represented by the same solicitor, I consider it is appropriate to issue one decision in respect of files 210811 and 210812. Decision under review 11. The decision under review is the Internal Review Decision. Applicable legislation 12. 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] Steps taken in the external review process 13. This Office: • made preliminary inquiries under section 75 of the FOI Act • determined that it would conduct an external review of the Internal Review Decision and notified the parties on 23 March 2009.[5] 14. A copy of the matter in issue and documents relating to Third Party consultation undertaken by the Department in response to the FOI Application were received and reviewed. 15. During a telephone conversation on 7 April 2009, the Applicants’ solicitor clarified the issues in dispute and the scope of the FOI Application. 16. During a telephone conversation on 22 April 2009, the Third Party was advised that an external review application had been received in relation to the Department’s decision to refuse access in full and in part to the matter in issue. 17. By letter dated 27 April 2009 to the Third Party, the Office confirmed the matters discussed by telephone on 22 April 2009 and: • notified the Third Party of the possible release of documents (or parts of documents) under the FOI Act • consulted the Third Party regarding whether or not it objected to any or all of the document being released under the FOI Act • invited the Third Party to apply to become a party in the external review. 18. By email dated 30 April 2009, the Third Party: • continued to object to the release of the matter in issue and relied on its earlier submissions made to the Department • confirmed there may be an opportunity to reduce the number of documents in issue • made further submissions in relation to the content of the matter in issue. 19. By letter dated 11 May 2009, the Applicants sought directions in relation to the conduct of the external review. 20. During a telephone discussion on 25 May 2009, the Third Party confirmed that: • it was seeking legal advice in relation to its objection to the release of the matter in issue • Mr Cuff would be uncontactable for a period of approximately 1 month due to travel commitments • a copy of the Report was given to Mr Grant McOmish[6] after it was prepared • it continued to object to the release of the Report, even though it conceded that a copy of the Report had been given to a director of the Applicants. 21. During telephone discussions in late May and early June 2009, a member of staff of this Office spoke with the Third Party’s legal representative, Clark McNamara Lawyers, regarding the issues in the external review and relevant exemption provisions. 22. By email dated 7 July 2009 to Clark McNamara Lawyers, I confirmed: • that we were awaiting advice as to whether the Third Party continues to object to the release of the matter in issue to the Applicants on the basis that these documents were already in the possession of a director of the Applicant companies • my preliminary view that the documents are not exempt from disclosure under the FOI Act and should be released to the Applicants. 23. By email dated 10 July 2009 (and again on 13 July 2009), Clark McNamara Lawyers confirmed that the Third Party continues to object to the release of the matter in issue and made further submissions on its behalf. 24. During telephone discussions in July 2009, a member of staff of this Office: • discussed various matters with the Department including the preliminary view, clarification that the Office had received all of the relevant matter in issue and a request for further documentation to assist in identifying the matter in issue • discussed the scope of the matter in issue with the Applicants’ legal representative (to confirm that the Applicants sought access to all of the relevant documents) 25. By letter dated 5 October 2009, I wrote to the Applicants’ legal representative to clarify the issues in the review and confirm the documents sought by the Applicants. 26. By letter dated 22 October 2009, the Applicant’s legal representative advised that the Applicants continue to seek access to all of the matter in issue identified in my letter of 5 October 2009. 27. By letter dated 28 October 2009, I communicated a preliminary view to the Third Party that the matter in issue was not exempt from disclosure under section 45(1)(a), (b) or (c) of the FOI Act (Preliminary View Letter). 28. By email dated 29 October 2009, the Third Party advised that its legal representative was on leave until 2 December 2009 and sought an extension of time in which to respond to the Preliminary View Letter above. 29. By email dated 2 November 2009, I granted the Third Party the requested extension of time. 30. By letter dated 2 November 2009, I advised the Applicants that I had communicated a written preliminary view to the Third Party and asked the Third Party to provide submissions in response by 4 December 2009. 31. By email dated 4 December 2009, the Third Party provided submissions in response to the preliminary view letter. 32. During telephone discussions on 8 December 2009, a staff member of this Office asked the Applicants’ legal representative to confirm those documents in the Applicants’ possession. 33. By facsimile transmission dated 14 December 2009, the Applicants’ legal representative confirmed those documents in the Applicants’ possession. 34. In reaching a decision in external reviews 210811 and 210812, I have taken the following into consideration: • the FOI Application and Original Decision • the Internal Review Application • the External Review Application • relevant written and/or verbal submissions made by the Applicants during the course of the review • relevant written and/or verbal submissions made by the Third Party during the course of the review • the matter in issue • provisions of the FOI Act and other legislation referred to in this decision • case law and decisions of this Office referred to in this decision. Matter in issue 35. The matter in issue comprises documents relating to a parcel of land amalgamated from Lot 1 on RP 705903 and Lot 2 on RP 715670 from the Environmental Management Register. The documents comprise part of a report prepared by the Third Party for Fairfield Land Pty Ltd and/or Fairfield Construction Pty Ltd titled Final Revised Report (vol. 1 and 2) 12 June 2008. 36. Specifically the matter in issue can be identified as follows: Department file reference Folio number Description 902074 22-62 SGS Report, October 2000 63-66 SGS letter to EPA dated 25 April 2000 re: Notice to supply additional information 175-193 SGS Report, volume 1, June 1999 210-228 Appendix 8 of SGS Report, volume 1, June 1999 230-244 Australian Environmental Laboratories report no.25483 (to SGS), 14 April 1999 245-248 Australian Environmental Laboratories report no.25519 (to SGS), 20 April 1999 249-255 Australian Environmental Laboratories report no.26017 (to SGS), 23 June 1999 256-261 Australian Environmental Laboratories report no.25564 (to SGS), 28 April 1999 902076 Part 1 2-11 SGS Report, volume 1 of 1, 1 December 1997 28-37 Australian Environmental Laboratories report no.20540 (to SGS), 4 October 1997 902076 Part 4 2-5, 7, 9-18 Parts of SGS Report, volume 1 of 1, June 1998 39-55 Australian Environmental Laboratories report no.22882 (to SGS), 15 June 1998 BNE 2239 Vol 14 10-18 (only part of 14) Pages 9 to 17 of the C&R Consulting Final Revised Report, volume 1, 12 June 2008 48-54 Pages 47 to 53 of the C&R Consulting Final Revised Report, volume 1, 12 June 2008 62-63 Pages 61 to 62 of the C&R Consulting Final Revised Report, volume 1, 12 June 2008 69-72 Pages 68 to 71 of the C&R Consulting Final Revised Report, volume 1, 12 June 2008 75-87 Pages 74 to 86 of the C&R Consulting Final Revised Report, volume 1, 12 June 2008 BNE 2239 Vol 15 2-3, 12-17 Part of Appendix A of the Final Revised Report by C&R Consulting, volume 2, 12 June 2008 82-131 Appendix C: Soils of the Site, Pits 1999 and 2001 of the Final Revised Report by C&R Consulting, volume 2, 12 June 2008 156-204; 208-229; 230-294; 296-297; 301-457 Parts of Appendices E: Analytical Results (including previous reports) E1-E8 458-525 Fairfield Waters Precinct 3NAdditional Investigations, 21 December 2007 BNE 2239 Vol 12 32-91; 97-107; 117-121; 171-220 Parts of Fairfield Waters Final Report by C&R Consulting, 29 June 2007 (including appendices) Loose Docs 2 15-31 Part of SGS Report 46170445.4A, Addendum to Volume 1 of 1, submitted April 1998 76-78 Letter from Australian Environmental Laboratories to SGS, 5 March 2008 Loose Pages 13-78 Part of C&R Consulting ‘Fairfield Waters Precinct 3N’ Additional Investigations, 21 December 2007 Findings 37. Pursuant to section 21 of the FOI Act, a person has a legally enforceable right to be given access under the FOI Act to documents of an agency and official documents of a Minister. This right of access is subject to other provisions of the FOI Act, in particular, section 28 of the FOI Act, which provides that an agency may refuse access to exempt matter or an exempt document, and the provisions of Part 3, Division 2 of the FOI Act, which set out those exemption provisions. Section 45(1)(a) of the FOI Act 38. Section 45(1)(a) of the FOI Act provides: 45 Matter relating to trade secrets, business affairs and research (1) Matter is exempt matter if - (a) its disclosure would disclose trade secrets of an agency or another person; or ... 39. The Information Commissioner considered the meaning of ‘trade secrets’ in detail in paragraphs 42 – 49 of Cannon and Australian Quality Egg Farms Limited (Cannon).[7] 40. In Searle Australia Pty Ltd v Public Interest Advocacy Centre (Searle),[8] the court said: The determination of what is a trade secret is primarily a question of fact for the administrative decision-maker. Nevertheless, it is an error of law for a decision-maker to define a statutory criterion in terms which are not reasonably open. 41. Having regard to the comments in Searle, generally speaking, the following principles are applicable to an analysis of the meaning of a trade secret: • a trade secret has been referred to as ‘any formula, pattern or device or compilation of information which gives an advantage over competitors who do not know or use it’.[9] • the following indicia have largely been accepted as elements of a trade secret: ○ the extent to which the information is known outside of the 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.[10] • there is no requirement that information which is a trade secret be of a technical nature[11] • in Cannon,[12] the Information Commissioner noted the other factors which received emphasis in the Full Court’s judgment in Searle including: ○ 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 ○ that information, originally secret, may lose its secret character with the passage of time ○ that the relevant information be used in, or useable in, a trade or business; ○ that the relevant information would be to the advantage of trade rivals to obtain; ○ that trade secrets can include not only secret formulae for the manufacture of products, but also information concerning customers and their needs. • having regard to the wording of section 45(1)(a) of the FOI Act, there is no need to prove or describe the harm that would be occasioned to business interests due to disclosure of a ‘trade secret’.[13] It is sufficient that disclosure of the matter would disclose trade secrets of any agency or other person. Third Party submissions 42. The Third Party submits that: The method developed for the in-situ remediation of the site in a Tropical area represents a research advance on methods described in the literature and available elsewhere. Whereas other methods have been compound or agent specific, this method is quite deliberately non-specific and is analogous to a strong, broad spectrum antibiotic approach to resistant bacteria. In this case the resistant bacteria are equivalent to a broad range of environmentally intransigent Polycyclic Aromatic Hydrocarbons (PAH’s) which are broken down by a broad spectrum of biodegradation bacteria. The complementary use of both acidic alkaline nutrient media is unique and particularly appropriate to Tropical areas with high annual temperatures. On account of the novel nature of this approach we seek exemption from release under FOI using the provisions of Section 45... and: There is no information in the report indicating proprietary technology or commercial-in-confidence but the “Important Note” at the beginning of the report, in our view covers this matter. and further: Our client objects to the release of documents to Fairfield Land Pty Limited because that entity has already been supplied with an original and copies of the report the subject of the application. Our client objects to the release of documents to any party because the report contains trade secrets comprising the specifics of the recommended remediation treatment... Once armed with the information such parties could use the information to remediate sites contaminated with TPH/BTEX/PAH. These processes are subject to a patent that is in the process of being drafted and release of that information would seriously prejudice the prospects of successful prosecution of the patent. These are trade secrets within the meaning of section 45(1) of the Act and are therefore an exempt matter. Application of section 45(1)(a) of the FOI Act 43. I have considered the application of section 45(1)(a) of the FOI Act to the matter in issue having regard to the submissions referred to above. 44. On the information available to me, I am satisfied that: • the Third Party disseminated the Report by previously providing it to a director of one of the Applicant companies • there is no evidence that the Report was provided to the Applicants by the Third Party on a confidential basis • the relevant information does not have, or has lost its ‘secret character’ because its dissemination was not confined • there is no evidence that the Third Party took any steps to guard the secrecy of the information contained in the Report. 45. Accordingly, I am satisfied that the matter in issue is not exempt from disclosure under section 45(1)(a) of the FOI Act. Section 45(1)(b) of the FOI Act 46. Section 45(1)(b) of the FOI Act provides: 45 Matter relating to trade secrets, business affairs and research (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 47. The Information Commissioner considered the requirements of section 45(1)(b) of the FOI Act in paragraphs 51-60 of Cannon. 48. The relevant principles from Cannon in relation to the application of section 45(1)(b) of the FOI Act can be summarised as follows: • there are two possible interpretations of the phrase ‘commercial value’ in the context of section 45(1)(b) of the FOI Act which are set out below: o information has commercial value for the purposes of section 45(1)(b) of the FOI Act 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. o information has commercial value for the purposes of section 45(1)(b) of the FOI Act 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 to whether section 45(1)(b) applies. This is because 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 the purposes of section 45(1)(b) of the FOI Act. • furthermore, 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. 49. In Attorney-General v Cockcroft (Cockcroft) [14] 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:[15] 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). 50. 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 45(1)(b) of the FOI Act. 51. 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 destroy or diminish the commercial value of the information is reasonably based. 52. 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.[16] Third Party submissions 53. The Third Party submits that: The business and commercial context of this application and review is that our client has issued but remains unpaid for invoices rendered for providing the report the subject of the application in the sum of $54,780.00 (Invoice dated 19 May 2008 for $51,260.00 and Invoice dated 14 August 2008 for $3,520). On 11 July 2008 Grant McComish of Fairfield Land Pty Ltd advised our client by email that the invoice for $51.260.00 would be processed for payment, but that invoice was not paid. The invoice issued on 14 August 2008 for $3,520 also remains unpaid. Our client is concerned that the applicants are seeking to get a copy of the report by means of a request under the Act because one or more of the applicants have misplaced or lost control of the original report given to Fairfield Land Pty Limited, or require the report to be provided pursuant to the Act to satisfy some other proposed use of the report or the information contained within it. A full copy of the report and copies having been provided to Fairfield Land Pty Limited, they cannot see any other legitimate basis for a request to access to the report. Release of the report will deprive our client of the only commercial lever or business pressure point it may have to recover fees of $51,260.00 due by Fairfield Land Pty Limited for the report. Our client is a small business and the information in the report has a commercial value not only to the those with an interest in the land the subject of the report, but also has a commercial value to our client in the sense that it can only realise the value of the work by getting payment for it. ... The report contains information with a commercial value to Fairfield Land Pty Ltd and/or Fairfield Constructions Pty Ltd and/or to our client that will be diminished on release to Fairfield Land Pty Ltd or Lancomp Pty Ltd or to Fairfield Constructions Pty Ltd because once disclosed, it could reasonably be expected that Fairfield Land Pty Ltd and/or Fairfield Constructions could use the information without having to pay our client for it, thus diminishing its value. The report discloses a method to remediate the land, that has a commercial value to our client, and disclosure could reasonably be expected to diminish the value the commercial value of the information to our client because it removes all incentive for Fairfield Land Pty Ltd to pay for the report. This satisfies the requirements of section 45(1)(b) of the Act. and: Commercial value in the C&R reports contemplated by s45(1)(b) of the FOI Act In the decision of Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 (the “Cannon Case”), cited in your letter, the Information Commissioner stated at paragraphs 54 and 55 that: It seems to me 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 s45(1)(b) of the FOI Act. ... The second interpretation of “commercial value” which is reasonably open is that information has commercial value to an agency or another person if a genuine, arms-length buyer is prepared to pay to obtain that information from that agency or person. it would follow that the market value of that information would be destroyed or diminished if it could be obtained from a government agency that has come into possession of it, through disclosure under the FOI Act. The C&R Reports which are the subject of the application contain information that has a commercial value to C&R, as C&R prepared the C&R reports on the basis that C&R would be paid for the C&R Reports. The information contained in the reports was prepared for a specific purpose with high degree of expertise and analysis. The methodology and style of the report has been developed by C&R and of itself holds commercial value. That commercial value is the amount C&R invoiced for the C&R Reports, which remains unpaid. Once that commercially valuable information is obtained then its commercial value is diminished if not destroyed. The statements in your letter ... are contrary to the legal position as disclosed by the dicta in the Cannon Case. Accordingly, we submit the C&R reports do have commercial value for the purposes of section 45(1)(b) and any decision made pursuant to the FOI Act should be made on that basis. Prior disclosure of information is not determinative The Federal Court case of Re Searle Australia Pty Ltd v Public Interest Advocacy Centre and Department of Community Services and Health [1992] FCA 241 (the “Searle Case”), also cited in your letter, was an appeal from the Administrative Appeals Tribunal concerned with exemption under s 43(1)(b) of the Federal Freedom of Information Act (upon which s45(1)(b) of the FOI Act is based). The Searle Case related in part to information, some of which was published. At paragraphs 46 to 48 of the Searle Case, Davies, Wilcox and Einfeld JJ stated the following:- .. the question under s43(1)(b) is... whether the commercial value of the information could reasonably be expected to be destroyed or diminished if it were disclosed... The decision-maker is concerned...with the effect of disclosure. ... The Tribunal went on to say:- “...The Tribunal is of the view that to interpret s 43(1)(b) as applying to the compilation of material otherwise publicly available would not be in accord with the object of the Act nor the intention of Parliament... On this basis, the Tribunal refused the disclosure of some documents but not of others. ... In those paragraphs, the Tribunal stated the question as whether the information contained in the documents, which included information as to the particular tests made by Searle, had commercial value. But to find that similar results were stated in public articles would not conclude the inquiry. Commercial value may attach to information contained in any documents which concerned the nature of, techniques used in, and the actual results of Searle’s tests. The Tribunal did not make the findings required in this respect. Prior disclosure of the information, it itself, does not determine that there is no commercial value in the information or that any commercial value would not be diminished or destroyed by disclosure. The Information Commissioner should consider the effect of disclosure. The statement in your letter set out in paragraph 3(c) above is not consistent with the reasoning applied in Searle’s Case, and we submit, would be rejected. It is also relevant to consider that although Fairfield Land Pty Limited (“Fairfield Land”) the owner of the land to which the C&R Reports relate, was provided with a copy of the C&R Reports, C&R believes that Fairfield Land is no longer in possession of the information in the C&R Reports. This is evidenced by the Freedom of Information application by Fairfield Construction Pty Limited (“Fairfield Construction”), a company in the same company group as Fairfield Lands. If Fairfield Land still had the C&R Reports, Fairfield Construction would be able to obtain the report from Fairfield Land (its sister company) and there would be no need for the Freedom of Information application. We consider any assessment should be made on the basis that Fairfield Construction or its related entities are not in possession of the information in the C&R reports. Yardstick for evaluating effects of disclosure The Information Commissioner states at paragraph 84 of the Cannon Case that:- ...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).) Disclosure would destroy commercial value in the C&R reports Using the above yardstick and considering the effect of disclosure, the commercial value of C&R Reports would be destroyed if they were disclosed to Fairfield Land whom the information in the C&R Reports concerns. The commercial value in the C&R Reports includes C&R’s ability to use the C&R Reports as a commercial lever or business pressure point to procure payment in respect of the C&R Reports. The quantum of the commercial value is $54,780. If the C&R Reports were disclosed to Fairfield Construction, there would be no incentive for Fairfield Land to pay C&R’s invoices thereby destroying the commercial value in the C&R Report. Application of section 45(1)(b) of the FOI Act 54. I have considered the application of section 45(1)(b) of the FOI Act to the matter in issue having regard to the submissions referred to above. 55. It is agreed that: • the Third Party was engaged by one of the Applicant companies to prepare a report regarding the subject land • the Report was prepared by the Third Party and provided to a director of both Applicant companies. 56. I must determine whether the information contained in the Report has commercial value in either of the senses described in Cannon and if it does, whether its disclosure could reasonably be expected to destroy or diminish that commercial value. 57. In summary, the Third Party submits that: • the commercial value of the Report is the amount the Third Party invoiced the Applicants for the preparation of the Report • the invoiced amount remains unpaid • if the Report is disclosed to the Applicants, then its commercial value is diminished if not destroyed because there would be no incentive for the Applicants to pay the invoiced amount which remains owing to the Third Party. 58. I have carefully considered all of the matters set out above. 59. On balance, I find that: • the effect of the Applicants’ alleged non-payment of an invoice (to which the Third Party refers) does not ascribe the type of commercial value contemplated by s.45(1)(b) of the FOI Act to the information contained in the Report itself • any commercial value to the Third Party arises out of the relevant contractual arrangement between the parties • it is a matter for the Third Party whether it chooses to enforce its contractual arrangement with the Applicants to recover monies allegedly owed (in proceedings outside of this freedom of information application) • disclosure of the Report will not impact upon the Third Party’s ability to sue on that contract. 60. I am also satisfied that neither of the Applicant companies comprise a genuine arms-length buyer in the marketplace as contemplated by s.45(1)(b) of the FOI Act as: • one of the Applicant companies commissioned relevant work from the Third Party which is the subject of the Report • the Third Party has previously provided a director of both Applicant companies with a copy of the Report. 61. In summary, I am satisfied that: • the information contained in the matter in issue does not comprise information having a commercial value in either of the senses described in Cannon • even if the information did possess intrinsic commercial value, its disclosure could not reasonably be expected to destroy or diminish that commercial value as the effect of disclosure is to release a Report which has already been disclosed to a director of both Applicant companies • the matter in issue is not exempt from disclosure under section 45(1)(b) of the FOI Act. Section 45(1)(c) of the FOI Act 62. 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. 63. The Information Commissioner considered the application of section 45(1)(c) of the FOI Act in Cannon.[17] In summary, matter will be exempt under section 45(1)(c) of the FOI Act if it satisfies the following three cumulative requirements: • the information concerns the business, professional, commercial or financial affairs of an agency or person, including a company (other than trade secrets or information mentioned in section 45(1)(b) of the FOI Act) (Requirement 1) • disclosure of the relevant information could reasonably be expected to have either of the following effects: ○ an adverse effect on the business, professional, commercial or financial affairs of the agency or person, which the relevant information concerns; or ○ prejudice to the future supply of such information to government (Requirement 2) • the weight of all identifiable public interest considerations against disclosure equals or outweighs that of all of the identifiable public interest considerations favouring disclosure (Requirement 3). Applicants submissions 64. In summary, the Applicants relevantly submit that: • the matter in issue cannot properly be characterised as information concerning the business, commercial or financial affairs of C&R ○ the information contained in the excluded material deals with remedial management of contaminated land and the dealings of C&R with the EPA for and on behalf of the Applicants. The documents do not discuss the business, commercial or financial affairs of C&R. The fact that the documents were generated in the course of consultancy operations, and employs methodology developed by C&R, does not, of itself, mean that the matter in issue concerns C&R’s business, commercial or financial affairs. (Spilsbury and Brisbane City Council 1997 at para 48) • disclosure of the documents in issue could not reasonably be expected to have an adverse effect on the business, commercial or financial affairs of C&R ○ the reports are an important source of information to establish the relevance of the chosen method of remediation in relation to contaminated land on the Lot 1 on RP 705903 and Lot 2 on RP 715670, the effectiveness of this method and which are necessary to understand the remediation and validation process involved. They are not directly relevant to the decision of the Department regarding whether or not the land in question could be removed from the Environmental Management Register, and consist almost entirely of information crucial to the Applicants’ proposed development of the land. The Applicants have no intention to use the information sought for commercial purposes, therefore the documents should not be exempt (Readymix Holdings Pty Ltd and Port of Brisbane Corporation; Brisbane Mini Mix Pty Ltd (Third Party) 2003 F0501, 15 December 2003). ○ The information from the C&R report is embodied in a Third Party review report titled ‘No: REP001 by ENSR Australia as Third Party Reviewer of C&R Consulting Report: Fairfield Waters Lot 903 SP111983’. The material and the quantities of the material used for bioremediation of the site have already been disclosed to ENSR Australia in the C&R Consulting Report and can be found in the ENSR Australia Report REP001. Therefore, the disclosure of the information in issue could not reasonably be expected to have an adverse effect on the business, commercial or financial affairs of C&R. ○ The methods and quantities of materials used by Dr Cuff in remediation of the land are already known to all participants. Therefore, the disclosure of the information in issue will not reveal any trade secrets and consequently damage C&R Consulting’s financial position. Department submissions 65. In the Original Decision the Department states that: The information in these folios concerns the business, professional, commercial or financial affairs of companies with which this Agency has dealt. In deciding whether the above information should be released, I have obtained and considered the views of third parties. Those views include objections to release of the matter in question. Having considered the arguments put forward, in conjunction with the content of the documents in question, I am of the belief that disclosure of this information could have an adverse effect on the affairs of those companies. Hence I consider that this information is, prima facie, exempt. I next need to consider whether public interest considerations would favour the disclosure of this information. Whilst the object of the Act is to extend as far as possible the right of the community to have access to information held by the Queensland Government in the interests of open and accountable government, it was not intended to enable a Third Party to access documents relating to a company’s commercial operations the release of which could ultimately affect the viability of that operation. I believe on balance, the public interest test in this instance does not overturn the argument for non-disclosure, since the effect on the companies’ commercial affairs would be disproportionate to any benefit to the public as a result of disclosure. I believe the documents satisfy the criteria for exemption under section 45(1)(c) and as such should not be released. Third Party submissions 66. The Third Party’s submissions are set out in paragraphs 42 and 53 of this decision. 67. In relation to the Third Party review report REP001 by ENSR Australia, the Third Party submits that: We do not have a copy of the document entitled "Report of Third Party Reviewer of C & R Consulting Report: Fairfield Waters Lot 903 SP111983" and consequently we cannot answer specifically the comments made in relation to this report. On the information provided, however, we would certainly contest some of the points listed. 1.There is disclosure in section 8.2 of the C & R report of 12 June,2008, relating to a literature search. The majority of the references listed therein are post November 2001, the time that the methodology was developed. Consequently, at the time of the initiation of the investigation, the methodology was not developed nor well known. This is particularly the case for the specific situation of the remediation of Polycyclic Aromatic Hydrocarbons (PAH'S) in the seasonally arid tropics. Thus we contest some of the assertions made within dot point one, specifically parts 1 and 3. 2. With respect to dot point 1, part 2, the communication from Greg O'Brien (EPA) was a short, 5-line,reply to a fax sent, by us, on 14 November 2001 where he is in fact agreeing with our suggestions in relation to the land-farming. He did make the suggestion of adding brioler house manure but this was not done and instead raw chook manure was added. Application of section 45(1)(c) of the FOI Act Requirement 1 68. For information to ‘concern’ the business, professional, commercial or financial affairs of a person or agency, it must be information ‘about’ or ‘regarding’ those affairs.[18] 69. As noted in Readymix Holdings Pty Ltd and Port of Brisbane Corporation; Brisbane Mini Mix Pty Ltd (Third Party),[19] It is not enough that the matter in issue has some connection with a business, or has been provided to an agency by a business, or will be used by a business in the course of undertaking business operations. The matter in issue must itself be information about business, commercial or financial affairs, in order to satisfy this requirement. 70. In paragraph 73 of Cannon, the Information Commissioner said that as none of the words business, professional, commercial or financial affairs were defined in the FOI Act, they are to be given their ordinary meaning, or whichever of their accepted meanings is most appropriate to the statutory context. The meaning of each of ‘business, professional, commercial and financial affairs’ has been considered in previous decisions of this Office.[20] 71. In relation to business affairs, the Information Commissioner has said: For a matter to relate to ‘business affairs’ in the requisite sense, it should ordinarily, in my opinion, relate to the affairs of a business undertaking which is carried on in an organised way (whether it be full time or only intermittent) with the purpose of obtaining profits or gains (whether or not they actually be obtained)[21] and sought assistance from the comments of O’Bryan J in Accident Compensation Commissioner v Croom[22] who considered that: ... it would be necessary to show that the information impinged some way or other upon the actual conduct or operations of the undertaking itself. 72. In Queensland Community Newspapers Pty Ltd and Redland Shire Council; Civic Projects (Raby Bay) Pty Ltd, Sinclair Knight Merz, Coffey Partners International Pty Ltd (Third Party), the Information Commissioner said: It is not sufficient that the information in issue is derived from a business, or has a connection with a business, or will be used by a business in the course of undertaking its business operations ... The matter in issue must itself be information about business, professional, commercial or financial affairs, in order to satisfy the first element of the test ...[23] 73. The Information Commissioner considered the application of section 45(1)(c) of the FOI Act to a report recommending a waste water management strategy, prepared by two consultants in Spilsbury and Brisbane City Council: John Wilson and Partners Pty Ltd, Environmental Resources Management (Qld) Pty Ltd (Third parties).[24] At paragraph 48, the Information Commissioner said: The fact that the Report was generated in the course of JWP’s and ERM’s consultancy operations, and employs methodologies developed by them does not, of itself, mean that the matter in issue concerns their business, commercial or financial affairs. 74. The matter in issue can generally be described as a report concerning the remediation of the subject land and related correspondence that was provided to the Applicants and the Department by the Third Party. 75. Having considered the content of the matter in issue, I accept the submissions made by the Applicants that the information itself does not concern the business, professional, commercial or financial affairs of the Third Party. 76. Given my finding that the first requirement for exemption from disclosure under section 45(1)(c) of the FOI Act is not satisfied in the circumstances, it is unnecessary to determine the further requirements of the exemption provision. 77. On the basis of the matters set out above, I find that the matter in issue is not exempt from disclosure under section 45(1)(c) of the FOI Act. Section 45(3) of the FOI Act 78. Section 45(3) of the FOI Act exempts matter which would disclose the purpose or results of research in certain circumstances. 79. In particular, Section 45(3) of the FOI Act provides that: 45 Matter relating to trade secrets, business affairs and research (3) Matter is exempt matter if - (a) it would disclose the purpose or results of research, whether or not the research is yet to be started, the research has started but is unfinished, or the research is finished; and (b) its disclosure could reasonably be expected to have an adverse effect on the agency or other person by or on whose behalf the research was, is being, or is intended to be, carried out. 80. Information will only be exempt if the following two cumulative requirements are satisfied: a) it discloses the purpose or results of research; and b) its disclosure could reasonably be expected to have an adverse effect on the agency or other person by or on whose behalf the research was, is being, or is intended to be, carried out. Applicants submissions 81. In summary, the Applicants submit that: • disclosure of the matter in issue would not disclose the purpose or results of ‘research’ in the sense that word is used in the context of section 45(3) • the reports were produced to reflect on the process and the method of remediation of the contaminated land adopted by the Third Party in relation to the property of Fairfield Constructions Pty Ltd for the purpose of removing the land from the Environmental Management Register. The report was not produced to record any systematic enquiry or investigation into the subject to discover new conclusions by the critical study of a subject, but to reflect on the remediation progress the successfulness of which went to the very nature of the contract between the Third Party and Fairfield Constructions Pty Ltd • alternatively, if the reports were to be viewed as disclosing the purpose or results of research, section 45(3) does not extend to the research which has been completed. In this case, any research has been completed and incorporated in the reports, so that the matter in issue does not qualify for exemption under section 45(3) (Spilsbury and Brisbane City Council 1997 at para 58) • the Objective test for the exemption of the matter under section 45(3) refers only to adverse effects on an agency or person by on whose behalf research is being carried out. The Third Party produced the reports whilst under a contractual obligation to Fairfield Constructions Pty Ltd. Therefore, Fairfield Constructions Pty Ltd is a company on whose behalf the research was carried out and a beneficiary of the research. The matter cannot have an adverse effect on Fairfield Constructions Pty Ltd as a beneficiary of the research and should not be exempt under section 45(3) • the Third Party was engaged as a paid agent of Fairfield Constructions Pty Ltd at all times. All reports produced by the Third Party in respect of Fairfield Construction Pty Ltd’s property were issued in the capacity of an agent of Fairfield Constructions Pty Ltd and for their benefit. Therefore, the reports in issue are, in fact, intellectual property of Fairfield Constructions Pty Ltd vested in Fairfield Constructions Pty Ltd by virtue of consultancy and agreement (Spilsbury and Brisbane City Council 1997). Third Party submissions 82. The Third Party’s submissions are set out in paragraphs 42, 53 and 67 of this decision. Application of section 45(3) of the FOI Act 83. The Information Commissioner has previously considered the meaning of the word ‘research’ in the context of section 45(3) of the FOI Act and found that it was used in the sense of ‘a search or investigation undertaken to discover facts and reach new conclusions by the critical study of a subject or by a course of scientific enquiry’, or a ‘diligent and systematic enquiry or investigation into a subject in order to discover facts or principles.’ [25] 84. On the information available to me, I find that the matter in issue was prepared by the Third Party in relation to the remediation of the relevant land and could not be described as ‘a search or investigation undertaken to discover facts and reach new conclusions by the critical study of a subject or course of scientific enquiry’ or a ‘diligent and systematic enquiry or investigation into a subject in order to discover facts or principles’ for the purpose of section 45(3) of the FOI Act. 85. In this respect, I accept the Applicants submission that the matter in issue is not research for the purpose of section 45(3) of the FOI Act. 86. Further, I am not satisfied that there is a reasonable basis for expecting that disclosure of the matter in issue could have an adverse effect on the person by or on whose behalf the research is carried out (one of the Applicant companies) because the matter in issue has already been disseminated by the Third Party to a director of the Applicant companies.[26] 87. Accordingly, the matter in issue does not qualify for exemption under section 45(3) of the FOI Act. DECISION 88. I set aside the decision under review and find that the matter in issue is not exempt from disclosure under section 45(1)(a), 45(1)(b), 45(1)(c) or 45(3) of the FOI Act. 89. 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: 23 December 2009 [1] Formerly the Environmental Protection Agency.[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] Although the applicants’ External Review Application was made outside of the time limit specified in section 73(1)(d) of the FOI Act, the Office decided to exercise discretion under section 73(1)(d) of the FOI Act to extend the time for the applicants to apply for external review given the short time period involved, the lack of likely prejudice to the Department and the issues raised in the application.[6] An ASIC Current and Historical Extract as at 13 January 2009 confirms that Mr Grant McOmish is a director of Fairfield Land Pty Ltd and Fairfield Constructions Pty Ltd (a copy of this Extract was provided by the Third Party by letter dated 4 December 2009).[7] [1994] QICmr 9; (1994) 1 QAR 491. [8] [1992] FCA 241; (1992) 108 ALR 163, Davies, Wilcox and Einfeld JJ at page 172.[9] See 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 (Ansell Rubber).[10] Restatement of the Law of Torts (1939, Volume 4) referred to by Gowan J at page 50 of Ansell Rubber.[11] Searle, page 172 – 173.[12] At paragraph 49.[13] Cannon at paragraph 36.[14] [1986] FCA 35; (1986) 64 ALR 97.[15] Cockcroft, at 106. [16] Cockcroft, at 106.[17] See paragraphs 67 – 88.[18] See paragraph 67 of Cannon.[19] (2003) 6 QAR 294 at paragraph 41.[20] For instance, see Cannon.[21] See Cannon, citing the Information Commissioner’s earlier decision in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 at paragraph 103.[22] [1991] VicRp 72; [1991] 2 VR 322 at page 330. See paragraph 75 of Cannon.[23] [1998] QICmr 2; (1998) 4 QAR 262. See also Readymix Holdings Pty Ltd and Port of Brisbane Corporation; Brisbane Mini Mix Pty Ltd (Third Party) (2003) 6 QAR 294 at paragraph 41.[24] (1999) 5 QAR 335 at paragraph 48.[25] O’Dwyer and the Workers’ Compensation Board of Queensland [1995] QICmr 31; (1995) 3 QAR 97 at paragraph 23.[26] See section 45(4) of the FOI Act which states that ‘matter is not exempt under subsection (3) merely because it concerns research that was, is being, or is intended to be, carried out by the agency or other person by, or on whose behalf, an application for access to the document containing the matter is being made.’

queensland

court_judgement

Queensland Information Commissioner 1993-

Gapsa and Public Service Commission [2016] QICmr 6 (11 February 2016)

Gapsa and Public Service Commission [2016] QICmr 6 (11 February 2016) Last Updated: 20 January 2017 Decision and Reasons for Decision Citation: Gapsa and Public Service Commission [2016] QICmr 6 (11 February 2016) Application Number: 312336 Applicant: Gapsa Respondent: Public Service Commission Decision Date: 11 February 2016 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – GROUNDS ON WHICH ACCESS MAY BE REFUSED – UNLOCATABLE AND NONEXISTENT DOCUMENTS – documents relating to public sector reform process – applicant believes further documents should exist – whether the agency has taken all reasonable steps to locate the documents – whether access to further documents may be refused under sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Public Service Commission (PSC) under the Right to Information Act 2009 (Qld) (RTI Act) for access to information about the restructuring of the Queensland public sector between January 2012 and June 2013. The PSC located 59 pages and initially, refused access to four full pages and five part pages. The applicant applied to the Office of the Information Commissioner (OIC) for external review on the basis that the PSC had conducted insufficient searches. During the external review, the PSC agreed to grant the applicant full access to all 59 pages. The PSC also conducted further searches of its records and provided OIC with submissions about its recordkeeping systems and practices. The applicant maintained, throughout the review, that the PSC should have located vastly more documents due to its role in the public sector reform process. For the reasons set out below, I find that access to any further documents may be refused under section 47(3)(e) of the RTI Act on the basis that they are either non-existent or unlocatable. Background Significant procedural steps relating to the application and external review are set out in the Appendix to this decision. During the review, the Right to Information Commissioner (RTI Commissioner) issued a decision, under section 94(1) of the RTI Act, that part of the external review application was lacking substance and would therefore, not be dealt with on external review.[1] In summary, the RTI Commissioner decided that certain submissions made by the applicant were seeking answers to questions about the legality of actions taken by the PSC with respect to the public sector reform process, rather than seeking access to further specified documents.[2] The applicant has continued to make these submissions throughout the external review. However, I have no power to revisit the issues which were the subject of the RTI Commissioner’s decision under section 94(1) of the RTI Act. Therefore, those submissions are not addressed in these reasons for decision. Reviewable decision The decision under review is the internal review decision dated 22 December 2014. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including footnotes and appendix). Issue for determination During the review, the applicant pointed to a number of specific documents which he considered were missing.[3] Several of these documents were later identified as having previously been released to the applicant.[4] However, one email was unable to be located by the PSC in its further searches (Missing Email).[5] The applicant has also submitted throughout the review that additional policies and procedures should have been located by the PSC due to its role in the public sector reform process. The issue which OIC has considered in this external review is whether the PSC has taken all reasonable steps to locate all documents relevant to the access application, including the Missing Email and policies and procedures. Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[6] This right is subject to other provisions of the RTI Act, including grounds for refusing access to documents.[7] Access may be refused to nonexistent or unlocatable documents.[8] A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find the document, but it cannot be found.[9] To refuse access on the basis of nonexistence, the decision maker must be satisfied that the document does not exist.[10] The RTI Act is silent on how an agency is to satisfy itself that a document does not exist. In PDE and The University of Queensland,[11] the Information Commissioner explained that, to be satisfied that a document does not exist, an agency must rely on its particular knowledge and experience, having regard to various key factors including: the administrative arrangements of government the agency structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including but not limited to information management); and other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested documents and the nature of the government activity to which the request relates. When the above factors are properly considered and a conclusion reached that the document does not exist, it may be unnecessary for an agency to conduct searches for a document. Instead, the agency may be able to provide an explanation for the document’s non-existence, based on the above factors. However, an agency may also rely on searches to justify a decision that the document does not exist. If an agency relies on searches, all reasonable steps must be taken to locate the requested document.[12] In determining whether all reasonable steps have been taken, regard should be had to the factors listed above.[13] 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.[14] Generally, the agency that made the decision under review that has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[15] However, where an external review involves the issue of missing documents, the applicant has a practical onus to establish reasonable grounds to believe that the agency has not discharged its obligation to locate all relevant documents.[16] Applicant’s access application and submissions The access application requested: ‘All briefing materials prepared in relation to the lawful selection processes to be used by PSC to lead reform and renewal across the Queensland Public Service (QPS) in 2012-2013. The statutory authority in the Public Service Act 2008 and relevant Directive that was used to advise on “closed merit selection” processes used to select staff as surplus. Briefing advice on appeal processes linked to the closed merit selection processes used to advise Ministers or QPS agencies. Material identifying the “head of power” or the legal basis for public policy relating to the selection of any QPS staff as surplus.’[17] The applicant made extensive submissions in his external review application and throughout the review. Particularly, he submitted that there ‘were no policies or procedures captured that related to the “closed merit selection”’[18] even though he specifically asked for those types of documents in his application. He also identified that the PSC had located ‘limited or no responsive documents (pages) from key personnel in relation to “closed merit selection”’.[19] The applicant also submitted to OIC that further documents would: ‘... explain deficiencies in the conduct of administration and to reveal that the “closed merit selection” process was ultra vires and was conducted contrary to the statutory authority.’[20] The applicant also raised the following concerns: the majority of the 59 pages released to him ‘related to actions that only occur after a public servant has been lawfully selected as a surplus employee’[21] the PSC did not search its backup system, ‘despite evidence of non-compliance with statutory obligations in relation of recordkeeping of public records’ there ‘must be documents sent by the PSC to Queensland Government agencies to inform them on how to use a closed merit selection process’; and there is ‘no evidence that individuals associated with the Public Service Reforms in 2012 have searched physical files, electronic files, emails, USB sticks, personal or group drives at the PSC’.[22] The applicant provided OIC with a copy of the Missing Email, which he had previously obtained from DTMR, to support his submission that the PSC’s searches were inadequate. The applicant submitted that because the PSC had responsibility to administer the Public Service Act 2008 and related directives concerning human resource management and industrial relations relating to the public sector reform process, documents that provide ‘authority for the processes used’[23] should have been located. In the absence of such documents, the applicant contended that it is reasonable to conclude that the PSC has not undertaken all reasonable searches to locate responsive documents. Searches conducted by PSC The 59 pages located by the PSC included: various briefing notes about managing employees requiring placement, workforce management initiatives, new directives affecting public service employees and the approval and repeal of directives proposed framework for managing employees requiring placement emails attaching drafts of the directive ‘Early retirement, redundancy and retrenchment’; and emails between the PSC and other agencies about the employees requiring placement register and the appeals process. The internal review decision states that the PSC took the following steps to identify documents in response to the access application: searches were conducted of email accounts, TRIM[24], hard copy records using key words and manual reviews of documents searches were undertaken within the functional areas of the PSC that may have held relevant documents, being Workforce Policy and Legal, Workforce Strategy and the Performance, Industrial Relations areas; and searches were also conducted by individual officers who may have had involvement with the production of documents on topics relevant to the access application.[25] On external review, the PSC submitted a search certification form[26] to OIC stating that: searches had been conducted in TRIM for relevant letters, emails, briefing notes, reports and other information; and the search criteria included subjects such as briefing notes, emails, directives and other information on: employees requiring placement; directives related to redundancy and retrenchment; closed merit selection and head of power (mentioned in briefs and directives). The PSC explained that it uses TRIM to save email correspondence about business decisions or information relating to significant projects/programs. The PSC confirmed that it searched TRIM twice for information responding to the application. The PSC also asked the Information Services Team in DPC[27] to specifically search for the Missing Email. However, it was unable to be located. The PSC did not make direct inquiries with the author of the Missing Email as she left Queensland Government employment in early 2015. Findings The applicant sought access to a broad range of documents used by the PSC in relation to the public sector reform process, particularly, materials relating to the “closed merit selection” processes. The thrust of the applicant’s submissions on external review has been that there should be vastly more documents due to the ‘central role’ of the PSC in the reform process.[28] The applicant firmly believes that the PSC should hold more policies and procedures about administering and implementing the closed merit selection processes used to select public service staff as surplus. The PSC played a key role in the renewal of the public sector during 2012-2013, by ‘leading reform and renewal across the sector, driving the cultural change required to achieve it, and supporting government agencies through the process’.[29] The released documents show that the PSC prepared directives, information sheets and guidelines for agencies to use in managing organisational change and effecting staff placements during the reform process.[30] As set out above, the PSC located various briefing materials, information sheets and communications relating to managing the reform process, workplace change and employee placement. In the circumstances of this case, I am satisfied that the types of documents located by the PSC on this application represent those documents which it would be reasonable to expect the PSC to hold in relation to the subject matter of the application, having regard to the nature of the PSC’s functions and responsibilities in relation to the public sector reform process. Having carefully reviewed the content of the released documents, I am also satisfied that they do not point to the existence of any further documents which have not been located by the PSC. The TRIM system is the PSC’s primary storage location for documents and communications relating to projects and programs administered by the PSC. In view of the types of documents the applicant is seeking and the subject matter of the application, I am satisfied that the PSC’s searches of TRIM should have identified all relevant documents. The Missing Email is a document which should be in the possession of the PSC. The evidence available to OIC indicates that it should have been saved into TRIM, but that this did not occur. As it was not stored in accordance with the PSC’s usual recordkeeping practices, I find that the Missing Email is unlocatable. I do not agree with the applicant’s view that the PSC’s inability to locate this email indicates that its searches have been inadequate. I am satisfied that the PSC has taken all reasonable steps to locate the Missing Email, having regard to its recordkeeping practices and procedures. As the applicant already has a copy of the Missing Email in his possession, I do not consider it would be reasonable for the PSC to undertake any further steps to locate a copy of this document. I am also satisfied that searches of the backup system are not required in this case.[31] I acknowledge the applicant’s firmly held belief that the PSC should hold more documents about a project of such significance. Throughout this review the applicant has provided extensive submissions to OIC to support his contention that more documents should be held by the PSC to substantiate this process. However, aside from the applicant’s assertions, there is no evidence available to OIC that indicates the existence of additional documents. The PSC has explained that it stores all documents and correspondence relating to business decisions and significant projects on TRIM. The PSC searched TRIM using terms that were consistent with the information the applicant provided in his access application. The documents it located through these searches have been released in their entirety to the applicant. These documents do not point to the existence of any additional documents. I am also unable to identify any additional searches that the PSC could reasonably be required to perform in response the particular terms of the access application. Having had regard to the PDE factors in this particular case, I am satisfied that the PSC has conducted searches which were reasonable based on the nature of the information requested by the applicant, the PSC’s recordkeeping practices and organisational structure and its functions and responsibilities in the public sector reform process. I am unable to identify any specific searches that the PSC could reasonably conduct in order to identify additional documents. I am therefore satisfied that the PSC does not hold any further documents in response to the application. Based on the evidence available to OIC in this review, I find that: the PSC has taken all reasonable steps to locate documents relevant to the access application; access to the Missing Email may be refused as it is unlocatable; and access to any further documents, including policies and procedures relating to the closed merit selection process, may be refused on the basis that they do not exist. DECISION I affirm the decision under review and find that the PSC is entitled to refuse access to further documents under 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 Right to Information Act 2009 (Qld). ________________________ K Shepherd Assistant Information Commissioner Date: 11 February 2016 APPENDIX Significant procedural steps Date Event 8 October 2014 PSC received the access application. 28 November 2014 PSC issued its initial decision in respect of the access application. 1 December 2014 The applicant applied for internal review of the initial decision. 22 December 2014 PSC issued its internal review decision. 7 January 2015 OIC received the application for external review of PSC’s decision. 7 January 2015 OIC notified the applicant that the external review application had been received. OIC notified PSC of the external review application and asked PSC to provide procedural documents by 14 January 2015. 10 February 2015 PSC provided OIC with additional information. 11 February 2015 OIC informed the applicant and PSC that the application had been accepted for external review. OIC requested that PSC provide, by 25 February 2015, a copy of the documents located in response to the access application, its search records and certifications, and other relevant documents. 24 February 2015 PSC provided OIC with the requested documents. 20 March 2015 OIC received the applicant’s submissions. 14 July 2015 OIC conveyed a written preliminary view to the applicant and invited him to provide submissions by 28 July 2015. 28 July 2015 OIC received the applicant’s submissions. 3 August 2015 OIC received the applicant’s submissions. 22 October 2015 OIC conveyed its written preliminary view to PSC on the refusal of access issues in this review, and invited PSC to provide submissions by 22 October 2015 if it did not accept the preliminary view. 27 October 2015 OIC conveyed a written preliminary view to the applicant and invited him to provide submissions by 11 November 2015. In this letter OIC also informed the applicant of the RTI Commissioner’s decision that part of his application was lacking substance and would not be dealt with on external review. 4 November 2015 PSC notified OIC that it would provide the applicant with full access to all 59 documents. 10 November 2015 OIC received the applicant’s submissions. 25 November 2015 OIC sought additional submissions from the PSC by 17 December 2015. 17 December 2015 OIC received PSC’s submissions. 24 December 2015 OIC conveyed a written preliminary view to the applicant and invited him to provide final submissions by 19 January 2016. 19 January 2016 OIC received the applicant’s submissions. 20 January 2016 OIC received the applicant’s submissions. 21 January 2016 OIC asked PSC to provide additional search information. 21 January 2016 PSC provided OIC with the requested additional information. [1] Letter dated 27 October 2015. [2] See Hearl and Mulgrave Shire Council [1994] QICmr 12; (1994) 1 QAR 557 at paragraphs 30-31.[3] Including fact and information sheets provided to agencies by the PSC about managing the public sector restructuring process. [4] PSC’s submissions dated 17 December 2015. Copies of these documents were provided to the applicant again in the course of this external review.[5] Email sent by K Armstrong, PSC, to G Rennie, DTMR, dated 13 July 2012.[6] Section 23 of the RTI Act. [7] Section 47 of the RTI Act. [8] Section 47(3)(e) of the RTI Act. [9] Section 52(1)(b) of the RTI Act.[10] Section 52(1)(a) of the RTI Act. [11] (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE).[12] PDE at [49] to [53].[13] PDE at [55].[14] Section 130(2) of the RTI Act. [15] Section 87(1) of the RTI Act. [16] Section 95 of the RTI Act provides that the procedure to be followed on an external review is within the discretion of the Information Commissioner. Section 96 provides that any participant must comply with a reasonable request made by the Information Commissioner for assistance, even where that participant does not have the onus under section 87 of the RTI Act. [17] Application dated 8 October 2014. The types of documents specified in the application were ‘Briefing notes, emails, reports, policies, procedures, Directives, Acts and the date range was identified as January 2012 to June 2013. [18] Page 5 of external review application.[19] Page 5 of external review application.[20] Page 5 of external review application. [21] Page 1 of submissions to OIC dated 19 January 2016.[22] Page 16 of submissions to OIC dated 19 January 2016. [23] Page 17 of submissions to OIC dated 19 January 2016. [24] Electronic Document and Record Management System (EDRMS), managed by the Department of Premier and Cabinet (DPC).[25] Internal review decision, pages 7-8. [26] Dated 24 February 2015, signed by the Director, Business Services, PSC.[27] This team is responsible for managing the TRIM system. [28] Submissions to OIC dated 20 January 2016.[29] PSC Annual Report, 2012-2013, page 6 available at http://www.psc.qld.gov.au/publications/subject-specific-publications/annual-report.aspx [30] These documents were released to the applicant initially by the PSC and again, on external review. [31] Section 52(2) and (3) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

VSC and Public Trust Office [2008] QICmr 16 (30 June 2008)

VSC and Public Trust Office [2008] QICmr 16 (30 June 2008) Office of the Information Commissioner Decision and Reasons for Decision Application Number: 210360 Applicant: VSC Respondent: The Public Trustee of Queensland Decision Date: 30 June 2008 Catchwords: FREEDOM OF INFORMATION – Section 43(1) of the Freedom of Information Act 1992 (Qld) – matter affecting legal proceedings – whether documents subject to legal professional privilege Section 45(1)(c) of the Freedom of Information Act 1992 (Qld) – matter relating to trade secrets, business affairs and research – whether disclosure of documents could reasonably be expected to have an adverse effect on the business, professional, commercial or financial affairs of an agency Contents REASONS FOR DECISION Summary 1. The documents in issue which comprise confidential communications and research materials (category 1 and 2 documents) are exempt from disclosure under section 43(1) of the Freedom of Information Act 1992 (Qld)(FOI Act). 2. With respect to the remaining documents in issue (category 3 documents) I find: • the documents comprising sub-categories 1, 2 and 3 (correspondence received or sent by the applicant, printouts of searches of the Queensland Courts’ website and records of administrative functions of the Official Solicitor or the PTQ) do not qualify for exemption from disclosure under either section 43(1) or section 45(1)(c) of the FOI Act • the documents comprising sub-category 4 (billing documents) qualify for partial exemption from disclosure under section 45(1)(c) of the FOI Act. Background 3. By letter dated 30 May 2007, the applicant applied for access under the FOI Act to (FOI Application) “...a copy of my file.” 4. On 24 July 2007, the Public Trustee of Queensland (PTQ) decided (Initial Decision) to grant the applicant: • full access to documents within Legal File No. 610628 • partial access to documents comprising: ○ Public Trustee file No. 20382915 ○ Legal file No. 380560. 5. By letter dated 5 August 2007, the applicant sought internal review of the Initial Decision and requested that the following documents be provided to her: • Mr Robert Moran’s notes of the GAAT hearing on 5 April 2005 • Mr Robert Yorke’s notes of the meeting the applicant attended on 13 November 2006. 6. On 3 September 2007, Mr I Kelly, Director Client Services at the PTQ affirmed the Initial Decision (Internal Review Decision) and provided the applicant with Mr Yorke’s notes and advised the applicant that he was unable to locate Mr Moran’s notes. 7. By letter dated 19 October 2007, the applicant requested an external review of the Internal Review Decision. Decision under review 8. The decision under review is Mr I Kelly’s Internal Review Decision dated 3 September 2007 refusing the applicant access to parts of the documents contained within: • Public Trustee file No. 20382915 • Legal file No. 380560. Steps taken in the external review process 9. By letters dated 21 November 2007, I advised both the applicant and the PTQ of my decision to: • exercise the discretion conferred by section 73(1)(d) of the FOI Act in favour of extending the time for the applicant to lodge an application for review of the Internal Review Decision under Part 5 of the FOI Act[1] • accept the application for external review. 10. By letter dated 24 December 2007, I asked the PTQ to provide me with further submissions in relation to its exemption claim under section 43(1) of the FOI Act, particularly in the context of its role as the applicant’s administrator. 11. By letter dated 16 January 2008, the PTQ provided me with the requested submissions. 12. By letter dated 28 April 2008, I provided the applicant with my preliminary view that: • the documents which comprise categories 1 and 2 qualify for exemption from disclosure under section 43(1) of the FOI Act • the category 3 documents are not exempt from disclosure under section 43(1) of the FOI Act. 13. By letter dated 28 April 2008, I provided the PTQ with my preliminary view that (in relation to the category 3 documents): • the documents fall into sub-categories 1, 2, 3 and 4 • none of the documents within these sub-categories qualify for exemption from disclosure under section 43(1) of the FOI Act • some of the documents within sub-category 4 qualify for partial exemption from disclosure under section 45(1)(c) of the FOI Act. 14. In a telephone conversation with a member of this Office on 6 May 2008, the applicant requested: • an extension of time in which to respond to my letter dated 28 April 2008 • that she be provided with all of the PTQ’s submissions, as received by this Office. 15. In a telephone conversation with a member of this Office on 12 May 2008, the applicant was advised that I agreed to provide her with a further 7 days in which to provide her submissions. 16. By letter dated 8 May 2008, I asked the PTQ to advise whether it objected to this Office providing the applicant with a copy of its submissions, namely its letter of 16 January 2008. 17. By letter dated 12 May 2008, the PTQ advised that it confirms its original position. I have assumed this to mean that the PTQ does not accept my preliminary view and maintains its claim for exemption under section 43(1) of the FOI Act with respect to all of the category 3 documents. 18. By letter dated 13 May 2008, the PTQ agreed to the applicant being provided with a copy of its letter dated 16 January 2008. 19. By letter dated 15 May 2008, I provided the applicant with a copy of the PTQ’s submission, as received by this Office on 16 January 2008. 20. In a telephone conversation with a member of this Office on 21 May 2008, the applicant requested a further extension of time in which to respond to my letter dated 28 April 2008. 21. In a telephone conversation with a member of this Office on 22 May 2008, the applicant was advised that I agreed to a final extension of two weeks in which to provide her submissions. 22. By letter dated 26 May 2008 to the applicant, I confirmed the extension of time granted and responded to the concerns raised by the applicant in her telephone conversations with members of this Office on 21 and 22 May 2008. 23. By letter dated 26 May 2008, I provided the applicant with my preliminary view (in relation to the category 3 documents) that 25 of the category 3 documents qualify for partial exemption from disclosure under section 45(1)(c) of the FOI Act. 24. In a telephone conversation with a member of this Office on 3 June 2008, the applicant advised that she: • accepted my preliminary view of 26 May 2008 in respect of the category 3 documents • intended to provide me with submissions in relation to my earlier preliminary view (dated 28 April 2008) concerning the category 1 and 2 documents. 25. In telephone discussions with members of this Office on 6 and 10 June 2008, the applicant: • advised that she realised she had missed the deadline to provide submissions • thanked us for granting her extensions of time throughout the process • advised that she had decided to wait for a decision in this external review.[2] 26. In making my decision in this matter I have taken the following into account: • the Matter in Issue • the applicant’s FOI Application dated 30 May 2007, request for internal review dated 5 August 2007 and request for external review dated 19 October 2007 • the PTQ’s Initial Decision and Internal Review Decision • the PTQ’s letters dated 16 January 2008 and 13 May 2008 • telephone conversations with the PTQ and a member of this Office • telephone conversations with the applicant and a member of this Office • relevant legislation, case law and decisions of this Office. Matter in Issue 27. For the purposes of this review, I have grouped the matter in issue into the following categories: • Category 1 – Confidential communications • Category 2 – Research material • Category 3 – Other documents. Summary – positions of the parties 28. I note that the applicant does not accept that the documents comprising categories 1 and 2 are exempt from disclosure under section 43(1) of the FOI Act. 29. I note that the PTQ does not accept that some of the category 3 documents are partially exempt from disclosure under section 45(1)(c) of the FOI Act and maintains its claim that all of the documents in issue are fully exempt from disclosure under section 43(1) of the FOI Act. Findings Section 43(1) of the FOI Act 30. Section 43(1) of the FOI Act provides that: 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. 31. The effect of section 43(1) of the FOI Act is that information which attracts ‘legal professional privilege’ (LPP) will be exempt from disclosure. What is LPP? 32. LPP protects confidential communications in the following circumstances:[3] 1. between a client and their solicitor, when the communication is made for the dominant purpose of obtaining or providing legal advice 2. between a third party and a client, when the communication is made for the dominant purpose of obtaining or providing legal advice 3. between a third party and the client’s solicitor, when the communication is made for the dominant purpose of obtaining or providing legal advice 4. between a client and the client’s solicitor, when the communication is made for the dominant purpose of using, or obtaining material for use, in litigation that has commenced or is reasonably anticipated at the time of the communication 5. between a third party and the client’s solicitor, when the communication is made for the dominant purpose of using, or obtaining material for use, in litigation that has commenced or is reasonably anticipated at the time of the communication. Solicitor-client relationship 33. Underlying each of the above circumstances is the requirement that a solicitor-client relationship be established. As stated by the High Court: 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 [he/she] may relinquish that entitlement.[4] 34. The PTQ submits that as the applicant’s administrator: [5] • it instructed the Official Solicitor to act as its solicitor in relevant matters • it was the client and the Official Solicitor was the solicitor in the solicitor-client relationship. 35. In her application for external review, the applicant submits that: The Public Trustee does not have administration of my assets and was never appointed as litigation Guardian. I am concerned that the lack of transparency by the Public Trustee regarding the carriage of a temporary administration may prejudice future action by me regarding the administration. 36. During a telephone conversation with a member of this Office on 3 June 2008, the applicant made submissions including that: • the PTQ is accountable to her and owes her a duty of care • there should be some client relationship between her and the PTQ. 37. With respect to these submissions made by the applicant, I have carefully examined the circumstances of the PTQ’s appointment as her administrator and note that: • as the applicant’s administrator (for a defined purpose and period) the PTQ had broad powers[6] which extended to the engagement of solicitors it considered necessary[7] to finalise the applicant’s claims for compensation • the PTQ retained the Official Solicitor as its solicitor in the applicant’s legal matters • the Official Solicitor is a barrister or solicitor of the Supreme Court.[8] 38. Accordingly, on the information available to me, I am satisfied that: • the Official Solicitor acted as the PTQ’s solicitor in settling the applicant’s claims for compensation • a valid solicitor-client relationship existed between the PTQ and the Official Solicitor for the purposes of establishing LPP. Do the category 1, 2 and 3 documents attract LPP 39. I will now consider whether the documents which comprise categories 1, 2 and 3 attract LPP and therefore qualify for exemption from disclosure under section 43(1) of the FOI Act. Category 1 – Confidential communications 40. I note that the documents in category 1 include: • communications between the Official Solicitor and the PTQ • communications between the Official Solicitor and third parties • internal communications of the Official Solicitor and the PTQ. [9] 41. In determining whether the category 1 documents qualify for exemption under section 43(1) of the FOI Act, it is important to note that although LPP applies to a variety of documents: ...it is the purpose of the communication that is decisive, not the purpose in making the document....[10] 42. The dominant purpose of a communication must be determined objectively, having regard to the evidence, the nature of the document and the parties' submissions.[11] 43. I have carefully reviewed the category 1 documents. On the information available to me, I am satisfied that each document within this category discloses a confidential communication made for the dominant purpose of: • requesting information from or providing information to the Official Solicitor, for use in litigation which had commenced or was reasonably anticipated at that time; or • requesting information from or providing information to the Official Solicitor, so that it could provide legal advice to the PTQ. 44. I also note that there is no evidence before me which demonstrates that the LPP attaching to these documents has been waived or that the relevant information has been inadvertently disclosed. 45. On the basis of the matters set out above, I am satisfied that the category 1 documents attract LPP and qualify for exemption from disclosure under section 43(1) of the FOI Act. Category 2 – Research material 46. I note that the documents in category 2 comprise legal research material. 47. The question of whether LPP attaches to legal research material was examined in Propend Finance P/L & Ors v Australian Federal Police Commissioner & Ors[12] where the Court found that: ... it is incorrect to state, as a general proposition, that a copy of an unprivileged document becomes privileged so long as it is obtained by a party, or its solicitor, for the sole purpose of advice or use in litigation. I think that the result in any such case depends on the manner in which the copy or extract is made or obtained. If it involves a selective copying or results from research, or the exercise of skill and knowledge on the part of a solicitor, then I consider privilege should apply [emphasis added] 48. I have carefully examined these documents and am satisfied that the category 2 documents qualify for exemption from disclosure under section 43(1) of the FOI Act as each document: • comprises information gathered by staff of the Official Solicitor (using their skill and knowledge) in the course of legal research conducted for the purpose of providing legal advice • reveals the results of legal research conducted by the Official Solicitor. Category 3 – Other documents 49. I note that the documents comprising category 3 can be sub-categorised in the following manner: 1. correspondence received or sent by the applicant 2. printouts of searches of the Queensland Courts’ website in respect of the applicant’s relevant legal matters 3. records of administrative functions of the Official Solicitor or the PTQ 4. billing documents of the Official Solicitor. 50. I have carefully examined these documents and am satisfied that none of these documents: • are confidential communications between relevant parties (nor do they refer to such communications) • qualify for exemption from disclosure under section 43(1) of the FOI Act. 51. In respect of the sub-category 4 documents (that is, the billing documents) I note that the Information Commissioner has previously stated that:[13] 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. Do the sub-category 4 documents qualify for exemption? 52. I will now consider whether the sub-category 4 (of category 3) documents qualify for partial exemption from disclosure under section 45(1)(c) of the FOI Act. Section 45(1)(c) of the FOI Act 53. Section 45(1)(c) provides: 45 Matter relating to trade secrets, business affairs and research (1) Matter is exempt matter if— ... (c) its disclosure— (i) would disclose information (other than trade secrets or information mentioned in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or another person; and (ii) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to government;. unless its disclosure would, on balance, be in the public interest. 54. The Information Commissioner set out the following approach to interpreting and applying section 45(1)(c) of the FOI Act in Cannon and Australian Quality Egg Farms Limited[14]: 1. 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, if 2. disclosure of the matter in issue could reasonably be expected to have either of the prejudicial effects contemplated by section 45(1)(c)(ii), namely: (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. 55. I will consider each of these elements below. (a) Information concerning business, professional, commercial or financial affairs 56. In Johnson and Queensland Transport; Department of Public Works (Third Party),[15] the Information Commissioner stated that: I consider that Parliament's intention in enacting the s.45(1)(c) exemption was to provide a means by which the general right of access to documents in the possession or control of government agencies could be prevented from causing unwarranted commercial disadvantage to: • individuals who offer professional services to the public on a fee for service basis (see Re Pope and Queensland Health [1994] QICmr 16 (18 July 1994)at paragraph 29); • private sector business operators (whether they be individuals, partnerships, or corporations); and • government agencies which function on a business model to generate income from the provision of goods or services. 57. In respect of protecting government agencies from unwarranted commercial disadvantage, the Information Commissioner has previously found (in relation to documents created by Crown Law) that: • government departments such as Crown Law operate in a commercially competitive environment with private sector legal firms • disclosure of their hourly charge-out rates for its professional staff could reasonably be expected to assist its competitors to compete with it more effectively in the legal services market generally.[16] 58. On the information available to me, I find that in the current circumstances, the operations of the Official Solicitor are comparable with those of Crown Law as each: • provides legal advice or conducts litigation on behalf of government departments/agencies • bills the relevant government department/agency for work undertaken on their behalf (which is calculated in accordance with time spent and professional charge-out rates). 59. On this basis, I am satisfied that some of the information in the billing documents (namely, hourly charge-out rates of professional staff of the Official Solicitor & fee structuring information) concern the business, professional, commercial or financial affairs of the Official Solicitor. (b) Adverse effect or prejudice to future supply reasonably expected from disclosure 60. I note that the Information Commissioner has stated that the phrase ‘could reasonably be expected to’ requires 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.[17] 61. Further, the Information Commissioner relevantly stated the following in relation to section 45(1)(c) of the FOI Act:[18] • an adverse effect under section 45(1)(c) will almost invariably be financial in nature, whether directly or indirectly (eg 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’) • in most instances the question of whether disclosure of information could reasonably be expected to have an adverse effect will turn on whether the information is capable of causing competitive harm to the relevant entity. A relevant factor is whether it enjoys a monopoly position or whether it operates in a commercially competitive environment. 62. On the information available to me, I am satisfied that: • disclosure of certain parts of the billing documents (including hourly charge-out rates of professional staff of the Official Solicitor & fee structuring information) could reasonably be expected to cause an adverse financial effect on the business, commercial or financial affairs of the Official Solicitor given that it operates in a commercially competitive environment • it is therefore unnecessary to consider whether disclosure would prejudice the future supply of information to government. Public Interest Balancing Test 63. The final issue for determination is whether public interest considerations favouring disclosure outweigh those favouring non-disclosure. 64. Facilitating the accountability of government through disclosure of government-held information is a public interest consideration recognised by section 4 of the FOI Act. The question in this case is whether disclosure of the billing documents would allow members of the public a better understanding of action taken by the Official Solicitor and the PTQ in this instance. 65. Against the public interest consideration, I must balance any public interest considerations against disclosure of the billing documents, which in the circumstances include exposing aspects of the Official Solicitor’s business, commercial or financial affairs to its competitors. 66. After weighing the public interest consideration favouring disclosure (government accountability and transparency) against the privacy interests favouring non-disclosure (the public interest in not subjecting an entity to unwarranted commercial disadvantage), I am satisfied that: • public interest considerations favouring disclosure do not outweigh those favouring non-disclosure • parts of the billing documents (comprised within sub-category 4 of the category 3 documents) qualify for exemption from disclosure under section 45(1)(c) of the FOI Act (see Appendix A). DECISION 67. I set aside the decision under review, by deciding that: • the documents in issue comprising the category 1 and 2 documents (confidential communications and research materials) are exempt from disclosure under section 43(1) of the FOI Act • the documents comprising sub-categories 1, 2 and 3 of the category 3 documents (correspondence received or sent by the applicant, printouts of searches of the Queensland Courts’ website and records of administrative functions of the Official Solicitor or the PTQ) do not qualify for exemption from disclosure under either section 43(1) or section 45(1)(c) of the FOI Act (see Appendix A) • the documents comprising sub-category 4 of the category 3 documents (billing documents) qualify for partial exemption from disclosure under section 45(1)(c) of the FOI Act (see Appendix A). 68. 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 June 2008 Appendix A – Category 3 documents Documents not exempt under the FOI Act: Public Trustee file No. 20382915 10 38-39 Legal file No. 380560 12 13 16 29 57-58 62 79 80 85 110 127 143 181-182 190 204-205 223-226 231-234 246 262-263 285-298 307 336-337 406-407 442-443 532-533 595 620 676 681-682 722 729 751 852 864 898 956 1024-1025 1122-1123 1130 1038 1042-1043 1121 1137-1144 Documents partially exempt under the FOI Act: Public Trustee file No. 20382915 21 80-81 84-85 Legal file No. 380560 133-134 928 1026 1028 1070-1075 1087-1088 1107-1112 1115 [1] Although the application for external review was made outside of the time limit stipulated in section 73 of the FOI Act, the applicant had attempted to make an earlier application for external review on 15 September 2007 which was sent to this Office’s previous address on the advice of the PTQ.[2] Which I took to mean that the applicant no longer wished to make submissions in respect of the category 1 and 2 documents.[3] See Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 (Esso) and Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 207 ALR 217.[4] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at paragraph 28.[5] I note by way of background that on 5 September 2005 the Guardianship and Administration Tribunal (GAAT) appointed the PTQ as the applicant’s administrator for her claim for compensation arising out of a motor vehicle accident on 3 May 2000 and her claim for compensation arising out of a medical negligence action on or about 23 January 2002.[6] See section 33(2) of the Guardianship and Administration Act 2000 (Qld) [7] See section 16(1) of the Public Trustee Act 1978 (Qld) (PT Act).[8] See section 16(3) of the PT Act. [9] As stated by Lockhart J at page 246 of Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244, LPP may attach to “Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or related to information sought by the client’s legal adviser to enable him to advise the client or to conduct litigation on his behalf.”[10] per Greenwood J at paragraph 35 of Comcare v Foster [2006] FCA 6; (2006) 150 FCR 301.[11] Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at page 692; Waterford.[12] (1995) 128 ALR 657.[13] Murphy and Queensland Treasury [1998] QICmr 9; (1998) 4 QAR 446 at paragraph 20.[14] [1994] QICmr 9; (1994) 1 QAR 491 (Cannon) at paragraphs 66-88.[15] (2004) 6 QAR 307 at paragraph 50.[16] See Kelly and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 13 March 2002) at paragraph 44 and Macrossan and Amiet and Queensland Health and Ors (Unreported, Queensland Information Commissioner, 27 February 2002).[17] Cannon at paragraphs 62 as stated in B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at paragraphs 154-161. [18] Cannon at paragraphs 62-63, 83 and 84.

queensland

court_judgement

Queensland Information Commissioner 1993-

Weekes and Crime Stoppers Queensland Limited [2002] QICmr 1 (26 June 2002)

Weekes and Crime Stoppers Queensland Limited [2002] QICmr 1 (26 June 2002) Last Updated: 18 January 2006 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 01/2002 Application S 11/02 Participants: NEIL WEEKES Applicant CRIME STOPPERS QUEENSLAND LIMITED 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 forms part of the agency" within the terms of s.8(2)(a) of the Freedom of Information Act 1992 Qld - whether the respondent is "a body that exists mainly for the purpose of enabling the agency to perform its functions" within the terms of s.8(2)(b) of the Freedom of Information Act 1992 Qld. Freedom of Information Act 1992 Qld s.4, s.7, s.8(1), s.8(2), s.8(2)(a), s.8(2)(b), s.9(1)(a)(i), s.9(1)(a)(ii), s.9(1)(b), s.9(1)(c), s.9(2), s.21, s.75 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 Federal Commissioner of Taxation v Students World (Australia) Pty Ltd [1978] HCA 1; (1978) 138 CLR 251 McPhillimy and Gold Coast Motor Events Co, Re [1996] QICmr 18; (1996) 3 QAR 376 DECISION I decide that - (a) the respondent is not an agency as defined in s.8 of the Freedom of Information Act 1992 Qld, and is not subject to the application of the Freedom of Information Act 1992 Qld; and (b) accordingly, I have no jurisdiction to deal with the applicant's application for review of the respondent's refusal to provide access to requested documents under the Freedom of Information Act 1992 Qld. Date of decision: 26 June 2002 ......................................................... D J BEVAN INFORMATION COMMISSIONER OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 01/2002 Application S 11/02 Participants: NEIL WEEKES Applicant CRIME STOPPERS QUEENSLAND LIMITED Respondent REASONS FOR DECISION Background 1. This application requires determination of a jurisdictional issue as to whether or not Crime Stoppers Queensland Limited ("CSQ") is an agency subject to the application of the Freedom of Information Act 1992 Qld (the FOI Act). CSQ is an Australian public company limited by guarantee. The Memorandum of Association states that the objectives of CSQ are to promote public involvement in the apprehension and conviction of criminals, to encourage people to furnish information enabling the apprehension and conviction of criminals, and to foster general awareness of criminal activity and the need to counteract it. 2. By letter dated 7 November 2001, the applicant applied to CSQ for access, under the FOI Act, to specified financial records of CSQ, principally relating to payments made to individual members of the Board of Directors of CSQ, especially in relation to travel expenses. By letter dated 7 January 2002, Ms Vicki Howard, Secretary of CSQ, replied stating: "The Board at its meeting on 18 December 2001 considered your letter dated 7 November 2001. This company is not an "agency" as defined in the Freedom of Information Act 1992. Accordingly, your application is refused." By letter dated 11 January 2002, the applicant applied to this Office for review, under Part 5 of the FOI Act, of CSQ'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 2 they are raised as an issue in an application for review lodged under Part 5 of the FOI Act. (See also the comments on the obligation of a tribunal to decide a dispute over the limits of its jurisdiction, contained in the judgment of Wright J of the Supreme Court of Tasmania in Attorney-General v Estcourt and The Wilderness Society Inc [1995] TASSC 65; (1995) 4 Tas R 355 at pp.365- 367.) 4. By letter dated 14 January 2002, the Deputy Information Commissioner advised CSQ 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 CSQ is an "agency", for the purposes of the FOI Act, because it answers one of the statutory descriptions contained in s.8(2), s.9(1)(a)(ii) or s.9(1)(b) of the FOI Act. The Deputy Information Commissioner invited CSQ 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 CSQ 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 CSQ (Deacons, Lawyers) responded by letter dated 13 February 2002, in which they made a number of submissions in support of their client's case, and enclosed copies of CSQ's Memorandum and Articles of Association, Constitution, and annual reports for the preceding five years. 6. By letter dated 26 February 2002, Assistant Information Commissioner Moss wrote to the applicant to advise him that, after reviewing all relevant material then before her, she had formed the preliminary view that CSQ was not an agency, for the purposes of the FOI Act, because it did not answer one of the relevant statutory descriptions contained in s.8(2), s.9(1)(a)(ii) or s.9(1)(b) of the FOI Act. CSQ's submissions dated 13 February 2002 were provided to the applicant. In the event that he did not accept her preliminary view, Assistant Information Commissioner Moss invited the applicant to lodge submissions and/or evidence in support of his case, and in response to the submissions lodged on behalf of CSQ. The applicant provided submissions in response in a letter dated 20 March 2002. The applicant's submissions were provided to the solicitors for CSQ, who lodged short points of reply on behalf of CSQ on 22 April 2002. 7. In a telephone discussion with a member of my staff on 29 April 2002, the applicant confirmed that he accepted the preliminary view of Assistant Information Commissioner Moss in so far as it conveyed the view that CSQ does not fall within the statutory descriptions contained in s.9(1)(a)(ii) and s.9(1)(b) of the FOI Act. The material forwarded to my office by CSQ clearly demonstrates that CSQ is not: • a body established by an enactment (within the terms of s.9(1)(a)(i) of the FOI Act); • a body established by government (within the terms of s.9(1)(a)(ii) of the FOI Act); • a body created by the Governor in Council or a Minister (within the terms of s.9(1)(b) of the FOI Act); or • a body declared by regulation to be a public authority for the purposes of the FOI Act (within the terms of s.9(1)(c) of the FOI Act). Accordingly, the only issue for my determination is the validity of the applicant's contention that CSQ is a body which is subject to the FOI Act, by virtue of s.8(2) of the FOI Act. 3 8. In making my decision on the jurisdictional issue, I have taken into account the submissions made by CSQ's solicitors dated 13 February 2002 and 22 April 2002 (and the documents relating to the establishment of CSQ provided by CSQ's solicitors), and the applicant's letter dated 11 January 2002 and written submission dated 20 March 2002. 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 CSQ is an agency subject to the application of the FOI Act: Preamble 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; ... 8.(1) In this Act-- "agency" means a department, local authority or public authority. (2) In this Act, a reference to an agency includes a reference to a body that-- (a) forms part of the agency; or (b) exists mainly for the purpose of enabling the agency to perform its functions.... 9. Meaning of "public authority" (1) In this Act-- "public authority" means-- (a) a body (whether or not incorporated) that-- 4 (i) is established for a public purpose by an enactment; or (ii) is established by government for a public purpose under an enactment; or (b) a body (whether or not incorporated) that is created by the Governor in Council or a Minister; or (c) another body (whether or not incorporated)-- (i) that is-- (A) supported directly or indirectly by government funds or other assistance or over which government is in a position to exercise control; or (B) a body established by or under an enactment; and (ii) that is declared by regulation to be a public authority for the purposes of this Act; or (d) subject to subsection (3), a person holding an office established by or under an enactment; or (e) a person holding an appointment-- (i) made by the Governor in Council or Minister otherwise than by or under an enactment; and (ii) that is declared by regulation to be an appointment the holder of which is a public authority for the purposes of this Act; but does not include a body that, under subsection (2), is not a public authority for the purposes of this Act. (2) For the purposes of this Act, an unincorporated body that is a board, council, committee, subcommittee or other body established by or under an enactment for the purpose of assisting, or performing functions connected with, a public authority is not a separate public authority, but is taken to be comprised within the public authority. 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; ... 5 Application of s.8(2) of the FOI Act 10. The former Information Commissioner, Mr F N Albietz, considered the operation of s.8(2) of the FOI Act in Re McPhillimy and Gold Coast Motor Events Co [1996] QICmr 18; (1996) 3 QAR 376. At paragraphs 37-41, he said: 37. Section 8(2) is, in several respects, an infelicitously worded provision, and it is difficult to divine its precise purpose. There seem to me to be two possibilities. First, that s.8(2) is intended as an enlarging definition; but this would have the result of making bodies of the kind described in s.8(2)(a) and (b) subject, in their own right, to the obligations imposed on agencies by various provisions of the FOI Act (e.g., the obligation to publish certain documents and information under Part 2 of the FOI Act; the obligation to deal with applications for access to documents in accordance with Part 3 of the FOI Act; the obligation to deal with applications for amendment of information in accordance with Part 4 of the FOI Act). A few examples of bodies falling within s.8(2)(a) or (b) spring readily to mind, e.g., a state primary school or high school would be a body which forms part of the Department of Education, and indeed, which exists mainly for the purpose of enabling the Department of Education to perform its functions; a Committee established to advise the Department of Primary Industries on allocation of research grants would be a body which forms part of the Department of Primary Industries. It would, in some respects, seem an odd result if bodies of that kind were, by virtue of s.8(2), to be subjected, in their own right, to all of the obligations which apply to agencies under the FOI Act - e.g., compliance with s.18 of the FOI Act. 38. The second possibility (and, in my view, that which is more likely to have been intended) is that s.8(2) is intended to perform a similar function to s.9(2), such that obligations imposed by the FOI Act on an agency (as defined in s.8(1) of the FOI Act) are enlarged to the extent that an agency, as defined, must also discharge those obligations in respect of bodies which stand in a relationship to it of the kinds described in s.8(2)(a) and s.8(2)(b). Thus, in the first of the examples given above, the Department of Education would discharge the obligations imposed on an agency by the FOI Act on behalf of all state primary schools and high schools. A request for access, under the FOI Act, lodged with a particular school, for documents held by that school, would still have to be dealt with, but as an obligation of the Department of Education rather than the particular school in its own right. 39. The word "enabling" in s.8(2)(b) seems an unduly restrictive word to be employed in such a context. It is difficult to think of many examples of bodies which exist for the purpose of enabling an agency (in the sense of making an agency able) to perform its functions. I should have thought that a word like "assisting" would be more appropriate than "enabling" in the context of s.8(2)(b). 6 40. Nevertheless, according to its terms, s.8(2) operates in this fashion. It must first be determined that a person or body falls within the definition of "agency" in s.8(1) of the FOI Act, thus becoming "the agency" referred to in s.8(2)(a) and s.8(2)(b). The effect of s.8(2) then is to provide that a reference in the FOI Act to an agency includes a reference to a body that answers the descriptions in s.8(2)(a) and (b). Thus, the right of access conferred by s.21 of the FOI Act, read in the light of s.8(2), must be read as if in the following terms: Subject to this Act, a person has a legally enforceable right to be given access under this Act to-- (a) documents of an agency [including a body that forms part of the agency or exists mainly for the purpose of enabling the agency to perform its functions]; ... 41. Likewise, s.25(1) should be read as follows: A person who wishes to obtain access to a document of an agency [including a body that forms part of the agency, or exists mainly for the purpose of enabling the agency to perform its functions] ... under this Act is entitled to apply to the agency [including a body that forms part of the agency, or exists mainly for the purpose of enabling the agency to perform its functions] ... for access to the document. 11. Accordingly, the issue for determination in this case is whether or not CSQ forms part of the Queensland Police Service (the QPS) (which clearly is an agency for the purposes of the FOI Act), or exists mainly for the purpose of enabling the QPS to perform its functions. If it does, then an application for access, under the FOI Act, to documents of CSQ must be dealt with by the QPS in accordance with Part 3 of the FOI Act. If it does not, then CSQ is not a body which is subject to the FOI Act, and I have no jurisdiction to deal further with the applicant's application for review. Discussion of submissions lodged by participants 12. At the commencement of this review, one of the issues which the Deputy Information Commissioner invited CSQ to address was whether, in the terms of s.8(2)(b) of the FOI Act, CSQ is a body that exists mainly for the purpose of enabling the QPS to perform its functions. 13. The central argument which CSQ's solicitors raised in response (in their submission dated 13 February 2002) was that the word "enabling", as used in the context of s.8(2)(b) of the FOI Act, required something more than the possibility that CSQ might assist the QPS in performing its functions. The solicitors for CSQ submitted that the relevant "function" of the QPS might be law enforcement, and that from time to time information received and passed on to the QPS by CSQ might improve the effectiveness of law enforcement by providing the QPS with sources of information which it might not have otherwise had. The solicitors for CSQ submitted, however, that that in itself was not sufficient to attract the operation of s.8(2)(b) of the FOI Act, as recognised by Commissioner Albietz in Re McPhillimy. The solicitors for CSQ submitted that CSQ does not "enable" the QPS to perform its functions, and that the QPS can perform its relevant functions without the input of CSQ. 7 14. In response, by letter dated 20 March 2002, the applicant submitted that to interpret the word "enabling" to mean that the QPS cannot perform its functions without the assistance of CSQ was placing too restrictive an interpretation on the word "enabling". The applicant submitted that "enabling" means, in the context of s.8(2)(b) - 'assisting, facilitating, complementing and providing support to the agency so that it ... may (better) perform its functions'. In support of his case, the applicant submitted: The Objects of CSQ as enshrined in that organisation's Constitution are as follows: 1. To improve the well-being and security of the Queensland community and the effectiveness of the law enforcement and emergency services operating in the State of Queensland; 2. To encourage people, whether by means of material inducement or otherwise, to furnish the proper authorities with information enabling the apprehension and conviction of criminals; 3. Fostering general awareness of criminal activity and the need to counteract it by assisting those authorities wherever possible. Each of these Objects makes specific mention of "law enforcement", or "proper authorities", or "apprehension and conviction of criminals", all of which implicitly mean or involve the QPS. If one were to summarise the CSQ's Objects it would be along the lines of "The purpose of CSQ is to assist the QPS to resolve unresolved crimes." ... The CSQ logo ... clearly shows the blue and white chequered pattern which is synonymous with the QPS. The public perception of CSQ, reinforced by this logo and the advertisements for CSQ, is that CSQ is a part of the QPS and that the two organisations are inextricably linked. ... While it may be correct to state that a call to the CSQ number 1800 333 000 may be answered by a person stating "CRIMESTOPPERS", inevitably that person is a member of the QPS. In fact there is a special QPS unit called the Crime Stoppers Unit, which is part of the QPS State Crime Operations Command. It is the members of the QPS Crime Stoppers Unit who operate the Crime Stoppers number, not members of CSQ. In addition, it is the Crime Stoppers Unit that receives information from the general public and it is this Unit, and not members of CSQ ... who pass information to the other relevant police units to respond. ... The QPS also have a scale for determining the issue of financial rewards. The QPS makes the decision on what amount of reward should be paid and then recommends that the Board of Directors of CSQ actually approve this amount, as it is CSQ that actually has the control of funds. As can be seen from the above, CSQ is inextricably linked with the QPS. CSQ exists solely to "enable" the QPS to apprehend and convict criminals. It has no other purpose. ... Consequently, I contend that s.8(2)(b) of the FOI [Act] definitely applies to CSQ and that CSQ is an "agency" for the purpose of the FOI [Act]. 8 15. In short points of reply dated 22 April 2002, CSQ's solicitors submitted that it is not the test for application of s.8(2)(b) of the FOI Act that CSQ cannot operate effectively without the QPS, and that the possibility that CSQ might assist the QPS in performing its functions is not enough to attract the operation of s.8(2)(b). CSQ's solicitors also submitted that to contend (as the applicant does) that CSQ effectively functions "as a component of the QPS", is not a correct categorisation of the relationship between CSQ and the QPS. CSQ's solicitors submitted that CSQ was established as a separate company, and whatever the "public perceptions" contended for by the applicant in his submissions, that was not sufficient to bring CSQ within the operation of s.8(2)(b) of the FOI Act. 16. Although the applicant's submission dated 20 March 2002 stated that the applicant's case in this review was based on the application of s.8(2)(b) of the FOI Act, parts of the applicant's submission suggest reliance on the application of s.8(2)(a) of the FOI Act, i.e., the applicant contended that "CSQ is a part of the QPS " and that "the two organisations are inextricably linked". I will therefore briefly address the application of s.8(2)(a) of the FOI Act. 17. It is clear from my examination of the Memorandum and Articles of Association of CSQ, and its Constitution, that CSQ was established by a group of citizens of varying backgrounds, as a non-profit organisation with the object of improving the safety and security of the Queensland community. While I acknowledge the close involvement of the QPS in the functions of CSQ, CSQ is clearly a separate legal entity. I do not consider that CSQ can be regarded as forming part of the QPS, giving the words of s.8(2)(a) their natural and ordinary meaning. Accordingly, in terms of the application of s.8(2)(a) of the FOI Act, I am not satisfied that CSQ forms part of the QPS. 18. The applicant's arguments with respect to s.8(2)(b) turn on the proper construction of the word "enabling" in the context of s.8(2)(b). The applicant contends that it should be read as meaning "assisting, facilitating, complementing and providing support." Certainly, one of the main purposes of CSQ is to assist Queensland law enforcement authorities which, in practical terms, must chiefly comprise assisting the QPS to perform its law enforcement functions. However, the QPS would still be able to perform those functions without the assistance of CSQ. 19. The applicant contends for a constructio n of "enabling" that does not accord with the natural and ordinary meaning of the word. Although court decisions interpreting the meaning of a particular word or phrase in a different statutory context should be treated with an appropriate degree of caution, I consider that the remarks of Mason J of the High Court of Australia in Federal Commissioner of Taxation v Students World (Australia) Pty Ltd (1978) [1978] HCA 1; 138 CLR 251 at p.265 are relevant for present purposes: The word "enabling" is generally understood to mean "make able", "make easy" or "make possible". In an appropriate context it may mean "assist in making able or possible" or "contribute to making able or possible" ... . 20. None of these possible meanings fits the relationship between CSQ and the QPS. CSQ may assist, or contribute to, the performance by the QPS of its functions, but it does not assist in, or contribute to, making the QPS able to perform its functions, or making it possible for the QPS to perform its functions. 9 21. To read "enabling" as if it meant "assisting" is, in my opinion, to depart too far from the natural and ordinary meaning of the word which Parliament selected to express its intention in enacting s.8(2)(b) of the FOI Act 22. My opinion in that regard is reinforced by reference to s.9(2) of the FOI Act, where Parliament turned its attention to the circumstances in which bodies like boards, councils and committees connected with a public authority (as defined in s.9(1) of the FOI Act) should be taken to be comprised within the public authority. Parliament there referred to a body established for the purpose of "assisting, or performing functions connected with, a public authority". Parliament's choice of those words in the comparable context of s.9(2) contrasts with its choice of the word "enabling" in the context of s.8(2), and, in my view, tells against the applicant's contention that Parliament should be taken to have intended the word "enabling" to mean assisting. 23. I therefore find that CSQ is not an agency within the terms of s.8(2) of the FOI Act, and is not a body subject to the application of the FOI Act. It follows that I do not have jurisdiction to deal with the applicant's application for review of CSQ's refusal to give him access to requested documents under the FOI Act. Conclusion 24. For the foregoing reasons, I decide that: (a) CSQ is not an agency as defined in s.8 of the FOI Act, and is not subject to the application of the FOI Act; and (b) accordingly, I do not have jurisdiction to deal with the applicant's application for review of CSQ's refusal to provide access to requested documents under the FOI Act. .............................................................. D J BEVAN INFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

T74 and Brisbane City Council [2021] QICmr 54 (21 October 2021)

T74 and Brisbane City Council [2021] QICmr 54 (21 October 2021) T74 and Brisbane City Council [2021] QICmr 54 (21 October 2021) Last Updated: 29 August 2022 Decision and Reasons for Decision Citation: T74 and Brisbane City Council [2021] QICmr 54 (21 October 2021) Application Number: 316068 Applicant: T74 Respondent: Brisbane City Council Decision Date: 21 October 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO DEAL WITH ACCESS APPLICATION - EFFECT ON AGENCY’S FUNCTIONS - request for all documents about applicant for specified time period - whether the work involved in dealing with application would, if carried out, substantially and unreasonably divert resources of agency from their use by agency in performing its functions - sections 60 and 61 of the Information Privacy Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] for access under the Information Privacy Act 2009 (Qld) (IP Act) to all documents about him held by Brisbane City Council (Council) between 1 January 2014 and 31 December 2014. The applicant identified eight areas of Council that he considered would likely hold documents about him, but requested ‘a general broad search of Council’ be conducted. He also requested access to all emails concerning him. Council advised the applicant[2] that, after considering his application, it proposed to refuse to deal with it on the grounds that processing it would result in an unreasonable and substantial diversion of Council’s resources. As required under the IP Act, Council gave the applicant an opportunity to consult with it about the scope of the application so as to remove the grounds for refusal. Following consultation, the applicant reduced the timeframe for his application to 1 January 2014 to 1 August 2014, inclusive.[3] After considering the reduced timeframe, Council maintained its view that processing the application would result in a substantial and unreasonable diversion of Council’s resources and decided to refuse to deal with the application.[4] The applicant applied to Council for internal review of its decision.[5] Council affirmed the decision on internal review.[6] The applicant then applied[7] to the Office of the Information Commissioner (OIC) for external review of Council’s decision to refuse to deal with his access application. For the reasons set out below, I affirm Council’s decision. Reviewable decision The decision under review is Council’s internal review decision dated 14 April 2021. Background This external review relates to one in a series of access applications that the applicant has made to Council under the IP Act seeking access to all documents held by Council about him across various timeframes.[8] The applicant was employed by Council between 2013 and 2020. On external review, the applicant has complained about a range of issues concerning Council. OIC has advised the applicant on numerous occasions that OIC’s jurisdiction under the IP Act is limited to a review of Council’s decision made under the IP Act. OIC does not have jurisdiction to deal with the applicant’s complaints about Council’s interactions with him. Evidence considered Significant procedural steps relating to the external review are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). I have taken account of the applicant’s submissions to the extent that they are relevant to the issues for determination in this review.[9] 13. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[10] I consider a decision-maker will be ‘respecting and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the IP Act and the Right to Information Act 2009 (Qld) (RTI Act).[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] Issue for determination The issue for determination is whether Council was entitled to refuse to deal with the applicant’s access application under section 60 of the IP Act. Relevant law An individual has a right to be given access to documents of an agency to the extent that they contain the individual’s personal information.[14] An agency is required to deal with an access application unless doing so would, on balance, be contrary to the public interest.[15] The only circumstances in which dealing with an access application will not be in the public interest are set out in sections 59, 60 and 62 of the IP Act. Relevantly, section 60(1)(a) of the IP Act permits an agency to refuse to deal with an access application if the agency considers that the work involved in dealing with the application would, if carried out, substantially and unreasonably divert the resources of the agency from their use by the agency in the performance of its functions. Section 61 of the IP Act sets out the prerequisites before an agency can refuse to deal with an access application. I am satisfied that Council complied with those prerequisites. On external review, Council continued to suggest how the application could be made in a form that would remove the objection under section 60 of the IP Act. The phrase ‘substantially and unreasonably’ is not defined in either the IP Act, the RTI Act or the Acts Interpretation Act 1954 (Qld) (AIA). It is therefore appropriate to consider the ordinary meaning of these words.[16] The dictionary definitions[17] of those terms relevantly provide: ‘substantial’ means ‘of ample or considerable amount, quantity, size, etc’ ‘unreasonable’ means ‘exceeding the bounds of reason; immoderate; exorbitant’. In deciding whether dealing with an application would substantially and unreasonably divert an agency’s resources from the performance of its functions, the IP Act requires that a decision-maker: must not have regard to any reasons the applicant gives for applying for access, or the agency’s belief about what are the applicant’s reasons for applying for access;[18] and must have regard to the resources involved in: identifying, locating and collating documents deciding whether to give, refuse or defer access to documents, including the resources that would have to be used in examining documents and editing documents conducting any third party consultations making copies, or edited copies of documents; and notifying any final decision on the application.[19] While each agency's and each application's circumstances will vary, general factors that are relevant when deciding whether the diversion of resources or interference with normal operational functions in unreasonable include: the size of the agency[20] the ordinary allocation of RTI resources the other functions of the agency;[21] and whether and to what extent processing the application will take longer than the legislated processing period of 25 business days. In determining whether the work involved in dealing with an application is unreasonable, it is not necessary to show that the extent of the unreasonableness is overwhelming. Rather, it is necessary to weigh up the considerations for and against, and form a balanced judgement of reasonableness, based on objective evidence.[22] Factors that have been taken into account in considering this question include:[23] whether the terms of the request offer a sufficiently precise description to permit the agency, as a practical matter, to locate the documents sought the public interest in disclosure of the documents whether the request is a reasonably manageable one, giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with access applications the agency’s estimate of the number of documents affected by the request, and by extension the number of pages and the amount of officer time the reasonableness or otherwise of the agency’s initial assessment and whether the applicant has taken a cooperative approach in re-scoping the application the timelines binding on the agency the degree of certainty that can be attached to the estimate that is made as to the documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made; and whether the applicant is a repeat applicant to that agency, and the extent to which the present application may have been adequately met by previous applications. Submissions of Council In its internal review decision, Council advised that, having made search requests to the various areas of Council and the individual officers identified by the applicant, it estimated that it held approximately 5000 responsive pages: In considering your internal review request, I also took into account whether there was capacity within the team to deal with your request as: the delegated authority for internal review decisions pursuant to s.94(2) of the IP Act sits with only a few people as a certain level of seniority is required; internal review decisions form only one component of the significant breadth of work Council is required to undertake; and there are other significant projects that are required to be undertaken presently. ... After considering the above factors and the volume of material located after search, I have formed the view that the work involved in dealing with your internal review application with its reduced timeframe, would, if carried out, substantially and unreasonably divert the resources of Council for its use by Council in the performance of its functions. On external review, OIC requested that Council provide a more detailed submission in support of its decision to refuse to deal with the applicant’s application, including providing details of the searches and inquiries that Council had undertaken to arrive at the estimate of 5000 responsive pages.[24] Council provided a submission on 27 July 2021 that listed the searches that had been undertaken; the search terms used; and the time taken to run each of the searches. Council advised that an eDiscovery (SourceOne)[25] search of Council’s email records alone, using variations of the applicant’s name, as well as his Council email address, had located over 2000 responsive emails. Council detailed the work involved in opening, reviewing, making a decision about, and editing these emails: There are 2100 unsorted emails (with attachments where applicable) resulting from the eDiscovery search for [the applicant’s name].....some of these emails entirely concern [the applicant], however in many cases his is but one name appearing somewhere amongst a much larger staff list – either Council wide, Division-wide, Branch or Section-wide. To provide you with an idea of the type of documents located by this search, I opened the first 30 entries appearing in the folder where they are stored where I was able to open the attachment where there was one ... It would be impossible to accurately categorise all of these 2100 emails without opening and perusing the contents of each one, which would be a very time and resource consuming exercise. ... Based on just the sample of 30 emails listed above, and my experience in dealing with previous IP applications by [the applicant], emails are often multi-paged email threads, and many emails have attachments. I consider that 5000 pages would be a very conservative estimate of the number of pages containing [the applicant’s] personal information. Due to a significant number of attachments being staff lists where [the applicant’s] is just one name out of many others, the occurrence/s of [the applicant’s] name in each spreadsheet would have to be found, and you would also need to include the column headings to make sense of the contents, otherwise the information in the row/s containing his name may be meaningless. The rows relating to everyone else would have to deleted or redacted as being at the very least irrelevant, or potentially not falling under the definition of work-related personal information and hence contrary to the public interest to release. With these 2100 emails which eDiscovery has converted to pdf format...there are 2100 pdf emails/email threads... they include links to attachments which are still in their original various formats e.g. MS Word, MS Excel, pdf and a variety of other formats.....all of these attachments would have to be converted to pdf format prior to review and matched up with their covering email. I believe that this process alone would take one person a number of weeks to prepare the documents and structure them in a way that they could then be reviewed. This work would have to be done by one of the RTI Unit’s support or information officers (4.4 FTE available, so one of these FTE’s would be unable to undertake any of their regular work on any other applications for several weeks). Then once the documents are ready for review, and if we use the estimated figure of 5000 pages, which as I have considered above to be very conservative, allowing again a conservative estimated review/markup/notation time of 1 page per minute, this equates to 83 hours for review time. With 80+ current RTI/IP applications on hand, if the BCC RTI Unit were to even attempt to deal with [the applicant’s] application as it currently stands....and with only 2 delegated decision makers, one of those decision makers would be unable to deal with any other applications (or any other work such as disclosure log or external reviews), and as such be effectively off-line, for at least a 3 to 4 week period to progress [the applicant’s] application beyond the stage where it is currently at. This certainly represents a significant and unreasonable diversion of Council’s resources in terms of at least two members of the RTI Unit....would equate to about 1/3 of the RTI Unit’s total resources being dedicated solely to one access application over at least a 3 to 4 week period, to the detriment and exclusion of all other applications and functions required to be handled by the Unit. ... If the eDiscovery searches were to be excluded from scope, then the application would certainly be reasonable to be dealt with, however, given that the documents being requested are 7 years old, then searches beyond what is reasonable would have to be undertaken by the work units to identify all relevant documents without leaving Council open to sufficiency of search issues being raised at internal/external review stage. I trust that the above information justifies Council’s refusal to deal with this application under Section 60 of the IP Act. Approximately 5 hours were spent in preparing this response. As Council’s submission appeared to be based on the initial 12 month time frame of the applicant’s access application, rather than the reduced seven month period, Council was asked to clarify its submission.[26] In response, Council confirmed that it maintained its position:[27] Even with the reduction of scope to seven months (January to July 2014) instead of 12 months (January to December 2014), [the applicant’s] IP application still very much so represents a substantial and unreasonable diversion of resources, unless he was prepared to eliminate all of the eDiscovery search results, as I advised in my email of 27 July. The eDiscovery results that we have are unable to sorted electronically, however I opened the first 200 emails appearing the folder (i.e. just under a 10% sample size) just to be able to read the email date to get a manual tally of those that would fall within the January to July 2014 timeframe, as opposed to those falling within the August to December 2014 timeframe. Of these 200 emails, 114 (57%) of these fell within the first seven months, and 86 (43%) the latter five months. Using this as an [sic] reasonable way of estimating the total number of the 2100 emails that would in all likelihood fall within the January to July 2014 timeframe, I would estimate that there would be in the order of 1190-1200 emails. Of the ones I opened a considerable number of these also had attachments....some being very large spreadsheet of lists of employees, of which [the applicant] would be one name appearing amongst the rest (which would have to be found and then the details of all other employees removed....most of these spreadsheets are payroll related, or contain information such as payroll numbers and other non-routine work related information of public sector employees). ... The eDiscovery search results are so voluminous that even by reducing the timeframe from 12 months to seven months it is still not enough to remove the grounds for Council refusing to deal with this application on the basis of substantial and unreasonable diversion of resources. Applicant’s submissions The applicant responded[28] to Council’s submissions by email on 20 September 2021. Many of the points raised by the applicant fall outside OIC’s jurisdiction and/or are irrelevant to the issue to be determined in this review. This includes the applicant’s complaints about: Council’s decisions[29] the way in which Council utilises its staff the fact that Council emails about him do not always include his name in an alleged deliberate attempt by Council to make relevant emails ‘unsearchable and effectively undiscoverable’ the absence of responsive documents located by particular work units; and the applicant’s suspension and subsequent termination of employment by Council. The applicant’s agent otherwise submitted: I believe it has also been demonstrated that 5000 pages is, with respect, a ludicrous and far-fetched amount of documents for this application (respectfully, 5000 pages was the estimated amount that City Legal’s Internal Review officer appeared to have ‘manufactured’ ). It’s as ludicrous as 3000 pages on my similar Council information application, only to find that 44 pages was located and released to me in the end !! Not 500 pages or 1000 pages, but only 44 pages !! Conservative? I think a bit overdone and exaggerated. Brisbane City Council is the largest Council in Australia, yet only has two (2) delegated decision makers!? ... With respect, I do not believe there is a substantial and unreasonable diversion of resources in completing [the applicant’s] application. It appears that Council does not have enough (delegated) staff allocated to the RTI Unit, and is using this is an excuse by saying there is only two (2) delegated officers. At the same time Council is now, all-of-a-sudden, adding the excuse of the E-discovery search (which they clearly FAILED to use on previous applications) and say that this E-discovery search locates all these other documents (hundreds or thousands of them) which in the past, on many applications, [the applicant] and I have been absolutely correct in saying that Council fails to locate documents ie sufficiency of search (and how true was this!). With respect, this Council has been deliberately with-holding countless documents for a number of years! ... Does Council’s RTI Unit tell the OIC that they don’t have the resources to deal with an External Review? No, of course not – they ensure they prioritise staff for this because it is the Privacy Commission. Does Council tell the QIRC they don’t have the resources to deal with an unfair dismissal case? No, of course not. Or that Council can’t deal with a workers’ compensation claim, or deal with [the applicants] review with the Workers’ Compensation Regulator or communications with Industrial Relations? No, of course not! To state ‘substantial and unreasonable diversion of resources’ means that you have to have those resources to divert in the first place, and as Council only has two (2) delegated officers then the largest Council in the country clearly needs to delegate more officers. ... If [the applicant] was to consider, for example, out of the 2100 unsorted emails (that [Council] mentioned in his email of 27 July 2021) which were located from an E-discovery search (using [the applicant’s name]) then only those emails specifically related to [the applicant] (as opposed to multiple email listing) - so this would potentially rule-out those emails where [the applicant’s] name is but one amongst many or appearing somewhere amongst a much larger staff list (such as spread sheets and emails generated to hundreds of Council staff). This may mean decreasing significantly those emails that would need to be considered for his application. [The applicant] is not prepared to exclude the E-discovery search, as we believe this would set a precedent that may (negatively) affect other applications. Council may simply say to other applicants, who may request a thorough, general search of Council’s information, including E-discovery searches – that such removal was negotiated on an application. E-discovery search will be requested on any future information applications to Council. No undertaking will be given in relation to pursuing sufficiency of searches on any future Internal Reviews or External Reviews, as [the applicant] was justified in raising this (sufficiency of search) issue because Council clearly failed to adequately search for personal information on or about [the applicant] in past applications. [The applicant] is seeking a FORMAL decision in this matter. [Applicant’s emphasis] Findings What work would be involved in dealing with the access application? Council has submitted that the applicant’s application would be able to be processed if SourceOne emails were excluded from scope.[30] However, the applicant has refused to exclude them. Council contends that targeted searches for responsive documents conducted by the eight areas of Council identified by the applicant in his access application could reasonably be expected to locate documents of value and relevance to the applicant.[31] However, SourceOne searches, using the applicant’s name as a search term, would not only duplicate emails located by the individual areas of Council identified by the applicant as likely holding responsive documents, but would also identify each and every email held by Council that refers to the applicant in any way. This would potentially include many duplicates of emails contained within email threads. I accept Council’s submissions at paragraphs 244-255 above regarding the estimate of the number of responsive emails. Over a seven month period, at a time when the applicant was employed by Council, and taking account of issues arising between Council and the applicant during that period, I do not consider it is unreasonable to expect that there may be over 1000 emails generated across an organisation the size of Council that would contain the applicant’s name or that were otherwise sent or received using his work email address. Council had estimated 5000 responsive pages based on 2100 responsive emails over a 12 month period. It then estimated 1200 responsive emails over the reduced timeframe of seven months. I therefore consider it is reasonable to estimate 2800 responsive pages[32] for 1200 emails. I accept Council’s submission that its estimate is based on previous experience with the applicant’s access applications and the types of responsive documents, as well as its review of a sample of the emails located in this review, both of which indicate that the emails are ‘often multi-paged email threads, and many ... have attachments’.[33] The applicant’s agent, however, contends that Council’s estimate of responsive emails is not reasonable based on their experience in a previous access application, where they allege that an estimate of 3000 responsive pages by Council was vastly overstated, as only 44 pages were ultimately released to them.[34] Notwithstanding the applicant’s submissions on this issue, what may have occurred in the processing by Council of other access applications is not relevant to my consideration of the Council’s estimate in this case. There is nothing before me to suggest that Council’s estimate of over 1000 responsive emails is not accurate or reasonable given the timeframe and the very broad terms of the request. I also note, on the applicant’s own submission, that Council did not include the results of SourceOne searches in these previous applications.[35] I accept Council’s submission regarding the work involved in dealing with, and making a decision about, the emails and their attachments. I consider it is reasonable to expect that a significant amount of work would be involved in: opening each email and reviewing its contents opening each attachment, reviewing its contents and converting it to pdf format editing the emails and attachments so as to redact references to irrelevant information/information concerning other Council employees or other third parties; and making a decision about access to the emails. I am satisfied that, while an agency is required to consider how much time an access application is likely to take to process, a precise assessment is not required. As such, in cases where an assessment may, in itself, substantially and unreasonably divert the agency's resources, an estimate is acceptable. I also consider that, in conducting a merits review of an agency’s decision, it is necessary for me to determine whether the agency’s processing estimate is reasonable. In terms of the time involved in a decision-maker reviewing the emails and marking up each page in preparation for release, Council estimated one minute per page, which it submitted was a conservative estimate.[36] Based on this estimate, the time taken to review and mark up the approximately 2800 responsive pages would therefore be in the vicinity of 47 hours. However, I agree with Council’s description of this estimate as ‘conservative’. If, for example, the email attachment is a payroll spreadsheet that contains the names and details of numerous other Council employees,[37] I consider it is reasonable to expect that the time taken to review and redact irrelevant/personal information of other persons from the spreadsheet may be significantly more than one minute. For this reason, I find that an estimate of an average of two minutes per page is a more reasonable and realistic estimate. This equates to over 93 hours of work for a decision-maker to review and mark-up each responsive page. Council also estimated that it would take one administrative officer ‘several weeks’ to compile responsive emails, convert the attachments to a pdf format, and structure them in preparation for review by a decision-maker.[38] While the estimate of ‘several weeks’ is vague, I accept that the work involved in preparing the approximately 2800 pages for review by a decision-maker, as described by Council in its submissions above, would be significant. Again, I consider that an estimate of an average of two minutes per page to perform this work is reasonable in the circumstances. This equates to a further 93 hours of work involved in processing the access application. In addition to this, I consider it is reasonable to expect that between three and five hours would be needed to prepare a decision. In summary, I am satisfied that approximately 190 hours of work[39] would be required to process the applicant’s access application. Would the impact on Council’s functions be substantial and unreasonable? Yes. I am satisfied that processing the access application would substantially and unreasonably impact Council’s functions for the reasons set out below. Based on the estimate set out above for compiling, reviewing and editing the responsive emails, as well as making and issuing a decision, the processing of the application would involve approximately 190 hours of work. This equates to one officer in Council’s RTI unit working on the access application for approximately 27 business days,[40] or over five weeks, to the exclusion of all other functions. Council has advised that it has two delegated decision-makers employed in the RTI unit, assisted by 4.4 Full Time Equivalent (FTE) support or information officers. As at the time of making its submission, Council advised that it had more than 80 RTI Act/IP Act access applications on hand.[41] As at the time of preparing this decision, Council advised that it had 90 applications on hand.[42] I note that the most recent report that compiles RTI and IP Act statistics from government agencies throughout Queensland indicates that Council receives significantly more access applications than other local governments.[43] I am also aware from OIC’s own interactions with Council that it is an extremely busy RTI unit which receives a high volume of access applications relative to other agencies. The applicant submits that Council’s resourcing of its RTI unit is inadequate and that the processing of his application would not result in a substantial and unreasonable diversion of Council’s resources were the RTI unit to be properly resourced. In determining whether dealing with the access application is reasonably manageable for Council, I am required to give due, but not conclusive, regard to the size of the agency and the extent its resources are usually available for dealing with access applications. As the applicant has submitted, Council is the largest local government in Australia. It employs over 8,000 staff.[44] Council provides a wide range of services to its nearly 1.3 million residents and is responsible for the discharge of many essential local government functions, including infrastructure, town planning services and transport, as well as the administration and enforcement of a wide range of local laws. Whether or not Council should employ more staff in its RTI unit is not a matter upon which I am in a position to comment. How an agency decides to employ and distribute its staff is dependent on a number of different factors, including budget, competing priorities, and staff availability and expertise. An agency the size of Council, with the many different services and functions it is required to deliver, will always experience tensions regarding its allocation of staff and budgetary resources. I would simply observe that I do not consider Council’s staffing of its RTI unit, with two FTE delegated decision-makers and 4.4 FTE support or information officers, to be unreasonable. I would also observe that the processing of access applications and the making of access decisions under the RTI or IP Acts is a specialised field that requires training and a working knowledge of the requirements of the legislation. It is not the case that, when demand is high, an agency can simply re-deploy untrained staff from other areas of the agency to its RTI unit to process access applications and make access decisions. Furthermore, even if Council did have more resources to devote to its RTI unit, I consider it likely that spending over 27 business days to process one access application would have a substantial and unreasonable impact on those resources. I have had regard to the factors listed at paragraph 211 above to the extent that they are relevant to the circumstances of this case. I accept that the applicant narrowed his application by reducing the timeframe from 12 months to seven months. The applicant is a repeat applicant to Council, and he has made multiple applications to Council for access to all information held by Council about himself across different time periods. I have noted the large volume of documents to which the applicant has already been given access by Council as a result of those applications. However, given that each of those applications encompassed a different timeframe, I am not aware of Council arguing that processing the access application in this review would result in a significant duplication of responsive documents from other of the applicant’s access applications. In terms of the public interest in disclosure of responsive emails, and taking account of the applicant’s broad request for any documents about him for a seven month period occurring over seven years ago when he was an employee of Council, it is reasonable to expect that there would be minimal public interest in disclosure of those emails that deal with only routine and uncontentious employment matters ordinarily generated by an employer in respect of its employees. The applicant has not restricted his application for access to emails that deal with a specific topic or subject matter of concern to him. He did refer to the possibility of considering only emails ‘specifically related to’ him and not other employees.[45] However, this would not avoid the work involved in opening and reviewing every email containing the applicant’s name. In addition, Council would be left to use its own judgment as to whether each email was ‘specifically related to’ the applicant, and therefore one he would wish to access. That is too vague and does not offer a reasonable narrowing of the terms of the application so as to allow Council to process it. Had the applicant been willing to restrict his application to emails regarding a specific topic or subject matter, this may have reduced the time required to deal with the application. However, the applicant did not elect to narrow his application in this way. In summary, having regard to the above factors, I am satisfied that requiring an officer in the RTI unit to work on processing the applicant’s access application, to the exclusion of all other work, for a period of over five weeks, would significantly impact Council’s ability to process other applications and attend to its other local government functions, resulting in a substantial and unreasonable diversion of Council’s resources. For the reasons set out above, I am satisfied that the work involved in dealing with the access application would, if carried out, substantially and unreasonably divert Council’s resources from their use in the performance of Council’s functions. DECISION I affirm Council’s decision to refuse to deal with the applicant’s access application under section 60 of the IP Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.S Martin Assistant Information CommissionerDate: 21 October 2021 APPENDIX Significant procedural steps Date Event 12 May 2021 OIC received the applicant’s application for external review. 13 May 2021 OIC requested preliminary information from Council. 17 May 2021 Council provided preliminary information. 10 June 2021 OIC requested a submission from Council. 27 July 2021 Council provided a submission. 29 July 2021 OIC provided a copy of Council’s submission to the applicant and communicated a preliminary view. 12 August 2021 OIC received an email from the applicant raising a query about the timeframe used in Council’s submission. 16 August 2021 OIC requested that Council clarify its submission. Council provided clarification. 29 August 2021 OIC received an email from the applicant. 30 August 2021 OIC provided the applicant with a copy of Council’s clarification of its submission. 20 September 2021 OIC received a submission from the applicant. [1] On 31 December 2020. [2] Letter dated 4 February 2021. [3] On 18 February 2021.[4] Decision dated 22 February 2021. [5] On 18 March 2021.[6] Decision dated 14 April 2021. [7] On 12 May 2021. [8] As of 18 May 2021, Council has disclosed more than 3,200 pages to the applicant across five separate IP Act access applications of which OIC is aware (as they are either finalised or current external reviews with OIC).[9] Including the external review application and emails received on 11 January 2021, 14 June 2021, 20 June 2021, 21 July 2021, and 23 July 2021.[10] Section 21 of the HR Act. [11] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[12] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [13] XYZ at [573].[14] Section 40 of the IP Act. [15] Section 58 of the IP Act. [16] Section 14B of the AIA. [17] Macquarie Dictionary Online www.macquariedictionary.com.au (accessed 12.10.21).[18] Section 60(3) of the IP Act. [19] Section 60(2) of the IP Act. [20] Middleton and Building Services Authority (Unreported, Queensland Information Commissioner, 24 December 2010) at [34]-[37].[21] 60CDYY and Department of Education and Training [2017] QICmr 52A (7 November 2017) at [18].[22] ROM212 and Queensland Fire and Emergency Services [2016] QICmr 35 (9 September 2016) at [42] and F60XCX and Department of the Premier and Cabinet [2016] QICmr 41 (13 October 2016) at [90], adopting Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1550 (Smeaton) at [30].[23] Smeaton at [39].[24] Letter to Council dated 10 June 2021. [25] Council advised in an email of 11 October 2021 that eDiscovery is not in fact the correct term for the search tool used to search Council’s email accounts using defined parameters/search terms, and that it is more accurately referred to as SourceOne. Although Council’s submissions refer to eDiscovery, I will hereinafter refer to the email account search tool as SourceOne. [26] OIC’s email to Council of 16 August 2021. [27] Email of 16 August 2021.[28] Through his agent.[29] The applicant has been advised on several occasions in previous reviews that, because OIC conducts a merits review, complaints about the contents of agency decisions are irrelevant because any procedural errors are corrected on external review. [30] Submission dated 27 July 2021.[31] Telephone call on 11 October 2021.[32] Based on an estimate of each responsive email generating approximately 2.38 pages.[33] Submissions dated 27 July 2021.[34] Submissions dated 20 September 2021.[35] Submissions dated 20 September 2021.[36] Submissions dated 27 July 2021.[37] Council advised in its email of 11 October 2021 that one of the emails it reviewed as part of its sampling was a payroll processing spreadsheet containing the names of thousands of employees. [38] Submissions dated 27 July 2021.[39] 93 + 93 + 4.[40] Based on a seven hour working day. [41] Submission dated 27 July 2021.[42] In a telephone call on 11 October 2021.[43] See pages 66-67 of Department of Justice and Attorney-General, ‘Right to Information Act 2009 and Information Privacy Act 2009 Annual Report 2019-20’ at <rti.qld.gov.au> which show that, in the 2019-2020 financial year, Council received 410 RTI and IP applications; the next highest number of applications were received by City of Gold Coast (157) and Moreton Bay Regional Council (109); and all other local governments received fewer than 100 applications.[44] Council Annual Report 2020-21.[45] Submissions dated 20 September 2021 (see paragraph 27 above).

queensland

court_judgement

Queensland Information Commissioner 1993-

Hansen and Queensland Industry Development Corporation [1996] QICmr 9; (1996) 3 QAR 265 (14 June 1996)

Hansen and Queensland Industry Development Corporation [1996] QICmr 9; (1996) 3 QAR 265 (14 June 1996) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 96009Application S 49/95 Participants: CHRISTOPHER ANDREW HANSEN Applicant QUEENSLAND INDUSTRY DEVELOPMENT CORPORATION Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - jurisdictional issue - whether documents to which the applicant has sought access are excluded from the application of the Freedom of Information Act 1992 Qld by s.11A of that Act and s.35 of the Queensland Industry Development Corporation Act 1994 Qld - documents in issue relate to a review of the respondent's decision to terminate the applicant's employment - whether the documents were received, or brought into existence, in carrying out activities of the respondent conducted on a commercial basis.Freedom of Information Act 1992 Qld s.10, s.11(1), s.11(1)(o), s.11A, s.34(1), s.40(c), s.40(d), s.52, s.73(3)Acts Interpretation Act 1954 Qld s.14BQueensland Industry Development Corporation Act 1985 Qld s.10, s.18(5)Queensland Industry Development Corporation Act 1994 Qld s.8, s.35Rural Adjustment Authority Act 1994 QldChristie and Queensland Industry Development Corporation, Re [1993] QICmr 1; (1993) 1 QAR 1 DECISION I find that the documents to which the applicant requested access, under cover of a letter to the respondent dated 1 November 1994, are not excluded from the application of the Freedom of Information Act 1992 Qld by s.11A of that Act, and s.35 of the Queensland Industry Development Corporation Act 1994 Qld, and I therefore have jurisdiction to review the respondent's refusal of access to those documents.Date of decision: 14 June 1996............................................................F N ALBIETZINFORMATION COMMISSIONER OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 96009Application S 49/95 Participants: CHRISTOPHER ANDREW HANSEN Applicant QUEENSLAND INDUSTRY DEVELOPMENT CORPORATION Respondent REASONS FOR DECISION Background1. The applicant contends that certain documents held by the respondent (which relate to a review of the respondent's decision to terminate the applicant's employment) are subject to the application of the Freedom of Information Act 1992 Qld (the FOI Act), and that he is entitled to access to the documents. The respondent, on the other hand, contends that the documents are not subject to the application of the FOI Act, or that, if they are, they are exempt matter under s.40(c) and s.40(d) of the FOI Act. This decision deals with the first issue, i.e., whether or not the documents are subject to the application of the FOI Act.2. The applicant was formerly employed by the Queensland Industry Development Corporation (the QIDC) at its Mackay office. His employment was terminated on 23 June 1993 following his refusal to accept a transfer to the QIDC's Atherton office. At the time of his termination, the applicant was informed of his rights under s.18(5) of the Queensland Industry Development Corporation Act 1985 Qld to make a written submission to the Board of the QIDC disputing the decision and requesting a review of the process by which the decision was made. The applicant subsequently made such a submission, and in June 1994 a panel of three persons was appointed to conduct a review in accordance with s.18(5) of the Queensland Industry Development Corporation Act 1985. The panel furnished its report on 2 August 1994. By letter dated 1 November 1994, Mr Hansen applied, through his solicitors, for access under the FOI Act to that report and other documents relating to the panel's review of the decision to terminate Mr Hansen's employment.3. By letter dated 8 November 1994, Mr D C Solomon, a legal officer of the QIDC, wrote to Mr Hansen's solicitors, referring to s.11A of the FOI Act and s.35 of the Queensland Industry Development Corporation Act 1994 Qld (an Act which repealed and replaced the Queensland Industry Development Corporation Act 1985). The effect of these provisions is that the FOI Act does not apply to a document received or brought into existence by the QIDC in carrying out its activities conducted on a commercial basis. Mr Solomon went on to say:All aspects of the [QIDC's] operation are conducted on a commercial basis and s.11A of the [FOI] Act and s.35(3) of the QIDC Act exempt the [QIDC] from the operation of the provisions of the [FOI] Act. Accordingly the [QIDC] refuses your client access to the documents requested.4. The applicant's solicitors wrote to me on 6 January 1995 seeking review of Mr Solomon's decision. By letter dated 13 January 1995, the Deputy Information Commissioner informed the applicant's solicitors that the terms of s.73(3) of the FOI Act meant that the applicant was not entitled to apply for external review of that decision (which had not been made by the QIDC's principal officer) unless an application had been made under s.52 of the FOI Act in relation to the decision. By letter dated 11 January 1995, the applicant's solicitors applied to the QIDC for internal review, pursuant to s.52 of the FOI Act, of Mr Solomon's decision. On 19 January 1995, Mr Solomon wrote a letter to the applicant's solicitors in which he stated that his letter dated 8 November 1994 was not a decision under s.34(1) of the FOI Act (which deals with notification of decisions and reasons), asserted that the applicant did not have a right to apply for internal review, and restated his contention that the QIDC was not subject to the provisions of the FOI Act.5. The applicant's solicitors wrote to me again, on 1 March 1995, seeking review, under Part 5 of the FOI Act, of the QIDC's refusal to give the applicant access to the documents specified in the applicant's FOI access application dated 1 November 1994.External review process6. The Deputy Information Commissioner wrote to the QIDC on 8 March 1995 indicating that an application for external review had been received from Mr Hansen, and that it was necessary to investigate the preliminary question of whether or not the Information Commissioner had jurisdiction to conduct an external review. He sought from the QIDC copies of documents falling within the terms of Mr Hansen's FOI access application, and a written submission in support of the QIDC's contention that the FOI Act did not apply to those documents.7. The QIDC supplied copies of a number of documents (the documents in issue) together with a submission dated 28 April 1995. The applicant was provided with an edited copy of the submission and invited to lodge a submission and/or evidence in reply. The applicant replied by letter dated 24 May 1995, a copy of which was provided to the QIDC. The QIDC made no submission in response other than to provide me with a copy of a letter dated 5 May 1995 from the then Treasurer, relating to the matter. Relevant parts of the material submitted by the participants are set out below.Relevant legislative provisions8. Section 11A of the FOI Act provides: 11A. This Act does not apply to documents received, or brought into existence, in carrying out activities of a GOC mentioned in schedule 2 to the extent provided under the application provision mentioned for the GOC in the schedule.9. Schedule 2 of the FOI Act lists the QIDC as a GOC (Government Owned Corporation), and lists s.35 of the Queensland Industry Development Corporation Act 1994 as the relevant"application provision". Section 35 of the Queensland Industry Development Corporation Act 1994 provides:Application of Freedom of Information Act and Judicial Review Act 35.(1) In this section--"commercial activities" means activities conducted on a commercial basis."community service obligations" has the same meaning as in the GOC Act."excluded activities" means--(a) commercial activities; or(b) community service obligations prescribed by regulation. (2) A regulation may declare the activities of QIDC that are taken to be, or are taken not to be, activities conducted on a commercial basis. (3) The Freedom of Information Act 1992 does not apply to a document received or brought into existence by QIDC in carrying out its excluded activities. (4) The Judicial Review Act 1991 does not apply to a decision of QIDC made in carrying out its excluded activities.10. No regulation has been made under s.35(2). As noted above, the effect of these provisions is that the FOI Act does not apply to a document received or brought into existence by the QIDC in carrying out its activities conducted on a commercial basis. Section 11A of the FOI Act and s.35 of the Queensland Industry Development Corporation Act 1994 are hereinafter referred to as "the exclusion provisions".11. Reference is also made in these reasons for decision to s.18(5) of the Queensland Industry Development Corporation Act 1985 (repealed with effect from 1 October 1994) which provided:(5) (a) An officer of the Corporation aggrieved by a decision of the Board resulting in disciplinary action against him or a denial to him of promotion may by writing signed by him furnish to the Board a submission disputing the decision and requesting that there be carried out a review of the process by which the decision was made.A submission under this paragraph shall not raise or be directed to raising a comparison of the submittor or his seniority or efficiency with another officer of the Corporation or his seniority or efficiency.(b) Upon receipt of a submission in accordance with paragraph (a) the Board may by writing request the Chief Executive Officer to select a person who was not, or a panel consisting of at least 2 persons who were not, involved in the making of the decision out of which the submission arose. A person or panel may be or, as the case may be, may consist of officers of the Corporation.(c) The person or, as the case may be, panel of persons so selected shall review the decision in question in such manner as he or it thinks fit and thereupon shall furnish to the Board his or its recommendations.The Board may take upon the recommendations such action as it thinks fit.The practice and procedure upon a review in accordance with this paragraph shall be as prescribed or, so far as not prescribed, as the person or panel determines from time to time.Jurisdiction of the Information Commissioner12. I have previously discussed my powers and role in determining my jurisdiction as Information Commissioner in Re Christie and Queensland Industry Development Corporation (1993) [1993] QICmr 1; 1 QAR 1, at pp.4-7 (paragraphs 5-16). For the reasons there stated, I consider that I have the power, and a duty, to embark upon a consideration of issues relating to the limits of my jurisdiction, when they are raised as an issue in an application for review lodged with me. 13. In the Deputy Information Commissioner's letter to the QIDC dated 8 March 1995, the nature of the jurisdictional issue raised by Mr Hansen's application for review was stated (at pp.3-4 of that letter), and the QIDC was requested to supply copies of documents falling within the terms of Mr Hansen's FOI access application. The QIDC has supplied me with a number of documents which it accepts would fall within the terms of Mr Hansen's FOI access application, if the documents were subject to the application of the FOI Act. There is no doubt that the QIDC is an "agency", as defined in the FOI Act, and that the documents provided to me by the QIDC are "documents of an agency" (as defined in the FOI Act), subject only to the operation of the exclusion provisions. Therefore, I will have jurisdiction to conduct a review under Part 5 of the FOI Act in respect of any of the documents in issue which are not excluded from the application of the FOI Act by the exclusion provisions. In deciding whether I have jurisdiction to conduct this external review, I must, therefore, determine whether any of those documents are so excluded.Participants' submissions14. The QIDC has submitted that the effect of the exclusion provisions is to exclude all documents held by it from the application of the FOI Act, because all of its activities are conducted on a commercial basis. The QIDC contends:As a direct result of the [Information] Commissioner's comments in Re Christie the GOE Unit, in consultation with the [QIDC], aimed to clarify the application of both the FOI Act and the JR Act to the [QIDC]. At the time the QIDC Act was drafted it was intended that, although the [QIDC's] Government Schemes Division would become more autonomous, the [QIDC] would still be responsible for the administration of Schemes of assistance.Accordingly it was inappropriate that the [QIDC] receive a complete exemption from the operation of the FOI and JR Act. Hence s.11(1)(k) of the FOI Act was repealed and a new s.11A inserted ... [the exclusion provisions were then set out]. It should be noted that s.16 of the Government Owned Corporations Act 1993 ("the GOC Act") defines Corporatisation, inter alia, as a structural reform process for nominated Government entities that changes the conditions under which the entities operate so that they operate, as far as practicable, on a commercial basis and in a competitive environment.... the Treasurer, in his second reading speech in support of the introduction of the QIDC Act on 30 August, 1994 stated:"The Act removes the application of the Freedom of Information Act and the Judicial Review Act from the commercial activities of the QIDC. Complementary amendments are being made to those Acts to ensure that QIDC is not disadvantaged in competition by the application of provisions which do not apply to its competitors." (our emphasis).Section 8 of the QIDC Act specifically states the [QIDC's] objective is "to achieve a commercial return on its business undertakings".The [QIDC] has been formally corporatised in order that it may compete in the financial sector "on a level playing field" with its competitors.The QIDC Act, FOI and JR Act were all specifically amended, in light of Re Christie, to exclude the [QIDC] from the application of those Acts because they do not apply to the [QIDC's] competitors. In this way the [QIDC] is placed on the same footing as its competitors. For the reasons mentioned above the exclusion could not be absolute.Prior to the [QIDC's] corporatisation, it was decided that the administration of Government Schemes of Assistance would be more properly served by the establishment of a completely separate and autonomous administering entity. As a result, the Rural Adjustment Authority Act 1994 was passed creating the Queensland Rural Adjustment Authority and that body is now charged with the administration of Government Schemes of Assistance. We would submit that there is no longer any justification for not providing the [QIDC] with the same complete exemption from the application of the FOI Act as is provided to Suncorp Insurance and Finance in s.11(1)(o) of the FOI Act. We have made this representation to the Treasurer and await his response.Accordingly, the [QIDC's] response to Mr. Hansen's application for access to information pursuant to the provisions of the FOI Act has been dealt with by the [QIDC] in accordance with the new provisions of the QIDC Act and the FOI Act and in light of the information supplied to the [QIDC] by the GOE Unit prior to Corporatisation.We respectfully submit that the [QIDC's] response to Mr. Hansen was appropriate in light of the changes in legislation since the decision in Re Christie and the [QIDC's] understanding of those legislative changes.On the basis of the above advices we submit that all of the [QIDC's] activities are commercially orientated and therefore come within the definition of"excluded activities" in s.35 of the QIDC Act. The [QIDC's] activities in respect to its personnel are no exception.Just as the [QIDC] must compete in the financial market place and be competitive with its interest rates and products, so too the [QIDC] competes in the Human Resources market place in obtaining, securing and dismissing personnel.In order to be competitive in that market place the [QIDC] must make commercially orientated decisions concerning every facet of Human Resources Management including recruitment, remuneration, training, and termination. After Cost of Funds the [QIDC's] costs associated with Human Resources are its second largest expense and amount to approximately $20 million each year. That cost has a direct effect on the [QIDC's] overall ability "to achieve a commercial return on its business undertakings".We submit that the [QIDC's] activities in relation to personnel, cannot be segregated from its commercial orientation and, are an intrinsic part of its overall commercial activity.15. The applicant argued that the exclusion provisions could not be interpreted as a general exemption for all QIDC documents. The applicant's submission dated 24 May 1995 focused on the interpretation of the term "commercial activity":In response to the submission made on behalf of QIDC we confirm our client's previous stance that it can in no way be accepted that QIDC was, when determining the matters concerning our client, dealing in matters that were "excluded activities" as provided for in s.35(3) of the QIDC Act. The excluded activities are defined in s.35(1) of the QIDC Act as meaning "(a) commercial activities; or (b) community service obligations prescribed by regulation."Commercial activities is defined as being activities conducted on a commercial basis. The activities of the [QIDC] in relation to their dealing with our client, in particular his dismissal, and subsequent review of his dismissal were not activities conducted on a commercial basis. Those activities were activities undertaken within the administrative functions of QIDC and not relating to the activity of the [QIDC] in the finance sector within which it operates.The submission by QIDC that the second reading speech of the Treasurer supports their contention is also rejected. Clearly the Treasurer is again referring to the commercial activities of the [QIDC] and not all activities of the [QIDC] as is sought to be advanced by QIDC. 16. The QIDC was given the opportunity to respond to the applicant's submission dated 24 May 1995. The QIDC replied briefly, by letter dated 13 June 1995, stating that Mr Hansen's submission raised no new matters for the QIDC to address. The letter went on to inform me that the QIDC's Chairman "has raised this matter with the Treasurer and a copy of the Treasurer's response is enclosed for your interest." Those words do not make it clear whether the QIDC intended that I should take the then Treasurer's response into account in support of the QIDC's case on the jurisdictional issue. The then Treasurer's response does not fall within the categories of "extrinsic material" to which consideration may be given if the "extrinsic material" will assist the interpretation of a provision of an Act, in the circumstances contemplated by s.14B of the Acts Interpretation Act 1954 Qld. Nevertheless, I have considered on its merits, as if it were an argument addressed in support of the QIDC's case on the jurisdictional issue, the material contained in the then Treasurer's response to the QIDC, the relevant parts of which are as follows:To achieve competitive neutrality with regard to the applicability of FOI to Government Owned Corporations (GOCs) including the QIDC, the Government decided that the FOI Act should only apply to a GOC's regulatory activities, [Community Service Obligations] (unless prescribed to be exempt) and activities carried out under statutory power.It was the clear intention of the Government that activities such as personnel administration, where undertaken in support of a GOC's commercial activities, should also be exempt from FOI. If this were not the case, GOCs would be competing on unfair terms with their private sector counterparts which are not accountable in this way. The amendments to the FOI and QIDC Acts were intended to operate on this basis.To the extent that, as a result of corporatisation, the QIDC does not currently undertake any [Community Service Obligation] activities nor have any regulatory or statutory powers impinging on fundamental legislative principles and, as such, is operating in a strictly commercial environment, I would not see the FOI Act being applicable to the Corporation.Accordingly, I would disagree with the Information Commissioner's interpretation of s.11A of the FOI Act and s.35 of the QIDC Act regarding the external review application to which you refer. I understand that the Corporation has provided to the Commissioner documents requested by him with regard to this matter. Consequent upon the Commissioner's ruling after he has studied the relevant material, I have asked the GOE Unit to prepare for my consideration, should it be necessary, a draft regulation under s.35(2) of the QIDC Act to clarify the Government's policy in respect of the applicability of FOI to the Corporation.Application of exclusion provisions17. The QIDC argues (see paragraph 14 above) that all of its activities are conducted on a commercial basis and that the effect of the exclusion provisions is to afford it a complete exclusion from the application of the FOI Act.18. There are two obvious responses to the QIDC's argument. The first is that all but one of the documents in issue were received, or brought into existence, by the QIDC before it became a GOC on 1 October 1994 (the exception being a document containing brief minutes of the consideration by the QIDC Board, on 26 October 1994, of a matter arising from its previous consideration of the report (received by the QIDC on 2 August 1994) by the panel appointed under s.18(5) of the Queensland Industry Development Corporation Act 1985). While there is no doubt that the QIDC had commercial activities prior to 1 October 1994, this point is worth making in view of the emphasis in the QIDC's submissions (see paragraphs 14 and 16 above) that since it became a GOC all of its activities are conducted on a commercial basis. I note, merely by way of illustration, that s.8 of the Queensland Industry DevelopmentCorporation Act 1994 states that "QIDC's objective is to operate as a financier to Queensland's primary, secondary and tertiary industries in order to achieve a commercial return on its business undertakings", whereas s.10 of the Queensland Industry Development Corporation Act 1985 had provided that "The objectives of the [QIDC] shall be to facilitate, encourage and promote the development and expansion of economic activity in Queensland, with a view to enhancing economic growth, and employment opportunities in the State and for the public benefit".19. The second obvious response to the QIDC's arguments is that the very words employed by Parliament in the exclusion provisions are inconsistent with an intention on the part of Parliament to confer on the QIDC a complete exclusion from the application of the FOI Act. If that had been Parliament's intention, it could have been achieved, simply and unequivocally, by either--(a) inserting in s.11(1) of the FOI Act a new paragraph, in like terms to s.11(1)(o) (by which Suncorp Insurance and Finance is excluded from the application of the FOI Act), thus: "This Act does not apply to ... Queensland Industry Development Corporation; ..."; or (b) providing in s.35 of the Queensland Industry Development Corporation Act 1994 that the excluded activities of the QIDC were "all activities" or, perhaps, "all activities except those prescribed by regulation" (to preserve some flexibility to deal with unforeseen circumstances). Instead, Parliament was careful to differentiate and describe categories of excluded activities of the QIDC.20. The QIDC contends that the failure to provide a complete exclusion came about because at one time its functions included the administration of "schemes of assistance", but that those functions have been taken over by the Queensland Rural Adjustment Authority (the QRAA) pursuant to the Rural Adjustment Authority Act 1994 Qld, and that the FOI Act no longer applies to any documents of the QIDC. However, there is really no basis for such a speculative interpretation of the exclusion provisions. The decision to remove the function of administering "schemes of assistance" from the QIDC, and to give that function to the QRAA, was made before the QIDC became a GOC. Both the Queensland Industry Development Corporation Act 1994 and the Rural Adjustment Authority Act 1994 came before the Parliament, as Bills, at the same time, and both Acts commenced on 1 October 1994. If Parliament's sole intention in designating "commercial activities" as "excluded activities" (in s.35 of the Queensland Industry Development Corporation Act 1994) had been to retain access by members of the public to documents relating to the administration of "schemes of assistance", the Parliament, then being aware that the function of administering "schemes of assistance" would no longer lie with the QIDC, could have amended the Queensland Industry Development Corporation Bill 1994 to give the QIDC a complete exclusion from the application of the FOI Act. It did not do this; rather, it employed the specific wording found in the exclusion provisions.21. The QIDC suggests that the wording of the then Treasurer's second reading speech lends force to the argument that all activities of the QIDC should be excluded. In my view, neither the second reading speech nor the relevant explanatory notes enhance, to any significant extent, the understanding of the intention of Parliament that is to be gained from a reading of the exclusion provisions themselves. That part of the second reading speech which the QIDC has emphasised in its submission (in bold type in paragraph 14 above) does not say that there can be no legislative provisions applying to it which do not apply to its competitors. It says that the intention is that QIDC will not be "disadvantaged in competition" by any such legislative provisions. The means by which Parliament chose to achieve that end was to distinguish between the "commercial activities" of the QIDC and any other activities not conducted on a commercial basis. My role is to interpret the legislation according to its ordinary meaning in the statutory context in which it appears. In my view, Parliament clearly envisaged that, while the activities of the QIDC were predominantly "commercial activities", there had in the past been, and there would or may in the future be, other activities of the QIDC not conducted on a commercial basis. (Given the unlimited retrospective reach of the FOI Act, as provided for in s.10, and the fact that the QIDC was not to be given an agency-based exclusion from the application of the FOI Act in the same manner as Suncorp Insurance and Finance, the legislature would have appreciated that the QIDC may be required to deal with applications for access to documents received or brought into existence at a time when its statutory objective was not confined to achieving a commercial return on its business undertakings.) There is nothing ambiguous in the wording of the exclusion provisions, and nothing in the second reading speech, or any other extrinsic materials, which would indicate that I must accept that all activities of the QIDC are commercial activities.22. The application of the exclusion provisions requires a determination of the nature of the activity carried out by the QIDC, in the course of which each of the documents in issue was received or brought into existence, and a determination as to whether that activity is a commercial activity of the QIDC, that is, an activity conducted by the QIDC on a commercial basis.23. I have examined the documents in issue. They comprise-- the report of the panel appointed under s.18(5) of the Queensland Industry Development Corporation Act 1985 to review the process by which the decision was made to terminate the applicant's employment for refusing to accept a transfer to the QIDC's Atherton Office; correspondence passing between the QIDC and the members of the panel, and material submitted to the panel by the QIDC; and minutes of Board meetings of the QIDC relating to its consideration of the panel's report.24. All of the documents to which Mr Hansen seeks access were received or brought into existence in carrying out the QIDC's activity of dealing with the submission made by Mr Hansen pursuant to the statutory right conferred by s.18(5) of the Queensland Industry Development Corporation Act 1985 to dispute the decision to terminate his employment for refusal to accept a transfer. (A small number of the documents are copies, provided to the panel for its assistance, of documents which were initially created in the course of QIDC's dealings with Mr Hansen about the transfer, the termination of his employment, or related matters. However, it is clear that the copies were created for the purposes of the panel's review of the decision to terminate Mr Hansen's employment.)25. Major dictionaries give the primary meaning of the adjective "commercial" as "of, connected with, or engaged in, commerce; mercantile" (Collins English Dictionary, Third Aust. Ed), "of, engaged in, bearing on, commerce" (Australian Concise Oxford Dictionary), "of, or of the nature of, commerce" (Macquarie Dictionary). The corresponding primary meaning of the noun "commerce" is "the activity embracing all forms of the purchase and sale of goods and services" (Collins English Dictionary, Third Aust. Ed.), "exchange of merchandise or services ... buying and selling" (Australian Concise Oxford Dictionary), "interchange of goods orcommodities" (Macquarie Dictionary). The activity I have described in paragraph 24 above does not involve the purchase or sale of goods or services.26. There is a subsidiary meaning of the adjective "commercial" which may be appropriate to the context of the phrase "activities conducted on a commercial basis" in s.35 of the Queensland Industry Development Corporation Act 1994, that is, "having profit as the main aim" (Collins English Dictionary, Third Aust. Ed.), "capable of returning a profit; ... preoccupied with profits or immediate gains" (Macquarie Dictionary). However, I am satisfied that the activity described in paragraph 24 above does not answer any of these descriptions.27. It is clear, in my opinion, that s.18(5) of the Queensland Industry Development Corporation Act 1985 was intended to confer on employees of the QIDC a right of appeal, in the nature of a grievance procedure, as a measure of protection or relief against certain kinds of decisions having an adverse impact on employees. The activities of the QIDC in dealing with such an appeal cannot, in my opinion, be properly characterised as commercial activities, or activities conducted on a commercial basis.28. The QIDC submits that its activities in relation to personnel cannot be segregated from its commercial orientation, that it competes in the human resources market place in obtaining, securing and dismissing personnel, and that it must make commercially oriented decisions concerning every facet of human resources management including recruitment, remuneration, training, and termination. For reasons already addressed above, I do not consider that the words employed by Parliament in the exclusion provisions contemplate or necessarily require that all activities conducted by a GOC (which, by definition, will necessarily have a commercial orientation) must be characterised as commercial activities. Moreover, the fact that a commercially oriented decision is made in the conduct of an activity does not necessarily make the activity a commercial activity, or an activity conducted on a commercial basis. Whatever the position may be in respect of recruitment of staff, I doubt that the dismissal of personnel could invariably be characterised as an activity conducted on a commercial basis. I do not consider that the termination of Mr Hansen's employment on account of his refusal to accept a transfer was an activity conducted on a commercial basis; and I am satisfied that the activities of the QIDC in response to Mr Hansen's submission disputing the QIDC's decision to terminate his employment (in accordance with s.18(5) of the Queensland Industry Development Corporation Act 1985) were not activities conducted on a commercial basis.29. I am satisfied that documents falling within the terms of the applicant's FOI access application, made under cover of a letter to the QIDC dated 1 November 1994, are not excluded from the application of the FOI Act by the exclusion provisions, and that I have jurisdiction to conduct a review, under Part 5 of the FOI Act, of the QIDC's refusal to give the applicant access to those documents.30. I will write to the QIDC separately giving directions for filing evidence and submissions in support of any claims it wishes to advance that the documents in issue are exempt under one or more of the exemption provisions contained in Part 3, Division 2 of the FOI Act. In due course, I will also give directions to the applicant in respect of filing evidence and submissions in support of his case.Conclusion31. I find that the documents to which the applicant requested access, under cover of a letter to the respondent dated 1 November 1994, are not excluded from the application of the Freedom of Information Act 1992 Qld by s.11A of that Act, and s.35 of the Queensland Industry Development Corporation Act 1994 Qld, and I therefore have jurisdiction to review the respondent's refusal of access to those documents.............................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

T90 and Wide Bay Hospital and Health Service [2021] QICmr 37 (21 July 2021)

T90 and Wide Bay Hospital and Health Service [2021] QICmr 37 (21 July 2021) Last Updated: 12 January 2022 Decision and Reasons for Decision Citation: T90 and Wide Bay Hospital and Health Service [2021] QICmr 37 (21 July 2021) Application Number: 315861 Applicant: T90 Respondent: Wide Bay Hospital and Health Service Decision Date: 21 July 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - medical records - personal information and privacy - 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) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary 1. The applicant applied[1] to Wide Bay Hospital and Health Service (WBHHS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to his medical records from 1 January 2017 to 31 December 2017. 2. WBHHS located 228 pages and decided[2] to refuse access to information contained within 8 pages[3] on the ground that disclosure would, on balance, be contrary to the public interest. The remaining information was released in full to the applicant.[4] 3. The applicant applied[5] to the Office of the Information Commissioner (OIC) for external review of the decision to refuse access to some information and also raised concerns about the accuracy of certain medical records. 4. For the reasons set out below, I affirm WBHHS’s decision and find that access to the information in this review may be refused on the basis disclosure would, on balance, be contrary to the public interest.[6] Background 5. The information requested by the applicant relates to his mental health records with WBHHS. Some issues were raised by the applicant that are outside the scope of this external review.[7] This included concerns regarding documents containing false and misleading information[8] and the conduct of doctors at WBHHS.[9] 6. The powers of the Information Commissioner on external review are set out in the IP Act,[10] and jurisdiction on external review is limited to review of an access or amendment decision.[11] In this current matter the applicant has made an access application[12] as opposed to an amendment application[13] so I am only able to consider the reviewable decision made regarding access to the information in issue.[14] Reviewable decision 7. The decision under review is WBHHS’s decision dated 6 January 2021. Evidence considered 8. Significant procedural steps taken during the external review are set out in the Appendix to this decision. 9. 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 carefully considered the applicant’s submissions and have summarised them throughout this decision to the extent they are relevant to the issues in this review.[15] 10. I have had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[16] 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.[17] 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:[18] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[19] Information in issue 11. The information in issue in this review is comprised of parts of the applicant’s medical records which have been redacted by WBHHS. The IP Act prohibits me from disclosing the Information in Issue in these reasons[20] and, given the context in which the Information in Issue appears, I am limited in the level of detail I can provide. Broadly, the Information in Issue comprises information provided by third parties (other than WBHHS staff) and recorded in the applicant’s mental health records. 12. The applicant agrees some names should be redacted to protect their privacy,[21] and has indicated he considers one of the redactions applied to be acceptable.[22] Given this, I understand that the applicant seeks access to unredacted copies of eight pages[23] of his medical records (Information in Issue). Issue for determination 13. The issue for determination is whether access to the Information in Issue may be refused as disclosure would, on balance, be contrary to the public interest. Relevant law 14. 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.[24] However, this right is subject to provisions of the IP Act including the grounds on which an agency may refuse access to documents.[25] 15. An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[26] 16. In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[27] 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. 17. Schedule 4 of the RTI Act contains non-exhaustive lists of factors that may be relevant in determining where the balance of public interest lies in a particular case. I have considered these lists,[28] together with all other relevant information, in reaching my decision. I have kept in mind the IP Act’s pro-disclosure bias[29] and Parliament’s requirement that grounds for refusing access to information be interpreted narrowly.[30] Findings Irrelevant factors 18. No irrelevant factors arise in the circumstances of this case and I have not taken any into account in reaching my decision. Factors favouring disclosure Personal information 19. The Information in Issue comprises the applicant’s personal information[31] in his medical records. This raises a factor favouring disclosure which is routinely afforded significant weight due to the fundamental importance of individuals having access to their personal information held by a government agency.[32] In considering this factor, I note WBHHS have provided the applicant with 219 pages in full and nine pages in part of his mental health records. Generally, the weight that can be attributed to this factor in the context of an individual’s own medical records can be quite high. In this case however, I have only attributed moderate weight to this factor given the volume of information that was released to the applicant, and the particular nature of the information in issue. 20. I am also satisfied that the applicant’s personal information in the Information is Issue is inextricably intertwined with the personal information of others such that it cannot be separated to allow disclosure. I consider that this raises factors in favour of nondisclosure[33] (in relation to safeguarding the personal information and right to privacy of other individuals, discussed below). Accountability and Transparency 21. I have considered whether disclosing the Information in Issue could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability;[34] and reveal the reason for a government decision and any background or contextual information that informed the decision.[35] 22. I accept that disclosing the Information in Issue would provide the applicant with a more comprehensive understanding of what appears in his medical records that may have been considered by doctors when making decisions about his healthcare. 23. However, the applicant has been granted access to a vast majority of documents in the medical record. I am satisfied that the information already released largely satisfied the public interest factors identified above. Also, given the comparatively small number of pages which make up the Information in Issue and its particular contents, I do not consider its disclosure would advance these public interest factors to any significant degree.[36] I also note that the Information in Issue reveals little about the actions taken by WBHHS staff and is unlikely of itself to enhance the accountability of their actions. Accordingly, I afford the above factors only low weight. Whether disclosure would reveal information that is incorrect or misleading 24. The applicant submits that access to the Information in Issue will enable him to identify false and misleading information and give him ‘...the ability to correct the various records’.[37] The applicant referred to a particular meeting with WBHHS involving other members of his family[38] and stated: ... We have RTI/IP from QPS and QAS that proves the false accusation of DVO was not from them, and request your decision in our favour to locate where the false information came from.[39] 25. The RTI Act recognises that where disclosure of information could reasonably be expected to reveal that the information was incorrect or misleading, this will establish a public interest factor favouring disclosure.[40] 26. I have reviewed the Information in Issue and I am satisfied there is nothing on its face to indicate it is inaccurate or misleading.[41] The Information in Issue is, by its very nature, the particular opinions and versions of events expressed by other individuals. This inherent subjectivity does not mean that the Information in Issue is necessarily incorrect or misleading.[42] On the material before me, I am not satisfied that disclosure of the Information in Issue could reasonably be expected to reveal that information recorded by WBHHS was incorrect or misleading. Accordingly, I have not given this public interest factor any weight in favour of disclosure. Contributing to the administration of justice generally or for a person 27. I have considered whether the disclosure of the Information in Issue could reasonably be expected to contribute to the administration of justice, procedural fairness and/or advance the applicant’s fair treatment. [43] 28. I accept that disclosure of the Information in Issue may permit the applicant to better understand the decisions made in relation to his mental health care.[44] The Information Commissioner has previously recognised that in an appropriate case there may be a public interest in a person who has suffered, or may have suffered, an actionable wrong, being permitted to obtain access to information which would assist the person to pursue any remedy which the law affords in those circumstances.[45] 29. However, the mere assertion by an applicant that information is required to enable pursuit of a legal remedy is not sufficient to establish this pro-disclosure consideration.[46] An applicant must, at the least, demonstrate that he or she has suffered some kind of wrong in respect of which a remedy is, or may be, available under the law, and that he or she has a reasonable basis for seeking to pursue any such remedy.[47] 30. The applicant has indicated he intends to take action to correct false or misleading information in his mental health records. However, I do not consider access to the Information in Issue is necessary to enable the applicant to pursue this course of action. The IP Act provides that an individual who has had access to a document of an agency may apply for amendment to any part of the individual’s personal information contained in the document that the individual claims is inaccurate, incomplete, out of date or misleading.[48] WBHHS have released 228 pages of the applicant’s mental health records to him, with redactions on nine pages, and so the applicant has access to the document he requires in order to make an application for amendment under the IP Act. 31. The applicant also indicates he intends to report ‘Medical Deception by Doctors’ and investigate the misuse of an Emergency Examination Order.[49] I do not consider access to the Information in Issue is required for the applicant to make this report and note the applicant indicated he has already commenced the process of investigating the misuse of an Emergency Examination Order.[50] 32. Further, to the extent the applicant seeks to make a complaint about medical professionals, OIC has informed the applicant that the Office of the Health Ombudsman (OHO) is the statutory body empowered to assess and investigate complaints regarding healthcare providers. OHO has wide ranging powers under the Health Ombudsman Act 2013 (Qld), including the power to require a person to give the OHO any document relevant to an investigation. 33. Taking into account the information which has already been released to the applicant, I consider the public interest factors have been sufficiently discharged and disclosure of the Information in Issue would not significantly advance these factors favouring disclosure. Accordingly, I afford low weight to the above factors favouring disclosure. Revealing misconduct, improper conduct or deficiencies in conduct 34. The public interest will favour disclosure of information where it could reasonably be expected to: allow or assist inquiry into possible deficiencies of conduct or administration by an agency or official;[51] or reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.[52] 35. Aside from the applicant’s assertions,[53] there is no other evidence, before me to suggest possible misconduct, improper conduct or deficiencies in the conduct of WBHHS. Accordingly, I do not consider that these factors apply. Factors favouring nondisclosure Personal information and privacy 36. The Information in Issue comprises the intertwined personal information of the applicant and other individuals. This gives rise to two factors favouring nondisclosure relating to protecting the personal information[54] and safeguarding the right to privacy of those individuals.[55] Given the sensitive nature of the information and the circumstances of its provision to WBHHS, I am satisfied that disclosure of the Information in Issue would disclose personal information of the third parties and prejudice their privacy.[56] 37. The Information in Issue predominantly comprises the opinions, thoughts, feelings and concerns of individuals other than the applicant.[57] While the Information in Issue appears within the applicant’s medical records, it also comprises the personal information of third parties who are readily identifiable. Given the nature of the Information in Issue, I afford significant weight to each of these nondisclosure factors. 38. The applicant submits that he is aware of the other parties concerned in the medical records and that therefore the relevant nondisclosure factor does not apply.[58] I have considered this submission and note that in some cases the weight to be attributed to these factors can be reduced where the applicant may be a close family member and the relevant information known to the applicant.[59] However, I do not consider that, in the circumstances of this case, the personal information or privacy factors are in any way reduced. Ability to obtain confidential information 39. A further factor favouring nondisclosure arises where disclosure of the Information in Issue could reasonably be expected to prejudice an agency’s ability to obtain confidential information.[60] I am satisfied that people who provide information to health care professionals, do so with an expectation of confidentiality. Previous decisions of the Information Commissioner have found that disclosure of this type of information could prejudice the ability of healthcare providers to effectively treat patients and have afforded significant weight to this factor in favour of nondisclosure.[61] 40. I acknowledge that the applicant considers the information recorded to be inaccurate. However, even where the content of the information is disputed, disclosure of that information could reasonably be expected to discourage other individuals from coming forward with confidential information to hospitals in the future, and this can be particularly detrimental to patient care in the mental health context.[62] 41. I have considered the Information in Issue and the specific context in which it occurs. I am satisfied that the disclosure of this type of information, could reasonably be expected to prejudice the supply of full and frank information to health professionals and I afford this factor significant weight. Balancing the public interest factors 42. In determining the balance of the public interest in this case, I acknowledge the pro-disclosure bias contained in section 64 of the IP Act. I have also attributed moderate weight in favour of the public interest in the applicant accessing his own personal information. I have also attributed some low weight to the public interest factors relevant to WBHHS being accountable and transparent and the applicant accessing information that may potentially assist him evaluate or pursue a legal remedy. While I have turned my mind to the other factors favouring disclosure set out in schedule 4 of the RTI Act, I consider that no further factors apply in this case. 43. On the other hand, I have attributed significant weight to the factors favouring nondisclosure that seek to protect the personal information and privacy of third parties. I have also attributed significant weight to the nondisclosure factor in relation to the prejudice to the Health Service’s ability to obtain confidential information particularly in the context of mental health care. 44. On balance, the significant weight I have attributed to the factors favouring nondisclosure outweigh the weight attributed to the factors in favour of disclosure. Accordingly, I am satisfied that disclosure of the Information in Issue would, on balance, be contrary to the public interest and access may be refused on this basis.[63]DECISION 45. As a delegate of the Information Commissioner, under section 139 of the IP Act, I affirm WBHHS’ decision to refuse access to the Information in Issue under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act.S Martin Assistant Information Commissioner Date: 21 July 2021 APPENDIX Significant procedural steps Date Event 2 February 2021 OIC received the application for external review dated 29 January 2021. 4 February 2021 OIC notified WBHHS that the application for external review had been received and requested procedural documents. 8 February 2021 OIC received the requested procedural documents from WBHHS. 17 February 2021 OIC notified WBHHS that the application for external review had been accepted and requested a copy of the documents located in response to the access application clearly showing the information to which access was refused. 17 February 2021 OIC notified the applicant the external review application had been accepted. 19 February 2021 OIC received the requested documents from WBHHS. 17 March 2021 OIC notified WBHHS that the documents received did not show the information to which access was refused and requested unredacted copies of the documents of the documents showing the refused information. 17 March 2021 OIC received the requested documents showing the refused information from WBHHS. 24 March 2021 OIC conveyed a preliminary review to the applicant. 8 April 2021 OIC received a submission from the applicant dated 7 April 2021. 4 May 2021 OIC wrote to the applicant asking that the applicant confirm that he wished to progress the external review to a formal decision. 25 May 2021 OIC received a further submission from the applicant dated 20 May 2021. 2 June 2021 OIC wrote to WBHHS requesting a copy of an additional page to which access was partially refused showing the refused information. 2 June 2021 OIC received a copy of the additional requested page from WBHHS. [1] Access application received by WBHHS on 24 November 2020.[2] By decision dated 6 January 2021.[3] Upon reviewing the information in issue it became apparent that access was refused in part to 9 pages as opposed to 8 pages and, as such, access was given in full to 219 pages. I have reviewed all relevant documents which were considered in the application, including the 9 pages with redacted information.[4] Being 219 pages in full and the remaining parts of 9 pages in issue.[5] External review application received 2 February 2021.[6] Under section 67 of the IP Act and section 47(3)(b) of the Right to Information Act 2009 (Qld) (RTI Act). [7] Section 99 and schedule 5 of the IP Act sets out the ‘reviewable decisions’ that I can consider.[8] Submissions dated 7 April 2021 and 20 May 2021.[9] Submissions dated 7 April 2021 and 20 May 2021.[10] Sections 111 to 122 of the IP Act.[11] Section 99 of the IP Act.[12] Under section 43 of the IP Act.[13] Under section 44 of the IP Act. [14] The applicant has been provided with information on the OIC’s jurisdiction and powers and was referred to the Office of the Health Ombudsman (OHO) as an avenue to raise his concerns about a health professional’s conduct. The applicant was also advised how to make an amendment application under the IP Act in relation to the personal information he considers is incorrect and misleading in the released documents (by letters dated 24 March 2021 and 4 May 2021).[15] Including the external review application received 2 February 2021, and submissions received on 8 April 2021 and 25 May 2021.[16] Section 21 of the HR Act. [17] 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].[18] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [19] XYZ at [573].[20] Section 121(3) of the IP Act.[21] Submissions dated 7 April 2021.[22] Submissions dated 20 May 2021, referring to page 167 of the documents.[23] Pages 7, 8, 131, 148, 149, 150, 174 and 175 of the documents.[24] Section 40 of the IP Act.[25] 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.[26] Section 67(1) of the IP Act and section 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.[27] Section 49(3) of the RTI Act.[28] I have considered each of the public interest factors outlined in schedule 4 of the RTI Act, and any relevant factors are discussed below (in relation to each category of documents). Some factors have no relevance, for example, the factor concerning innovation and the facilitation of research.[29] Section 64 of the IP Act.[30] Section 67(2) of the IP Act and section 47(2) of the RTI Act. In deciding whether disclosure of the information in issue would, on balance, be contrary to the public interest, I have taken no irrelevant factors into account in making my decision.[31] ‘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’. [32] Schedule 4, part 2, item 7 of the RTI Act.[33] Schedule 4, part 3, item 3 and schedule 4, part 4, item 6 of the RTI Act.[34] Schedule 4, part 2, item 1 of the RTI Act.[35] Schedule 4, part 2, item 11 of the RTI Act.[36] As also found in B7TG4G and Gold Coast Hospital and Health Service [2015] QICmr 11 (1 May 2015) at [34].[37] Submissions dated 7 April 2021.[38] Submissions dated 20 May 2021.[39] Submissions dated 7 April 2021.[40] Schedule 4, part 2, item 12 of the RTI Act.[41] The IP Act prohibits me from releasing information that is contrary to public interest in a decision on an external review; section 121 of the IP Act. [42] Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [15]-[20].[43] Schedule 4, part 2, items 16 and 17 of the RTI Act.[44] Giving rise to the disclosure factor at schedule 4, part 2, item 17 of the RTI Act.[45] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 (Willsford).[46] Willsford at [17].[47] Willsford at [17]. The third key requirement is to demonstrate disclosure of the information held by the agency would assist the applicant to pursue the remedy, or to evaluate whether a remedy is available or worth pursuing.[48] Section 44(1) IP Act.[49] Submissions dated 7 April 2021.[50] Submissions dated 7 April 2021.[51] Schedule 4, part 2, item 5 of the RTI Act.[52] Schedule 4, part 2, item 6 of the RTI Act.[53] Submissions dated 20 May 2021 and 7 April 2021.[54] Schedule 4, part 4, item 6 of the RTI Act. [55] Schedule 4, part 3, item 3 of the RTI Act. [56] Paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’, Australian Law Reform Commission Report No. 108 (Volume 1), released 30 May 2008[57] The Information Commissioner has previously found this kind of information is personal and sensitive in nature, and that disclosure would be a significant intrusion into the privacy of the individuals concerned: BTG4G and Gold Coast Hospital and Health Service [2015] QICmr 11 (1 May 2015) (BTG4G) at [32]; VA6Q6J and Sunshine Coast Hospital and Health Service [2015] QICmr 18 (14 August 2015) (VA6Q6J) at [36]; E9IH9N and Metro South Hospital and Health Service [2016] QICmr 18 (27 May 2016) at [39].[58] Submissions dated 20 May 2021.[59] This has been previously found to be the case in matters relating to the medical records of deceased family members: see Summers and Cairns District Health Service; Hintz (Third Party) [1997] QICmr 5; (1997) 3 QAR 479; Keogh and Department of Health (Unreported, Queensland Information Commissioner, 31 August 2010).[60] Schedule 4, part 3, item 16 and schedule 4, part 4, item 8 of the RTI Act. [61] B7TG4G at [35]-[37]; VA6Q6J at [39]-[40].[62] B7TG4G at [36]; VA6Q6J at [39].[63] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Tomkins and Rockhampton Regional Council [2016] QICmr 3 (22 January 2016)

Tomkins and Rockhampton Regional Council [2016] QICmr 3 (22 January 2016) Last Updated: 24 January 2017 Decision and Reasons for Decision Citation: Tomkins and Rockhampton Regional Council [2016] QICmr 3 (22 January 2016) Application Number: 312378 Applicant: Tomkins Respondent: Rockhampton Regional Council Decision Date: 22 January 2016 Catchwords: ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - report submitted to Council meeting about prosecution of applicant in relation to his dogs - personal information of dog attack victim - 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 Rockhampton Regional Council (Council) under the Information Privacy Act 2009 (Qld) (IP Act) for access to a report, which was presented to a Council meeting on 27 January 2015, relating to proposed enforcement action against the applicant and his dogs arising from a dog attack (Report).[1] Council decided to refuse access to the Report on the ground that it comprised exempt information, as it would be privileged from production in a legal proceeding on the ground of legal professional privilege.[2] The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision. During the external review, Council agreed to disclose the majority of the information in the Report to the applicant, except for information it considered was the victim’s personal information or subject to legal professional privilege. The applicant agreed not to pursue access to the legal professional privilege information but submitted that he was entitled to the information about the victim. For the reasons set out below, I vary Council’s decision and find that access to the remaining information in the Report may be refused as its disclosure would, on balance, be contrary to the public interest.[3] Background Significant procedural steps relating to the external review are set out in the Appendix. Reviewable decision The decision under review is Council’s decision dated 12 February 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[4]) provided OIC with extensive submissions in support of his case.[5] I have carefully considered those submissions. Those submissions also address the applicant’s dissatisfaction with Council’s investigation into the dog attack and question the veracity of information relied upon by Council in making its decision to prosecute him. To the extent the applicant’s submissions are relevant to the issue for determination, I have addressed them below. Issue for determination On external review, a number of issues were resolved informally[6] and Council agreed to partially release the Report to the applicant. The remaining issue for consideration is whether access to information in the Report can be refused under section 67(1) of the IP Act on the basis that its disclosure would, on balance, be contrary to the public interest. Information in issue Page 2 of the Report contains two photographs and two lines of text which have not been released to the applicant (Information in Issue). Generally, it comprises information about the victim of the dog attack. Relevant law An individual has a right to be given access to documents of an agency under the IP Act to the extent the documents contain the individual’s personal information.[7] However, this right is subject to limitations, including grounds for refusal of access.[8] An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[9] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[10] and explains the steps that a decision-maker must take[11] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to the public interest. Findings No irrelevant factors arise in the circumstances of this case. Accountability, transparency and fair treatment The applicant submits that he should be given access to a complete copy of the Report. He is concerned that it has ‘led to an opinion being formed about him’.[12] 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[13] reveal the reason for a government decision and any background or contextual information that informed the decision;[14] and advance the fair treatment of an individual in accordance with the law in their dealings with agencies.[15] Almost the entire Report has been released to the applicant. The released information identifies the outcome of Council’s investigation into the dog attack and the reasoning for Council’s action against the applicant. The applicant has also received further information from Council under a separate prosecution process. Given the extent of information that has already been released to the applicant and the nature of the particular Information in Issue, I do not consider these public interest factors would be advanced to any significant extent by disclosing the Information in Issue to the applicant. I therefore afford very low weight to these factors. Administration of justice and procedural fairness The applicant submits that, ‘Justice demands that [the applicant] be provided with this information in order to defend himself.’[16] Given these submissions, I have considered whether disclosing the Information in Issue could reasonably be expected to contribute to the administration of justice generally, including procedural fairness, or for a person.[17] In Willsford and Brisbane City Council[18], the Information Commissioner found that the administration of justice factor will arise if an applicant can demonstrate that: they have suffered loss or damage or some kind of wrong, in respect of which a remedy is, or may be available under the law they have a reasonable basis for seeking to pursue the remedy; and disclosing the information would assist the applicant to pursue the remedy, or to evaluate whether a remedy is available or worth pursuing.[19] As noted above, the information in the Report which has been released to the applicant identifies the outcome of Council’s investigation into the dog attack and the reasoning for Council’s action against the applicant. The applicant received additional information from Council under the separate prosecution process including formal statements of the victim and Council officers. I have carefully considered the nature of the Information in Issue and the context in which it appears. In my view, the applicant does not require this information to enable him to defend himself or to respond to the allegations which form the basis of Council’s prosecution.[20] For these reasons, I afford these two factors minimal weight in favour of disclosure. Incorrect information The applicant submits that Council made its decision to prosecute him based on the Report, which contains incorrect information and that ‘It would be reasonable for him to conclude that the missing parts of this report also contain false information.’[21] The RTI Act provides that the public interest will favour disclosure where disclosing information could reasonably be expected to reveal that the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.[22] The applicant’s submissions arise from the applicant’s assessment of the information in the Report which has been released to him. As noted above, the Information in Issue only comprises information relating to the victim. I have carefully considered the Information in Issue and the context in which it appears and I am satisfied that its disclosure could not reasonably be expected to reveal that it is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant. Accordingly, I consider this public interest factor carries no weight in favour of disclosure. Personal information and privacy The RTI Act gives rise to factors favouring nondisclosure in circumstances where disclosing information could reasonably be expected to: prejudice the protection of an individual’s right to privacy;[23] and cause a public interest harm by disclosing the personal information[24] of other individuals.[25] The Information in Issue was provided by the victim in the context of Council’s investigation into the dog attack. It includes photographs and some private, sensitive information about the victim. I am satisfied that this comprises the victim’s personal information. Due to the particular nature of the information, I consider that disclosure would be a significant intrusion into the victim’s privacy and that the extent of the public interest harm that could result from disclosure is significant. I accept that some of this information may be known to the applicant as a result of the prosecution process. This reduces, but only to a limited extent, the weight to be attributed to the personal information and privacy factors in respect of that particular information. However, some of the sensitive personal information has not previously been disclosed to the applicant and therefore, that information retains a high privacy interest. I am satisfied that these two public interest factors carry significant weight in favour of nondisclosure of the Information in Issue. Balancing the relevant factors I have carefully considered the factors for and against disclosure of the Information in Issue. I consider there is a public interest in disclosing information which would marginally advance the factors of accountability, transparency, fair treatment, administration of justice and procedural fairness. This is significantly outweighed by the public interest in protecting the personal information and right to privacy of the victim. For these reasons, I find that: disclosing the Information in Issue would, on balance, be contrary to the public interest; and access to it may therefore be refused under section 47(3)(b) of the RTI Act. DECISION For the reasons set out above, I vary Council’s decision and find that access to the Information in Issue can be refused on the basis that its disclosure would, on balance, be contrary to the public interest. [26] 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 2 February 2015 Council received the access application. 12 February 2015 Council issued its decision to the applicant. 16 February 2015 OIC received the application for external review of Council’s decision. 18 February 2015 OIC notified Council that the external review application had been received and requested relevant procedural documents by 24 February 2015. 19 February 2015 OIC received the procedural documents and the documents in issue from Council. 25 February 2015 OIC notified the applicant and Council that it had accepted the external review application. 17 June 2015 OIC conveyed a preliminary view to Council on various issues and requested submissions by 1 July 2015. 24 June 2015 Council notified OIC that it accepted the preliminary view and agreed to release most of the Report to the applicant on 25 June 2015. 28 June 2015 The applicant requested access to the information deleted from the Report and provided submissions in support of his case. 30 June 2015 OIC acknowledged receipt of the applicant’s submissions and provided information to the applicant about the external review process. 9 July 2015 The applicant provided further submissions in support of his case. 17 August 2015 OIC conveyed a preliminary view to the applicant on various issues and requested submissions by 31 August 2015. 23 August 2015 The applicant provided further submissions in support of his case. 9 September 2015 OIC conveyed a preliminary view to the applicant on various issues and requested submissions by 23 September 2015. 21 September 2015 The applicant provided further submissions in support of his case. 23 September 2015 The applicant’s representative spoke with an OIC staff member about OIC’s preliminary view and confirmed the applicant’s acceptance of OIC’s preliminary view regarding exempt information on page 3 of the Report. 12 October 2015 OIC conveyed a preliminary view to the applicant on various issues and requested submissions by 2 November 2015. 30 October 2015 The applicant provided further submissions in support of his case. 12 November 2015 OIC conveyed a preliminary view to the applicant on various issues and requested submissions by 26 November 2015. 22 November 2015 The applicant provided further submissions in support of his case. 25 November 2015 The applicant’s representative spoke with an OIC staff member about OIC’s preliminary view and confirmed the applicant did not accept OIC’s preliminary view regarding the information deleted from page 2 of the released Report. 7 December 2015 OIC confirmed the applicant did not accept OIC’s preliminary view regarding the information deleted from page 2 of the released Report and provided information to the applicant about the external review process. [1] In January 2015, the applicant’s two dogs were declared 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] Under sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) (RTI Act). [3] Under sections 47(3)(b) and 49 of the RTI Act. [4] The authorisation was provided to OIC on 3 February 2015 in the context of a separate external review application. [5] As set out in the Appendix. The submissions which relate directly to the Information in Issue mainly appear in the applicant’s external review application and emails to OIC dated 23 August and 21 September 2015. [6] Council accepted OIC’s preliminary view that the majority of the Report was not subject to legal professional privilege. The applicant also accepted OIC’s preliminary view that a small section of page 3 of the Report was subject to legal professional privilege. As these issues were resolved informally, they are not dealt with in these reasons for decision. [7] Section 40(1)(a) of the IP Act. [8] 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. [9] Section 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. [10] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant. [11] Section 49(3) of the RTI Act.[12] Applicant’s email to OIC dated 22 November 2015. [13] Schedule 4, part 2, item 1 of the RTI Act. [14] Schedule 4, part 2, item 11 of the RTI Act. [15] Schedule 4, part 2, item 10 of the RTI Act. [16] External review application. [17] Schedule 4, part 2, items 16 and 17 of the RTI Act.[18] (Unreported, Queensland Information Commissioner, 27 August 1996) (Willsford). [19] Willsford at [17]. [20] As a defendant to a prosecution, the applicant will have an opportunity in the Magistrates’ Court to put forward his case and respond to allegations against him. [21] Submissions received 23 August 2015. [22] Schedule 4, part 2, item 12 of the RTI Act. [23] Schedule 4, part 3, item 3 of the RTI Act. [24] 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’. [25] Schedule 4, part 4, item 6 of the RTI Act. [26] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

F30 and Department of Education [2023] QICmr 9 (2 March 2023)

F30 and Department of Education [2023] QICmr 9 (2 March 2023) Last Updated: 14 April 2023 Decision and Reasons for Decision Citation: F30 and Department of Education [2023] QICmr 9 (2 March 2023) Application Number: 316703 Applicant: F30 Respondent: Department of Education Decision Date: 2 March 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - documents relating to the applicant’s employment - 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[1] to the Department of Education (Department) under the Information Privacy Act 2009 (Qld) (IP Act) for access to records held by specific areas of the Department. The Department located 765 documents and decided[2] to disclose 517 pages in full, and 243 pages in part, subject to the refusal of information that would, on balance, be contrary to the public interest to disclose. The Department also: deleted irrelevant information from 10 pages; and refused access to documents from a specific area of the Department on the basis that they were nonexistent. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision[3] and on external review confirmed that he only sought review with respect to some of the refused information. For the reasons below, I affirm the Department’s decision refusing access to the information remaining in issue on the ground that disclosure would, on balance, be contrary to the public interest. Background Significant procedural steps in this external review are set out in the Appendix. During the external review, OIC conveyed preliminary views to the applicant.[4] In a letter to the applicant dated 31 January 2023, OIC confirmed that, based on the applicant’s submissions[5] and a telephone conversation between the applicant and OIC,[6] it was understood that the information remaining in issue was contained on four pages, and could be categorised as shared personal information. Reviewable decision The decision under review is the Department’s decision dated 22 April 2022. 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 the Appendix). I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[7] I consider a decision-maker will be ‘respecting, and acting compatibly with’ that right, and others prescribed in the HR Act, when applying the law prescribed in the IP Act and the Right to Information Act 2009 (Qld) (RTI Act).[8] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between similar pieces of Victorian legislation[9] 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] Information in issue Following extensive correspondence between OIC and the applicant on external review to clarify the information of concern to the applicant,[11] the information remaining in issue for decision is contained on four pages (Information in Issue).[12] It comprises statements made by individuals other than the applicant relating to the applicant’s employment. Issue for determination The issue for determination is whether the Department may refuse access to the Information in Issue as disclosure would, on balance, be contrary to the public interest. Relevant law Under the IP Act, an individual has a right to be given access to documents to the extent they contain the individual’s personal information.[13] However, this right is subject to the provisions of the IP Act and the RTI Act.[14] Relevantly, an agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[15] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision-maker must:[16] identify and disregard any irrelevant factors identify factors in favour of disclosure identify factors in favour of nondisclosure; and decide whether, on balance, disclosure of the information would be contrary to the public interest. Schedule 4 of the RTI Act contains factors that may be relevant in determining where the balance of the public interest lies in a particular case. I have considered these lists,[17] together with all other relevant information, in reaching my decision. I have also applied the IP Act’s pro-disclosure bias[18] and considered Parliament’s intention that grounds for refusing access to information are to be interpreted narrowly.[19] Findings I have taken no irrelevant factors into account in arriving at this decision. Factors favouring disclosure I have considered the various submissions made by the applicant[20] as to why disclosure of the Information in Issue would be in the public interest, and linked the applicant’s submissions to the public interest factors favouring disclosure that I have discussed below. The Information in Issue could be considered the applicant’s personal information.[21] I acknowledge that there is a significant public interest in individuals accessing their personal information.[22] In the circumstances of this matter however, the Information in Issue provides limited details about the applicant and I consider this factor carries low weight. Further to this, I note the applicant’s personal information is intertwined with the personal information of other individuals and cannot be disclosed without also disclosing their personal information. This raises two factors favouring nondisclosure, which I have addressed below. I also consider that granting the applicant access to the Information in Issue may advance the Department’s accountability and transparency.[23] However, taking into account the content of the Information in Issue and given that the Department has already released considerable information to the applicant, I consider that disclosure of the Information in Issue would not enhance the accountability or transparency of the Department to any significant degree. I therefore afford these factors low weight. Given the applicant’s concerns about the conduct of the Department in its dealings with him, I have also considered whether disclosure could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official,[24] or reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.[25] Given the limited nature of the Information in Issue, being the personal opinions or short statements of individual Department employees, I am satisfied that neither of these factors apply to the Information in Issue. Noting the applicant’s submissions regarding discrimination by the Department, I have also considered whether disclosure could reasonably be expected to contribute to the administration of justice for him personally.[26] For this factor to apply, the applicant must be able to demonstrate that: (a) loss, damage or some kind of legal wrong has been suffered, in respect of which a legal remedy is, or may be available (b) he has a reasonable basis for seeking to pursue the remedy; and (c) disclosure of the Information in Issue would assist him to pursue the remedy, or to evaluate whether a remedy is available or worth pursuing.[27] The applicant has submitted that the Department discriminated against him. The documents relate to the applicant’s employment with the Department. On the information before me, I am unable to identify how disclosure of the Information in Issue can satisfy the above criteria – in particular, I am unable to identify any connection between disclosure of the Information in Issue and the remedy or remedies the applicant may be considering. The applicant has not provided details of the remedy he is pursuing or evaluating. In this case I am not satisfied that disclosure of the specific Information in Issue could reasonably be expected to contribute to the administration of justice for the applicant personally.[28] I have carefully considered the applicant’s submissions and the Information in Issue and have not identified any further public interest factors in favour of disclosure.[29] Factors favouring nondisclosure As noted above, the Information in Issue comprises limited statements made by individuals other than the applicant and does not form part of the routine work information of those individuals. I am satisfied that these statements comprise the personal information of individuals other than the applicant. The identities of the individuals who made the statements have already been disclosed to the applicant by the Department.[30] Given their identities have already been disclosed (meaning there is no way to disclose their statements without those statements being connected to the individuals) and the sensitive workplace context in which the statements appear, I consider significant weight applies to the following two factors favouring nondisclosure: disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy;[31] and disclosure could reasonably be expected to cause a public interest harm by disclosing personal information of a person.[32] I also consider disclosing the Information in Issue could reasonably be expected to prejudice the management function of the Department.[33] Managers need to be able to have frank and full discussions about employees. Routinely disclosing this type of sensitive information could reasonably be expected to have a detrimental effect on an agency’s ability to manage its staff, as it is likely to cause managers to discuss such matters less fully and openly. I consider that the nature of the Information in Issue is such that disclosure could reasonably be expected to prejudice the Department’s management function, and I afford this factor significant weight. Balancing the public interest The Information in Issue comprises the personal information of individuals other than the applicant in the context of workplace concerns. It provides limited information about the applicant or Department’s decision making processes. I consider that on balance, the public interest nondisclosure factors I have discussed above outweigh the relevant disclosure factors and are determinative.[34] Accordingly I find disclosure of the Information in Issue would, on balance, be contrary to the public interest and access may be refused by the Department.DECISION For the reasons above, I affirm the Department’s decision to refuse access to the Information in Issue on the ground 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 139 of the IP Act.S MartinAssistant Information CommissionerDate: 2 March 2023 APPENDIX Significant procedural steps Date Event 13 May 2022 OIC received the application for external review. OIC requested preliminary documents from the Department. The Department provided preliminary documents. 23 June 2022 OIC advised the applicant and the Department that the external review application had been accepted. OIC requested the Department provide copies of the information in issue and its search records. 27 June 2022 OIC received the information in issue and search records from the Department. 18 July 2022 OIC conveyed a preliminary view to the applicant. 1 August 2022 The applicant sought and received an extension of time to respond to the preliminary view. 14 August 2022 The applicant made submissions in response to OIC’s preliminary view (dated 13 August 2022). 6 September 2022 OIC conveyed a further preliminary view to the applicant. 15 September 2022 The applicant sought an extension of time to respond to the preliminary view, which was subsequently granted. 5 October 2022 The applicant made submissions in response to OIC’s preliminary view (dated 4 October 2022). 31 January 2023 OIC confirmed and clarified its preliminary view and the information remaining in issue with the applicant. 13 February 2023 The applicant made submissions in response to OIC’s preliminary view. [1] Access application received 6 February 2022. [2] Decision dated 22 April 2022.[3] External review application dated 10 May 2022, received 13 May 2022.[4] Email to the applicant dated 18 July 2022, and letters to the applicant dated 6 September 2022 and 31 January 2023.[5] Applicant’s emails dated 13 August 2022 (received 14 August 2022) and 4 October 2022 (received 5 October 2022).[6] Telephone conversation on 15 December 2022.[7] Section 21(2) of the HR Act. [8] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111]. 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).[9] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [10] XYZ at [573].[11] Email to the applicant dated 18 July 2022, and letters to the applicant dated 6 September 2022 and 31 January 2023.[12] Documents 5, 101, 104 and 105 of the 765 documents located by the Department.[13] Section 40 of the IP Act.[14] Section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent it could refuse access to the document under section 47 of the RTI Act were the document to be the subject of an access application under that Act.[15] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act.[16] Section 49(3) of the RTI Act.[17] I have considered each of the public interest factors outlined in schedule 4 of the RTI Act, and any relevant factors are discussed below. Some factors have no relevance, for example, the factor concerning innovation and the facilitation of research.[18] Section 64 of the IP Act.[19] Section 67(2) of the IP Act and section 47(2) of the RTI Act. [20] Submissions received via emails dated 13 August 2022 (received 14 August 2022) and 4 October 2022 (received 5 October 2022), and an undated letter received by email dated 13 February 2023.[21] 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.’[22] Schedule 4, part 2, item 7 of the RTI Act.[23] Schedule 4, part 2, items 1 and 3 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] Schedule 4, part 2, item 17 of the RTI Act.[27] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 at [17].[28] Schedule 4, part 2, item 17 of the RTI Act.[29] For example, I am satisfied disclosure of the Information in Issue could not reasonably be expected to contribute to the protection of the environment or contribute to the maintenance of peace and order (schedule 4, part 2, items 13 and 15 of the RTI Act).[30] Decision dated 22 April 2022.[31] Schedule 4, part 3, item 3 of the RTI Act.[32] Schedule 4, part 4, section 6 of the RTI Act.[33] Schedule 4, part 3, item 19 of the RTI Act. [34] Section 67(1) of the IP Act and sections 47(3)(b) and 49(3) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

L78 and Queensland Health [2020] QICmr 5 (10 February 2020)

L78 and Queensland Health [2020] QICmr 5 (10 February 2020) Last Updated: 23 April 2020 Decision and Reasons for Decision Citation: L78 and Queensland Health [2020] QICmr 5 (10 February 2020) Application Number: 314368 Applicant: L78 Respondent: Queensland Health Decision Date: 10 February 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - personal information and privacy of other individuals - individuals’ email addresses, officers’ mobile telephone numbers and information provided by job applicants - 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 - NONEXISTENT DOCUMENTS - applicant contends additional documents exist - whether agency has taken all reasonable steps to locate documents but the documents cannot be found or do not exist - sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISIONSummary The applicant applied[1] to Queensland Health under the Right to Information Act 2009 (Qld) (RTI Act) for records about their employment with Queensland Health in two specific time periods: 1 November 2012 to 30 November 2013 (Part One) and 1 September 2017 to 30 July 2018 (Part Two). In accordance with section 38 of the RTI Act, Queensland Health transferred to the Gold Coast Hospital and Health Service (Health Service)[2] Part One of the access application, as the applicant had worked at the Health Service in the relevant time period. Queensland Health’s decision[3] therefore dealt solely with Part Two of the access application which sought access to documents from the later period in time. Queensland Health located 146 pages and decided to release 134 entire pages and 12 part pages, refusing access to information in 12 part pages on the ground that its disclosure would, on balance, be contrary to the public interest.[4] The applicant applied[5] to the Office of the Information Commissioner (OIC) for external review of Queensland Health’s decision, contending that Queensland Health had not located all responsive Part Two documents.[6] On external review Queensland Health: identified that it did in fact hold Part One documents[7] and located Part One documents and additional pages of Part Two documents; and gave the applicant access to the documents with the exception of some information which it considered was contrary to the public interest to disclose. For the reasons set out below, I vary Queensland Health’s decision and find that, in respect of: Parts One and Two of the access application – access may be refused to certain information on the ground that disclosure would, on balance, be contrary to the public interest;[8] and Part Two of the access application – access may be refused to further additional information sought by the applicant on the ground that it is non-existent or unlocatable.[9] Background As noted at paragraph 5 above, further information was disclosed to the applicant on external review. On external review, the applicant provided OIC with information indicating that they had been engaged by a recruitment agency to undertake employment with Queensland Health in the earlier time period. Based on this information, Queensland Health undertook searches and located 90 pages of documents responding to Part One of the access application. A third party was consulted and had no objection to the release of relevant Part One Information.[10] Consequently, Queensland Health released the majority of the Part One pages to the applicant.[11] In addition to the above submission concerning the additional Part One documents,[12] the applicant submitted[13] that further information existed relating to Part Two of the application. Having considered the applicant’s submissions, OIC asked Queensland Health to undertake further searches and enquiries for Part Two documents.[14] Queensland Health located 74 additional pages and released the majority of these to the applicant.[15] Queensland Health located some information relating to the applicant which, while not within the scope of this review, it nonetheless released to the applicant.[16] Significant procedural steps taken during the external review are set out in the Appendix to this decision.Reviewable decision The decision under review is Queensland Health’s decision dated 5 December 2018.Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix).Information in issue The information in issue falls within the following categories: Category A Information – being Queensland Health officers’ mobile telephone numbers[17] Category B Information – being non-government email addresses[18] Category C Information – being names of other applicants for employment with Queensland Health, their candidate ranking and overall score, associated tendering agency, and proposed employment activity;[19] and additional Part Two documents sought by the applicant.Issues for determination The issues remaining in the review are whether: disclosure of the Category A, B and C Information would, on balance, be contrary to the public interest;[20] and access may be refused to the additional Part Two documents sought by the applicant on the ground it is non-existent or unlocatable.[21] Category A, B and C Information: Contrary to public interest information Relevant law The RTI Act confers on an individual a right to access documents of an agency,[22] however this right of access is subject to certain limitations, including grounds for refusal of access.[23] Access to information may be refused to the extent it comprises information the disclosure of which would, on balance, be contrary to the public interest.[24] The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the wellbeing of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests.[25] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[26] 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 the public interest lies in a particular case. I have carefully considered these lists, together with all other relevant information, in reaching my decision. Additionally, I have kept in mind the RTI Act’s pro-disclosure bias[27] and Parliament’s requirement that grounds for refusing access to information be interpreted narrowly,[28] and have not taken into account any irrelevant factors. 20. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act),[29] 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,[30] 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.’[31] Findings Category A and B Information Factors favouring disclosure The RTI Act provides that there are factors favouring disclosure of information where such release could reasonably be expected to promote open discussion of public affairs, enhance the Government’s accountability, and inform the community of the Government’s operations.[32] Queensland Health must be transparent and accountable about how it deals with its staff; however, as explained below, I consider that the disclosure of the Category A and B Information would not advance Queensland Health's accountability and transparency for its dealings with the applicant in any significant way, particularly in light of the information which has been disclosed to the applicant. As previously set out, the Category A Information comprises the mobile phone contact details of public service officers and the Category B Information consists of non-government email addresses. In the case of each of the Category A and B Information, the surrounding information that has been released to the applicant, discloses the names[33], and in the case of the Category A Information, position description, work area and land line phone numbers, of the individuals associated with the Category A and B Information. In these circumstances, disclosure of the Category A and B Information will do little, if anything, to promote open discussion of public affairs, enhance the Government’s accountability or inform the community of the Government’s operations. I therefore afford the accountability and transparency factors favouring disclosure low weight for the Category A and B Information. The applicant submitted that information may ‘legally implicate’ a Queensland Health Officer (Officer X).[34] In light of that submission I have considered whether any of the information in Category A and B could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official, or reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.[35] If such could be demonstrated, public interest factors favouring disclosure would arise. However, none of the Category A and B Information concerns Officer X nor the conduct of other officers. Therefore, I consider that none of these pro-disclosure factors are enlivened by the Category A and B Information and these factors therefore carry no weight. Factors favouring nondisclosure The RTI Act recognises that disclosing an individual’s personal information[36] to someone else can reasonably be expected to cause a public interest harm[37] 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.[38] The Category A and B Information solely comprises the personal information of persons other than the applicant. However, the Category A Information relates to public service officers, which necessitates a consideration of whether the information is routine personal work information. Routine personal work information is information that is solely and wholly related to the routine day to day work duties and responsibilities of a public sector employee, such as the fact of authorship of a work document or a work responsibility. Generally, it is not considered to be contrary to the public interest to disclose routine personal work information. [39] In this case, I do not consider that the Category A Information is routine personal work information as it allows officers to be contacted directly and outside of work hours. Disclosure of this type of information permits potential contact with a public service officer when off duty and/or engaged in private activity, thus giving rise to a reasonable expectation of intrusion into the officer's private life or personal sphere. The applicant contended that:[40] [The Category A and B] information may consist of Queensland Health, it’s [sic] agencies and other Departments employee personal information, but, if those private email addresses, phone numbers and other such devices were used to conduct Queensland Health business on or from, then they can no longer be considered private and the data must become of Public Interest and released per the Right to Information Act 2009 (Qld). If on the other hand, they have not been used to conduct Queensland Health’s business on or from, or that of it’s agencies, then I agree with the OIC’s view, this information should be kept private and not released due to privacy concerns. I agree with the applicant’s submission that information created by a public servant using a personal email address or a mobile number that is pertinent to the work of that public servant might form part of the public record and therefore be subject to the RTI Act and possible disclosure. However, in this case the Category A and B Information is not the information created using a personal email address or mobile device but rather, the personal email address or mobile telephone number itself. Additionally, I consider that the mere use of a personal device or email address to ‘conduct Queensland Health’s business’ does not necessarily then render any and all activity conducted on the device or via the email address the property of the government agency or department for or with whom the “business” was conducted. I consider that disclosure of the Category A and B Information could reasonably be expected to prejudice the protection of the right to privacy of individuals other than the applicant and cause a public interest harm by disclosing their personal information. Given the nature of the information and the context in which it appears, I afford moderate weight to both of these factors in respect of the Category A and B Information. Balancing the public interest As outlined above, I afford accountability and transparency factors favouring disclosure low weight and the factors favouring disclosure that provide for inquiry into conduct, no weight. On the other hand, I afford the factors favouring nondisclosure regarding the personal information and privacy of individuals other than the applicant moderate weight. On balance, for the Category A and B Information, I consider the nondisclosure factors outweigh the disclosure factors. Accordingly, I find that access to the Category A and B Information may be refused under section 47(3)(b) of the RTI Act on the basis that its disclosure would, on balance, be contrary to the public interest.Category C InformationFactors favouring disclosure I have considered whether disclosure of the Category C Information would advance Queensland Health's accountability and transparency for its dealings with the applicant and its recruitment processes[41] and would reveal reasons for a government decision and background information that informed the employment decisions made regarding those applicants.[42] The Category C Information concerns employment information of individuals other than the applicant which appears in tables and lists.[43] Disclosing the Category C information would inform the applicant of some considerations regarding those job applications. However, little of the Category C Information identifies the issues considered in the employment decisions about those individuals, rather, it is administrative in nature. I note also that, as the rows of the tables and lists which contain information about the applicant have been disclosed to the applicant, together with the table headings, the applicant is aware of the general nature of the information about other job applicants contained in the Category C Information. Accordingly, disclosure would not much advance these factors and I therefore afford them low weight. None of the Category C Information concerns Officer X or the conduct of other officers. For the same reasons as are given above in respect of the Category A and B Information, I consider that disclosing the Category C Information will not advance either of the pro-disclosure factors of allowing or assisting inquiry into possible deficiencies in the conduct or administration of an agency or official, or reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.[44] These factors therefore do not arise for consideration.Factors favouring nondisclosure As noted above at paragraph 25, the RTI Act recognises public interest factors in favour of non-disclosure of personal information of others, where disclosure would intrude into the private, personal spheres of the individual. The Category C Information concerns employment information of individuals other than the applicant. This information is not known to the applicant and its disclosure, identifying the job applicants, would disclose the job applicants’ personal information and would represent an intrusion of a significant nature into the privacy of those individuals. Given the sensitivity of the Category C Information I afford significant weight to these nondisclosure factors. I also consider that disclosure of the Category C Information could reasonably be expected to prejudice Queensland Health’s management function,[45] as job applicants are likely to provide less detail in applications in consideration of those details being routinely disclosed. Thus impacting the quality of information available to the employer decision maker. I therefore afford significant weight to these factors in respect of the Category C Information.Balancing the public interest The pro-disclosure factors of accountability and transparency, and revealing reasons for a government decision and background information all attract low weight. The nondisclosure factors favouring protection of others’ privacy and personal information, and of avoiding prejudice to Queensland Health’s ability to obtain information pertinent to its management function, all attract significant weight. In the circumstances, the factors favouring nondisclosure outweigh the pro-disclosure factors. Accordingly, I find that access to the Category C 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. In relation to the Category A, B and C 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 my consideration of the factors listed in schedule 4, part 2, items 2, 4, 9, 13-15, or 18, or any other public interest factors favouring disclosure not listed in the RTI Act.[46] Accordingly, I can identify no other public interest considerations telling in favour of disclosure of the Category A, B and C Information, beyond those identified above.Additional Part Two documents sought by the applicant As noted in paragraph 9 above, Queensland Health conducted further searches on external review, located additional documents and released almost the entirety of them to the applicant. Despite the additional documents located, the applicant maintained that not all relevant Part Two documents had been located. OIC required Queensland Health to undertake further searches and inquiries for documents[47] on the basis that reasonable grounds existed to believe that Queensland Health had not discharged the obligation to locate all relevant documents.[48] The applicant also submitted that Queensland Health’s search results were unreliable as officers had searched their own documents, stating that the searches ‘are not independent’.[49] Relevant law On external review, the functions of the Information Commissioner include investigating and reviewing whether an agency has taken all reasonable steps to identify and locate documents applied for by applicants.[50] However, access to a document may be refused if it is nonexistent or unlocatable.[51] To be satisfied that documents are nonexistent, I consider relevant key factors.[52] If searches are relied on to justify a finding that documents do not exist, I must be satisfied that all reasonable steps have been taken to locate the documents. What constitutes reasonable steps will vary from case to case, depending on which of the key factors are most relevant in the particular circumstances of the matter. To determine whether a document exists, but is unlocatable, the RTI Act requires consideration of whether there are reasonable grounds for the agency, or on external review – the Information Commissioner, 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 locate the document. In answering these questions, regard should again be had to the circumstances of the case and the relevant key factors.[53] Findings Queensland Health provided information about its recordkeeping system and searches, as set out below. It relied on searches and inquiries conducted by its officers to justify its position that reasonable steps have been taken to locate documents responsive to the application. Information before me shows that Queensland Health’s payroll records are maintained in the Payroll Portfolio of the Health Support Division. Records concerning recruitment, workforce establishment, rehabilitation and leave and training, are held in both the eHealth Queensland Division, in its People and Culture section of the Corporate Services Branch, and in the Corporate Services Division, in its Human Resources Branch. Also, documents generated in connection with the applicant’s work are held in the Digital Solutions Delivery Branch of the eHealth Queensland Division. Queensland Health submitted[54] to OIC that it conducted the following searches in relation to the Part Two documents:[55] records held by the Health Support Division in its Payroll Portfolio records held by the eHealth Queensland Division, in: the Digital Solutions Delivery Branch’s Project Services section the Corporate Services Branch’s People and Culture sections dealing with recruitment, workforce establishment, rehabilitation, leave and training, including the Occupational Health and Safety team and Workforce Services (Workforce Relations) team the Technology Services Branch’s Cyber Security Group; and the Chief Solutions Delivery Office, the Chief Executive Office and Shared Application Services; and records held by the Corporate Services Division, in the Human Resources Branch’s Recruitment and Capability section and Human Resources Intelligence and Strategy section, and in the People, Safety and Performance Section, in its Occupational Health and Safety team and Statewide People and Performance team. I have reviewed Queensland Health’s search records and search certifications and am satisfied that staff with working knowledge of the relevant areas undertook appropriately targeted searches for the requested documents. Given the types of Part Two documents sought, the subject matter of the requested documents[56] and the nature of the applicant’s employment in Queensland Health,[57] I consider that Queensland Health has conducted comprehensive searches of locations where it would be reasonable to expect the types of information requested to be stored. There is no information before me to indicate that Queensland Health's submissions about its searches, and practices and procedures relating to information management, set out above, are not credible. I understand from the applicant's submissions that the applicant believes Queensland Health, and particular officers, are deliberately withholding information the applicant seeks. The applicant questioned the independence of searches of Officer X’s emails for a particular email sent to the applicant containing links to an organisational chart, in circumstances where Officer X conducted the searches.[58] The applicant also submitted that, in respect of another officer (Officer Y), who had access to the organisational chart itself, any searches of Officer Y’s emails could not be regarded as independent if Officer Y had themself conducted the searches. However, searches were also undertaken by the Senior Specialist, Messaging, in the eHealth Queensland Division, who searched in the section’s Enterprise Vault, a comprehensive store of emails including archived emails for emails containing the link.[59] No relevant emails were located as a result. On careful consideration of the search results provided by Queensland Health and the information before me, including the information released to the applicant, the applicant's contentions do not appear to be supported. I am satisfied relevant search results are reliable and that there is no information before OIC suggesting that officers have acted improperly. On this basis, I am satisfied that all reasonable searches for relevant Part Two documents have been undertaken, and that it is not necessary for any further searches to be undertaken. In view of the above and considering the documents that were located by Queensland Health, including the information in issue, I consider that: Queensland Health has taken all reasonable steps to locate additional relevant Part Two documents; and access to them may be refused on the basis they do not exist, or cannot be located.[60] DECISION For the reasons set out above, I vary Queensland Health’s decision, and find that in respect of: Parts One and Two of the access application – access may be refused to the Category A, B and C Information on the ground that disclosure would, on balance, be contrary to the public interest;[61] and Part Two of the access application – access may be refused to further additional Part Two information sought by the applicant on the ground that it is non-existent or unlocatable.[62] I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Assistant Information Commissioner CorbyDate: 10 February 2020 APPENDIX Significant procedural steps Date Event 27 December 2018 OIC received the external review application. 3 January 2019 OIC notified Queensland Health and the applicant that the application for external review had been received, and requested procedural documents from Queensland Health. 7 January 2019 OIC received the requested documents from Queensland Health. 9 January 2019 OIC received oral submissions from the applicant by telephone regarding issues in the review. 15 January 2019 OIC received oral submissions from Queensland Health by telephone about searches it had conducted for responsive documents. 4 February 2019 OIC notified Queensland Health and the applicant that the application for external review had been accepted, and asked Queensland Health to provide located Part two documents and search records for Part Two documents. 15 February 2019 OIC received the requested documents from Queensland Health. 14 March 2019 OIC wrote to Queensland Health, asking it to undertake searches and enquiries for Part One documents. 8 April 2019 OIC received the Part One documents from Queensland Health. 10 April 2019 OIC informed the applicant that Queensland Health had located the Part One documents, and requested submissions on additional Part Two documents sought by the applicant. 29 April 2019 OIC received the applicant’s submission. 28 May 2019 OIC conveyed to the applicant a written preliminary view about the Category A Information, identified some additional Part Two documents sought by the applicant that were out of scope of the access application, and requested submissions regarding an issue in the review. OIC invited the applicant, if they did not accept the preliminary view, to provide submissions in response. OIC asked Queensland Health for its further submission regarding its searches for Part Two documents. 11 June 2019 OIC received written submissions from the applicant. 14 June 2019 OIC received from Queensland Health the requested submission. 15 July 2019 OIC wrote to a third party, consulting them about some Part One documents. 24 July 2019 OIC conveyed to the applicant a written preliminary view about the Category B Information, identified some additional Part Two documents sought by the applicant that were out of scope of the access application, and requested submissions regarding additional Part Two documents sought by the applicant. OIC invited the applicant, if they did not accept the preliminary view, to provide submissions in response. 7 August 2019 OIC received the requested submissions from the applicant, together with a table about additional Part Two documents sought by the applicant. 10 September 2019 OIC wrote to the applicant, providing a Schedule about additional Part Two documents sought by the applicant and requested submissions about additional Part Two documents sought by the applicant. The applicant provided a submission to OIC. 16 September 2019 OIC wrote to the applicant identifying that an additional document sought by the applicant was outside the scope of the access application. 17 September 2019 OIC received from Queensland Health notification that the majority of the Part One documents had been provided to the applicant. 18 September 2019 OIC received from the applicant submissions about additional Part Two documents sought by the applicant. 4 October 2019 OIC wrote to Queensland Health, asking it to undertake searches and enquiries for additional Part Two documents. OIC wrote to the applicant, conveying the preliminary view that some additional documents sought by the applicant were outside the scope of Part Two of the access application. OIC invited the applicant, if they did not accept the preliminary view, to provide submissions in response. 18 October 2019 OIC received submissions from the applicant. 25 October 2019 OIC received oral submissions from Queensland Health by telephone. 1 November 2019 OIC received from Queensland Health additional Part Two documents located in its searches 4 November 2019 OIC received from Queensland Health search records regarding recent searches and oral submissions by telephone. 19 November 2019 OIC received oral submissions from Queensland Health by telephone. OIC wrote to Queensland Health, asking it to undertake further searches and enquiries for additional Part Two documents. 20 November 2019 OIC wrote to the applicant informing them that Queensland Health had located additional Part Two documents and conveying a preliminary view about the Category C Information. OIC asked that the applicant advise OIC if they continued to seek access to the Category C Information. 25 November 2019 OIC wrote to Queensland Health requesting clarification of searches undertaken. 2 December 2019 OIC received oral submissions from Queensland Health by telephone about Queensland Health’s structure. OIC received organisational charts from Queensland Health. 3 December 2019 OIC received from Queensland Health notification that additional Part Two documents had been provided to the applicant. 6 December 2019 OIC wrote to Queensland Health, asking it to provide a further submission regarding additional Part Two documents sought by the applicant. 18 December 2019 OIC received oral submissions from Queensland Health by telephone about its searches for additional Part Two documents sought by the applicant. OIC received from Queensland Health a written submission and search records regarding additional Part Two documents, and additional documents located by Queensland Health. 20 December 2019 OIC received from Queensland Health further search records and written submissions about its searches for additional Part Two documents, and additional documents located by Queensland Health. 23 December 2019 OIC conveyed to the applicant a written preliminary view about the additional Part Two documents sought by the applicant and informed the applicant that Queensland Health had located additional documents. OIC invited the applicant, if they did not accept the preliminary view, to provide submissions in response. OIC received from Queensland Health notification that additional documents had been provided to the applicant. 4 January 2020 OIC received from the applicant notification that the applicant did not accept the preliminary view, together with further submissions. [1] Access application dated 8 October 2018, received 11 October 2018, and compliant 31 October 2018.[2] Email from Queensland Health to the applicant dated 8 November 2018.[3] Dated 5 December 2018.[4] Sections 47(3)(b) and 49 of the RTI Act. [5] External review application dated 27 December 2019. [6] Also, on 27 December 2018, the applicant applied to OIC for external review of the Health Service’s decision dated 27 November 2018 refusing access to the requested Part One documents under sections 47(3)(e) and 52(1) of the RTI Act on the ground that such documents were non-existent or unlocatable, as the Health Service held no Part One documents. OIC therefore commenced external review 314379 to review the Health Service’s decision.[7] As the Part One documents are held by Queensland Health and therefore could be dealt with in this review, OIC closed external review 314379 on 30 April 2019. [8] Under section 47(3)(b) and 49 of the RTI Act.[9] Under section 47(3)(e) and 52 of the RTI Act.[10] The third party was advised that if they had no objection, they need not respond to OIC within the time period set out in OIC’s letter and OIC would proceed on the basis they had no objection. As the third party did not respond within the time period set out in OIC’s letter to it, OIC proceeded on the basis that the third party did not object to disclosure of the Part One information on which it was consulted.[11] The pages, from which some information was redacted, were provided to the applicant by Queensland Health by letter dated 17 September 2019.[12] Submission dated 1 February 2019.[13] In the external review application dated 27 December 2019 and in letters dated 1 February 2019, 29 April 2019, 11 June 2019, 7 August 2019, 18 September 2019 and 4 January 2020, and by telephone on 9 January 2019 and 29 March 2019.[14] Letters dated 4 October 2019, 19 November 2019 and 6 December 2019. OIC considered that, given the searches requested in these letters, it was unnecessary to request further searches in respect of issues raised in the applicant’s submission dated 4 January 2020.[15] These pages were provided to the applicant by Queensland Health by letter dated 3 December 2019.[16] This information is contained in the 26 page pdf file “[applicant’s last name] – application” released by Queensland Health by letter dated 3 December 2019, and 4 pages of Queensland Health notes assessing the applicant’s job application released by letter dated 23 December 2019.[17] On pages 7-9, 31, 32, and 59 of the Part One pages, 11-13, 17-18, 21, 26 and 28 of the pdf file e-Health documents, and 3-7 of the 7 page pdf document 4709 emails [Officer X] Part 1 and 1-3 of the 27 page pdf document 4709 emails [Officer X] Part 2. [18] On pages 5-6, 11-12 and 15-17 of the pdf file 4709 e-Health documents[19] On pages 11, 13-17, 35, 37 and 60-61 of the Part One pages.[20] Sections 47(3)(b) and 49 of the RTI Act.[21] Sections 47(3)(e) and 52 of the RTI Act.[22] Section 23 of the RTI Act.[23] Grounds for refusal of access are set out in section 47 of the RTI Act. [24] Section 47(3)(b) of the RTI Act. [25] However, there are some recognised public interest considerations that may apply for the benefit of an individual.[26] Section 49(3) of the RTI Act.[27] Section 44 of the RTI Act.[28] Section 47(2) of the RTI Act.[29] Which came into force on 1 January 2020.[30] 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]. [31] XYZ at [573].[32] Schedule 4, part 2, items 1 and 3 of the RTI Act.[33] In some cases the name is not disclosed, but is already known to the applicant.[34] In the applicant’s email to OIC dated 4 January 2020. The Officer has been deidentified for the purpose of this decision.[35] Schedule 4, Part 2, items 5 and 6 of the RTI Act.[36] Personal information is defined at section 12 of the Information Privacy Act 2009 (Qld) as: ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’ [37] Schedule 4, part 4, section 6(1) of the RTI Act.[38] Schedule 4, part 3, item 3 of the RTI Act.[39] However, it is considered to be contrary to the public interest to disclose sensitive personal information of public sector employees, such as complaints made by or about a public sector employee. [40] Submissions dated 18 September 2019. [41] Schedule 4, part 2, items 1 and 3 of the RTI Act.[42] Schedule 4, part 2, item 11 of the RTI Act.[43] One segment on page 11 of the Part One pages contains only the name of one of these job applicants. [44] Schedule 4, part 2, items 5 and 6 of the RTI Act.[45] Schedule 4, part 3, item 19 of the RTI Act.[46] 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.[47] Being documents in rows 1, 2, 5 and 8-10 of the schedule prepared by OIC (Schedule). [48] However OIC had been unable to be satisfied that such grounds existed in respect of documents in rows 3, 4, 6, 7 and 11-15 of the Schedule.[49] Submission dated 4 January 2020.[50] Section 130(2) of the RTI Act.[51] Sections 47(3)(e) and 52 of the RTI Act. A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist—section 52(1)(a) of the RTI Act. A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find the document but it cannot be found—section 52(1)(b) of the RTI Act. [52] These factors are identified in Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) (Pryor) at [19] as including the administrative arrangements of government; the agency structure; the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it); the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested document/s and the nature of the government activity to which the request relates. These factors were more recently considered in Van Veenendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017). [53] Pryor at [21].[54] Search records and certifications were provided with Queensland Health’s letters dated 15 February 2019, 14 June 2019, 4 November 2019, 2, 18 and 20 December 2019. In its electronic searches in processing the access application and on external review, Queensland Health used various search terms, namely the applicant’s first, middle and last names; and on external review, also using the applicant’s first and last names, and the applicant’s last name.[55] On external review, by letter dated 4 October 2019, OIC required Queensland Health to undertake searches for documents identified in rows 1, 2, 5 and 8-10 of the Schedule.[56] The requested information concerns matters related to the applicant’s employment with Queensland Health in the Later Period.[57] To avoid identifying the applicant, I have not included details in these reasons. [58] Officer X’s searches undertaken on 28 October 2019.[59] Also on 28 October 2019[60] Under section 47(3)(e) of the RTI Act.[61] Under section 47(3)(b) and 49 of the RTI Act.[62] Under section 47(3)(e) and 52 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

O'Dwyer and The Workers' Compensation Board of Queensland [1995] QICmr 31; (1995) 3 QAR 97 (18 December 1995)

O'Dwyer and The Workers' Compensation Board of Queensland [1995] QICmr 31; (1995) 3 QAR 97 (18 December 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 126 of 1995COMMISSIONER (QLD) ) (Decision No. 95031) Participants: JAMES MICHAEL O'DWYER Applicant - and - THE WORKERS' COMPENSATION BOARD OF QUEENSLAND Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access - report comprising information on annual totals of claims and premiums recorded for the respondent's workers' compensation insurance business, listed by occupation code - whether disclosure of the report could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of the respondent - whether disclosure of the report would, on balance, be in the public interest - application of s.45(1)(c) of the Freedom of Information Act 1992 Qld - whether disclosure of the report would disclose the purpose or results or research - application of s.45(3) of the Freedom of Information Act 1992 Qld - words and phrases: "research".Freedom of Information Act 1992 Qld s.5(1)(a), s.21, s.45(1)(c), s.45(3), s.45(3)(a), s.45(3)(b), s.81Workers' Compensation Act 1990 QldWorkers' Compensation Regulation 1992 QldCannon and Australian Quality Egg Farms Limited, Re [1994] QICmr 9; (1994) 1 QAR 491 DECISIONI set aside that part of the decision under review (being the internal review decision made on behalf of the respondent by Mr B T Johnson, on 26 May 1995) which relates to the Report more fully described in paragraph 6 of my accompanying reasons for decision. In substitution for it, I decide that the applicant has, in accordance with s.21 of the Freedom of Information Act 1992 Qld, a right to be given access to the Report, the respondent having failed to satisfy me that any matter contained in the Report is exempt matter under the Freedom of Information Act 1992 Qld.Date of Decision: 18 December 1995 ...........................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) S 126 of 1995COMMISSIONER (QLD) ) (Decision No. 95031) Participants: JAMES MICHAEL O'DWYER Applicant - and - THE WORKERS' COMPENSATION BOARD OF QUEENSLAND Respondent REASONS FOR DECISIONBackground1. The applicant seeks review of the respondent's decision to refuse him access to information recording details of past performance in certain aspects of the business operations of the respondent. The applicant is the principal of a firm named Workers Compensation Consultancy Services (WCCS). The matter remaining in issue consists of computer records of information on certain aspects of the respondent's operations, listed by occupation code and year, and includes a number of calculations based on those records. The respondent has refused to give access to the records on the basis that they are exempt matter under s.45(1)(c) and s.45(3) of the Freedom of Information Act 1992 Qld (the FOI Act). 2. By letter dated 2 March 1995, Mr O'Dwyer made an application to the Workers' Compensation Board of Queensland (the Board), for access to "the Policy Statistics Premium Rating Report W S 26". The initial decision of the Board was made by Mr P Mullins, who, in a letter dated 5 May 1995, denied access to all documents on the basis that they were exempt under s.45(1)(c) and s.45(3) of the FOI Act.3. On 16 May 1995, Mr O'Dwyer made application for internal review of Mr Mullins' decision. The internal review was conducted on behalf of the Board by Mr B T Johnson, who, on 26 May 1995, affirmed Mr Mullins' decision and reasons for decision, without expanding on them. By letter dated 13 July 1995, Mr O'Dwyer applied for review by the Information Commissioner, under Part 5 of the FOI Act, of Mr Johnson's decision.The external review process4. I wrote to the Board on 27 July 1995, forwarding a copy of Mr O'Dwyer's application for external review, and requesting that the Board produce for my inspection copies of the documents to which Mr O'Dwyer had been refused access. The Board provided me with extracts from two computer-generated spreadsheet formats, rather than complete printouts of both spreadsheet formats, which apparently extend over thousands of pages. I have made my decision on the basis that the extracts provided are representative of the information held by the Board in the two spreadsheet formats..5. One spreadsheet format gives insurance policy details relating to individual policies held with the Board by employers. This document sets out information about particular policies which are identified by policy number. Although no policy holders are named, it may be possible to identify individual policy holders if access could be obtained to their policy numbers by some other means. The applicant has informed me that he does not seek access to this document, which is therefore no longer in issue in this review.6. The other spreadsheet format was described by the Board as a "summary document", but I will refer to it in these reasons for decision as "the Report". It consists of information grouped according to occupation code and year, with a number of simple calculations derived from that information. The Report does not identify individual employers or employees but rather gives totals for particular categories of employment which are identified by occupation codes (those occupation codes are listed in the schedule to the Workers' Compensation Regulation 1992 Qld). In relation to each occupation code there are listed 17 columns of information, each recording information for the period prior to 1989 and then for the individual years 1989/90, 90/91, 91/92, 92/93 and 93/94. The information contained in the Report for each time period can be grouped into 5 categories: total numbers of policies, employees and claims made total dollar amounts of wages paid, premiums paid and claims made the premium rate that was actually charged estimated amount of claims outstanding and claims plus estimate amounts simple calculations based on the raw data included in the Report7. After initial consultations with the applicant and the Board, I conveyed to the Board, by letter dated 1 September 1995, my preliminary view that the Report did not contain matter which is exempt under s.45(1)(c) or s.45(3) of the FOI Act, as claimed in the decision under review. I invited the Board, if it did not accept my preliminary view, to provide further submissions and evidence in support of its contention that the Report is exempt under the FOI Act. The Board responded, by letter dated 20 October 1995, stating that it had no further submissions to put forward in respect of claiming exemption for the Report. Contentions of the participants8. In his decision dated 5 May 1995, Mr Mullins of the Board stated: The report contains data produced from the Board's research into trends in the growth of injuries in employment categories as well as details of wages, premiums and current claims costs, estimates of incurred claims costs and projected premium rates. A policy holder (or their representative) or an insurance company could calculate a projected premium rate using this data and make representations to the Government before it has had the opportunity to consider the matter of future movements in premium rates. As you are aware, adjustments to premium rates require amendment to the Workers' Compensation Regulation and are therefore decisions made by the Governor in Council.Any representations made on the basis of the data or projections contained in this report would not be well founded as the data is incomplete without actuarial input. In fact the formula contained in the report is not used by the Board's actuaries to assess the real costs of incurred claims.Release of this report into the public domain would adversely affect the Board's operations in that it would draw criticism from policy holders on the basis of a formula which is not used to calculate premium rates. Dealing with the consequences of the release of such misleading information would divert substantial resources of the Board away from its core business.Whilst the Board, through the provisions of the Workers' Compensation Act, currently has a monopoly on workers' compensation insurance in Queensland, there is potential for competition, given the recommendations of the Industry Commission report on workers' compensation throughout Australia and the recommendations of the Hilmer report. It is quite possible that the Board may be competing with Comcare, or perhaps private insurers, in the foreseeable future. Release of this commercially sensitive information would give a distinct advantage to potential competitors who, if they are private insurance companies, would be under no obligation whatever to disclose information of this kind in respect of their own operations. This, of course, would place the Board at a serious commercial disadvantage.I consider that the release of this report would cause serious disruption to the workers' compensation scheme in Queensland which would not be in the public interest and would not assist the Board in its charter to provide an efficient and effective workers' compensation scheme.9. In his application for external review, Mr O'Dwyer made the following submissions:WCCS provides a service to Employers, Injured Workers and interested Stakeholders in their dealings with the [Board]. Mostly our representations occur when there exists conflict between the parties....REQUIRED INFORMATIONThe information required was the Board's Premium Rating Report WS 26. This report is an annual by-product produced at the end of the financial year along with other statistical reports. It sets out the years results cumulatively over 5 years. The details include wages, claims, numbers of policies, number of employees, premium rates both current and projected, estimates of outstanding claims and estimates plus premiums.This report details the actual results of the Board's underwriting results for the year. It is not a document that is used in determining premium rates. The Actuaries use quite a separate report generated specifically to recommend premium rates.Since the report contains factual information there should be open access to it. The Board has a monopoly on Workers' Compensation insurance in Queensland therefore the Board should be anxious to properly inform the public at large of annual results.BENEFIT OF KNOWLEDGEEmployers are now more sophisticated in their approach to Accident Prevention and Workers' Compensation. They have their own records of the premiums they pay and the claims amounts that are paid.One major tool in managing performance is comparison with others in like industries. This is so with all statistics. Our client employer cannot understand why their premium rate is so high when their accident prevention strategies and claims management policies are so effective. Their rehabilitation strategies are excellent and the Board does not in any significant way assist with rehabilitation in their case. Overall the employer has in the last 10 years drastically improved performance to the benefit of the Board.If the information in the report was made available the employer would be able to better manage their total portfolio.PROVISIONS OF FOI ACTThe Board's citing of the provisions relied upon to deny access falls short of the complete provisions of the cited sections. For example section 45(2) negates the exemption in this very case. How the Board expects to rely upon section 45(3) for exemption is beyond us. This deals with research and has nothing to do with the matter under request. The report has been in existence for over 15 years and is virtually unchanged in its format.We consider the Board has not been specific. And it has not been so because it really has no valid reason for exemption.CONTENT OF WS 26Every insurance establishment has to create premium ratings. It is common public knowledge that the rating formula includes information about claims paid, claims incurred and administration costs and in the case of private enterprise a profit component. In private enterprise real competition has a big bearing on competitive premium rates. The Board is a monopoly and it should be anxious to disclose its results.OBJECTS OF THE ACT - W/COMPThese include - (d) to encourage safety within industry and (e) to protect the interests of employers etc and (f) to provide for the efficient and economical administration of the system etc.Employers are targeted for the requirement of safe systems of work and claims management. The Board insists that rehabilitation is an employer's responsibility and expects total employer cooperation in all aspects of the administration of the Act.OBJECTS OF THE ACT - FOIThe Board has totally ignored these in their responses. Further they seem to ignore the reasons for the enactment of this Act.The Workers' Compensation Fund is a fund of the Trust and Special Funds. The Treasury is the custodian of the Fund.Reasons for the enactment include enhancing Government accountability and keeping the community informed.Safeguards included are exemptions for prejudicial effects on essential public interests. The provision of the information sought will not prejudice essential public interests. We feel the Board has taken a narrow self-interest stance in not meeting the objects of the FOI Act.INTENTIONS OF USAGEThe information is sought to provide those interested employers who make enquiries with actual details arising out of the collective results of employers policies.This will allow employers to measure their individual performance against collective results. This performance measurement will assist in the improvement of individual performances.Application of s.45(1)(c)10. 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.11. I analysed the requirements of s.45(1)(c) of the FOI Act in Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 at pp.516-523; paragraphs 66-88. In this case, the Board has the onus (see s.81 of the FOI Act) of establishing the following three requirements: disclosure of the matter in issue would disclose information concerning the business, commercial or financial affairs of the Board disclosure could reasonably be expected to have an adverse effect on those affairs disclosure would not, on balance, be in the public interest.12. With regard to the first requirement, I find that disclosure of the Report would disclose information concerning the business, commercial or financial affairs of the Board.13. With regard to the second requirement, I note that the expected adverse effect must be one to the business, commercial or financial affairs of the Board which the information in issue concerns (see paragraph 80 of Re Cannon). The correct approach to the application of the phrase "could reasonably be expected to" is explained in Re Cannon at p.515; paragraphs 62-63. Those words call for the decision-maker to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist.14. Mr Mullins' initial decision of 5 May 1995 identified three expected adverse effects: a concern that a policy holder who obtained access to the information might make premature representations to the government about adjustments to the rate of premiums, making inappropriate use of the information a concern that release of the information into the public domain would subject the Board to criticism and that the Board would have to divert substantial resources in order to answer this criticism a concern that there is a possibility that the Board may at some stage in the future become part of a competitive market and that release of the information would benefit potential competitors.15. In relation to the first claimed adverse effect, I consider that the fact that employers might make representations to the government about the level of premiums should not be regarded as an adverse effect on the Board's business, commercial or financial affairs. The business of the Board is to implement the statutory scheme for workers' compensation set out in the Workers' Compensation Act 1990 Qld. Selection of premium rates is a matter for the government, acting no doubt on its assessment of advice received from the Board, and any representations received or sought from interested persons or organisations. If, as Mr Mullins' decision suggests, representations made on the basis of data or projections contained in the Report would not be well-founded, then it should be a simple matter for the Board to advise the government of this fact. It appears, from Mr O'Dwyer's submission set out at paragraph 9 above, that people well-versed in the industry are well aware of the limitations of the information contained in the Report for the purpose of recommending or determining premium rates.16. As to the second claimed adverse effect, it is my view that subjecting the Board's operations to better informed public comment cannot be regarded as an adverse effect on the Board's operations. The Board is a public body and, as such, it is necessary that it should be responsive to public comment. It must expend resources that are necessary to be accountable to the public. I am not satisfied that disclosure of the Report could reasonably be expected to have the result that the Board would need to divert substantial resources to answer public criticism.17. As to the third claimed adverse effect, I accept that if the Board were in competition with other organisations and it could be shown that release of the Report would advantage its competitors and disadvantage the Board, that an adverse effect could be established. However, the possibility that the Board may at some time in the future conduct its business in a competitive market is, in my view, too remote and speculative to satisfy the test for exemption under s.45(1)(c). Any such change would doubtless involve considerable re-structuring and it is equally possible, in the event that the market for workers' compensation insurance in Queensland were to be opened to general competition, that the Board could be dissolved or that the government could decide that historical information of the type contained in the Report should be provided to all newcomers to the market, in order to create a 'level playing field'. Such possibilities are, however, mere conjecture at this time, and I do not consider that this claimed adverse effect is reasonably based. 18. I therefore find that the requirement for exemption imposed by s.45(1)(c)(ii) of the FOI Act has not been established, as I am not satisfied that disclosure of the Report could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of the Board which the information in the Report concerns.19. Even if such an expectation had been established, I consider that there are significant public interest factors weighing in favour of disclosure of the Report. A major factor is that of enhancing the accountability of a government agency which is subject to the FOI Act (cf. s.5(1)(a) of the FOI Act). The Board has been established by the government and granted a monopoly in the field of workers' compensation insurance in Queensland. All employers who must insure with the Board, and all of their employees, have an obvious interest in the Board's performance of its functions; moreover, workers' compensation premiums represent an overhead cost to business that is inevitably reflected in the prices charged to consumers for most goods and services provided in Queensland. There is significant public interest in the people of Queensland being able to have access to documents which provide an account of the Board's performance of its functions. In my view, the Report is apt to convey meaningful information on the Board's performance in respect of its core functions, over recent years, in relation to each occupational category. The public interest in members of the community having access to information of the kind recorded in the Report is, in my view, considerable. Allied to the public interest in ensuring the accountability of government agencies is the public interest in informed community participation in government decision-making. Information (of the kind in issue) on the Board's past performance would, for instance, be of value in informing public debate concerning the future direction of arrangements for the provision of workers' compensation insurance in this State. I would therefore find that, even if the requirement of s.45(1)(c)(ii) were established, the disclosure of the Report would, on balance, be in the public interest.20. I find that the Report is not exempt matter under s.45(1)(c) of the FOI Act.Application of s.45(3)21. Section 45(3) of the FOI Act provides: 45. ... (3) Matter is exempt matter if -(a) it would disclose the purpose or results of research (including research that is yet to be started or finished); and(b) its disclosure could reasonably be expected to have an adverse effect on the agency or other person by or on whose behalf the research is being, or is intended to be, carried out.22. The requirements of paragraphs (a) and (b) of s.45(3) are cumulative. For the same reasons as those given above, I am not satisfied that disclosure of the Report could reasonably be expected to have an adverse effect on the Board, in terms of s.45(3)(b), and I find that the Report is not exempt matter under s.45(3) of the FOI Act.23. I also consider that the contents of the Report cannot properly be characterised as the "results of research", within the terms of s.45(3)(a). Section 45(3) was added to the Freedom of Information Bill only in the Committee stage of debate on the Bill in the Legislative Assembly. There is nothing in the Parliamentary debates or legislative history of the provision which assists in its interpretation. I must therefore interpret it according to the ordinary meaning of the words which is appropriate to the context in which they appear. There are many dictionary definitions of the term "research". I will confine myself to reproducing two which I consider most closely reflect the meaning of the word "research" which is appropriate in the context of s.45(3) of the FOI Act. The New Shorter Oxford Dictionary defines research as "a search or investigation undertaken to discover facts and reach new conclusions by the critical study of a subject or by a course of scientific enquiry". The Macquarie Dictionary defines it as "diligent and systematic enquiry or investigation into a subject in order to discover facts or principles". In my view, the Report is essentially a record of the business operations and performance of the Board over a number of years. In that sense, it is more akin to the business records or accounts of an organisation than to the results of a research project undertaken to discover facts or principles. I do not consider that s.45(3) was intended to extend to the business accounts, or commonly kept business records, of an organisation. I do not consider that the creation of the fifth category of information referred to in paragraph 6 above, from the information recorded in the first four categories of information, could be regarded as "research" for the purposes of s.45(3).Conclusion24. I therefore set aside that part of the decision under review which relates to the Report described in paragraph 6 above, and in substitution for it, I find that the Report is not exempt matter under the FOI Act. Hence, the applicant has a right to be given access to the Report under the FOI Act, subject to the payment of any relevant charges. ...........................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

I27 and Queensland Police Service [2019] QICmr 29 (12 August 2019)

I27 and Queensland Police Service [2019] QICmr 29 (12 August 2019) Last Updated: 17 September 2019 Decision and Reasons for Decision Citation: I27 and Queensland Police Service [2019] QICmr 29 (12 August 2019) Application Number: 314471 Applicant: I27 Respondent: Queensland Police Service Decision Date: 12 August 2019 Catchwords: ADMINISTRATIVE LAW - INFORMATION PRIVACY - compliance with relevant application requirements - whether the agency was entitled to decide an access application did not comply with all relevant application requirements - requirement to provide sufficient information about documents sought - section 43(2)(b) of the Information Privacy Act 2009 (Qld) - section 53 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 various documents about herself and her contact with QPS. In response, QPS wrote[2] to the applicant advising that QPS intended to refuse to deal with the application on the basis that it did not comply with the requirements of section 43(2)(b) of the IP Act. QPS provided the applicant with an opportunity to consult with a view to amending the application to remove the grounds for refusal. QPS decided[3] to refuse to deal with the application on the basis that it considered the applicant had failed to respond with a view to identifying the documents being sought.[4] The applicant applied[5] to the Office of the Information Commissioner (OIC) for external review of the decision refusing to deal with her application. For the reasons set out below, I affirm QPS’ decision to refuse to deal with the application under section 53 of the IP Act on the basis that it did not comply with the requirements of section 43(2)(b) of the IP Act. Background Prior to accepting the application for external review, OIC secured QPS’ agreement to process a fresh application with an amended scope.[6] The applicant rejected the proposal and elected to proceed with the application for external review. Significant procedural steps relating to the external review are set out in the Appendix. Reviewable decision The decision under review is QPS’ decision dated 22 February 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 Appendix). Issue for determination The issue for determination is whether QPS was correct in deciding to refuse to deal with the application under section 53 of the IP Act on the basis that it was non-compliant with the requirements of section 43(2)(b) of the IP Act. Relevant law The IP Act affords a person a right to be given access to documents of an agency to the extent they contain the applicant’s personal information. However, this right is subject to other provisions of the IP Act.[7] Of relevance in this matter is section 43(2)(b) of the IP Act which states that an access application must ‘give sufficient information concerning the document to enable a responsible officer of the agency or the Minister to identify the document’. This means an applicant must describe the documents they want to access clearly enough to allow the decision-maker to: identify the documents being applied for; and conduct searches for the documents.[8] If a person purports to make an access application and the application does not comply with all relevant application requirements, an agency must:[9] within 15 business days of receiving the application, make reasonable efforts to inform the applicant how the application does not comply; and give the applicant a reasonable opportunity to consult with a view to making their application in a form which does comply with all relevant requirements. If, after giving the applicant a reasonable opportunity to consult with a view to making the application in a form complying with all relevant application requirements, the agency decides the application does not comply with all relevant application requirements, the agency must give the applicant prescribed written notice of the decision within 10 business days after making the decision.[10] Findings Give sufficient information concerning the documents sought By paper application dated 12 December 2018, the applicant sought access to: Subject matter: 1. All emails and processing documents and searches relating to past IP applications and enquiries, and QPS officer communication with 1. QCAT and 2. Judicial Officers. 2. All records of warnings or flags or notes about me on the police flagging and warning system including past records, information supporting those flags and warnings, names and positions of authors of those and authorising officers. 3. Records of communications about me to and from i. Bond University ii. [named individual] 4. Records and communications relating to my complaints to ESC, CMC, CCC. 5. Emails about me sent to and from Gold Coast Prosecutions, including [named person]. 6. My QPRIME records 7. Records of searches of my information held by police systems. 8. Emails, reports and notes (notebook entries) relating to my arrest at Bond University. Type of documents: All types per above including notebook entries, reports, electronic data, emails, paper documents Time period: 2008 - 12/12/18 (Focus on 2011 around assault by Bond University group of security guards and January 2012 arrest at Bond University. On that same day, the applicant also emailed QPS three times. The email sent at 11:48 am sought access as follows: I request under AA administrative access to records about me. Let me know what types of records and from which sources I can request AA. I request by IP all current and previous records about me on flagging and warning systems from 2008 to the present date. I request a list of all persons who used police systems to access my data, including their names, positions and dates if possible. I request all records pertaining to the inputting of information about me in the flagging and warning system including the full names of officers who checked and confirmed those warnings. I request all records and reports and notebook entries relating to myself and BOND UNIVERSITY from 2011 to the present date. Please include all records of investigations and documents for use in court proceedings. I request all records and communications about me to and from [a named person] or any name [they are] known by such as [alternate name]. I request all information about me held at or by systems and/or officers of Southport police and watch house, ethical standard command, gold coast prosecutions including all communications to judicial officers and registry staff, all records and communications held by officers or systems of runaway bay police station, Palm Beach police station, surfers paradise and broadbeach and varsity lakes police and police station I request all records and communications about me to ambulance officers and QAS and doctors and hospital staff and services and all information pertaining to emergency assessment orders. GCUH AND TWEED HOSPITAL records and communications to and from qps are requested. Communications between OIC, CCC, GCCC, and OHO and OIC and NSW POLICE AND AFP and TAFE NSW and Southern Cross University are requested. I request records of my complaints about and handling of them and CCTV footage related to complaints, including the 2012 group sexual assault perpetrated on me by south port watchhouse police and any records from police for the incident I reported in 2014.being knocked unconscious by police in front of southport courthouse. I request records and communications related to my blue card application. I request all data about myself on QPRIME. I request all emergency 000 calls from me or my phone numbers ... or ... I request all communications about me to and from the following- [named person] [named person] or any variation of the spelling of [their] name All police prosecutors at gold coast prosecutions between 2012 and 2018. I request all arrest records and investigation records, notebook entries, and reports. Please call me to overcome any problem in order that you proactively facilitate this request. Please send data to this email address. Dates if not specified should be from 2010 to the current date. The email sent at 1:04 pm sought access as follows: ...documents and communications relating to my previous IP requests including searches and emails to and from ... RTI STAFF. all current and previous records about me on flagging and warning systems from 2008 to the present date and supporting information or evidence that substantiated them and supervisor records relating to all current and previous notices or warnings or flags. persons who used police systems to access my data, including their names, positions and dates. records pertaining to the inputting of information about me in the flagging and warning system including the full names of officers who checked and confirmed those warnings. all records and reports and notebook entries and investigation records relating to Bond university - include all records of investigations and documents for intent or use in court proceedings. records and communications about me to and from [a named person]. all information about me held at or by systems and/or officers of Southport police and watch house, ethical standard command, gold coast prosecutions including all communications to judicial officers and registry staff, all records and communications held by officers or systems of runaway bay police station, Palm Beach police station, surfers paradise and broadbeach and varsity lakes police and police station all records and communications about me to and from southport watchhouse medical staff, ambulance officers and QAS and doctors and hospital staff and services and all information pertaining to emergency assessment orders. GCUH AND TWEED HOSPITAL records and communications to and from qps. Communications between qps involving any of the following -OIC, CCC, GCCC, and OHO and OIC and NSW POLICE AND AFP and TAFE NSW and Southern Cross University my complaints about and handling of them and CCTV footage related to complaints, including the 2012 group sexual assault perpetrated on me by south port watchhouse police and any records from police for the incident I reported in 2014 of being knocked unconscious by police in front of southport courthouse and being strangled by [a named person] and repeated complaints about [them] and partner [a named person] breaking in and robbing and assaulting me, and communications with rentashed staff particularly between [a named person] and [a named person] and records about my stored possessions there and the murder threat from [a named person], [a named person] records and communications related to my blue card application. current and previous data about myself on QPRIME. emergency 000 calls from me or my phone numbers ... or ... communications about me to and from the following- [a named person] [a named person] All police prosecutors at gold coast prosecutions between 2012 and 2018. arrest records and related investigation records, notebook entries, and reports. And the email sent at 3:06 pm sought access as follows: I would like to see 2012 reports and witness statements or notes about all witnesses who were to attend my trial for arrest in January 2012 particularly for a person who did not show up at trial and was purported to have worked at coolangatta police station. I would like to see every direct and indirect access to my information by Bond university staff including [a named person] and all entries and warnings about me resulting from [them] directly or indirectly. I would like to see how my reports of [pedophiles] at Bond university were handled if at all and while in the watchhouse in January 2012 all communications about handling my sexual assault complaint. Department of justice told me there were communications from qps about me directly to magistrates and qcat and I'd like to see them. I'd also like communications from QPS to gold coast bulletin Please arrange and interpret my request here in the manner which in common sense catches what is critical information and to facilitate quickest release... QPS’ decision maker submitted[11] that: Originally our admin team made up three separate files. However after reviewing them, the emails and application all seemed intertwined with each other. It was not clear that they were separate. They were also very difficult to interpret and could be described as rambling and disjointed. Despite the fact that admin had made up three files, it was not clear that they were about separate matters. In [an] attempt to try and identify what the applicant was seeking, I combined all ... correspondence and sent ... a consult with a view to trying to identify what documents [the applicant] was seeking access to. The onus is on the applicant to identify the documents they want to access, not the decision‑maker. A clear understanding of the scope of the access application is critical for the agency to progress searches in a timely and targeted way and discharge its obligation to locate all relevant documents. Where the scope of an application is too broad, meaning specific documents cannot be identified, it may not comply with section 43(2)(b) of the IP Act. The specific recordkeeping and document management systems of the agency will be relevant when determining whether or not an application sufficiently describes the documents sought.[12] Where an agency is large and decentralised, as is the case with QPS, applicants may need to include additional information (e.g. geographical locations, relevant reference numbers, names of business units or agency officers) in their application to make it compliant, and allow the agency to identify the documents and undertake searches. I have carefully considered the applicant’s paper application and each of the applicant’s emails as set out above. I consider that each of the emails predominately requested the types of information which had been requested within the paper application or within one of the other emails. On this basis, I am satisfied that it was prudent of QPS to combine the requests and treat them as one application. Turning to the terms of the applicant’s request, it appears that the applicant is effectively seeking access to ALL information in any form held by QPS that is about her within the specified time period. QPS stated[13] that it is unable to process broad requests such as this because: ...the QPS is a large and decentralised organisation with the individual stations and regions maintaining police records. There is no central [records management] system, either state wide or at station level, that allows QPS personnel to readily identify “all information” etc. relating to a person without further information to identify the specific incident/s, investigation or court matter to which the requested documents relate and the specific type of documents [the applicant is] requesting (e.g. statement, notebook entries etc.). It appears on the face of the applicant’s paper and email applications that the applicant attempted to provide some clarity. For example, the applicant provided names of some police officers and referenced events in a general sense. However, I consider that the applicant has not clearly specified the parameters of the application in a way that would enable QPS to identify the information that is the subject of the application and conduct searches accordingly. Rather, the applicant asks QPS to ‘call me to overcome any problem’[14] and to ‘interpret [the] request’.[15] Further, the applicant’s request requires the QPS decision-maker to analyse the terms of the application to identify documents the applicant is seeking before being able to conduct searches. As an example, the applicant is seeking ‘to see 2012 reports and witness statements or notes about all witnesses who were to attend my trial for arrest in January 2012 particularly for a person who did not show up at trial and was purported to have worked at coolangatta police station.’ This request requires the QPS decision-maker to independently verify who the applicant is referring to when they state ‘a person who did not show up at trial’. Accordingly, I am satisfied that the application did not comply with the relevant application requirement at section 43(2)(b) of the IP Act. QPS’s compliance with section 53 of the IP Act I am satisfied that QPS contacted the applicant within 15 business days after the purported application was received and informed her how the application did not comply with a relevant application requirement.[16] In reaching this conclusion, I note that: the purported application was received by QPS on 12 December 2018;[17] and within 15 business days of receiving the purported application, QPS wrote to the applicant on 7 January 2019[18] (the Notice) advising: Your application as submitted is not valid because it does not give sufficient information about the documents you are seeking to enable me to identify them. In its current form, your application is not valid as it does not satisfy section 43(2)(b) of the IPA. and ...your request is seeking such a large number of documents from different sources and locations that it is very difficult to interpret and I am not able to specifically identify the documents you are seeking. You also ask for the decision maker to make assumptions and adjust your application if necessary, and this renders your application as invalid as this means your application is not specific enough. I am also satisfied that QPS gave the applicant ‘a reasonable opportunity to consult with a view to making an application in a form complying with all relevant application requirements.’[19] In reaching this conclusion, I note that the Notice states: Should you wish to amend the current scope and make a valid application, you must respond by 28 January 2019 and clearly identify what specific documents you are seeking access to, and provide sufficient information (such as time, date, place, officer’s name, type of incident -court case, crime report / traffic accident / arrest / traffic ticket etc.) concerning each of the requested documents to enable this Unit to identify the incident/s to which the documents relate so that searches can be made to locate the documents. For example, if you are requesting documents in relation to a police investigation, the type of information that would assist us in identifying and locating the requested documents would be: Were you a complainant: (the person who made a complaint to police); Were you a suspect / offender: (the person who was the subject of the investigation / complaint); Were you a third party / witness: (someone one who was interviewed in relation to an investigation but was neither a complainant or suspect / offender); The substance of the complaint / investigation: (what was it about e.g. assault, break and enter etc.); The date / place where the alleged offence occurred; The rank, name, establishment of the investigating officer; Did the matter result in someone being charged and subsequently facing the courts; and Was someone subsequently convicted. Specifically, in relation to your application, when identifying the documents you are requesting, “any documents” is not sufficient: please be more specific (e.g. job logs, notebook entries, court materials, internal investigation summary report etc.) as to what documents you require. For the purpose of clarity and ease of processing it would also greatly assist if you could number the requests for documents that you are making (e.g. 1. crime report number ... , 2. statement of .... , 3. Audio / Video interview of ... concerning... which occurred on ... , 4. speeding ticket issued on... at... , 5. Arrest for... on 1/2/05 at Broadbeach, Gold Coast etc.). Please be as specific as possible so that your application can be made valid and processed. To assist you in making your application valid, I have attached several copies of a “Request for more Information” sheet. Please ensure that you provide a completed sheet for each individual incident/complaint that you require documentation in relation to (including the type of information outlined above). It may also help if you focus on obtaining documents in regard to a specific incident as this may assist you in identifying exactly what you are seeking. The QPS decision-maker has submitted to OIC[20] that although the applicant attempted to speak to the decision-maker after receiving the Notice and sent a large number of emails to various agencies, including the QPS, none of these communications clarified the terms of the application or responded to the Notice. On the basis of the above, I am satisfied that the applicant did not sufficiently clarify the application to remove the grounds for refusal. Applicant’s submissions on external review During the external review, the applicant stated: ‘I am experienced at making IP applications and if you decide it is even plausible that I did not make a valid application I will challenge you and hold you liable for PID reprisals, victimisation, and conspiracy with police to attempt to kill me or cause serious harm...’;[21] and ‘QPS IP officers refuse to explain their information storage systems and obfuscate how the scope can be simply set out so they can disclose my information ... [OIC] fails to consider and see that ... this is not the real reason for refusal of information access, as ... evidenced in the history of continuous refusal of my multiple IP applications...’.[22] As set out at paragraph 29, QPS provided the applicant with an opportunity to consult with a view to making her application compliant. I also note that QPS provided the applicant with detailed information about information they could provide which would enable QPS to identify the information that is the subject of her application and conduct searches accordingly. On the basis of the information before OIC, I do not consider that the applicant has made a valid application, nor that the applicant has provided the clarification requested by QPS that would enable QPS to identify the documents the applicant seeks. Conclusion In conclusion, I find that: the terms of the access application are insufficiently clear for QPS to identify the documents the applicant seeks; and therefore, QPS could refuse to deal with the application under section 53 of the IP Act on the basis that it does not comply with the requirements of section 43(2)(b) of the IP Act. DECISION For the reasons set out above, I affirm the decision under review and find that QPS was entitled to decide to refuse to deal with the access application under section 53 of the IP Act on the basis that it did not comply with the relevant application requirements under section 43(2)(b) 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: 12 August 2019 APPENDIX Significant procedural steps Date Event 22 February 2019 OIC received the application for external review. 25 February 2019 OIC notified the applicant and QPS that the external review application had been received. 15 March 2019 OIC received the applicant’s written submissions. 19 March 2019 OIC discussed a proposal for informal resolution with QPS. 21 March 2019 OIC received the applicant’s written submissions. 18 April 2019 OIC conveyed an informal resolution proposal to the applicant. OIC received the applicant’s written submissions in response, rejecting the informal resolution proposal. 26 April 2019 OIC requested and received procedural documents from QPS. 28 April 2019 OIC received the applicant’s written submissions. 29 April 2019 OIC notified the applicant and QPS that the application for external review had been accepted. 2 May 2019 OIC received the applicant’s written submissions. 15 May 2019 OIC conveyed a preliminary view to the applicant. OIC received the applicant’s written submissions. [1] By paper application dated 12 December 2018 and emails dated 12 December 2018 at 11:48 am, 1:04 pm and 3:06 pm.[2] Letter dated 7 January 2019.[3] On 22 February 2019.[4] Under section 53 of the IP Act.[5] On 22 February 2019.[6] QPS agreed to process the following scope: 1. All current and historical flags and warnings recorded against [the applicant]; and 2. Information about when the flags and warnings were created, the officer who created them and reasons for generating the flags and warnings (if they are provided) that are recorded in QPRIME.[7] Section 40 of the IP Act. [8] Lonsdale and James Cook University [2015] QICmr 34 (15 December 2015) at [9].[9] Section 53(2) and (3) of the IP Act.[10] Section 53(6) of the IP Act.[11] By email dated 29 January 2019.[12] Mewburn and Queensland Police Service [2014] QICmr 49 (2 December 2014) at [41]-[42][13] In a letter to the applicant dated 7 January 2019.[14] Email to QPS dated 12 December 2018 at 11:48 am.[15] Email to QPS dated 12 December 2018 at 3:06 pm.[16] In accordance with section 53(2) of the IP Act.[17] Comprising a paper application and three emails as set out at paragraphs 15 to 18 above.[18] The 15th business day after receiving the purported application.[19] In accordance with section 53(3) of the IP Act.[20] By email dated 29 January 2019.[21] Application for external review dated 22 February 2019.[22] Submission dated 15 May 2019.

queensland

court_judgement

Queensland Information Commissioner 1993-

Beale and Department of Community Safety [2012] QICmr 15 (11 May 2012)

Beale and Department of Community Safety [2012] QICmr 15 (11 May 2012) Beale and Department of Community Safety [2012] QICmr 15 (11 May 2012) Last Updated: 17 July 2012 Decision and Reasons for Decision Application Number: 310872 Applicant: Beale Respondent: Department of Community Safety Decision Date: 11 May 2012 Catchwords: ADMINISTRATIVE LAW - INFORMATION PRIVACY - REFUSAL OF ACCESS - applicant sought access to information relating to an incident in a correctional centre involving him and other prisoners - access refused to all CCTV footage of the incident - public interest harm in disclosure of visual recordings of a corrective services facility under schedule 4, part 4, item 5 of the Right to Information Act 2009 (Qld) - whether disclosure would, on balance, be contrary to the public interest - whether access to CCTV footage may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) Contents REASONS FOR DECISION Summary The applicant, a prisoner, applied to the Department of Community Safety (Department) under the Information Privacy Act 2009 (Qld) (IP Act) for access to incident reports, officer reports and video footage relating to an incident involving him and other prisoners which occurred at Arthur Gorrie Correctional Centre (AGCC) on 1 January 2011. The Department granted the applicant access to the majority of information contained in written reports about the incident.[1] The Department refused access to parts of written reports containing other prisoners’ personal information, and to closed circuit television (CCTV) footage of the incident, 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 Department’s decision to refuse access to the CCTV footage and the report information. During the review, OIC resolved the issue of access to the report information with the applicant and therefore, it is not considered in this decision. The applicant submits that he should be given access to the CCTV footage as it has been made available to a legal representative for another prisoner involved in the incident. He also considers that disclosure will show that the Department and AGCC failed in their duty of care. I affirm the Department’s decision to refuse access to the CCTV footage under section 67(1) of the IP Act on the basis that disclosure would, on balance, be contrary to the public interest under section 49 of the Right to Information Act 2009 (Qld) (RTI Act). Significant procedural steps These are set out in the Appendix to these reasons. Reviewable decision The decision under review is the Department’s decision dated 2 December 2011 refusing access to information requested by the applicant, including the CCTV footage. 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 The CCTV footage to which access was refused is contained on a compact disc containing four video files of the incident (Information in Issue). The four files were obtained from various CCTV cameras within the areas of AGCC in which the incident occurred. 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 that person’s personal information.[3] However, this right is subject to other provisions of the IP Act including the grounds for refusal of access.[4] One of the grounds on which access may be refused is where disclosure would, on balance, be contrary to the public interest.[5] The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs, for the 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 a particular individual. In deciding the public interest question, the RTI Act requires[6] a decision-maker to: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosing the information would, on balance, be contrary to the public interest. Schedule 4 of the RTI Act sets out various public interest factors that may be relevant in determining the public interest.[7] Findings In reaching this decision I have not taken into account any irrelevant factors, including those listed in schedule 4, part 1 of the RTI Act. The relevant factors which I consider favour disclosure and nondisclosure of the Information in Issue are discussed below. Factors favouring disclosure Enhanced government accountability The applicant has stated that releasing the Information in Issue will demonstrate that the Department and operator of AGCC[8], failed in their duty of care. If disclosing information could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability, a public interest factor favouring disclosure arises.[9] I also consider that there is a public interest in ensuring that government owned correctional facilities are accountable for the activities that occur within their facilities and that their reporting mechanisms are thorough and transparent. As the CCTV footage shows an incident involving prisoners at a government owned corrective services facility in which weapons were used and injuries sustained, I consider these public interest factors are relevant. The Department released 12 pages of reports about the incident to the applicant, subject only to the deletion of information relating to other prisoners. The information disclosed to the applicant sets out: details of the incident as recorded by corrective service officers who witnessed the incident a description of what the CCTV footage shows[10] actions that were taken by corrective service officers during and after the incident; and recommendations which were made about disciplinary action and ongoing monitoring as a result of the incident. I acknowledge that the CCTV footage shows the actual incident and actions of people involved as opposed to a written description which appears in the reports. For this reason, I consider that releasing the CCTV footage may, to some extent, further enhance government accountability. However, given the significant amount of information already released to the applicant about the incident, AGCC’s reporting mechanisms and resulting actions taken by AGCC, I am satisfied that this factor can only be given limited weight in favour of disclosure. Administration of justice The applicant submits that the Information in Issue has been disclosed to another prisoner’s solicitor[11] and that by not affording him the same opportunity, his procedural fairness is being compromised.[12] If disclosing information could reasonably be expected to contribute to the administration of justice for a person or generally, including procedural fairness, public interest factors favouring disclosure will be raised.[13] In Willsford and Brisbane City Council[14] 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.[15] In his submissions, the applicant has named another prisoner involved in the incident and states that the other prisoner’s legal representative was allowed to view the CCTV footage under the IP Act. The Department explained to OIC that, in some cases, a prisoner’s legal representative may be allowed supervised viewing access of video footage from a correctional centre for the purpose of a legal proceeding and/or to provide legal services to their client. The Department has confirmed that in such cases, copies of video footage are not provided under the IP Act and that access is granted by way of inspection only. A decision on access to information under the IP Act will be decided based on the facts of the particular application. It may be the case that the other prisoner has obtained legal representation for the purpose of a legal proceeding relating to the incident and that, in considering the application, the Department may have decided that this raised a strong administration of justice factor favouring disclosure of the CCTV footage to the legal representative.[16] The applicant however, has not specified any legal remedies he is pursing in relation to the incident for which he would require a copy of the CCTV footage. He has also not provided OIC with any evidence that he has sought legal representation in relation to the incident. Based on the information available in this review, I am satisfied that the Willsford requirements for establishing a public interest in the administrative of justice, as set out at paragraph 21 of these reasons, are not met in this case. Therefore, I consider that no weight can be given to these factors in favour of disclosure. Personal information of the applicant If disclosing information could reasonably be expected to disclose the personal information[17] of the applicant, this raises a public interest factor favouring disclosure.[18] The CCTV footage contains images of the applicant during the incident. I am satisfied that these images comprise the applicant’s personal information and that this factor carries moderate weight favouring disclosure. Factors favouring nondisclosure Security and good order of a corrective service facility The RTI Act recognises a public interest harm in disclosing information brought into existence for the security or good order of a corrective services facility.[19] Specifically, the RTI Act identifies this harm arises in relation to information that is: (i) in the possession of, or brought into existence by, the Department[20]; and (ii) a visual recording of a corrective services facility or part of a corrective services facility.[21] The above public interest harm factor was recognised as an exemption in the repealed Freedom of Information Act 1992 (Qld) (FOI Act).[22] When the previous exemption was enacted[23], Parliament explained that: visual recordings are one category of recording that is necessary to maintain the security and good order or corrective services facilities; and the public interest in maintaining the security and good order of corrective services facilities outweighs the right of offenders to obtain audio or visual recordings of themselves where the recordings are brought into existence for security purposes.[24] As set out in paragraph 9 of these reasons, the Information in Issue comprises CCTV footage of areas of AGCC in which the incident occurred. I am satisfied that the Information in Issue meets the requirements in (i) and (ii) above and that therefore, this public interest factor applies in this case. I am also satisfied that, due to the important security function which video recording systems perform in correctional facilities that this factor carries very significant weight in favour of nondisclosure. Personal information and privacy of other individuals The RTI Act provides that disclosing an individual’s personal information to someone other than that individual will cause a public interest harm.[25] In addition, 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.[26] The CCTV footage contains images of other prisoners involved in the incident. Under the repealed FOI Act, the Information Commissioner found that information concerning what happens to a prisoner, while in prison, concerns the personal affairs of a prisoner.[27] I am satisfied that images of the other prisoners are sufficiently clear to comprise their personal information. I am also satisfied that the images attract a high privacy interest as they show incarcerated individuals involved in an incident in which weapons were used and injuries sustained. In his submissions, the applicant has provided details of another prisoner who appears in the video. Given that the applicant was previously held in the facility with the other prisoners, I consider it is likely that the applicant also knows the identities of some, if not all, of the other prisoners involved in the incident.[28] Where information is already known to an applicant, this reduces, to an extent, the privacy interest attaching to the information. Given the nature of the Information in Issue and the extent to which it contains clear images of other individuals and their involvement in the incident, I consider that the privacy interest and public interest harm factor regarding personal information should be given significant weight in favour of nondisclosure. Balancing the public interest I am satisfied that there is a public interest in the applicant accessing his personal information and that this should be afforded moderate weight in favour of disclosure. I also recognise that releasing the CCTV footage may, to an extent, further enhance government accountability and transparency in relation to incidents in correctional facilities. Balanced against these factors however, is the public interest harm factor attaching to visual recordings of corrective services facilities which carries significant weight in favour of nondisclosure. I am also satisfied that there is a strong public interest in protecting the privacy of the other prisoners and their personal information. On balance, I am satisfied that the factors favouring disclosure of the CCTV footage are outweighed by the factors favouring nondisclosure, and that therefore, disclosure would, on balance, be contrary to the public interest. DECISION I affirm the decision of the Department to refuse access to the CCTV footage under section 67(1) of the IP Act and 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 139 of the IP Act. ________________________ K Shepherd Assistant Information Commissioner Date: 11 May 2012 APPENDIX Significant procedural steps Date Event 13 October 2011 The Department received the applicant’s IP Act access application. 15 November 2011 The Department asked the applicant for an extension of time until 5 December 2011 to make its decision. 2 December 2011 The Department issued its decision to the applicant granting full access to five pages, partial access to seven pages and refusing access to the CCTV footage. 6 December 2011 OIC received the applicant’s external review application. The applicant stated he had not yet received a copy of the Department’s decision and that therefore he considered the Department to have made a “deemed decision” refusing him access to information. 6 December 2011 OIC asked the Department to provide a copy of application material and its decision. 14 December 2011 OIC notified the applicant and the Department that the external review application had been accepted. 19 December 2011 The applicant notified OIC that he received the Department’s decision letter on 9 December 2011 and confirmed he was seeking external review of all information to which access was refused. 13 January 2012 The Department provided OIC with a copy of the information to which access was refused. 9 March 2012 OIC conveyed a preliminary view to the applicant that access to (i) information in seven pages of reports and (ii) the CCTV footage, could be refused on the basis that disclosure would, on balance, be contrary to the public interest. OIC invited the applicant to provide submissions to OIC by 29 March 2012 if he did not accept the preliminary view. 20 March 2012 The applicant requested OIC to reconsider the preliminary view regarding the CCTV footage on the basis that the information had been made available to another prisoner. The applicant did not contest the preliminary view on the report information. 22 March 2012 OIC confirmed with the applicant that, based on his submissions, the remaining issue on external review was his entitlement to access the CCTV footage. 26 March 2012 OIC made enquiries with the Department in relation to release of the CCTV footage to other prisoners involved in the incident. 2 April 2012 OIC wrote to the applicant to convey additional information provided by the Department about the CCTV footage. OIC also confirmed the preliminary view that access to the CCTV footage may be refused as disclosure would, on balance, be contrary to the public interest under the RTI Act. OIC invited the applicant to provide submissions to OIC by 20 April 2012 if he wished to contest the preliminary view. 17 April 2012 The applicant requested OIC to proceed with the external review and provided further submissions in support of his reasons for seeking access to the CCTV footage. [1] Access was granted to five whole pages and seven part pages.[2] Under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) (RTI Act). [3] Section 40 of the IP Act.[4] Section 67 of the IP Act provides that the grounds for refusal of access set out in section 47 of the RTI Act apply in the same way, and to the same extent, under the IP Act. [5] Sections 47(3)(b) of the RTI Act and 49 of the RTI Act.[6] Under section 49(3) of the RTI Act. [7] This is a non-exhaustive list and therefore, other factors not included in schedule 4 may be relevant in a particular case. [8] GEO Group Australia privately manages and operates AGCC under contract to the Department. Documents created by GEO Group Australia in managing and dealing with prisoners are documents of the Department. See Scott and Queensland Corrective Services (Unreported, Queensland Information Commissioner, 5 June 2007). [9] Schedule 4, part 2, item 1 of the RTI Act. [10] This appears in an Incident Report (document no. 9). [11] Submissions dated 12 November 2011, 6 December 2012 and 13 March 2012.[12] Submission dated 13 March 2012.[13] Schedule 4, part 2, item 16 and item 17 of the RTI Act.[14] (Unreported, Queensland Information Commissioner, 27 August 1996) (Willsford). This decision was recently affirmed under the RTI Act in 1OS3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011). [15] Willsford [17]. [16] OIC does not have any specific information available to it about the circumstances of the other prisoner’s access application to confirm this was the case. Even if such information was available, for privacy reasons, I would be prevented from disclosing it in these reasons.[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] Schedule 4, part 4, item 5 of the RTI Act. [20] Which currently administers the Corrective Services Act 2006 (Qld).[21] Schedule 4, part 4, item 5(1)(b)(iii) of the RTI Act.[22] Section 42AA of the repealed FOI Act. [23] By the Corrective Services Act 2006 (Qld). [24] In the Explanatory Notes to the Corrective Services Bill 2006 (Qld). Parliament also recognised that while a limit was being placed on the availability of audio and video recordings under the freedom of information regime, offenders would still retain the ability to request access to recordings by subpoena if the recordings are necessary and relevant to court proceedings.[25] Schedule 4, part 4, item 6 of the RTI Act.[26] Schedule 4, part 3, item 3 of the RTI Act.[27] In Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, the Information Commissioner confirmed the approach taken in Re Lapidos and Office of Corrections (No.2) (unreported, Victorian Administrative Appeals Tribunal, Jones J, 19 February 1990). Stewart was decided under the repealed FOI Act in relation to the meaning of ‘personal affairs’. I consider that the reasoning in that case can be applied to the meaning of ‘personal information’ under the IP Act. [28] Submissions dated 12 November 2011, 6 December 2012 and 13 March 2012.

queensland

court_judgement

Queensland Information Commissioner 1993-

Glass Media Pty Ltd and Department of the Premier and Cabinet; Screen Queensland Pty Ltd (Third Party); The Walt Disney Company (Australia) Pty Ltd (Fourth Party) [2016] QICmr 30 (18 August 2016)

Glass Media 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) Last Updated: 20 January 2017 Decision and Reasons for Decision Citation: 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) Application Number: 312557 Applicant: Glass Media Group Pty Ltd Respondent: Department of the Premier and Cabinet Third Party: Screen Queensland Pty Ltd Fourth Party: The Walt Disney Company (Australia) Pty Ltd Decision Date: 18 August 2016 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – EXEMPT INFORMATION – CABINET INFORMATION – information describing value of film incentive – whether information brought into existence for consideration of Cabinet – whether disclosure of information would reveal consideration of Cabinet – whether information created in course of State’s budgetary processes – whether exempt information to which access may be refused – sections 47(3)(a) and 48 and schedule 3, section 2 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – EXEMPT INFORMATION – BREACH OF CONFIDENCE – whether disclosure of information would found an action for breach of confidence – whether information is exempt under schedule 3, section 8 of the 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 In October 2014, the Queensland Government agreed to provide financial assistance to the fourth party (Disney), to secure production in Queensland of the feature film ‘Pirates of the Caribbean 5’ (PoC). The terms of this financial assistance (the ‘Incentive Payment’) were largely negotiated by the third party (Screen), a company the single share in which is held beneficially by the State of Queensland[1] and whose objects include ‘making funding available to members of the domestic and foreign film industry...’.[2] In the case of the PoC project, Screen acted as a ‘conduit’[3] between Disney and the Department, conveying the intentions of the former so as to facilitate access to government funding via the latter. By application dated 14 July 2015, the applicant applied to the Department under the Right to Information Act 2009 (Qld) (the RTI Act), for access to documents disclosing the amount of the Incentive Payment, within the date range 13 March 2015 to 14 July 2015.[4] The Department located one page in response to the application, a document created in early 2015 for Ministerial briefing purposes (government having changed following the January 2015 general election). Access was granted to all of this page, apart from one segment consisting of a single sentence, describing the structure and value of the Incentive Payment. Access was refused to this segment, on the ground it comprised exempt information as information disclosure of which would found an action for a breach of confidence.[5] The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision. In the course of the review, Screen and Disney were joined as participants in the review.[6] The applicant has not sought to pursue access to a small sub-segment of information (comprising a dollar amount of one component of the Incentive Payment), which therefore no longer remains in issue in this review. The applicant otherwise continues to press for access to the balance of the segment in issue, the substance of which describes the value of the principal component of the Incentive Payment. The Department, Disney and Screen have argued on multiple grounds that access to this information should be refused. Having considered the participants’ submissions, I have decided to set aside the Department’s decision. There are no grounds under the RTI Act on which access to that part of the segment still remaining in issue may be refused. The applicant is therefore entitled to access this information. Background Significant procedural steps taken during the external review are set out in the Appendix to this decision. Reviewable decision The decision under review is the Department’s decision dated 19 August 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). Information in issue The information in issue comprises the segment to which the Department refused the applicant access, describing the nature and value of the principal component of the Incentive Payment – apart from a dollar figure which no longer remains in issue. A copy of the page containing the information in issue accompanies the copy of these reasons forwarded to the Department, with the relevant dollar figure redacted. Objections to disclosure The Department, Screen and Disney (the ‘Objecting Participants’) all argue that the information in issue comprises exempt information to which access may be refused, as information the disclosure of which would found an action for a breach of confidence. The Department and Screen further argue that the information is ‘Cabinet information’ exempt from disclosure under schedule 3, section 2 of the RTI Act,[7] while all Objecting Participants contend that disclosure of the information in issue would, on balance, be contrary to the public interest. I have considered the Objecting Participant’s submissions below, beginning with the objections to disclosure based on schedule 3, section 2 of the RTI Act. Cabinet information The RTI Act gives people a right to access documents of government agencies.[8] 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’.[9] ‘Exempt information’ includes information:[10] brought into existence for the consideration of Cabinet;[11] information the disclosure of which would reveal any consideration of Cabinet or would otherwise prejudice the confidentiality of Cabinet considerations or operations;[12] and information brought into existence in the course of the State’s budgetary processes.[13] Information brought into existence for the consideration of Cabinet The Department has explained that the approval of the grant paid to Disney involved the consideration and endorsement of the Cabinet Budget Review Committee (CBRC).[14] The information in issue here, however, comprises part of a briefing note created after relevant considerations had taken place, and the Incentive Payment itself finalised and announced. Indeed, the very tense of the text comprising the information in issue indicates that it post-dates Cabinet consideration. It does not comprise information that was brought into existence for the purposes of that consideration, rather, it was brought into existence for briefing on or conveying information about the Incentive Payment, in the wake of that consideration. The Department rejects the above analysis, submitting[15] that the ‘RTI Act makes a distinction between ‘information’ which is exempt, and a ‘document’ in which the information is contained.’ In support of this position, the Department cites sections 73-75 of the RTI Act, which respectively sanction deletion of irrelevant, exempt or contrary to public interest information from a document, in order to permit access to the balance. The Department argues:[16] What each of these provisions have in common, is that they refer to the distinction between the broader term ‘document’ which may be the subject of an access application, and a piece of ‘information’ contained in documents. Most relevantly, s. 74 allows an agency to delete exempt information from a document and give access to an applicant of the remainder of the document. ... The Department concedes that while it is ‘true’ the segment comprising the information in issue forms part of a document ‘created after finalisation and award of the Incentive Payment and therefore, any relevant Cabinet consideration’:[17] ...what is critical to the application of schedule 3, s.2(1) is a focus on whether the precise piece of information falls within the scope of paragraphs (a) – (c): not the...document alone. ... ...the...document may itself have been brought into existence to convey information about the Incentive Payment, in that case for the purpose of briefing a Minister, but that does not deny to the matter in issue exempt status under paragraphs (a) – (c) if the information in issue satisfies the requirements of those paragraphs. As best I can gather, the Department’s case seems to be that, while a document may not have been brought into existence for the consideration of Cabinet, matter within the document may nevertheless comprise information of this kind,[18] and the segment in issue is information of just this kind – essentially, that it is information brought into existence for the consideration of Cabinet which, while transposed into a document post-dating that consideration, nevertheless retains the status necessary to qualify it for exemption under schedule 3, section 2(1)(a) of the RTI Act. I cannot accept this argument, and do not consider the distinctions between ‘document’ and ‘information’ drawn in sections 73-75 of the RTI Act justify the interpretation of schedule 3, section 2(1) proposed by the Department. The segment comprising the information in issue was plainly brought into existence after relevant Cabinet considerations, for the purpose of, as I have noted and the Department has confirmed, conveying a briefing. There is, in these circumstances, simply no way it can be said to have itself have been created for the consideration of Cabinet. For the sake of completeness, I should note that even if the information in issue did comprise an exact duplication or ‘cut and paste’ of information originally brought into existence for the consideration of Cabinet (a contention which I do not accept, given the language in which it is phrased and tense in which it is framed, and having compared the information in issue as against the actual CBRC submission), I would nevertheless reject the Department’s claim for exemption under schedule 3, section 2(1)(a). That is because it remains the fact that this particular iteration of that information – ie, the segment in issue – was itself brought into existence subsequent to relevant Cabinet considerations, for the purposes of, as I have noted above, conveying a briefing. I can see no way in which it could thus be argued to have been brought into existence for an event – consideration of Cabinet – that, at the time of its creation, lay in the past. Disclosure revealing consideration of Cabinet or otherwise prejudicing Cabinet confidentiality or operations Schedule 3, section 2(1)(b) of the RTI Act requires me to be satisfied that disclosure of the information in issue itself would reveal a consideration of Cabinet or otherwise prejudice the confidentiality of Cabinet considerations or operations. ‘Consideration’ is defined in schedule 3, section 2(5) to include: discussion, deliberation, noting (without or without discussion) or decision; and consideration for any purpose, including, for example, for information or to make a decision. The Department made relatively extensive submissions as to the application of schedule 3, section 2(1)(b) of the RTI Act.[19] Many of these submissions were directed at distinguishing the facts in this case from those considered by the Information Commissioner in Ryman and Department of Main Roads,[20] the lead decision on the interpretation of the exemption now reflected in schedule 3, section 2(1)(b) of the RTI Act. Ryman involved selective or extraneous disclosure of information by an agency during the course of a review, sufficient to establish a connection between the information in issue in that case and associated Cabinet processes. The Information Commissioner was not prepared to accept that a claim for exemption could be ‘pulled up by its bootstraps’ in such a fashion. He rejected the respondent agency’s claim for exemption, relevantly finding that:[21] If the documents now claimed to be exempt under s.36(1)(e) had simply been disclosed to Mr Ryman without any comment on behalf of the Department, there is no possible basis on which their disclosure could have involved the disclosure of any consideration of Cabinet or could have otherwise prejudiced the confidentiality of Cabinet considerations or operations. I am not prepared to find that the test for exemption under s.36(1)(e) is established because the Department, through its own disclosures of information extraneous to the matter in issue, claims that disclosure of the matter in issue, in connection with that extraneous information, would involve the disclosure of information noted by Cabinet or would otherwise prejudice the confidentiality of Cabinet considerations or operations. In this case, the Department notes that, unlike Ryman, information evidencing the fact of Cabinet involvement in the promulgation of the grant to Disney exists independently of any action taken by the Department in the course of dealing with the applicant’s access application or this review.[22] I accept the Department’s submissions in this regard. Nevertheless, it remains the case that to successfully establish a claim for exemption under schedule 3, section 2(1)(b) of the RTI Act, the Department must show that disclosure of the actual information in issue would reveal a Cabinet consideration or otherwise prejudice Cabinet confidentiality or operations. I am not satisfied that this is so. I have, in the course of this review, had the benefit of viewing the submission prepared by Arts Queensland[23] seeking approval for the award of the grant, and the CBRC decision on that submission.[24] Having carefully compared the terms of those documents with the information in issue, I am not satisfied that disclosure of the latter would reveal the considerations nor prejudice the confidentiality of such considerations or Cabinet operations leading to the former. The information in issue is a brief and summary overview of the structure and value of the Incentive Payment to Disney, and is sufficiently distinct from the terms of either the CBRC submission or the CBRC decision such that its disclosure would not, in my view, reveal of itself that decision nor any Cabinet ‘discussion, deliberation’ or ‘noting’. It discloses nothing about those considerations nor reveals anything about Cabinet ‘operations,’ such that the confidentiality of either stand to be prejudiced by its disclosure. In short, the terms of the CBRC submission, the CBRC decision and the information in issue are discrete pieces of information, and no-one examining the latter would have revealed to them the contents of the former. The mere fact that there is publicly-available evidence of a Cabinet decision or process associated with matters recorded in agency documents is not sufficient to ground a claim for exemption of those documents under schedule 3, section 2(1)(b) of the RTI Act. To find otherwise would, in my view, give the provision too broad a scope of operation; it is, after all, the case that many if not most actions of government are ultimately referable to Cabinet considerations, deliberations and decisions. The test for exemption under this provision is, as I have noted, to be evaluated by reference to the effects of disclosure of the information in issue itself. For the reasons given above, I am not persuaded that disclosure of the information in issue in this case would occasion any of the prejudices or adverse consequences against which schedule 3, section 2(1)(b) of the RTI Act seeks to safeguard. Information created in the course of State budgetary processes Information will be exempt from disclosure where it has been ‘brought into existence in the course of the State’s budgetary processes’.[25] The Department points to the involvement of CBRC in approving payment of the grant to Disney, and notes that the final particulars of the grant were settled under the auspices of the Treasurer and Queensland Treasury.[26] I accept the Department’s account in this regard, and further accept that the promulgation of the grant did involve State budgetary processes, being processes involving allocation of State funds, controlled by CBRC and overseen by the State’s principal budgetary agency, Treasury. I also accept the Department’s submission that the scope of the phrase ‘State’s budgetary processes’ may include processes extending beyond the date of a particular budgetary decision by CBRC, to include processes involved in the execution and implementation of that decision. These considerations alone, however, are insufficient to establish exemption under schedule 3, section 2(1)(c) – it must also be shown that information claimed to be exempt under this provision was created ‘in the course’ of such processes. The Department contends that relevant budgetary processes ‘continue[d] up to and include the precise Information in Issue, including implementation of CBRC’s decision, and dissemination of that decision to Ministers’ (my emphasis). I do not accept this submission. The announcement that PoC would be filmed in Queensland occurred on 2 October 2014,[27] CBRC’s decision to approve the Incentive Payment had happened several months earlier, and while the Department contends otherwise, I think it reasonable to conclude that State budgetary processes concerning the grant to Disney – those requiring the involvement of the State’s key budgetary apparatus – had concluded by the time the information in issue was created. Even accepting that some residual State budgetary processes continued after the date of CBRC’s decision, the page containing the information in issue was created no earlier[28] than mid-March 2015 – at least five months after public reportage of the fact of the State’s incentive offer[29] and the announcement of Disney’s commitment to film locally.[30] In the absence of any objective evidence to the contrary,[31] I am content to infer that State budgetary processes associated with the promulgation of the incentive had concluded. There being no relevant budgetary processes in train, the information in issue cannot have been created in the course of same. Yet even if the findings in the preceding paragraph are incorrect, and it could be demonstrated that associated State budgetary processes were continuing as at the date of the information in issue’s creation, I would not be prepared to read schedule 3, section 2(1)(c) as applying to the information in issue in the circumstances of this case. The expression ‘in the course of’ as used in schedule 3, section 2(1)(c) of the RTI Act requires something more than mere temporal coincidence of the creation of information claimed to be exempt and the State’s budgetary processes: it must also be shown that relevant information was created in connection with or as part[32] of that process. The information in issue here was, as noted, created months after both the CBRC decision to offer the Incentive Payment which it describes, and public confirmation of Disney’s commitment to film, for the apparent purpose of providing a summary background to a Minister of a different government than that which initiated relevant budgetary processes and conferred the incentive, the product of those processes. I do not accept that such an advisory or informational reporting exercise can be said to have been undertaken as part of the ‘implementation’ of CBRC’s budgetary decision, or to have comprised a step connected with advancing any budgetary processes arising from that decision – the information in issue is, in my opinion, properly characterised as information created in the course of reporting on budgetary processes,[33] rather than the processes themselves. In conclusion, while the segment in issue may summarise the thrust or substance of information that was brought into existence in the course of the State’s budgetary processes, I am not prepared to find that the particular iteration[34] of information comprising the information in issue is one that was itself created ‘in the course’ of those processes. Information disclosure of which would found an action for breach of confidence Another category of exempt information to which access may be refused under the RTI Act is information disclosure of which would found an action for a breach of confidence (Breach of Confidence Exemption). Each of the Objecting Participants claim that the information in issue is exempt on this basis. The test for exemption under the Breach of Confidence Exemption must be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, with appropriate standing to bring an action to enforce an obligation of confidence claimed to bind the Department not to disclose relevant information.[35] Establishing the exemption requires consideration of whether an equitable obligation of confidence exists.[36] The following five cumulative criteria must be met in order to give rise to an equitable obligation of confidence: relevant information must be capable of being specifically identifiable as information that is secret, rather than generally available, 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, the information must have been communicated in such circumstances as to import an obligation of confidence, disclosure of the information to the access applicant must constitute an unauthorised use of the confidential information, and disclosure must cause detriment to the plaintiff.[37] The Objecting Participants all argue that access may be refused to the information in issue, on the basis its disclosure would found an action for a breach of confidence. They diverge, however, in who it is they contend is the ‘hypothetical plaintiff’ owed the obligation of confidence necessary to found this exemption. The Department and Disney submit the obligation is owed to Disney.[38] Conversely, Screen’s main argument is that it is the entity to whom the Department owes an equitable obligation of confidence; ie, that it is the identifiable plaintiff with standing to bring an action against the Department.[39] The distinction is material, as different considerations apply when assessing whether government owes a duty of confidence to an entity genuinely independent of government such as Disney, and in evaluating claims of confidence said to be owed by government to bodies which, like Screen, are owned and controlled by government. I have considered each scenario, beginning with the submission that it is Disney that is owed an enforceable obligation of confidence. Obligation of confidence claimed to be owed to Disney As noted, the requirements for establishing the Breach of Confidence Exemption enumerated in paragraph 38 are cumulative; if any of the five cannot be satisfied, then a claim for exemption based on this provision must fail. As regards Disney, it is my view that the third of the five cumulative requirements – ‘requirement (c)’ – cannot be satisfied. Ascertaining whether this third requirement is met requires an assessment of all relevant circumstances surrounding communication of confidential information,[40] 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.’[41] In this case, I am not satisfied that the circumstances in which any communication to the Department may have occurred justifies the imposition upon it of an equitable obligation of confidence favouring Disney. Information not communicated by Disney Firstly, while I am quite prepared to accept that Disney did communicate sensitive information to Screen and/or the Department, I have serious reservations as to whether the information in issue can actually be said to reflect a communication from Disney as confider to a government recipient. It is obviously crucial to a claim under the Breach of Confidence Exemption that there exist a communication of information from a confidant to a government recipient. In this case, however, relevant information – describing part of the amount and the nature of the incentive the government had resolved to award to Disney – is properly characterised as a summation of information communicated by government to Disney. This alone would seem sufficient to preclude a finding that Disney is owed any obligation of confidence fundamental to a successful application of the Breach of Confidence Exemption.[42] The Department resists any such characterisation. Together with Screen, it has lodged extensive submissions and evidence,[43] detailing the process culminating in the awarding of the incentive, and, they say, the creation and communication of the information in issue. In summary terms, that process involved: initial discussions between Disney and Screen, which ‘resulted in the Information in Issue, which was the amount of the incentive which Disney would require to make the film in Queensland’;[44] referral of Disney’s desires by Screen to the relevant division of the Department, Arts Queensland, for the development of a funding submission seeking CBRC’s approval of a proposed incentive; consideration and approval by CBRC, and communication of the approval by Arts Queensland to Screen, and, in turn, Disney. The Department’s position is that the information in issue reflects information confidentially communicated directly by Disney to Screen. The information was then re-communicated by the latter to the Department, which received it knowing it to have been originally given by Disney to Screen in confidence. The Department is, therefore, bound to treat the information in issue confidentially. I accept the evidence of the process culminating in the award of the incentive. I further acknowledge the principle that a third party may be restrained from communicating information originally given in confidence. I do have difficulty, however, in accepting that what is in issue before me can be said to be information of such a kind. I consider the information in issue flows from a communication outward from government to Disney, reflecting what has been approved after considered deliberation by government (through the agency of CBRC and appropriately-qualified officials) of material some of which may initially have been communicated by Disney. Indeed, parts of the Department’s own submissions support a conclusion of just this kind: the Department and the responsible Minister assessed Disney’s requirements and various factors, then ‘determined’ the reasonableness of the proposed grant.[45] In any event, even if the information in issue can genuinely be said to be a communication from Disney to the Department, I nevertheless remain of the view that the Breach of Confidence Exemption cannot apply in this case. I have detailed below my view that the circumstances in which that information was communicated do not, on an objective assessment, support the imposition of an obligation of confidence binding the Department. Apart from that, however, is the fact that if the information in issue does actually embody a communication from Disney to government, then, as a statement of the amount of public assistance committed to a private entity, that communication seems to me to have occurred in a context justifying disclosure. In this regard, I note the Information Commissioner’s observations 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...’.[46] The public would appear to have a genuinely ‘legitimate interest’ in obtaining information describing the amount of its resources that government has elected to disburse to private interests – an interest sufficient to forestall the establishment of an equitable obligation of confidence. The Department and Screen contest the relevance of public interest considerations of the kind referred to by the Information Commissioner in the passage quoted above, in determining whether an equitable obligation of confidence exists.[47] Screen, particularly, argues that public interest considerations may arise only as a potential defence to an action for breach of confidence, considerations which a decision-maker under the RTI Act is precluded from taking into account given the Breach of Confidence Exemption only requires that disclosure of information would ‘found an action for a breach of confidence’.[48] Broader public interest considerations strike me, however, as matters coming within the constellation of relevant circumstances I am required to assess in determining whether requirement (c) is established in a breach of confidence claim for exemption under the RTI Act.[49] This is especially so, when one bears in mind Parliament’s express intentions as set out in the Act’s Preamble, including the recognition that, in a ‘free and democratic society’, ‘there should be open discussion of public affairs’, that ‘the community should be kept informed of government’s operations’, and that ‘openness in government enhances the accountability of government’.[50] I am unaware of any authority decisively precluding my taking matters of a public interest nature into account in evaluating whether information has been communicated in a fashion so as to give rise to an equitable obligation of confidence. In the circumstances, I am content to follow the considered reasoning of the Information Commissioner as extracted in paragraph 50, and to stand by the observations I have there recorded. I do not accept that equity would hold the Department conscience-bound to keep confidential from the Queensland community information disclosing the amount of that community’s resources allocated to a private company. (In any event, as will be apparent from my reasoning in the preceding paragraphs and paragraphs 54-68, I do not consider that requirement (c) can be satisfied as regards Disney, quite apart from public interest considerations.) Information not communicated in circumstances of confidentiality Even assuming that the information in issue can be said to comprise information communicated by Disney to the Department via Screen, I am not satisfied that it was communicated in circumstances giving rise to a legally enforceable obligation of confidence. As noted above, determining whether a legally enforceable duty of confidence is owed turns on an evaluation of the whole of the relevant circumstances. These 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.[51] The Objecting Participants have each argued that the information in issue was communicated by Disney to the government actors – Screen and the Department – on the shared understanding it would be treated confidentially. I am not persuaded that this is so. In any event, as can be seen from the statement of principle set out in the preceding paragraph, the mere existence of a mutual understanding that person A will not further disclose information supplied by person B does not necessarily mean that a legally enforceable duty of confidence is owed by person A to person B: determining whether such a duty exists turns on an evaluation of all relevant circumstances.[52] Having done so, I do not consider any such duty arises in this case. Firstly, I can identify nothing independently substantiating the Objecting Participants’ claims as to a mutual understanding Screen and the Department would treat relevant information confidentially at Disney’s behest. Certainly, there is material before me – including a sentence immediately following the segment in issue – signalling an understanding that the information was to be handled confidentially. The Department also points in this regard to the use of the term ‘confidential’ and the like in various emails and communications passing between governmental and Screen officers,[53] while Screen notes the existence of undertakings as to confidence executed by government officers in its favour.[54] Having scrutinised all this material, however, it appears to me that relevant endorsements and references were generally intended either to flag and protect the confidentiality of the CBRC process, or to communicate a desire by Screen, as opposed to Disney, that this information be managed confidentially. While much of the material relied upon by the Department and Screen[55] certainly evidences that the latter was concerned to ensure that information it communicated to the Department was treated confidentially, it does not of itself evidence a similar concern on the part of Disney as regards the information in issue. In this regard, I can identify no contemporaneous material directly substantiating the Objecting Participants’ assertions that Disney (as opposed to Screen, whose position is considered below) required the specific amount of the grant to be kept confidential at the time that information was communicated.[56] Indeed, the highest that Disney – the party one would expect to be in the best position to lead such evidence – put things in its direct submissions on the point was that the information in issue was generated in the course of ‘...commercial-in-confidence discussions on information that the parties agreed would remain confidential’;[57] a submission I accept, but which does not of itself amount to evidence of Disney having been the party insisting on assurances as to confidentiality. The balance of the evidence on the point, then, comprises the statements lodged and submissions made by the Objecting Participants during the course of the review, such as Disney’s as set out in the preceding paragraph. Each has strenuously asserted that the information in issue was communicated by Disney to the government representatives – Screen and the Department – in circumstances obliging the latter to keep the information confidential.[58] There are, however, broader considerations which tend to subvert these assertions. Firstly, there is the fact that the Commonwealth Government also provided fiscal support to Disney for PoC, in an amount that was publicly announced.[59] Why this latter amount of – substantial[60] – government assistance might be suitable for public dissemination, but the value of Queensland Government backing is information that Disney would be concerned to keep confidential, or considers was given in confidence to the Government and its representatives, is not clear to me. Further militating against a finding that any communication from Disney occurred in circumstances giving rise to an obligation of confidence ultimately binding the Department are the terms of the contract between Screen[61] and Disney, governing payment of the Incentive Payment. Indeed, as contemporaneous material, these provisions are perhaps the best evidence of the Objecting Participants’ intentions as regards confidentiality. Screen has objected to the publication of relevant provisions of the contract with Disney, on the basis that the clauses – which appear to comprise relatively generic provisions of the kind often encountered in commercial agreements – are themselves ‘confidential’.[62] Screen’s position in this regard creates some difficulty, given that it seeks to rely on these provisions in support of its claim for exemption. Nevertheless, I have carefully scrutinised them, and consider I can relay an analysis sufficient to fulfil my decision-making obligations without infringing any claimed confidentiality. The Objecting Participants relied on relevant provisions – clauses 8.1(a)[63] and 8.1(b)[64] – as evidence of, or consistent with, a mutual understanding between Screen and Disney that the former agreed to keep confidential the information in issue. In my view, they do no such thing. The clauses are clearly directed at ensuring Disney was the entity bound to maintain confidentiality as regards information of the kind reflected in the information in issue. I acknowledge that the wording of clause 8.1(a)(1), read in isolation, might be broad enough to encompass information such as that reflected in the information in issue.[65] The difficulty for the Objecting Participants is that the very next subclause, 8.1(b), specifically and explicitly identifies such information, and provides that it is information that only Disney is obliged to keep secret. If it had been the intention of the parties that both be subject to obligations not to disclose that information, it would have been straightforward to have included an equivalently unambiguous reference in clause 8.1(a)(1) (binding Screen) as appears in clause 8.1(b) (binding Disney). The confidentiality provisions of the contract, properly construed, go no way to putting Screen and the Department under an express obligation of confidence or evidencing the existence of same. Nor do those provisions, or the circumstances generally, give rise to any implied obligation. Taking all relevant considerations into account, I am not satisfied that the information in issue can be said have been communicated by Disney in circumstances giving rise to an equitable obligation of confidence binding the Department not to disclose that information. The picture that emerges on an objective evaluation of all relevant facts and circumstances is not, as the Objecting Participants argue, one of Disney communicating the information in issue to Screen and the Department on the basis of a shared understanding[66] that it would be kept confidential. It seems to me the actual situation is one to the contrary – of the government actors insisting that Disney not disclose the amount of public assistance it received. (For the sake of completeness, I should also note that even if the evidence did otherwise support a finding of communication in circumstances giving rise to an obligation of confidence, I consider that equity would hold any such obligation subject to the public’s ‘legitimate interest’ in obtaining access to this information, in accordance with the reasoning at paragraphs 49-53.) There remains open the question as to whether the Department owes an equitable obligation to Screen, a question I have addressed below. Precluded, however, is a finding that disclosure of the information in issue would found an action for breach of confidence by Disney against the Department. The information in issue cannot comprise exempt information on this basis. Obligation of confidence claimed to be owed to Screen As noted above, Screen submits that the Department owes it an obligation not to disclose the Information in Issue; that, if the relevant segment was disclosed, Screen would have standing to bring an action against the Department for breach of confidence. Screen’s case in this regard is in some respects stronger than Disney’s; there is evidence that Screen sought and obtained assurances that information communicated by it to the Department would be kept confidential by the Department.[67] Information not communicated in circumstances of confidentiality There are difficulties with Screen’s case as to the application of the Breach of Confidence Exemption. As with the claim under this provision relating to Disney, it seems misconceived to contend that the information in issue embodies a communication passing from Screen to the Department. While Screen did, as I understand, contribute monies to the total incentive package, much had to be sourced from within government proper. In reviewing the grant process it appears clear that the final detail of incentive as reflected in the information in issue would comprise information developed by and communicated to Screen by the Department, in conjunction with other government agencies such as Queensland Treasury.[68] Accordingly, it is difficult to see that the fundamental element of requirement (c) – communication to the Department – can be satisfied, for reasons as explained above. For reasons similar to those discussed in paragraph 50, I do not consider that equity would hold the Department conscience-bound not to disclose the information in issue, taking into account the legitimate public interest in allowing community scrutiny of the amount of public monies paid to Disney. In other words, I find it difficult to conceive that a court would fix the Department with an equitable obligation to keep confidential information describing the quantity of public funds divested into private hands, as communicated to it by what is essentially an agent of that Department – an instrument of government action, owned by the State and controlled by the [69]partment.69 Detriment In any event, even if my views as described in the preceding two paragraphs are mistaken, I am satisfied that, as against Screen, requirement (d) – the requirement of detriment – cannot be satisfied. In considering the detriment requirement,[70] the nature of the body said to be the confider – Screen, a government-owned company – must be taken into account. As governments control information in a representative capacity, a higher burden is imposed on government bodies and entities than on private individuals to justify the secrecy of information in their possession.[71] As Mason J[72] explained in Commonwealth of Australia v John Fairfax and Sons Ltd,[73] the leading Australian case in this area, government plaintiffs claiming information is subject to an equitable obligation of confidence owed to them must demonstrate that disclosing relevant information would be detrimental to the public – and not the government confider’s – interest. Unless it can be established that disclosure is likely to injure the public interest, it will not be protected,[74] and in the context of the RTI Act, a claim for exemption under schedule 3, section 8 will fail. The relevance of the principles enunciated in Fairfax to confidentiality exemption claims involving entities such as Screen Queensland in the context of information access legislation was explained by Senior Member (SM) Bayne of the Administrative Appeals Tribunal (AAT) in Sullivan v Department of Industry, Science and Technology and Australian Technology Group Pty Ltd (Sullivan).[75] In Sullivan, SM Bayne considered whether disclosure by a Commonwealth department of information relating to a proprietary company largely owned by the Commonwealth could qualify for exemption.[76] The Senior Member noted as follows:[77] ... I turn now to consider another basis upon which I might find that disclosure under the Act by the first Respondent could not found an action for breach of confidence by ATG against the first Respondent. In Plowman, Mason CJ indicated that in respect of matter provided in and for the purposes of arbitration to which an obligation of confidence attaches there may be circumstances, in which third parties and the public have a legitimate interest in knowing what has transpired in an arbitration, which would give rise to a "public interest" exception. The precise scope of this exception remains unclear. The courts have consistently viewed governmental secrets differently from personal and commercial secrets ... As I stated in [Fairfax], the judiciary must view the disclosure of governmental information "through different spectacles". This involves a reversal of the onus of proof: the government must prove that the public interest demands non-disclosure.... ... The approach outlined in John Fairfax should be adopted when the information relates to statutory authorities or public utilities because, as Professor [sic] Finn notes,...in the public sector "(t)he need is for compelled openness, not for burgeoning secrecy". ... The Chief Justice further observed that in British Steel Corporation v. Granada Television Ltd [1981] AC 1096 at 1185 Lord Salmon, in a strong dissent, highlighted the sharp distinction between a statutory authority and a private company: "there are no shareholders, and (the authority's) losses are borne by the public which does not have anything like the same safeguards as shareholders". His Lordship concluded that the public was "morally entitled" to know why the statutory authority was in such a parlous condition. Thus, if ATG is a public body for the purposes of the Fairfax doctrine, the question will be whether I am satisfied that the public interest requires that any matter in document 1(i) which otherwise would found an action for breach of confidence should not be disclosed. I turn first to whether ATG should be regarded as a public body for the purposes of the Fairfax doctrine. A number of matters are relevant in this respect. In his oral evidence...Mr Harbour deposed that ATG is "99% plus" owned by the Commonwealth, and that the Commonwealth has been the sole source of shareholder funds for the ATG. He conceded that the Commonwealth could wind up ATG without any difficulty. Mr Harbour said that the ATG's auditor is the Commonwealth Auditor-General. This by itself is some indication of the public status of ATG. Furthermore, the "Statement" at annexure B to Dr Read's affidavit included documents called "Draft ATG Guidelines" and "Public Interest Safeguards", and the latter in particular indicates the extent of Commonwealth control over ATG's activities. 28. On the other hand, the Respondent pointed to evidence from Mr Harbour that while a public servant and a Senator were directors of this company incorporated under the Corporations Law, the Commonwealth had appointed a majority of the directors from the private sector. Other than through the two non-private sector directors, the Commonwealth had not sought to influence decisions made by the Board of ATG. There is very little guidance in the case-law as to what bodies may be regarded as sufficiently public in nature as to be affected by the Fairfax doctrine. What was said above by Mason CJ in Plowman indicates that the doctrine applies to "statutory authorities or public utilities". A body such as ATG, albeit that it is a public company almost wholly owned by the Commonwealth, might not in ordinary usage be regarded as a statutory authority or a public utility. But I do not take Mason CJ's reference to "statutory authorities or public utilities" as exhausting the range of bodies beyond government Departments which are affected by the Fairfax doctrine. The Chief Justice approved of the observation of Professor Finn that in the public sector "(t)he need is for compelled openness, not for burgeoning secrecy". In a functional sense, ATG is a public sector body. (My emphasis.) SM Bayne’s approach to and application of the 'Fairfax doctrine' (Fairfax Doctrine) has been endorsed by a Deputy President of the AAT,[78] and applied by OIC in several cases arising under the RTI Act.[79] I am satisfied of its relevance in this case. If I consider that Screen is a ‘public sector body’ in the broad or ‘functional’ sense described in Sullivan, then, for the fifth cumulative requirement of detriment to be established, I must be satisfied that the public interest demands non-disclosure of the information in issue. Status of Screen as a public sector body Turning to the first issue, I am satisfied that Screen is a 'public sector body' in the 'functional sense' described by SM Bayne, bearing as it does the same or similar characteristics as the company considered by the Senior Member in Sullivan. Screen Queensland is fully owned[80] and controlled[81] by the State, economically reliant upon the State,[82] could be readily wound up by the State,[83] and its accounts are audited by the Queensland Audit Office.[84] I also note that in its 2012-13 Annual Report, Screen Queensland expressly recognises that it acts on government’s behalf, and acknowledges its economic dependence on public funding:[85] The company focuses on the provision of services on behalf of the Queensland State Government in relation to promotion and development of the film production industry and film culture in Queensland. Any significant change in Government funding support would have a material effect on the ability of the company to provide these services. To paraphrase SM Bayne in Sullivan, Screen is, in a functional sense, a public sector body. The Department and Screen have each made submissions disputing the application of the Fairfax Doctrine in this case. The Department’s contentions[86] can be set to one side, predicated as they are on my applying the doctrine to the situation in which Disney is the entity claimed to be the confider owed an equitable obligation of confidence. As I have explained at paragraphs 44-67, an exemption claim under schedule 3, section 8 of the RTI Act as based upon Disney’s position founders on the third cumulative requirement stated in paragraph 38; it is thus unnecessary to consider the fifth, detriment. Screen, on the other hand, contends that it ‘is an incorrect interpretation of the legal requirements that must be satisfied in order to establish [an exemption claim under schedule 3, section 8 of the RTI Act] to apply the Fairfax Doctrine as an additional legal requirement’. Screen has, however, made no attempt to particularise the above allegation of error. It has not directed me toward any principle or authority calling into question the relevance and applicability of the Fairfax Doctrine as explained in Sullivan – a doctrine which, I should make clear, does not comprise an ‘additional legal requirement’ to be fulfilled in order to establish exemption, but an explanation or clarification as to how one of the five accepted requirements must be met in specific circumstances. I am, as noted above, satisfied that the explanation in Sullivan is correct, and that contrary to Screen’s submission, it is entirely appropriate to apply the Fairfax Doctrine where, as here, the entity claiming to be owed an obligation of confidence is a government-owned body. Screen further contests its being characterised as a ‘public sector body’, ‘strongly’ submitting that ‘the test for determining whether an entity is a “public body” is not clear and Screen Queensland does not accept that it is a “public body” in the current circumstance.’[87] I do not accept these arguments. With regards to the first point, there are many accepted legal concepts the application or identification of which are attended by a degree of ambiguity or lack of categorical precision, and appraisal of which entail careful analysis from case-to-case.[88] That there may be no ‘hard and fast’ criteria for determining a particular issue or identifying a species of entity for the purposes of a given legal doctrine in no way of itself invalidates or delegitimises the underlying doctrine or concept. In any event, the general criteria for identifying a ‘public sector body’ in the Sullivan sense are in my view quite clear – involving questions of ownership, control, governance, regulation and funding. As for Screen’s dismissal of any characterisation of it as a ‘public body’, it is sufficient to note that I am satisfied Screen is a public sector body in nature, if not strict legal form. It shares many of the same characteristics as the entity found to be a ‘functional’ public sector body in Sullivan (indeed, in what is perhaps the most material characteristic – ownership – Screen ‘outdoes’ the entity analysed in Sullivan, being fully owned by the Queensland Government). Screen has advanced no reasons as to why I should distinguish its position from that of the company analysed in Sullivan. Having analysed its status – including its full government ownership, near-total dependence on public monies, and the subjection of its operations to the scrutiny of the State’s auditor – I can see no reason why I should do so. In the circumstances, I simply reiterate my findings as set out in paragraphs 78-80. Screen also goes on to challenge whether the information in issue can be said to be sufficiently ‘governmental’ in nature so as to warrant the sterner test for detriment imposed on ‘government secrets’ as imposed by Fairfax: the donning of ‘different spectacles’, to paraphrase Mason J (as he then was). Screen submits that:[89] The basis upon which the OIC has determined what constitutes "government information" for the purposes of applying the Fairfax Doctrine does not rest upon an identifiable and sufficiently clear test. In particular, it does not enable a distinction to be drawn between routine government information of an administrative nature and information concerning the commercial activities of a supplier of the information or activities of a supplier which depend upon retaining the confidence of private individuals or entities, especially in respect of communications that are concerned with the private or commercial information of those individuals or entities. In this regard, the Information in Issue cannot simply be categorised as "government information" because it was communicated by a public authority. Rather the Information in Issue is the outcome of a negotiation process with a nongovernment public sector entity and as such the information therefore is about the commercial affairs of a non-government entity... Whether information is ‘government information’ to be subject to the stricter threshold for detriment enunciated in Fairfax is essentially determined by reference to who it is that is claiming to be owed the obligation of confidence necessary to found exemption under schedule 3, section 8 of the RTI Act – ie, by addressing the question answered above at paragraph 80. If a public sector body is claiming that it is owed an obligation of confidence in respect of information it has communicated, then for it to be successful in that claim, the information must of its very nature be that public body’s and thus, in a broad or functional sense, ‘government’ information – generally speaking, information that has ultimately been brought into existence as a consequence of actions and endeavours funded by the public purse. The alternative is that the public body has merely been a conduit through which information communicated by an independent third party has passed. In such a situation, the ‘plaintiff’ with standing to bring the hypothetical legal action necessary to found the breach of confidence exemption will be that third party, not the public body. In the present case, Screen is pressing a claim that it is the plaintiff with standing to bring the requisite hypothetical legal action. Having satisfied myself that Screen is a public body, I need go no further – the information it claims to have communicated must by its very nature be information of a public body – or ‘government information’ – to some extent, otherwise Screen could not claim to be owed an independent obligation of confidence. It may be the case that such information touches on or refers to the affairs or concerns of third parties independent of government; that, however, will be a matter relevant to the evaluation of the public interest consequences of disclosure required by the Fairfax Doctrine. In short, whether the Fairfax Doctrine is enlivened in a particular case turns on a proper characterisation of the entity claiming to be owed an obligation of confidence, rather than the information said to be subject to such obligation. If the said entity is a public sector body within the broad meaning of that concept as stated in Sullivan, relevant information must axiomatically comprise ‘government information’ of some type. In any event, I am satisfied that a record of the amount of public monies disbursed by government such as that in issue is ‘government information’. Public interest in nondisclosure The next step in applying the Fairfax Doctrine is assessing whether the public interest demands or requires nondisclosure of the information in issue. I do not consider that it does – on the contrary, in this case the public interest would, in my view, be best served by its release. I have analysed public interest considerations at length below, in dealing with the Objecting Participant’s claims that access may be refused under section 47(3)(b) of the RTI Act. For present purposes, it is sufficient to note that while I acknowledge the multiple public interest harms the Objecting Participants assert would flow from disclosure, I am not persuaded that they have succeeded in substantiating those assertions. The absence of any identifiable harm that might flow to the public interest as a consequence of disclosure of the information in issue is sufficient to preclude satisfaction of requirement (d) – detriment, and Screen’s claim that the information is exempt under schedule 3, section 8 of the RTI Act must therefore fail. Yet even if the Objecting Participants could demonstrate that disclosure would result in the occurrence of claimed public interest harms, it is my view that there are significant public interest considerations in this case which would outweigh any such adverse consequences. In this regard, I note that in considering whether potential detriment to the public interest requires nondisclosure of information, it is, as SM Bayne observed in Sullivan, ‘also relevant to have regard to the public interest in disclosure of the documents’.[90] The information in issue details a substantial grant paid to a private commercial interest by government. That grant was funded by Queensland taxpayers, and there is a manifest public interest in allowing those taxpayers access to information describing same, in order that they may scrutinise what government committed on their behalf, and whether doing so represented a sound investment of their monies. It is noted that the government made public statements detailing the benefits expected to accrue to the State as a consequence of the PoC production. The release of the information in issue would allow the public to weigh those publicised benefits against the costs incurred. Accountability of this kind is fundamental to all government agencies and government-owned entities which perform functions or negotiate outcomes on behalf of the Queensland community, using the community’s funds. For these reasons, it cannot be said the public interest requires non-disclosure of the information in issue. The detriment required to found an action for a breach of confidence by Screen is not established, and the information in issue therefore cannot comprise exempt information under schedule 3, section 8 of the RTI Act. Contrary to public interest information The Objecting Participants also contend that disclosure of the information in issue would, on balance, be contrary to the public interest[91] within the meaning of section 47(3)(b) and 49 of the RTI Act. This comprises a further ground on which access to information may be refused under the Act.[92] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[93] and explains the steps that a decision-maker must take, as follows:[94] 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. Irrelevant factors I have taken no irrelevant factors into account in making my decision. Factors favouring disclosure I consider that there are significant and weighty public interest considerations telling in favour of disclosure of the information in issue. The public interest demands that government decisions involving the transfer of public wealth into private hands be made as transparently as possible, so as to enable proper public scrutiny and ensure appropriate accountability. In terms of the public interest factors enumerated in the RTI Act, for reasons further elaborated at paragraphs 149-175 below, I consider that disclosure of the information in issue could reas[95]ably be expected to:95 promote open discussion of public affairs and enhance the Government’s accountability; contribute to positive and informed debate on important issues or matters of serious interest; and ensure effective oversight of expenditure of public funds. Factors favouring nondisclosure The Objecting Participants submit that disclosure of the Information in Issue would result in a number of consequences adverse to the public interest, which are sufficient to displace any considerations favouring disclosure. In their original submissions,[96] the Department and Screen jointly submitted that disclosure could reasonably be expected[97] to: prejudice the business, professional, commercial or financial affairs of entities (Business Affairs Nondisclosure Factors),[98] cause a public interest harm because disclosure would disclose information that has a commercial value to an agency or another person and could reasonably be expected to destroy or diminish that commercial value[99] (Commercial Value Harm Factor); and/or prejudice the economy of the State[100] - Screen going on in further submissions to argue that disclosure could have a substantial adverse effect on the ability of government to manage the economy of the State.[101] Screen has further submitted[102] that disclosure of the information in issue could reasonably be expected to prejudice: Screen’s ‘capacity to compete with other...jurisdictions in attracting the filming and production of feature films in Queensland’; ‘the proper performance of Screen Queensland’s functions and powers’; and ‘the proper performance and operation of an investment incentive scheme’ (collectively, Additional Factors Favouring Nondisclosure). Disney separately contends that disclosure could reasonably be expected to prejudice or have an adverse effect upon: Disney’s business and commercial affairs;[103] the future supply by Disney and other companies to the Queensland Government of information similar to the information in issue,[104] and the Queensland Government’s ‘competitive commercial’ activities.[105] The Objecting Participants’ public interest submissions as outlined in the preceding three paragraphs can be broadly summarised as arguments that disclosure of the public interest would prejudice or impair Screen’s business, commercial or financial interests; do the same to Disney, and/or adversely impact upon the public interest, by hindering Screen and thus the State’s capacity to ‘win’ future feature film production to Queensland, resulting in various negative economic and social impacts. I am not satisfied that disclosure of the information in issue could reasonably be expected to result in any of these prejudices or detriments, for reasons set out below. The Department and Screen’s public interest submissions The Department’s and Screen’s initial joint submissions on the public interest (summarised in paragraph 103) centre mainly on the commercial damage that disclosure of the information in issue would allegedly cause Screen. The Department and Screen argue that disclosure could reasonably be expected to ‘cause competitive harm’ to Screen, submi[106]ng that:106 Screen Queensland competes nationally and internationally for projects such as [PoC], which generate potentially significant economic and employment benefits to the State. Disclosure of the Information in Issue would put it at a competitive disadvantage as against other applicants for such grants and similar bodies at both a national and international level, because: (a) the information could be used by other applicants for such grants to assess a starting point for negotiations over an appropriate grant figure, and to that extent weaken Screen Queensland’s negotiating position; (b) the information could enable competitor governments to assess the likely terms on which grant assistance would be offered by Screen Queensland, and tailor their offers to outbid Queensland on projects; and (c) this would in turn encourage forum shopping by movie producers to get the best deal available, to the likely economic detriment of Queensland and employment opportunities in Queensland. Further or alternatively, disclosure of the Information in Issue could reasonably be expected to prejudice Screen Queensland’s business affairs and/or cause a public interest harm because disclosure of the information would disclose information...that has a commercial value to Screen Queensland and could reasonably be expected to destroy or diminish the commercial value of the information. The first point to note is that I do not consider that Screen,[107] in carrying out its film financing and procurement activities, can be said to actually possess business, commercial or financial affairs of the kind necessary to enliven relevant nondisclosure or harm factors. The Information Commissioner discussed the proper characterisation of activity undertaken in the administration of industry incentive schemes of the kind facilitated by Screen in Berri.[108] In dismissing claims that disclosure of information analogous to the information in issue[109] would give rise to the material equivalents[110] of the Business Affairs Nondisclosure Factors and Commercial Value Harm Factor, the Information Commissioner rejected the argument that administration of an industry incentive scheme was activity of a ‘business’ or ‘commercial’ nature: In Re Johnson and Queensland Transport; Department of Public Works...at paragraphs 56-57, I rejected a submission that the Infrastructure and Major Projects Division of the Department of Public Works, in discharging project management duties allocated to it by government and funded out of consolidated revenue, had "business or commercial affairs", according to the proper meaning of those terms in the context of s.45(1)(c) of the FOI Act. Section 45(1)(b) was not relied on by the Department of Public Works in Re Johnson, and therefore was not mentioned in my discussion of the issue at paragraphs 50-57. However, I consider that that discussion is also relevant to s.45(1)(b) because, in my view, information cannot have commercial value to an agency if the agency does not have commercial affairs...At paragraphs 50-51 of Re Johnson, I said: ... 51. ... an agency will have business or commercial affairs if, and only to the extent that, it is engaged in a business undertaking carried on in an organised way for the purpose of generating income or profits, or is otherwise engaged in an ongoing operation involving the provision of goods or services for the purpose of generating income or profits. In this case, the activities of the Department in administering the QIIS and otherwise providing incentive assistance to attract major/strategic projects, do not answer either of the descriptions in the last quoted paragraph. When properly analysed, the nature of the transaction between the State of Queensland and the third party involved an advance of public monies in return for the third party agreeing to engage in certain capital expenditure and economic activity for the benefit of the Queensland economy, and also agreeing to repay the advance of public funds if it did not do so. This was not a commercial activity on the part of the Department. It did not involve the purchase or sale of goods and services. It was a traditional governmental activity, although it had a commercial appearance as the result of the execution of a formal agreement between the State of Queensland and the third party, which included the sort of terms usually to be found in commercial agreements. In that agreement, the third party bound itself to do, by certain dates, the things which the investment incentive schemes administered by the Department seek to achieve by way of stimulus/benefit to the Queensland economy, and bound itself to repay the financial assistance grant if it did not do those things. ... The fact that State governments sometimes compete with each other in offering inducements to business operators does not, in itself, transform a traditional governmental activity into a commercial activity. State governments sometimes talk about competition to offer a low-tax environment to business, but it could not be suggested that setting the rates of state taxes and other imposts at a level that is optimal to attract new business investment in the State is a commercial activity rather than a governmental activity, even if its aim is to attract greater commercial activity in the State. ... ... I consider that, in administering the QIIS and other incentive schemes, and in negotiating and concluding an agreement with the third party for a grant of financial assistance, the Department was not engaged in business or commercial activities, but in governmental activities. I find that whatever value any of the matter in issue has for the Department in terms of its administration of the QIIS and other arrangements for providing incentive assistance to attract major/strategic projects, it cannot properly be characterised as having commercial value as that term is used in s.45(1)(b) of the FOI Act. On that basis, I find that none of the matter in issue qualifies for exemption under s.45(1)(b) on the ground that it has a commercial value to the Department that could reasonably be expected to be diminished by its disclosure. In my view, the Department's reliance on s.45(1)(b) (and indeed s.45(1)(c) to the extent that reliance was predicated on the Department having business or commercial affairs) was misconceived, for the reasons I have indicated above. The Department's submissions emphasised the competitive element of its activities in administering the relevant incentive schemes; e.g.: "The attraction of industry and investment to Queensland, in competition with other States and nations is itself a commercial activity on the part of the agency". In my view, the element of competition between governments in offering taxpayer-funded incentives to attract industry and investment does not alter the fundamental character of the activity from a governmental activity to a commercial activity. (My emphasis – internal citations omitted.) The Information Commissioner went on in Berri to explain the proper interpretation of the word ‘financial’, as used in the phrase ‘business, professional, commercial or financial affairs’, which appears in the first[111] of the Business Affairs Nondisclosure Factors relied on by the Department and Screen in their initial submissions: ...the common link between the words "business", "professional", "commercial" and "financial" in s.45(1)(c) is to activities carried on for the purpose of generating income or profits, and I consider that Parliament intended the s.45(1)(c) exemption to be confined to business operators and government agencies engaged in activities carried on for that purpose. In my view, the ambit of the application of the s.45(1)(c) exemption should be confined in the way I indicated in Re Johnson at p.324 (paragraphs 50-51). That is, in respect of its application to agencies, s.45(1)(c) should apply only to the extent that an agency is engaged in a business undertaking carried on in an organised way for the purpose of generating income or profits, or is otherwise involved in an ongoing operation involving the provision of goods or services for the purpose of generating income or profits. (My emphasis.) Given the similarity in wording, it is my view that the Commercial Value Harm Factor and the Business Affairs Nondisclosure Factors[112] are to be read narrowly, in the manner explained by the Information Commissioner in Berri: they are only applicable to information concerning activities or affairs that are carried on in a business-like fashion for the purpose of generating income or profits. I also consider that the Information Commissioner’s findings that the administration of an incentive scheme is not such an activity are directly applicable in the present review. The only feature distinguishing this case from Berri is that the government has here opted to administer taxpayer-funded incentives through a wholly state-owned incorporated vehicle, Screen, rather than directly via a mainstream public agency. The underlying activities undertaken by Screen on the State government’s behalf are, however, of a piece with those scrutinised in Berri: fundamentally governmental, rather than commercial. In the circumstances, then, Screen (and, more broadly, the Department) cannot be said to have business, commercial or financial affairs in the sense required by the Commercial Value Harm Factor and Business Affairs Nondisclosure Factors. Accordingly, the factors cannot and do not arise for consideration as regards the affairs of Screen (or the Department). I conveyed the reasoning expressed in paragraphs 108-112 above to each of the Department and Screen by correspondence dated 17 December 2015, and invited their submissions in reply. Neither participant has sought to contest that reasoning. The Department, while wishing to maintain its claim that disclosure would, on balance, be contrary to the public interest, essentially left Screen to advance its own case as regards commercial and/or business prejudice.[113] Screen’s subsequent submissions[114] were similarly silent on the issue, instead arguing that disclosure would give rise to the several Additional Factors Favouring Nondisclosure as summarised in paragraph 104 – each of which argues substantively similar prejudices to those embodied in the Business Affairs Nondisclosure Factors, but does not claim that such prejudice would impact upon Screen’s commercial, business etc. affairs. In the absence, then, of any submissions to the contrary – and bearing in mind the formal onus borne by the Department[115] – I reiterate my conclusion as expressed in paragraph 112: neither the Commercial Value Harm Factor nor the Business Affairs Nondisclos[116] Factors116 arise for consideration in assessing where the balance of the public interest lies in this case. If I am wrong in the above findings and Screen could be said to possess the requisite commercial, business etc. affairs, and that the information issue could be said to concern those affairs, I am not satisfied that the information in issue: is possessed of commercial value standing to be diminished by disclosure (as required to enliven the Commercial Value Harm Factor), nor that its disclosure could reasonably be expected to prejudice or adversely affect those affairs (for the purposes of the Business Affairs Nondisclosure Factors), or prejudice or substantially adversely affect the economy of the State. I have addressed the substantive requirements for these factors below. Commercial Value Harm Factor Information will have a commercial value if:[117] it is valuable for the purposes of carrying on the commercial activity in which that agency or other person is engaged (i.e. because it is important or essential to the profitability or viability of a continuing business operation, or a pending "one-off" commercial transaction); or 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 from a government agency which has possession of it. The information in issue falls within neither of the above categories. There is nothing before me to suggest the existence of arm’s length third party purchasers prepared to pay for access to dated grant information. Further, as the Incentive Payment has been settled and agreed to, disclosure of its amount could in no way impact upon the negotiations or ‘transaction’ that led to that agreement. The only possible argument – and the one I understand the Department and Screen to have been prosecuting in their initial joint submissions – is that the information in issue possesses an ongoing, intrinsic commercial value which could be diminished by disclosure. Again, the Information Commissioner’s observations in Berri are apposite. In rejecting a near-identical argument, the Commissioner noted as follows: The Department has submitted that the category 1 matter has intrinsic commercial value because it allows the Department to set a benchmark or precedent for its grants scheme both in a general sense, and in the specific industry. It has argued that a crucial element in assessing other projects seeking grants is the amount and details of prior grants, both in the particular industry (i.e., food processing), and generally. However, I consider that whatever value the category 1 matter (and also what I have described at paragraph 25 as the peripheral matter) might still have for the Department in terms of its administration of the relevant incentive schemes (i.e., in assessing other projects seeking grants), its value in that regard does not depend upon the information being kept secret, and I find that its value could not be diminished by disclosure of that information at this stage. The real nub of the Department's case for keeping the information secret is that, in an environment of competition with the New South Wales, Victorian and overseas governments to attract industry and investment through financial assistance grants, disclosure of the amounts of grants paid to specific businesses would set benchmarks for comparable claims in comparable industries, that: (a) could be used by other applicants for assistance to assess a starting point for negotiations over an appropriate grant figure, and to that extent weaken the Department's negotiating position; (b) enable competitor governments to assess the likely terms on which grant assistance would be offered by the Department, and tailor their offers to outbid Queensland on projects; and (c) this would in turn encourage forum shopping by business operators to get the best deal available.... ... the arguments I have summarised at paragraph 71 above do not flow from any intrinsic commercial value attaching to the category 1 matter and the peripheral matter. The above findings are directly applicable in the present case. Whatever worth the information in issue might arguably have to Screen or the Department for the purposes of future incentive proposals, that value does not, in my view, derive from any inherent or intrinsic commercial value in the amount of the Incentive Payment (as contained in the information in issue) itself, and such value would not be diminished or affected by disclosure now of that information. As with the observations and findings set out in paragraphs 108-112, I afforded both the Department and Screen the opportunity to contest the reasoning expressed in the preceding four paragraphs. Neither has done so. In the circumstances, I find that the requirements of the Commercial Value Harm Factor are not satisfied. The Factor does not, therefore, apply to the Information in Issue, and does not arise for consideration in balancing the public interest. Business Affairs Nondisclosure Factors As noted, in their opening submissions in this review, the Department and Screen also argued that disclosure of the information in issue could reasonably be expected to prejudice Screen’s business etc. affairs. These arguments were largely, as I understand, premised on the submissions extracted in paragraph 107. Relevant submissions essentially comprise ‘benchmarking’ arguments, ie, that disclosing the value of the incentive paid to one production house at a given point in time would arm other companies with information sufficient to enable them to assess negotiation starting points, to bargain for comparable assistance, and to allow rival locales to outbid Queensland. Assuming that such information can be said to concern Screen’s business etc, affairs,[118] I have considerable reservations as to whether its disclosure could reasonably be expected to prejudice the commercial, business or financial interests of Screen (or indeed, the Department). In this regard, I refer again to the Information Commissioner’s comprehensive analysis and rebuttal of near-identical arguments in Berri: The Department's evidence and submissions did not explain precisely how disclosure of the amount of the grant could enable other grant applicants, and competitor governments, to assess benchmarks. Presumably, the amount of the grant would be assessed against the information which the Department does publish (for example, in terms of job targets and capital investment promised by the recipient of the grant), to infer that, in return for that amount of capital investment in Queensland, and that number of new jobs created, the Queensland government would be prepared to offer that amount of financial assistance. In practical terms, however, there would be many more potential variables that could affect the amount of grant assistance that the Department would be prepared to pay in particular cases. These could include: premiums to attract particular industry sectors (e.g., aviation support, bio-technology) with a highly skilled labour force, or reputable foreign businesses seeking to establish headquarters in Australia; premiums to attract investment of particular strategic importance to the economy of the State, or investment that boosts development and employment in regions of Queensland that are in particular need; the amount of funding available to the grants scheme from consolidated revenue; and the extent to which the Department is prepared to compete with offers of assistance from other governments. Let us assume that disclosure of the matter in issue enabled another grant applicant to approach the Department with the proposition that its project involves x times the amount of capital expenditure, and x times the number of new jobs created, as the third party's project, and therefore it is deserving of x times the amount of the grant given to the third party. I cannot see how such an approach by a grant applicant could somehow bind the Department to proceed with subsequent negotiations in a way that meant that the financial interests of the Department or the State, or the ability of government to manage the economy of the State, could be adversely affected. The Department would be neither morally nor legally obliged to accept the grant applicant's position, nor even to treat it as a starting point for negotiations. The Department would make its own detailed assessment of the particular project in deciding an appropriate amount of financial incentive grant, and negotiations would proceed by reference to that detailed assessment. I cannot see how discussion of comparative grants would likely be more than a transitory sidetrack in negotiations over a new specific project. Moreover, I consider that it is mere speculation for the Department to assert that some companies would be discouraged from investing in Queensland merely because they could not obtain grants which they considered comparable (presumably on some kind of pro rata basis) to the grant obtained by the third party in the instant case. If the issue of comparability were raised by a grant applicant, it would be open to the Department to explain why the cases were not comparable. There has been no indication in the Department's evidence and submissions that pre-contractual negotiations over the amount of a grant of financial assistance are conducted on a basis that binds the applicant for a grant not to disclose to another government the amount of the latest grant offer from the Department. Even if that were the case, it would be difficult to prevent a forum-shopping grant applicant from indicating to another government (without revealing the details of Queensland's offer) that it would have to make a better offer to induce acceptance in preference to Queensland's offer .... This is another reason why I have difficulty accepting that disclosure of the matter in issue could reasonably be expected to have the adverse effects asserted by the Department, in terms of allowing other governments to outbid Queensland on projects through obtaining knowledge of the incentives that Queensland might offer to attract a project. Even assuming that disclosure of the particular matter in issue could enable another government to assess how Queensland would be likely to arrive at an initial offer to attract a new business project, that could only have an adverse effect if it enabled the other government to outbid Queensland in circumstances where a forum-shopping grant applicant offered each interested government one chance to submit its best offer to attract the grant applicant's project. Such a case could occur but, ordinarily, a private sector business operator would negotiate as extensively as the respective governments would permit (and the significance to it of the project warranted), in order to find out how far each government would go to attract its business. The amount of each package would then be factored into the grant applicant's assessment of a range of other business factors to determine which base of operations would be most beneficial for its business plans. Any number of other factors could carry greater weight in reaching that decision than the amount of grant assistance on offer, and the government that made the second or third best offer might secure the project. Indeed, the business operator might know in advance what its preferred location is, and still seek to play off one government against another to get the best possible deal from the government of its location of choice. These are the kind of variables that the Department (and other governments) have to assess in deciding how much taxpayers' money they are prepared to offer to attract a particular project. No doubt there are elements of a poker game when several governments are competing to attract a desirable business that is new to Australia and seeking the best available incentive package to influence the location of its headquarters. Difficult judgments are no doubt involved in assessing how high it is necessary or appropriate to go to make a competitive or winning bid. However, a government cannot responsibly be prepared to pay whatever it takes to secure the investment project if the cost to taxpayers would be disproportionate to the economic benefits liable to be obtained. ... The Department's submissions treat the question of disclosure of the amount of the grant to the third party as if it were a precedent for all other grant amounts, with the consequence that disclosure of all grant amounts would then enable future grant applicants and other governments to work out comprehensive benchmarks. However, the terms of the relevant exemption provisions require assessment of the reasonably apprehended effects of disclosure of the particular matter in issue. Each case must turn on its own merits. The individual circumstances of each grant must be considered, such as the time that has passed since the grant was made, whether other states were competing to attract the project, and whether the grant was site-specific or otherwise unique in its circumstances such as to have limited general application or precedent value. I do not accept that a blanket approach to exemption (or, for that matter, disclosure) can be taken with respect to all grants. (My emphasis.) The Information Commissioner’s critique as set out above is generally applicable in the present case (allowing, of course, for the fact that the incentive program analysed in Berri related to general industry, as opposed to film production specifically). The information in issue is a historical figure reflecting a substantial part of what the State was prepared to offer one production company at a particular point in time, under circumstances prevailing at that time. While a production house might attempt to use the information in issue as a ‘starting point’ in future negotiations with the State, it is not clear to me why this would of itself occasion any prejudice to the business affairs of Screen and/or the Department. There is nothing before me to suggest Screen and/or the Department are bound in any way to ensure future incentives match historical grants. Regardless of disclosure, each will retain the capacity to negotiate future incentive packages on their merit – to set the parameters for negotiations with film proponents, based on Screen and the Department’s own careful analysis of the costs and benefits of a proposed production. Negotiations would then surely proceed by reference to that analysis, rather than the partial amount of assistance awarded at some point in the past. Similarly, I am unable to see how disclosure of historical information of the kind in issue could reasonably be expected to, of itself, precipitate ‘forum shopping’ as asserted, nor to allow Queensland to be outbid in future negotiations. As to the first point, the most pertinent information for a prospective film producer ‘shopping around’ for the best deal would not, it seems to me, comprise information concerning a historical grant to a competitor, but whatever current deal Queensland was prepared to ‘put on the table’, which could then be touted around competing jurisdictions.[119] In this regard, even if Screen or the Department sought to bind the producer from disclosing details of the State’s latest offer during negotiations (on which point there is before me no evidence), it would be difficult to prevent the producer suggesting to competing jurisdictions that the latter would need to do better. As for any assertion that disclosure of the information in issue would enable competitor jurisdictions to outbid Queensland on film proposals, or would dissuade production houses from investing locally if they could not secure funding comparable to Disney’s, I think the Information Commissioner’s reasoning in Berri as set out above adequately deals with these propositions. I would only note again that the amount of any future incentive payment would be determined not by reference to a particular grant awarded in October 2014, but by reference to a variety of factors, including the amount available to government in consolidated revenue, the perceived value of the particular production and film production generally to the state economy at the time any grant falls to be assessed, the quantum of any assistance proposed by the Commonwealth and, perhaps most significantly, the prevailing foreign exchange rate.[120] The substance of the discussion and reasoning set out in paragraphs 124-128 was put to the Department and Screen for consideration and reply, by correspondence dated 17 December 2015. The Department did not seek to elaborate upon its original submissions, leaving, as I have noted, Screen to press relevant public interest arguments. Sc[121]n did indeed do so,121 in terms emphasising prejudice to its operations generally, rather than business, commercial, or financial interests specifically. The thrust of those submissions was aimed at fortifying its original ‘benchmarking’ arguments, and it is therefore convenient to deal with them here. The relevant submissions are expansive, however having carefully reviewed them in their entirety, I think the following excerpts fairly [122]ture their essence:122 [Screen] submits that the role of incentive packages such as that provided to Disney for Pirates of the Caribbean: Dead Men Tell No Tales are critical in attracting studios to choose Queensland as a location to film and produce films and ultimately to secure [specified economic and social] benefits.... While Screen Queensland acknowledges that an incentive package may not be the only issue for studios when they are deciding whether or not to locate their production in Queensland, the incentive process and the package itself is significant on several levels being: (a) The prospect of an incentive package is a mechanism which allows our client to reach out and approach international studios and to put forward Queensland as a viable option. Without such an approach, Queensland may not be seen as being attractive particularly during the early stages of the production location identification processes; (b) Queensland is now considered to be a potential location option as it has a skilled workforce with experience in international productions which has been progressively developed over time. Previous productions, have chosen Queensland on the back of incentive arrangements and packages such as the Program; (c) The competitiveness of an incentive package can be a significant determining factor where the options are narrowed down to two or three locations. An incentive package can separate the options to provide a preferred option; and (d) An incentive arrangement can make Queensland a competitive and attractive option. For example, when the Australian Dollar was trading at a high level, the incentive arrangements had the effect of removing this competitive disadvantage. Incentive packages are therefore an important tool used by Screen Queensland in satisfying the functions and purposes for which Screen Queensland has been established and to react and accommodate local and global market issues.... There are a range of reasons as to why Screen Queensland considers that details such as the amount of a PIP are sensitive and confidential and should not be disclosed to the public at large. These include the following key matters: (a) Should it be known across the industry sector the value of a PIP that has been paid to a production studio, Screen Queensland will then lose its competitive leverage and capacity to undertake robust, competitive negotiations with production companies in the future. For example, if other competitor production studios were aware of the PIP amounts paid, they could argue for parity, or may even seek a higher PIP. For instance if an international production company was negotiating with Screen Queensland in relation to a PIP and they were aware of the details of a previous amount paid for a similar international production company, why would they be prepared to accept less? Clearly the disclosure of such commercially sensitive information would substantially weaken Screen Queensland's future bargaining position and its capacity to strongly negotiate a commercial outcome in relation to incentive payment issues; (b) The film and television production industry is an industry sector in which Queensland competes on a national and international level as an attractive location. As soon as information about the amount of a PIP is publically available, Screen Queensland's market competitors will be provided with Screen Queensland's position and will be able to "outbid" Screen Queensland in respect of current and future incentive negotiations; (c) ... Ausfilm markets the Australian government screen production incentive scheme. ... Ausfilm [has] confirm[ed] our view that the disclosure of a production incentive...would reasonably be expected to prejudice Screen Queensland in its capacity to compete with other national and international jurisdiction in attracting screen production to their regions. ... (d) The combination of the adverse outcomes detailed above will also mean that overall Screen Queensland will have a diminished capacity to continue to negotiate effectively and in a manner that ensures value for money in expending public money. This will in turn place pressure on Screen Queensland, the incentive program which could then adversely affect the attraction of production studios to Queensland. It would appear that the above submissions[123] are premised on an assumption that international feature film production in Queensland is good for the local community – a proposition which, as discussed elsewhere in these reasons, I do not consider can be fully evaluated without factoring in the cost of attracting that production. As to the submissions themselves, I accept Screen’s submission that incentive packages play an important role in securing feature film production in a given locale. It is hardly surprising that private for-profit commercial concerns would find the promise of public monies appealing, and of consequence in making decisions as to where they should undertake a given project. The difficulty for Screen is that I cannot see how the balance of these later submissions[124] overcome the reservations foreshadowed by me in my 17 December 2015 correspondence, and again explained above. These submissions essentially cover the same ground as the initial submissions jointly put by Screen and the Department, the substance of which are addressed at paragraphs 124-128. Screen’s later submission, for example, that disclosure would arm future film proponents with information sufficient to ‘argue for parity’ when petitioning for possible grant monies seems to be met squarely by the Information Commissioner’s reasoning in Berri, as extracted in paragraph 124: ‘If the issue of comparability were raised by a grant applicant, it would be open to [Screen and/or the Department] to explain why the cases were not comparable,’ or at the least, to spell out differences in circumstances as between the Disney grant and future incentive proposals. Proposed ventures may not, for example, offer as significant benefits to the State, such as crew and catering employment. In a related vein, Screen goes on to question why a rival production studio would in the future be ‘prepared to accept less’ than Disney, were the former forearmed with the value of Disney’s grant as described in the information in issue. On this point, however, its own submissions answer this query, at least in part. As Screen acknowledges, incentive packages are but one factor studios take into account in determining where to film – it may be, for example, that a rival studio is ‘prepared to accept less’ in order to avail itself of Queensland’s ‘skilled workforce with experience in international productions,’ a favourable exchange rate, or a complementary Commonwealth incentive. It may also fall to Screen to explain to a production house that an amount equal to or less than that granted to Disney is simply all that can be prudently offered at the time future negotiations come to be conducted: as the Information Commissioner observed in the passage from Berri excerpted above, entities such as Screen, dealing in and with public monies, ‘cannot responsibly be prepared to pay whatever it takes...’. I do not think it necessary to address Screen’s later submissions in any further detail, but to rely on the reasoning and authority already stated in this decision. It is sufficient to note that, having given those submissions[125] careful consideration, I do not think it reasonable to conclude that the disclosure now of the part value of a specific grant awarded in a particular set of circumstances nearly two years ago would have any of the prejudicial consequences as argued by either the Department and Screen in their original joint submissions, nor Screen in its later submissions. This is not to say that there could never exist a situation in which disclosure of information similar to the information in issue could reasonably be expected to have detrimental effects of the kind Screen and the Department contend would arise in this case. I am, for example, prepared to acknowledge that disclosure of such information prematurely, such as during the course of negotiations between Screen and a production house, might well occasion one or more harms of the type discussed above. In such cases, there may exist a justifiable case for secrecy for a given period of time as regards information of the kind in issue in this review.[126] For the reasons explained above, however – and bearing in mind, again, the time that has elapsed since the grant was awarded – I am not satisfied that disclosure in this particular case could reasonably be expected to lead to such harms. Taking all relevant circumstances into account, I am not persuaded that disclosure of information of the kind in issue could reasonably be expected to prejudice or adversely affect the business etc. affairs of Screen or the Department, or to hinder or prejudice Screen’s operational capacity in the manner asserted in the Additional Factors Favouring Nondisclosure. Accordingly, relevant factors and considerations do not arise for consideration in balancing the public interest in this review. Prejudice/substantially adversely affect economy of State Nor do I consider that disclosure of the information in issue could reasonably be expected to prejudice the economy of the State, or that it could substantially adversely affect the ability of government to manage the economy of the State.[127] I accept that film production such as the PoC project generates economic activity. I have explained above, however, that I am not satisfied that disclosure of the information in issue could reasonably be expected to hinder or impede future production in Queensland, as asserted. Accordingly, I do not consider that disclosure in this case will negatively affect future projects, so as to disturb resultant economic activity. Disclosure, therefore, will not prejudice the economy of the State, and I cannot see how it could have a substantial adverse effect upon government’s ability to manage that economy. Even if I were wrong in this regard, then as regards the harm factor prescribed in schedule 4, part 4, section 9(1)(a) of the RTI Act, there is insufficient information before me to allow me to be satisfied that any adverse effects that might flow from disclosure would be ‘substantial’ – 'grave, weighty, significant or serious’[128] – so as to enliven this consideration. Prejudice performance of an investment incentive scheme Prior to addressing Disney’s public interest arguments, there remains the last of Screen’s Additional Factors Favouring Nondisclosure to deal with: namely, that disclosure of the information in issue would prejudice the performance of an investment incentive scheme. In support of this submission,[129] Screen points to the existence of schedule 3, section 11 of the RTI Act, which provides that access to some incentive scheme information may be refused in certain circumstances. Screen does not seek to argue that the provision has application to the information in issue in this case. It does, however, contend that the information in issue is sufficiently similar to that intended to fall within schedule 3, section 11 of the RTI Act, the release of which Parliament has deemed would occasion public interest harms sufficient to justify nondisclosure. It should thus be accepted that release of the information in issue would, given its similarity to that covered by schedule 3, section 11, also result in a public interest harm. I do not accept this argument. As I have explained above, I do not accept disclosure of the information in issue will prejudice Screen’s investment incentive activities. Further and in any event, Parliament framed schedule 3, section 11 of the RTI Act in limited terms, allowing for the discretionary exemption of a given species of information created or received by a government agency in very particular circumstances. The information in issue is not information of that kind, and in view of the narrow terms in which it is cast, Parliament’s intention that the RTI Act otherwise be read with a pro-disclosure bias,[130] and the general principle that, as beneficial legislation, the Act ought be construed as broadly as a fair reading will permit, the presumption of public interest harm established by schedule 3, section 11 of the RTI Act should in my view be confined to information to which it directly relates. I will now address Disney’s public interest arguments. Disney’s public interest submissions Prejudice/adverse effect upon business/commercial affairs There is no evidence before me to substantiate Disney’s assertions that disclosure of the information in issue – part of the amount of a publicly-funded incentive – could reasonably be expected to cause Disney commercial harm or impair or adversely affect its business activities. I am unable to conceive how it could be argued that disclosure of the amount of an incentive settled nearly two years ago would in any way impinge upon or hinder Disney’s future competitive commercial activities, nor to cause it any pecuniary detriment.[131] My view in this regard is reinforced by the fact that, as I have noted above, the amount of support provided by the Commonwealth government to Disney for the PoC project was publicly announced.[132] This disclosure did not, to my knowledge, cause Disney any prejudice, commercial harm or other difficulty, and relevant nondisclosure considerations are not enlivened for the purposes of balancing the public interest. Prejudice future supply of/ability to obtain information Similarly, there is no evidence before me that disclosure of the information in issue would prejudice the future supply of information analogous to that in issue to government, nor prejudice any agency’s ability to obtain confidential information. Accepting these submissions essentially requires me to accept that disclosure would cause a substantial number of companies to refrain from communicating[133] similar information to the Queensland Government or its agencies in the future. On the information before me, I am not persuaded that real and substantial grounds exist to expect that this would be the case, given that in doing so, such companies would presumably simply preclude themselves from accessing the significant monetary incentives offered by government. In the circumstances, I am not satisfied that disclosure of the information in issue could reasonably be expected to prejudice the future supply to government of like information in support of a request for a grant of financial assistance, or to prejudice an agency’s ability to obtain such information. Relevant considerations do not arise to be weighed in balancing the public interest. Prejudice Queensland Government’s ‘competitive commercial’ activities Disney did not identify the ‘competitive commercial’ activities of government it claims would be prejudiced by disclosure of the information in issue, nor how disclosure of that information could reasonably be expected to lead to such prejudice. In any event, it would appear to me that the Department and/or Screen would be the participants in this review best placed to articulate any potential commercial prejudice of this nature, and to the extent they have done so, I have addressed their arguments above. Further, assuming Disney’s reference to ‘competitive commercial’ activities is a reference to the Department and/or Screen’s administration of screen production incentive payments, this is, as I have detailed above, properly regarded as a governmental, rather than commercial, activity. For reasons explained earlier, I am not persuaded that any Queensland Government entities involved in facilitating the incentive payment to Disney were engaging in competitive commercial activities during relevant negotiations, and that therefore no such activities stand to be prejudiced by disclosure of the information in issue. For the sake of completeness, even if I am incorrect in this regard, I am unable to conceive as to how disclosure of the information in issue – detailing a payment settled many months ago, the quantum of which was arrived at following consideration of particular facts and circumstances obtaining at that time – could reasonably be expected to prejudice the commercial or business affairs of any government entity in facilitating future incentive payments. Inasmuch as Disney’s submissions in this regard may be read as a suggestion that disclosure of the information in issue could lead to Queensland being ‘outbid’ in future film production negotiations, I am not persuaded that real and substantial grounds exist to expect such an outcome, for the precise reasons as explained by the Information Commissioner at paragraphs [108]-[114] and [117] of Berri, quoted in paragraph 124 above. In summary then, I do not consider that any of the nondisclosure factors relied upon by Disney arise for consideration in this case. It remains then to evaluate where the balance of the public interest lies. Balancing the public interest I have identified several public interest factors telling in favour of disclosure of the information in issue, and none favouring nondisclosure. In the circumstances, I cannot[134] be satisfied that disclosure of that information would, on balance, be contrary to the public interest. Even if my reasoning rejecting the Objecting Participants’ public interest arguments is incorrect, and some or all of the harm and nondisclosure factors relied on by these participants do arise for consideration in this case, it is nevertheless my view that the balance of the public interest favours disclosure in this case. Decisions by government to transfer public wealth to private interests should, in my view, be attended by the highest possible levels of transparency and accountability. This is necessary, in order that the community might be satisfied that not only such decisions are made with appropriate levels of probity, but that they represent a worthwhile investment of the community’s scarce resources. On this basis alone, it is my view that considerations meriting disclosure are in this case of irresistible weight, sufficient to displace any factors that might be argued to favour nondisclosure (which, if established, I consider would deserve a modest weighting, particularly given the age of the information in issue). My view in this regard is further reinforced by the fact that there appears to be some debate as to whether selective industry assistance of the type granted to Disney and described in the information in issue is publicly beneficial. In this regard, I note the detailed analysis and findings set out by the Queensland Competition Authority in in its 2015 Industry Assistance Report,[135] relied on by the applicant in support of its case for access. The QCA noted that industry assistance programs leading to payments of the kind made to Disney have been marked by a general lack of transparency, and that many, when objectively scrutinised, appear to achieve no net benefit for the community. In the Report’s opening overview, the QCA observed that:[136] ...there is limited transparency in the provision of significant amounts of public resources to the private sector, particularly for highly selective assistance measures. The evidence that is available suggests that, although a number of industry assistance measures are beneficial, many others are ineffective and result in a range of costs, including resource allocation distortions, lower productivity, lower household incomes and harmful environmental impacts. ... ...Much is captured by private firms with limited or no positive effect on the welfare of Queenslanders as a whole. The ‘Overall Assessment’ section of the Industry Assistance Report elaborates on the above themes. After querying the public benefit of industry assistance, the QCA observed that industry assistance is typified by insufficient transparency and evaluation:[137] There is very little transparency and evaluation of industry assistance in Queensland. Transparency and evaluation are essential to make informed decisions about the allocation of limited resources and to demonstrate appropriate stewardship of taxpayer funds. There is scope to improve industry assistance measures through strengthened policy design and assessment. The QCA went on to consider the case of film industry assistance specifically, and was particularly critical of assistance of the kind awarded Disney, noting yet again the absence of transparency:[138] In addition to budgeted incentive programs such as those delivered by Screen Queensland, state and the federal governments sometimes provide ad hoc incentives to production companies in order to secure major film and television productions. A recent example is the production of the fifth instalment of the Pirates of the Caribbean film series, which was lured to Queensland following a contribution of $21.6 million from the Australian Government.... Screen Queensland and the Queensland Government also provided the production with an undisclosed attraction incentive to secure the production in Queensland. In many cases, the total value of incentives offered outside of budgeted programs is not disclosed by governments. This lack of transparency means it is often not possible to accurately assess these policies as the total cost to the public is not known. Therefore, whether or not the assistance delivers a net benefit, is also unknown. (My emphasis.) The QCA further questioned the merits of attraction incentives for major film productions,[139] before concluding its discussion of film industry assistance with the recommendation that the Government should, among other things, ‘ensure that any incentives, where government chooses to provide them, are provided transparently’.[140] I acknowledge that the Government continues to endorse the use of film production incentives. Nevertheless, there is a general lack of transparency concerning payments such as those made to Disney, beyond the statements that these film production incentives bring wealth and jobs to Queensland. In the circumstances, I consider that there exists a compelling public interest case favouring disclosure of the information in issue – the amount of the principal element of the Incentive Payment – so that the public can assess the net benefits of relevant payments. To reiterate, government is accountable to the public from whom it raises monies for the manner in which it expends those monies. This is particularly so, where such expenditure is made to commercial enterprises for the use by them in the prosecution of their private business concerns, even accepting that this expenditure may secure economic benefits to the State. Appropriate accountability can only, in my view, be adequately ensured by allowing the public access to information detailing the amount and form of such expenditure. In this regard, I do not accept the contention[141] that public interest considerations favouring disclosure have been sufficiently served by media statements announcing PoC’s production and stating the benefits expected to flow from that production. As is clear from the QCA’s analysis and discussion, there exists genuine debate as to whether net[142] benefits of the kind claimed by Screen and the Department actually accrue to the public as a result of incentive payments of the kind in issue in this review, and it is very difficult for the community to test such claims in the absence of detail such as that contained in the information in issue. Nor do I consider that it is not, as the Department and Screen submitted, necessary to know the amount and composition of the incentive payment as disclosed in the information in issue, in order to be able to scrutinise the administration of that payment and to participate in an informed debate as to the merits of same. Once again, I note the Information Commissioner’s rejection of an identical argument in Berri: I do not accept the Department's contention that it is not necessary to know the amount of the third party's grant in order to be able to scrutinise its administration of the relevant incentive scheme in this instance and to participate in an informed debate about the costs and benefits of that grant of public monies. I consider that the dollar amount of a grant is a vital piece of information in conducting an assessment or analysis of an incentive package. Its disclosure would allow experts to assess, and contribute to informed public debate about, whether the grant represented value for money for Queensland taxpayers in terms of its return for the Queensland economy. In my view, there is a strong public interest in enhancing the accountability of the Department in respect of its administration of financial incentive grants to industry, which weighs in favour of disclosure of the matter in issue, and the category 1 matter in particular. The Information Commissioner’s comments are squarely applicable in this case. The amount and nature of the grant paid to Disney is a – if not the – key piece of information concerning that grant. Access to this information is necessary to permit closer analysis of the incentive package negotiated by Screen Queensland on behalf of, ultimately, the public of Queensland.[143] Disclosure of the information in issue will thus allow for an objective assessment of the merits of the incentive, and contribute to informed public debate as to whether that incentive represented value for money for Queensland taxpayers: helping, thereby, to ensure effective oversight of expenditure of public funds. These are strong public interest considerations, which in the circumstances of this case tell conclusively in favour of disclosure. As the Information Commissioner concluded in Berri: In assessing the competing public interest considerations, I consider that the general criticisms which have been levelled at industry incentive schemes warrant bringing a greater transparency and accountability to selective industry assistance. That will, in turn, enhance levels of probity and propriety, allow experts to carry out independent analysis of the claimed economic benefits of assistance packages, and promote greater public trust and confidence in the process and outcomes achieved. ...Non-disclosure allows any substandard analysis by government officials of the positive or negative effects of incentives advanced from public funds to go unchallenged. I am not satisfied that disclosure of the information in issue would, on balance, be contrary to the public interest. In reaching the above conclusion, I am cognisant of Screen’s submission that it publishes aggregate amounts of monies disbursed in any given year. These global amounts do not, however, appear to give a complete picture of the quantity of public funds distributed, and I am not persuaded that their publication is alone sufficient to meet the public interest considerations discussed above. I have also taken into account evidence tendered by Screen as to standard industry practice regarding non-publication of the value of film incentives,[144] and opinions of those such as the Western Australian Auditor-General supportive of withholding industry assistance figures in fields such as major event attraction and sponsorship.[145] As to the former, I am not persuaded that established ‘industry practice’ as to confidentiality of itself amounts to a public interest argument for refusing access under the RTI Act. Indeed, in my view it merely reinforces the contrary case for disclosure, so as to ensure that payments of public funds to private for-profit enterprises are made with adequate transparency. Regarding the latter, I acknowledge that opinions may vary as to what is acceptable practice in a particular case. For the reasons explained above, my view is that the public interest would in this instance best be served by a decision that the information in issue be released – that is, a decision favouring maximal transparency. This is a view consistent with the QCA’s contemporary analysis of the very program giving rise to the information in issue, as opposed to comments made in 2012 concerning a separate program operated in another jurisdiction, and aimed at a distinct industry sector. In view of my comments in the preceding paragraph, it is appropriate here to respond to submissions aimed at undermining the legitimacy of conclusions expressed in the Industry Assistance Report that the applicant submitted and which I have concluded support the public interest case for disclosure. The Department, and Screen in particular, made relatively extensive submissions criticising some aspects of the methodology adopted by the QCA certain of the conclusions contained within its Report. Screen asserted that any reliance by me upon the Report ‘[h]as the capacity to raise several legal issues of concern’,[146] pointing to the fact that the Government has continued to support film production incentive as administered by Screen, despite the QCA’s recommendations.[147] I do not propose to extend these already lengthy reasons with a point-by-point rebuttal of these submissions and allegations. It is sufficient to note that while I accept that Screen contests the views reached by the QCA, I have no reason to call into question the objectivity of the QCA, the legitimacy of its research or the veracity of its conclusions. Nor have I relied solely on its findings in reaching my decision, other than agreeing with some of its observations, particularly those stressing the value of transparency in cases such as this. Certainly, I do not understand how invocation of the QCA’s analysis in support of my reasoning might give rise to ‘legal issues of concern’. Some of Screen’s submissions in support of this assertion (and, indeed, its public interest case generally) appear to make the error of automatically aligning Screen’s interests and/or government policy with the public interest; that is, as government policy is to maintain film incentive programs, the public interest ought to be presumed to lie in favour of same, the QCA’s findings and observations should be disregarded, and the balance of the public interest presumed to lie in favour of ongoing secrecy rather than enhanced transparency. At paragraph 77(e)[148] of its 26 February 2016 submissions, for example, Screen states: ... regardless of the findings and recommendations that are set out in the QCA Report or the matters raised in the Berri decision, the Queensland Government is clearly of the view that the relevant public interest benefits are substantial and are triggered by having national and international production studios locate to Queensland to produce films. Therefore, any action which could reasonably be said to adversely affect the achievement of these outcomes...will be clearly contrary to the public interest. Similarly, at paragraph 112 of those submissions, Screen contends[149] ‘that there is no public interest in taking actions that will diminish or frustrate the implementation of the clear policy position of the elected Government of the day.’ Arguments of this kind are misplaced and appear at odds with the very reasons Parliament enacted the RTI Act: to maximise government openness so as to keep the community informed of government operations, enhance government accountability, and increase community participation in democratic processes so as to achieve better informed decision-making and a ‘healthier representative, democratic government’.[150] Agency and executive government views are of course to be given due consideration in assessing where the balance of the public interest lies, as are those of any other participant in a given review. Such views are not, however, determinative – to conclude otherwise would be to render hollow the system of independent merits review established under the RTI Act, and, more broadly, to defeat Parliament’s intention in passing that legislation. I would also note that increased transparency may well serve to advance Screen’s interests, should it help to demonstrate the value for money achieved through film production incentives. I acknowledge that informed opinions differ as to the costs and benefits of film industry assistance programs of the kind administered by the Department and Screen, and described in the information in issue. The Industry Assistance Report contains, however, a comprehensive and relatively recent analysis of the very program the subject of the information in issue. I am comfortable employing that critique – and particularly, its calls for greater transparency – in determining where the balance of the public interest rests in this case. Having said that, I should again make it abundantly clear that even if I were to totally disregard the analysis contained Industry Assistance Report, and, indeed, to accept that all of the public interest factors, considerations and arguments mounted by the Objecting Participants in favour of nondisclosure, I would nevertheless be minded to find in favour of disclosure. At the risk of repeating myself, there is a strong and compelling public interest in ensuring that government decisions which result in the transfer of significant quantities of public funds to private interests are made with the utmost transparency and accountability. The Queensland public trusts government to steward scarce community resources – which are ultimately only raised by way of taxes, levies and charges imposed on that community – with care and prudence. An assessment as to whether that trust is being met can, in my view, only be properly made by allowing scrutiny of just how much of those resources government has elected to disburse on the community’s behalf in any given instance. Prior to concluding these reasons, there is one further point raised by Screen with which I should deal: essentially, that there are other processes of accountability in place as regards the administration of film production incentives, such as Screen’s being subject to the scrutiny of the Auditor-General. I do not consider this diminishes the public interest considerations favouring disclosure I have identified and discussed above. As the Information Commissioner has previously observed:[151] 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. ... The Information Commissioner’s comments are equally applicable to the RTI Act, and while I note that Screen is in all likelihood not itself an ‘agency’ for the purposes of the Act,[152] it nevertheless relies on and deals with public monies, and must accept the accountability obligations that attend its dependence upon agencies such as the Department.[153] In any event, the Incentive Payment the subject of the information in issue in this review was ultimately facilitated by the Department. There is a manifest public interest in ensuring that that agency is accountable for its activities in this regard. DECISION I set aside the decision under review. In substitution, I decide that there are no grounds upon which access to the information in issue may be refused under 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: 18 August 2016 APPENDIX Significant procedural steps Date Event 14 July 2015 Department of the Premier and Cabinet (Department) received the initial access application. 19 August 2015 The Department issues its decision to the applicant. 21 August 2015 OIC received the application for external review of the Department’s decision. OIC notified the Department that the external review application had been received and requested that relevant procedural documents be provided by 31 August 2015. 25 August 2015 OIC received the requested procedural documents from the Department. 26 August 2015 OIC notified the applicant and the Department that it had accepted the external review application. OIC requested that the Department provide all documents located in response to the access application by 9 September 2015. 28 August 2015 OIC received the requested documents from the Department. 8 September 2015 OIC conveyed a written preliminary view to the Department. OIC invited the Department to provide submissions in response to the preliminary view by 22 September 2015. OIC consulted with Screen Queensland Pty Ltd (Screen) and invited Screen to participate in the external review. OIC’s letter of consultation included a written preliminary view on the issues in the review. Screen was invited to provide submissions in reply to that preliminary view by 22 September 2015. 11 September 2015 The Department requested an extension of time, until 9 October 2015, to provide submissions in response to OIC’s preliminary view. OIC granted the Department an extension of time, until 9 October 2015, to provide submissions. 14 September 2015 Screen requested an extension of time, until 9 October 2015, to provide submissions in response to OIC’s preliminary view. OIC granted Screen an extension of time, until 9 October 2015, to provide submissions. 6 October 2015 The Department and Screen requested a further extension of time, until 16 October 2015, to provide submissions in response to OIC’s preliminary view. OIC granted the Department a further extension of time, until 16 October 2015, to provide submissions. 7 October 2015 OIC granted Screen a further extension of time, until 16 October 2015, to provide submissions. 16 October 2015 OIC received written submissions from Screen. OIC received written submissions from the Department. 17 December 2015 OIC conveyed a further written preliminary view to each of the Department and Screen. Both were invited to provide submissions in reply by 29 January 2016. Screen requested an extension of time to provide submissions in response to OIC’s further preliminary view. 18 December 2015 The Department requested an extension of time to provide submissions in response to OIC’s further preliminary view. 21 December 2015 OIC granted Screen and the Department an extension of time, until 19 February 2016, to provide submissions. 4 February 2016 OIC consulted with Disney and invited Disney to participate in the external review. OIC invited Disney to apply to participate and provide submissions in support of any objections to disclosure by 3 March 2016. 18 February 2016 Screen requested a further extension of time, until 26 February 2016, to provide submissions in response to OIC’s preliminary view. OIC granted Screen the requested extension of time to provide submissions. 19 February 2016 OIC received written submissions from the Department. 26 February 2016 OIC received written submissions from Screen. 2 March 2016 Disney requested an extension of time, until 10 March 2016, to provide submissions in response to OIC’s preliminary view. OIC granted Disney the requested extension of time to provide submissions. 10 March 2016 OIC received written submissions from Disney, including an application by Disney to participate in the review. 12 April 2016 OIC wrote to Screen, again inviting Screen to participate in the review. 14 April 2016 OIC wrote to Disney accepting its application to participate and conveying a written preliminary view. OIC invited Disney to provide submissions in response to the preliminary view by 28 April 2016. OIC conveyed an updated written preliminary view to the Department and requested the Department’s position concerning a procedural issue. 19 April 2016 Screen applied to participate in the review. The Department replied to OIC’s 14 April 2016 correspondence. 26 April 2016 Disney requested an extension of time, until 12 May 2016, to provide submissions in reply to OIC’s 14 April 2016 preliminary view. 28 April 2016 OIC granted Disney an extension of time, to 12 May 2016, to provide submissions. 3 May 2016 OIC wrote to Screen, advising that its application to participate in the review had been accepted. OIC further conveyed an updated preliminary view to Screen, and requested its position in relation to a procedural issue by 10 May 2016. 11 May 2016 Disney requested additional extension of time, until 26 May 2016, to provide submissions. 12 May 2016 OIC granted Disney an extension of time, until 26 May 2016, to provide submissions. 13 May 2016 OIC received written submissions from Disney. 31 May 2016 OIC conveyed a written preliminary view to the applicant, and invited the applicant to provide submissions in response to the preliminary view by 14 June 2016. No reply to that letter was received and, in accordance with its terms, the applicant was taken to have accepted the preliminary view. 1 June 2016 OIC received written submissions from the Department. 7 June 2016 OIC replied to the Department’s correspondence dated 1 June 2016, setting out a further preliminary view. 13 June 2016 OIC received further written submissions from Screen. 14 June 2016 OIC received additional written submissions from the Department. 20 June 2016 OIC received further written submissions from the Department. [1] Department of the Premier and Cabinet (Department) submissions dated 16 October 2015. See also the Department’s 2014-15 Annual Report, at page 92, which further records that Screen is an entity ‘100 percent controlled by the department’: p. 91.[2] Department’s Annual Report, 2014-15, p. 49. [3] Paragraph 35 of Screen’s submissions dated 26 February 2016.[4] The applicant originally specified a broader date range, but agreed to the narrower range stated after consulting with the Department.[5] Under section 47(3)(a), section 48 and schedule 3, section 8 of the RTI Act.[6] Under section 89 of the RTI Act.[7] Departmental and Screen submissions dated 16 October 2015, further developed in Departmental submissions dated 19 February 2016. In its 16 October 2015 submissions, the Department also argued for the application of the exemption prescribed in schedule 3, section 12 of the RTI Act. The information to which relevant submissions relate is the dollar figure noted in the preceding paragraph; information that is no longer in issue. Accordingly, it is not necessary to address those submissions in these reasons.[8] Section 23 of the RTI Act.[9] Section 47(3)(a) of the RTI Act.[10] Section 48 and schedule 3 of the RTI Act.[11] Schedule 3, section 2(1)(a) of the RTI Act[12] Schedule 3, section 2(1)(b) of the RTI Act.[13] Schedule 3, section 2(1)(c) of the RTI Act.[14] Which comprises Cabinet for the purposes of schedule 3, section 2 of the RTI Act: schedule 3, section 2(5).[15] Submissions dated 19 February 2016.[16] As above.[17] As above.[18] Presumably where it directly replicates text or information originally brought into existence for the consideration of Cabinet – ie, a ‘cut and paste’ of a segment appearing in, say, a Cabinet submission.[19] See particularly submissions dated 19 February 2016.[20] [1996] QICmr 21; (1996) 3 QAR 416. [21] At [43].[22] See pages 6-7 of the Department’s submissions dated 19 February 2016.[23] The division of the Department responsible, together with Screen, for administration of the film production incentive program which resulted in the grant to Disney the subject of the information in issue; at the time of the grant’s promulgation, Arts Queensland was housed in another Department.[24] A copy of which was annexed to the affidavit of Kirsten Herring dated 19 February 2016. The Department maintains that this and the bulk of the exhibits to Ms Herring’s affidavit and certain other parts of its submissions are confidential. I have therefore taken care to ensure the contents of such material is not disclosed in these reasons, and that it is referred to only as necessary to discharge my decision-making obligations under the RTI Act and the general law.[25] Schedule 3, section 2(1)(c) of the RTI Act. The phrase ‘State’s budgetary processes’ is not defined in the RTI Act, and thus must be construed according to its plain meaning. [26] Submissions dated 19 February 2016; affidavit of Kirsten Herring dated 19 February 2016.[27] ‘Walt Disney Studios to film fifth Pirates of the Caribbean movie in Queensland, Australia’, joint Commonwealth and Queensland Government media release dated 2 October 2014, accessible at https://www.attorneygeneral.gov.au/Mediareleases/Pages/2014/FourthQuarter/2October2014-WaltDisneyStudiostofilmfifthPiratesoftheCaribbeanmovieinQueenslandAustralia.aspx[28] The page containing the information in issue is undated, and I am not otherwise aware of the date of its creation; in view of the date range specified in the access application (as recorded in paragraph 3), it cannot, however, have been created any earlier than 13 March 2015. [29] As contained in contemporary press coverage – see, for example, ‘Pirates of the Caribbean 5 to be filmed in Queensland with a $100m economic windfall expected’, Courier-Mail, 2 October 2014 http://www.couriermail.com.au/news/queensland/pirates-of-the-caribbean-5-to-be-filmed-in-queensland-with-a-100m-economic-windfall-expected/news-story/755fc3ebc5ba1f658fe6496c9b5fc0c9, relating that the-then responsible Minister ‘confirmed the Queensland Government has provided incentives’.[30] Note 27.[31] The Department submits that I should accept that the briefing containing the information in issue was itself part of a qualifying budgetary process. For the reasons explained in paragraphs 33-35 below, I do not accept this proposition.[32] Paraphrasing Murphy J in Window v The Phosphate Co-Operative Co of Australia Ltd [1983] VicRp 88; [1983] 2 VR 287. In that case, His Honour considered the words ‘in the course of any trade carried on’ as appearing in section 63(2) of the Environment Protection Act 1979 (Vic). Having observed that the meaning of the words ‘in the course of’ ‘has been said to vary according to the context of the Act in which they appear’, His Honour went on to review various authorities, before concluding that ‘...for a discharge to occur “in the course of any trade carried on”, it must be shown that the discharge was connected with the trade or part of the trade.’ (My emphasis.) Given the context in which the expression appears in this case – an exemption provision in beneficial legislation otherwise intended to confer a right of access to government information, and to be interpreted with a pro-disclosure bias – I consider His Honour’s observations may be usefully applied in ascertaining the meaning of schedule 3, section 2(1(c) of the RTI Act. In considering this issue, I also had regard to the decision of the High Court in Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183, which involved analysis of the phrase ‘in the course of, or for the purposes of...discussion’, as had been used in section 377(8) of the Criminal Code 1899 (Qld). I cannot see anything in that judgment precluding me from approaching schedule 3, section 2(1)(c) in the manner as I have in this decision.[33] Whether concluded or continuing.[34] As with its claim under schedule 3, section 2(1)(a) of the RTI Act, the Department, as I understand both its 19 February 2016 submissions and further submissions dated 14 June 2016, seeks to bolster its claim under schedule 3, section 2(1)(c) with an argument similar to that summarised in paragraph 19. I do not accept this argument. The specific iteration or instance of information comprising the information in issue cannot, for reasons explained in this and the preceding three paragraphs, itself be said to have been brought into existence in the course of relevant budgetary processes.[35] 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) (FOI Act), at [44]. During the review, I did contemplate whether the information in issue came within the exception to the Breach of Confidence Exemption prescribed in schedule 3, section 8(2) of the RTI Act. However, assuming that relevant information otherwise satisfies the requirements of this provision (which the Department and Screen do not accept), it does not appear to have been created in the course of, or for the purposes of, the ‘deliberative processes of government’ as required by schedule 3, section 8(2).[36] In cases concerning disclosure of information that is claimed to be confidential, the facts may give rise to both an action for breach of contract and in equity, for breach of confidence. At general law, these are separate and distinct causes of action. An action for breach of confidence will only be established where particular requirements (enumerated in this and the preceding paragraph) are present. However, where a contractual term requiring confidentiality exists, disclosure (or threatened disclosure) of information may, in itself, only found an action for breach of contract: Callejo and Department of Immigration and Citizenship [2010] AATA 244 (Callejo) at paragraphs 163-166. See also TSO08G and Department of Health (Unreported, Queensland Information Commissioner, 13 December 2011).[37] B and BNRHA, at [57]-[58]. See also Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) and Another [1987] FCA 266; (1987) 14 FCR 434 at 437, per Gummow J. [38] Department’s submissions dated 19 February 2016, Disney’s submissions dated 10 March 2016.[39] Submissions dated 26 February 2016.[40] B and BNRHA, at [84], and see further paragraph 55 of these reasons.[41] B and BNRHA at [76].[42] In this regard, see the Information Commissioner’s observations as regards similar information in Aries Tours Pty Ltd and Environmental Protection Agency (Unreported, Queensland Information Commissioner, 28 March 2002), at [55].[43] See particularly the Department’s 19 February 2016 submissions, and affidavit of Kirsten Herring dated 19 February 2016.[44] Department’s submissions dated 19 February 2016.[45] Affidavit of Kirsten Herring dated 19 February 2016, paragraph 14. See also paragraph 17 of that affidavit, which attests to a process involving ‘discussion’ between Screen and various levels of government, and official Departmental and Queensland Treasury analysis of ‘the proposal and an appropriate response’.[46] Seeney, MP and Department of State Development; Berri Limited (Third Party) (2004) 6 QAR 354, at [191] (BerriI), citing 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 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 ([51]-[60]). See also Orth and Medical Board of Queensland; Cooke (Third Party) (2003) 6 QAR 209, at [34].[47] See respective submissions dated 19 and 26 February 2016.[48] Applying Administrative Appeals Tribunal (AAT) Deputy President Forgie’s reasoning that, to quote Screen’s submissions, the ‘founding of an action is separate and apart from the defences to that action’: Re Lobo v Department of Immigration and Citizenship [2011] AATA 705. See also Callejo, at paragraphs 180-185. [49] See paragraphs 42 and 55.[50] Preamble, (1)(a), (c) and (d).[51] B and BNRHA at paragraphs [84] and [82], 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.[52] Hopkins & Presotto and Department of Transport [1995] QICmr 28; (1995) 3 QAR 59.[53] Examples of which are exhibited to the affidavit of Kirsten Herring dated 19 February 2016.[54] See the receipt and acknowledgement of confidentiality dated 8 October 2014, a copy of which was enclosed with the Department and Screen’s initial submissions dated 16 October 2015.[55] Such as the acknowledgement noted above, a letter from Screen Queensland to Arts Queensland dated 23 September 2014 (exhibit ‘KH-7’ to the affidavit of Ms Herring dated 19 February 2014) and an email from Tracey Vieira of Screen dated 25 November 2014, forming part of exhibit ‘KH-10’ to Ms Herring’s 19 February 2016 affidavit.[56] Obligations of confidence ordinarily arising at the time relevant information is imparted: Coco v A N Clark (Engineers) Ltd [1969] RPC 41 per Megarry J, at paragraph 47. [57] Submission dated 10 March 2016.[58] See, for example, statutory declaration of Ms Vieira dated 16 October 2015, particularly paragraphs 5-7 and 8-9. See also letter from Disney to Screen dated 23 February 2016, accompanying Screen’s submissions dated 26 February 2016.[59] See note 27.[60] $21.6 million, according to the media release referred to in note 27.[61] On, as I understand, the State’s behalf.[62] See note 2 of Screen’s submissions dated 26 February 2016.[63] Purporting to bind Screen to keep certain information confidential.[64] Imposing confidentiality obligations on Disney.[65] As Screen, for example, contends: submissions dated 26 February 2016.[66] Whether express or implied.[67] See notes 54 and 55.[68] The involvement of which was confirmed and attested to by the Department: paragraph 27 and note 45.[69] Note 1.[70] Where the information claimed to require protection is government information, the High Court of Australia has indicated that detriment to the confider is a necessary element of an action for breach of confidence: Commonwealth of Australia v John Fairfax & Sons [1980] HCA 44; (1980) 147 CLR 39 per Mason J at paragraph 51-52. See also Director-General of Education v Public Service Association of NSW (1984) 79 FLR per McLelland J at paragraph 15 and 20 and Callejo, paragraphs 168 and 170.[71] Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 at paragraph 191.[72] As he then was.[73] [1980] HCA 44; (1980) 147 CLR 39.[74] Fairfax, at paragraph 52.[75] [1997] AATA 192.[76] Under the provision of the Freedom of Information Act 1982 (Cth) equivalent to schedule 3, section 8 of the RTI Act.[77] Internal citations and references omitted.[78] Deputy President Forgie, in Callejo, at paragraphs 167-172. [79] See for example Kalinga Wooloowin Residents Association Inc and Department of Employment, Economic Development and Innovation; City North Infrastructure Pty Ltd (Third Party) (Unreported, Queensland Information Commissioner, 19 December 2011) and Kalinga Wooloowin Residents Association Inc and Brisbane City Council; City North Infrastructure Pty Ltd (Third Party); Department of Treasury(Fourth Party)) (Unreported, Queensland Information Commissioner, 9 May 2012) (KWRA and BCC).[80] As opposed to the entity in Sullivan, which was merely majority government owned.[81] Note 1.[82] More than 80% of its revenue, on my calculations, deriving directly from State grant monies (using ‘Revenue and other income figures’ appearing on page 18 of Screen Queensland’s 2013-14 Financial report). See also paragraph 11 of the affidavit of Ms Herring dated 19 February 2016. [83] A relevant indicia: Sullivan, paragraph 27.[84] The books of the company considered in Sullivan having been subject to audit by the Commonwealth Auditor-General, a fact which SM Bayne noted was ‘by itself... some indication of the [company’s] public status...’ (paragraph 27).[85] Page 36.[86] As set out in its 19 February 2016 submissions.[87] Submissions dated 26 February 2016, paragraph 76(a).[88] Distinguishing between questions of fact and questions of law on occasion, or identifying the ‘dominant purpose’ for the creation of a given communication, by way of just two examples.[89] Submissions dated 26 February 2016, paragraph 77(a).[90] At paragraph 37.[91] The phrase 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.[92] Section 47(3)(b).[93] Schedule 4 of the RTI Act – a non-exhaustive itemisation of potentially relevant considerations. [94] Section 49(3) of the RTI Act.[95] Schedule 4, part 2, items 1, 2 and 4 of the RTI Act.[96] Dated 16 October 2015.[97] The words ‘could reasonably be expected’ as used throughout the RTI Act ‘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.: B and BNRHA, at [160]. Other authorities note that the words ‘require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous’ to expect a disclosure of the information in issue could have the prescribed consequences relied on.’: 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.[98] Schedule 4, part 3, items 2 and 15 of the RTI Act. Neither the Department or Screen sought to argue the application of the similarly worded ‘business affairs’ harm factor prescribed in schedule 4, part 4, section 7(1)(c) of the RTI Act. In any event, for reasons explained below, I do not consider it arises for consideration in the circumstances of this case.[99] Schedule 4, part 4, section 7(1)(b) of the RTI Act.[100] Schedule 4, part 3, item 12 of the RTI Act. The Department’s original submissions dated 16 October 2015 also cited schedule 4, part 3, item 22 of the RTI. The only information to which this factor could meaningfully relate is the dollar figure discussed at paragraph 12, which no longer remains in issue. Accordingly, it is not necessary to consider the factor further.[101] A public interest harm factor: Schedule 4, part 4, section 9(1)(a) of the RTI Act. Screen’s 26 February 2016 submissions citing this harm factor simply refer to ‘s. 9 of Part 4 of Schedule 4 to the RTI Act’, which actually contains two ‘sub’ factors – given the language with which relevant submissions are framed, it appears Screen was only intending to rely upon the sub-factor set out in schedule 4, part 4, section 9(1)(a), and I have only had regard to this provision in reaching my decision. Certainly, there is nothing before me to suggest disclosure of the information in issue could reasonably be expected to ‘expose any person or class of persons to an unfair advantage or disadvantage because of the premature disclosure of information concerning proposed action or inaction of the Assembly or government...’ for the purposes of the second sub-factor prescribed in schedule 4, part 4, section 9(1)(b) of the RTI Act.[102] Submissions dated 26 February 2016.[103] Schedule 4, part 3, items 2 and 15 and schedule 4, part 4, section 7(1)(c) of the RTI Act. Schedule 4, part 4, section 7(1)(c) is a public interest harm factor which will arise where, relevantly, disclosure of information could reasonably be expected to have an adverse effect upon an entity’s business etc affairs, or prejudice future supply of like information to government. Disney has not argued that disclosure would have an ‘adverse effect’; in view, however, of its arguments as to commercial/business prejudice and its citation of the second form of prejudice – prejudice to future supply of information – prescribed in this provision, I have, for the sake of completeness, had regard to it in reaching my decision.[104] Schedule 4, part 4, section 7(1)(c)(ii) of the RTI Act. A broadly similar nondisclosure factor will arise where disclosure could reasonably be expected to prejudice an agency’s ability to obtain confidential information: schedule 4, part 3, item 16 of the RTI Act.[105] Schedule 4, part 3, item 17 of the RTI Act.[106] Submissions dated 16 October 2015 (footnotes omitted).[107] Nor the Department, insofar as it is involved in the administration of film production incentives.[108] First cited at note 46. The FOI Act was amended following this decision to include a provision allowing for the exemption from disclosure of investment incentive scheme information in certain defined circumstances, for certain defined periods. That exemption was carried forward into the RTI Act: schedule 3, section 11. It does not, however, have application to the information in issue in this case, and I cannot see that its enactment invalidates relevant aspects of the Information Commissioner’s reasoning in Berri.[109] The amount of a grant paid to a beverage manufacturer.[110] Contained in the FOI Act.[111] Schedule 4, part 4, item 2 of the RTI Act.[112] And, indeed, schedule 4, part 4, section 7(1)(c) of the RTI Act, which is worded identically to section 45(1)(c) of the repealed FOI Act; as noted, none of the Objecting Participants expressly argued the application of schedule 4, part 4, section 7(1)(c) of the RTI Act – it should be apparent from the discussion in these paragraphs that I do not consider it can have any application, at least as regards Screen (or the Department).[113] Submissions dated 19 February 2016.[114] Submissions dated 26 February 2016, amplified by further submissions dated 13 June 2016.[115] Section 87(1) of the RTI Act.[116] Of, for the sake of completeness, schedule 4, part 4, section 7(1)(c) of the RTI Act.[117] Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 at [54]- [55] (Cannon), considering section 45(1), a similar exemption which appeared in the FOI Act. The information must have a commercial value at the time that the decision is made; information which was once valuable may become aged or out-of-date such that it has no remaining commercial value: [56].[118] Which, as discussed above, I do not: paragraph 112.[119] Which, indeed, appears to have been exactly what occurred in this case. Disney seems to have actively ‘forum-shopped’ prior to settling on Queensland as a preferred production locale: the media report cited in note 29, for example, records that Screen ‘beat off competition from Mexico and other Australian states to win the production’. It seems to me that such behaviour – and associated ‘bidding wars’ – occurs and will continue to occur irrespective of whether the information in issue in this review is released.[120] In its 2015 report ‘Industry Assistance in Queensland’, the Queensland Competition Authority (QCA) noted a correlation between the exchange rate and foreign film production in Australia, suggesting that ‘while incentive payments may affect some production decisions at the margin, the exchange rate may overwhelm other factors influencing the location decisions of foreign producers.’: QCA, Industry Assistance in Queensland: Final Report (July 2015) (Industry Assistance Report), p. 163. The QCA is an independent statutory authority established under the Queensland Competition Authority Act 1997 (Qld). Section 10(e) of that Act invests the QCA with responsibility for investigating and reporting on matters relating to competition, industry or productivity at the direction of the responsible Minister.[121] Submissions dated 26 February 2016.[122] The initialisation ‘PIP’ used in these submissions refers to the Incentive Payment. The substance of this ‘PIP’ is reflected in the information in issue.[123] And further submissions expanding on the paragraphs I have extracted, set out at paragraphs 90-122 of Screen’s 26 February 2016 submissions.[124] Which I take to be an argument that disclosure of the information in issue would reduce the potency or effectiveness of future incentive offers, rather than destroy Screen’s capacity to deploy them altogether; I am unable to see any tenable basis on which the latter position could be sustainably put – release of the amount of a past grant would not in any way preclude Screen from making future offers.[125] And further material lodged by Screen in support of same, dated 13 June 2016.[126] See Berri, at [115]. [127] Schedule 4, part 3, item 12 of the RTI Act, which as noted was cited in the Department and Screen’s joint submissions dated 16 October 2015, and schedule 4, part 4, section 9(1)(a) of the RTI Act, a harm factor raised in Screen’s February 2016 submissions.[128] The meaning to be given to the word ‘substantial’ in this context: Cairns Port Authority and Department of Lands [1994] QICmr 17; (1994) 1 QAR 663, at [148]-[150].[129] Contained in its 26 February 2016 submissions.[130] Relevantly, section 44 of the RTI Act.[131] The type of harms relevantly required by these provisions: see the Information Commissioner’s analysis of the substantially similar exemption provision contained in the FOI Act in Cannon, at [82]-[84]. This analysis has been adopted for the purposes of schedule 3, part 3, items 2 and 15 and schedule 4, part 4, section 7(1)(c) of the RTI Act: see, for example, KWRA and BCC, at [89].[132] Note 60.[133] Assuming, for the sake of argument, that information in issue can actually be said to be information communicated by Disney to Screen and/or the Department, noting my view that relevant information is properly characterised as information communicated to Disney: see paragraphs 44 and 47.[134] In view of the RTI Act’s express pro-disclosure bias.[135] First cited at note 120.[136] Page vi.[137] ‘Key points’, page 59 (footnotes omitted).[138] Industry Assistance Report, pages 160-161.[139] See discussion of ‘Findings’, at pages 167-168. [140] Page 168.[141] Put, for example, by the Department and Screen in their initial submissions dated 16 October 2015.[142] In this regard, I accept Screen’s submissions and evidence to the effect that film production incentives do generate objectively verifiable domestic economic activity (as set out, for example, at paragraphs 16-21 of its 26 February 2016 submissions); the crucial issue, however, is whether that activity and other less tangible benefits outweigh the costs incurred by taxpayers. [143] In this context, I do not accept the 16 October 2015 submission of Screen and the Department that disclosure of the information in issue ‘without sufficient context of the terms and conditions that attach to this payment’ would not permit effective oversight of public funds. Disclosure of this information alone would, in my view, permit scrutiny and economic analysis of the kind alluded to in this paragraph and elsewhere in these reasons. If the Department (or Screen) hold concerns that such analysis may suffer if additional information was not also taken into account, then it would be open to these entities to make same available to interested parties.[144] Eg, letter from the Chief Executive Officer of Ausfilm dated 18 February 2016. See also Screen’s additional submissions dated 13 June 2016.[145] Submissions dated 26 February 2016.[146] As above, paragraph 44.[147] In its 26 February 2016 submissions, Screen also seized on the QCA’s criticisms of the lack of transparency around film industry assistance, and the consequent obstacle to objective economic assessment posed by such opacity, arguing that such a caveat called into question whether the ‘QCA Report can be safely relied upon given that the QCA itself noted that there were accuracy issues.’ (Paragraph 43(f)(i).) The point is, however, that any such ‘accuracy issues’ flow directly from the lack of available information, such as that in issue in this review – in other words, it is the very absence of transparency identified by the QCA that hinders objective analysis as to whether film industry assistance delivers net benefits. Far from constituting a reason not to adopt the QCA’s analysis, any lack of certainty as to the outcomes delivered by film incentives simply heightens the public interest in disclosure of the information in issue, in order that clarity might be obtained.[148] It should be noted that these particular submissions were made in the context of addressing public interest matters relevant to a consideration of the Fairfax Doctrine which, for reasons explained at paragraphs 72-77, inform the application of the Breach of Confidence Exemption in this case; they are nevertheless pertinent to the public interest balancing exercise prescribed by sections 47(3)(b) and 49 of the RTI Act.[149] Having argued that disclosure of the information in issue would occasion various prejudices, a contention which I do not accept, for reasons previously explained.[150] See the Act’s Preamble.[151] Director-General, Department of Families, Youth and Community Care and Department of Education and Ors [1997] QICmr 2; (1997) 3 QAR 459 at [19(a)]. See also Pearce and Queensland Rural Adjustment Authority; Third Parties (Unreported, Queensland Information Commissioner, 4 November 1999), at [70].[152] See City North Infrastructure Pty Ltd v Information Commissioner [2010] QCATA 060, noting that this is not an issue I am required to determine in this review.[153] Including, critically, the fact that any document it communicates to or otherwise delivers into the possession or control of an agency such as the Department will be a ‘document of an agency’ within the meaning of section 12 of the RTI Act, and thus subject to the operation of the Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Higgins and Education Queensland [1999] QICmr 13 (31 March 1999)

Higgins and Education Queensland [1999] QICmr 13 (31 March 1999) Higgins and Education Queensland (S 200/98, 31 March 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 This is a 'reverse FOI' application by Dr Higgins, who objects to a decision by the respondent, Education Queensland (the Department), to give the FOI access applicant (----) access to certain documents and parts of documents relating to aspects of Dr Higgins' employment with the Department. By letter dated 31 August 1998, [the access applicant] applied to the Department for access to a number of categories of documents concerning Dr Higgins' employment with the Department, and matters ancillary to that employment. On 2 October 1998, the Department consulted with Dr Higgins in order to ascertain whether he objected to disclosure of the requested documents, which were contained in numerous files held by the Department. In a letter to the Department dated 14 October 1998, Dr Higgins expressed his objection to disclosure of the bulk of the relevant documents. By letter dated 5 November 1998, Ms Lone Keast of the Department advised Dr Higgins that, contrary to his objection, she had decided that only parts of a small number of the documents in issue qualified for exemption from disclosure under s.44(1) of the FOI Act - matter affecting personal affairs. Ms Keast decided that the remaining documents and parts of documents did not qualify for exemption, and that [the access applicant] therefore had a right to obtain access to them. By letter dated 14 November 1998, Dr Higgins applied to the Department for internal review of Ms Keast's decision to grant [the access applicant] access to the bulk of the documents in issue. Ms Storey of the Department conducted the internal review and affirmed Ms Keast's decision. By letter dated 9 December 1998, Dr Higgins applied to me for review, under Part 5 of the FOI Act, of Ms Storey's decision. External review process Copies of the documents in issue were obtained from the Department and examined. The documents were sourced from files concerning earlier FOI access applications made to the Department by [the access applicant], from Dr Higgins' personnel file held by the Department (including copies of Dr Higgins' curriculum vitae, responses to selection criteria and documents and correspondence regarding Dr Higgins' resignation from the Department), and from the file of the relevant selection panel with respect to Dr Higgins' successful application for the position of Senior Policy Officer, Policy and Project Support Unit, with the Department. Following a telephone consultation between one of my officers and Dr Higgins on 1 February 1999, Dr Higgins advised that he sought review only in respect of Ms Storey's decision to disclose the following folios, or parts of folios (hereinafter referred to as "the matter in issue"): File C: folios 3-25, 32-54 and 72; File D: folios 3-25, 28-32, 41, 43, 52-54 and 63; File J: folios 4-6; File L: folios 5-6, 9, 13, 14, 16, 17, 18, 20-24, 30-35, 46, 48, 56-58, 80-85, and 110- 112; File Z: folios 5-19, 26 and 28-29; and File AB: folios 32-86. By letter dated 19 January 1999, the Deputy Information Commissioner invited [the access applicant], in accordance with s.78 of the FOI Act, to apply to become a participant in this review. [the access applicant] applied for, and was granted, status as a participant in this review. By letter dated 16 February 1999, I wrote to Dr Higgins to advise him that I had reviewed the matter in issue and formed the preliminary view that it did not qualify for exemption under the FOI Act. In the event that he did not accept my preliminary view, Dr Higgins was invited to lodge written submissions and/or evidence in support of his case for exemption. By facsimile letter dated 22 February 1999, Dr Higgins raised issues which indicated that he did not accept my preliminary view. By letter dated 23 February 1999, I asked Dr Higgins to confirm whether his letter dated 22 February 1999 was intended to be the only material on which he relied to support his case in this review. By facsimile letter dated 8 March 1999, Dr Higgins confirmed that his letter dated 22 February 1999 was the only material which he wished to lodge in support of his case. In light of the preliminary view I had formed that the matter in issue did not qualify for exemption under the FOI Act, and given that I did not consider that the matters raised by Dr Higgins in his letter dated 22 February 1999 required any response by the Department or [the access applicant], I saw no need to invite either of those parties to lodge any written submissions and/or evidence in support of their cases for disclosure of the matter in issue. Accordingly, the only material before me, for the purposes of making a determination in relation to this external review, is that provided by Dr Higgins in his application for internal review dated 14 November 1998, his application for external review dated 9 December 1998, and his facsimile letter dated 22 February 1999, together with the relevant decisions of the Department, and the documents containing or comprising the matter in issue. The submissions and evidence lodged by Dr Higgins Dr Higgins raised a number of issues in support of his objection to disclosure of the matter in issue. In particular, Dr Higgins said (in his application for internal review dated 14 November 1998): ... I note that the decision maker states that she does not hold the view that my employment status elsewhere is my personal affair. I cannot agree with this view. Clearly, in my present capacity I am not employed by any Queensland agency, or any Australian agency, and cannot see how any information held by the Queensland Government about my employment matters elsewhere can be subject to the Queensland FOI Act. It may be that Education Queensland holds the information for communication purposes. That does not, in my view, give it the right to release the data to others as if Education Queensland owned the information itself. ... ... In summary, I object to the release of information over which I can claim copyright ownership and to that over which I may have a copyright interest. I also object to the release of information about me that is held by the government merely as a means of communication with me but over which it has no ownership. ... Attached to Dr Higgins' application for external review was a letter which he had sent to the Department, in which he said: ... I wish to object to your decision to release certain information concerning my current place of work and any documents consisting of my curriculum vitae for the following reason. Section 7 of the F.O.I [Act] states "document of an agency" or "document of the agency" means a document in the possession or 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 a document in the possession or under the control of an officer of the agency in the officer's official capacity. I submit that the documents under discussion do not meet these tests because: 1. The documents are in the possession of Education Queensland but they are not "under the control" of the agency. These documents are under the control of the author according to Copyright Act. This [is] a Commonwealth Act and its provision supersedes any State Acts, including the FOI Act (Qld). Under this test of statutory interpretation, Education Queensland has no legally valid "control" over the relevant documents and cannot be bound by decisions of the Information Commissioner, who has no power to determine matters under Commonwealth law. 2. In Holt and Reeves (decision 98004), the Information Commissioner claims that physical possession of documents is sufficient to make them documents of the agency. I submit that this interpretation offered by the Commissioner is a mistake of law. Nowhere in the common law jurisdiction is there a confusion between having possession of an item and claiming legal ownership of it. There is a large amount of precedent in the areas of contract and consumer law that clearly distinguishes between who has possession of an item and who has legal title to it. In this instance there is no doubt that the author of [a] curriculum vitae and other related documents has legal ownership of both the documents and the facts or ideas contained therein, including such things as work address, In other words, I possess the legal title and ownership of these documents. In summary, neither the Information Commissioner nor Education Queensland can claim legal control of the documents in question because of the operation of the Copyright Act. Also, the Information Commissioner and Education Queensland have no legal title over the documents in question. Dr Higgins' arguments in support of his case for exemption of the matter in issue can be summarised as follows: (a) information concerning Dr Higgins' employment status outside the Queensland government is information which concerns his personal affairs and is exempt from disclosure to [the access applicant] under s.44(1) of the FOI Act; (b) documents containing information concerning Dr Higgins' current place of work and documents comprising Dr Higgins' curriculum vitae are not "documents of an agency" within the meaning of s.7 of the FOI Act; (c) documents in respect of which Dr Higgins claims copyright ownership should not be disclosed to the access applicant. In his facsimile letter dated 22 February 1999, written in response to the Information Commissioner's letter dated 16 February 1999, Dr Higgins raised the following argument: You have dealt with the legal aspect of my objection to the release of material to the initial applicant. This person has commenced searches of my files in other States and with other institutions in Queensland. I remind you of the decision made in Re Stewart: In Re Stewart v Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, the Information Commissioner said "In my opinion, the appropriate guiding principle when difficult and marginal cases are encountered in the grey area should be that [the] phrase "personal affairs of a person" extends to the kinds [of] information concerning the affairs of a person which a notional reasonable bystander, applying the current community standards of persons of ordinary sensibilities, would regard as information the dissemination of which (whose affairs the information concerns) ought to be entitled to control, and hence, which should be capable of being claimed to be exempt from mandatory disclosure under the FOI Act." It seems to me that the application of the reasonable person test (an equitable one) should be applied to these documents. What reasonable person would expect his or her documents to be given over to an applicant who seeks anonymity and who has no apparent reason for wanting the information other than to carry on some kind of harassment against a person's family? I would suggest that the above test in Re Stewart is the proper test to apply in this circumstance and should be applied by the decision-maker in respect of documents to be released or released in part. The 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 my reasons for decision in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, I identified the various provisions of the FOI Act which employ the term "personal affairs", and discussed in detail the meaning of the phrase "personal affairs of a person" (and relevant variations thereof) as it appears in the FOI Act (see paragraphs 79-114 of Re Stewart). In particular, I said that information concerns "the personal affairs of a person" if it relates to the private aspects of a person's life and that, while there may be a substantial grey area within the ambit of the phrase "personal affairs", that phrase has a well-accepted core meaning which includes: family and marital relationships; health or ill-health; relationships and emotional ties with other people; and domestic responsibilities or financial obligations. Whether or not matter contained in a document comprises information concerning an individual's personal affairs is essentially a question of fact, to be determined according to the proper characterisation of the information in question. In Re Stewart at pp.261-264 (paragraphs 91-102), I said that employment-related matters fell within the grey area rather than within the core meaning of the phrase "personal affairs of a person". In my decision in Re Pope and Queensland Health [1994] QICmr 16; (1994) 1 QAR 616, after reviewing relevant authorities (at pp.658-660), I expressed the following conclusion at p.660 (paragraph 116): Based on the authorities to which I have referred, I consider that it should now be accepted in Queensland that information which merely concerns the performance by a government employee of his or her employment duties (i.e., which does not stray into the realm of personal affairs in the manner contemplated in the Dyrenfurth case) is ordinarily incapable of being properly characterised as information concerning the employee's "personal affairs" for the purposes of the FOI Act. The general approach evidenced in this passage was endorsed by de Jersey J (as he then was) of the Supreme Court of Queensland in State of Queensland v Albietz [1996] 1 Qd R 215, at pp.221-222. In reviewing relevant authorities in Re Pope, I had specifically endorsed the following observations, concerning s.33(1) (the personal affairs exemption) of the Freedom of Information Act 1982 Vic, made by Eames J of the Supreme Court of Victoria in University of Melbourne v Robinson [1993] VicRp 67; [1993] 2 VR 177 at p.187: The reference to the "personal affairs of any person" suggests to me that a distinction has been drawn by the legislature between those aspects of an individual's life which might be said to be of a private character and those relating to or arising from any position, office or public activity with which the person occupies his or her time. [emphasis added] The folios in issue which contain information about Dr Higgins' employment outside Queensland and/or outside the Queensland government, and which he contends is information concerning his personal affairs under s.44(1) of the FOI Act, are as follows: File J: folios 4, 5 and 6; File L: folios 6, 9, 13, 17, 22, 23, 30, 31, 34, 48, 57, 110, 111 and 112; and File Z: folio 26. I note that in her internal review decision dated 24 November 1998, Ms Storey identified folios 14, 46 and 82 on File L as also containing information about Dr Higgins' employment outside Queensland and/or the Queensland government. I have reviewed those folios and they do not appear to contain information of that kind. For example, folio 14 appears to relate to Dr Higgins' employment at James Cook University. In any event, I have formed the preliminary view that none of those folios qualifies for exemption under the FOI Act, for reasons which I will discuss below. However, I note that Dr Higgins may be entitled to make a claim for copyright ownership in respect of folios 46 and 82. I will discuss the issue of copyright further below. In addition, I consider that folio 29 on File Z, which was not identified by Ms Storey as falling within this category of documents, contains information about Dr Higgins' employment outside the Queensland government. I therefore will include that folio in my consideration of this issue. I do not accept the applicant's argument that information concerning the employment affairs of an individual can be characterised as either personal affairs information or non-personal affairs information according to the location at which that individual is employed (i.e., whether it is within Queensland, interstate, or overseas) or the nature of the particular job that that individual is performing (i.e., whether it is public or private sector employment). If matter is correctly identified as falling within the scope of the relevant FOI access application, and is properly to be characterised as information concerning an individual's employment affairs (and which does not stray into the realm of personal affairs in the manner contemplated in the Department of Social Security v Dyrenfurth [1988] FCA 148; (1988) 80 ALR 533), then it will not qualify for exemption under s.44(1) of the FOI Act. Accordingly, I find that the information contained in the folios listed above which concerns Dr Higgins' employment affairs outside Queensland, or outside the Queensland government (in particular, information which identifies the name of Dr Higgins' current employer, the postal address of his employer and the telephone, facsimile and Email details of his employer), is not exempt matter under s.44(1) of the FOI Act. Dr Higgins has raised a particular objection to the disclosure of his Email address at the University of Otago, where he is currently employed (see folio 5 on File J and folio 111 on File L). In my letter to Dr Higgins dated 16 February 1999, I invited Dr Higgins to lodge a submission and/or evidence aimed at demonstrating that that Email address is a personal address, unconnected to his employment with the University, and which he funds himself and uses primarily as a personal mailbox. Dr Higgins did not, however, provide any submission or evidence to support his claim for exemption in respect of the Email address. Accordingly, I find that references to the Email address as contained in the matter in issue is information which concerns Dr Higgins' employment affairs rather than his personal affairs, and therefore does not qualify for exemption from disclosure under s.44(1) of the FOI Act. Section 7 of the FOI Act - "document of an agency" The definition of "document of an agency" or "document of the agency" contained in s.7 of the FOI Act determines whether particular documents are subject to the FOI Act. The definition states: "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; A document which is in the possession, or under the control, of an agency, will be a document of that agency for the purposes of the FOI Act. In Re Holt & Reeves and Education Queensland (Decision No. 98004, Information Commissioner Qld, 20 April 1998, unreported), I explained my reasons for finding that, notwithstanding the meaning which the term "possession" may have in other legal contexts, its meaning in the context of the definition of "document of an agency" in s.7 of the FOI Act, must be as follows (at paragraph 21): I consider that the word "possession" in the above definition is properly to be construed as meaning physical possession, rather than legal possession (i.e., possession based on legal ownership of property in a document). The submissions of the applicant have not persuaded me that my view was incorrect. It is clear that the documents in issue are in the physical possession of the Department. As far as I am aware, they are lawfully in the Department's possession. Dr Higgins supplied the bulk of the matter in issue to the Department during the course of his employment with the Department, or in corresponding with the Department about matters ancillary to his employment. As I stated at paragraph 28 of Re Holt & Reeves, persons who forward documents to government agencies ordinarily do so on the basis that property in the document passes to the recipient agency which is to retain and use the document for its administrative purposes. Accordingly, I find, regardless of any issue as to ownership of the documents, they are presently "documents of an agency" within the meaning of s.7 of the FOI Act, and they will be subject to the application of the FOI Act for so long as they remain in the possession of the Department. Copyright In her internal review decision dated 24 November 1998, Ms Storey affirmed the decision of the initial FOI decision maker, Ms Keast, to the effect that Dr Higgins has a valid claim of copyright in the following folios: File C: folios 3-25, 32-54 and 72; File D: folios 3-25, 28-32, 41, 43, 52-54 and 63; File J: folio 5; File L: folios 5-6, 16, 18, 20-24, 30-35, 46, 56-58, 80-85 and 111; File Z: folios 5-19 and 28-29; and File AB: folios 32-86. An assertion that a person owns copyright in a particular document held by a government agency cannot defeat the general right of access (conferred by s.21 of the FOI Act) to any information contained in a particular document which is not exempt matter under the FOI Act. Some of the applicant's submissions appear to be based on misconceptions about copyright law. A person who purchases a book obtains legal ownership of it, and can do with it what he/she likes (e.g., show it, or loan it, to a friend), except copy it in a manner that infringes the author's rights under the Copyright Act. A claim of copyright does not, of itself, afford a ground of exemption under the FOI Act, or a ground for withholding access (other than by way of provision of a photocopy). Section 30(3)(c) of the FOI Act provides: 30(3) If giving access in the form requested by the applicant— ... (c) would involve an infringement of the copyright of a person other than the State; access in that form may be refused and given in another form. Section 30(3)(c) of the FOI Act provides, in effect, that if giving access to particular documents by way of provision of copies would involve an infringement of the copyright of a person other than the State, then access must be given in another form. Ordinarily, in such circumstances, access would be given by way of inspection only. In a review under Part 5 of the FOI Act, it is my function to determine whether or not the matter in issue is exempt matter under the FOI Act. Any issue relating to copyright and the form of access which an agency can or should permit in respect of non-exempt matter, is an issue which must be taken up directly with the relevant agency. I do not have jurisdiction to determine the merits of a claim that copyright subsists in certain documents. The relevant agency must do its best to make the relevant inquiries and decide that issue. In this case, it appears that the Department has accepted Dr Higgins' assertion that copyright subsists in certain documents. DECISION For the foregoing reasons, I affirm the decisions under review.

queensland

court_judgement

Queensland Information Commissioner 1993-

Endeavour Foundation and Department of Communities, Child Safety and Disability Services [2017] QICmr 61; 32SGRU (Third Party) [2017] QICmr 37 (31 August 2017)

Endeavour Foundation and Department of Communities, Child Safety and Disability Services [2017] QICmr 61; 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-

Mathews and Attorney-General and Minister for Justice [2013] QICmr 14 (20 May 2013)

Mathews and Attorney-General and Minister for Justice [2013] QICmr 14 (20 May 2013) Last Updated: 27 August 2013 Decision and Reasons for Decision Application Number: 311324 Applicant: Mathews Respondent: Attorney-General and Minister for Justice Decision Date: 20 May 2013 Catchwords: ADMINISTRATIVE LAW – INFORMATION PRIVACY ACT – noncompliance with application requirement – section 53 of the Information Privacy Act 2009 (Qld) – whether the agency was entitled to decide an application does not comply with all relevant application requirements – requirement to provide evidence of identity – electronic submission of certified identification REASONS FOR DECISION Summary The applicant requested documents from the Attorney-General and Minister for Justice under the Information Privacy Act 2009 (Qld) (IP Act). The Department of Justice and Attorney-General (Department) was directed to deal with the access application.[1] In making an access application, an applicant must provide evidence of identity. In this case, the applicant emailed the Department a certified copy of his identification. The Department requested that he provide an original certified copy of the identification. The applicant did not provide the original certified copy as requested and the Department decided that the access application was noncompliant with the application requirements. The Department affirmed its decision on internal review. The applicant then applied to the Office of the Information Commissioner (OIC) for external review of the Department’s internal review decision that the application did not comply with the relevant application requirements. For the reasons set out below, I am satisfied that the Department has the discretion to decide whether to accept electronic submission of certified identification and, in the circumstances, was entitled to decide that the access application did not comply with the relevant application requirements under section 53(5) of the IP Act. Background Significant procedural steps relating to the application and the external review are set out in the appendix to this decision. Reviewable decision The decision under review is the Department’s internal review decision dated 21 December 2012 that the access application does not comply with the relevant application requirements under section 53(5) of the IP Act. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including footnotes and appendix). Issue for determination In an attempt to informally resolve this external review, OIC asked if the Department would accept electronic submission of a certified copy of the applicant’s identification if the applicant made a fresh application to the Department. The Department advised OIC that it was prepared to accept the identification in this format from the applicant in these circumstances. However, the applicant elected to proceed with the external review and did not agree to make a fresh application to the Department. As the Department had issued a decision to not accept the applicant’s evidence of identity, the OIC had no power to remit and the Department had no power to then process the access application which is the subject of this external review.[2] Therefore, the issue for determination is whether the Department was entitled to refuse to deal with the access application on the basis that it did not comply with the relevant application requirements under the IP Act. Relevant law In making an access application, an applicant must provide evidence of identity either with the application or within 10 business days after making the application.[3] Evidence of identity means a document verifying the person’s identity and relevantly includes a passport, copy of a certificate or extract from a register of births, driver licence, or a statutory declaration from an individual who has known the person for at least 1 year.[4] If a document is a photocopy of an original document, the document must be certified by a qualified witness as being a correct copy of the original document.[5] If a person purports to make an access application and the application does not comply with all relevant application requirements, the agency must:[6] make reasonable efforts to contact the person within 15 business days after the purported application is received inform the person how the application does not comply with the relevant application requirement; and give the applicant a reasonable opportunity to consult with a view to making the application in a form complying with all relevant application requirements. If, after giving the applicant a reasonable opportunity to consult with a view to making the application in a form complying with all relevant application requirements, the agency then decides that the application does not comply with all such requirements, the agency must give the applicant prescribed written notice of the decision.[7] Findings To provide evidence of his identity, the applicant emailed the Department: a certified photocopy of his birth certificate; and an uncertified photocopy of his driver licence. The Department notified the applicant that the access application was noncompliant with the application requirements and requested that he provide an original certified copy of his birth certificate by post. The applicant did not provide the identification in this format and the Department decided that the access application did not comply with the application requirements. Section 16 of the Electronic Transactions (Queensland) Act 2001 (Qld) provides that if, under a State law, a person is required to produce a document that is in the form of paper, an article or other material, the requirement is taken to have been met if the person produces, by an electronic communication, an electronic form of the document in the following circumstances: having regard to all the relevant circumstances when the communication was sent, the method of generating the electronic form of the document provided a reliable way of maintaining the integrity of the information contained in the document[8] when the communication was sent, it was reasonable to expect the information contained in the electronic form of the document would be readily accessible so as to be useable for subsequent reference; and the person to whom the document is required to be produced consents to the production, by an electronic communication, of an electronic form of the document. Based on this provision, I am satisfied that a decision-maker has the discretion to decide whether to accept evidence of identity electronically. Agencies may require the documents to be provided by post in specific circumstances, for example where the applicant’s personal information is of a particularly sensitive nature, or if there are any concerns about the integrity of the document’s information regarding the applicant’s identity or an agent’s authority. In the circumstances of this case, the Department did not exercise the discretion to accept evidence of the applicant’s identity electronically. I find that the Department was entitled to decide that the access application does not comply with the relevant application requirements under section 53(5) of the IP Act. The applicant provided submissions supporting his case, most of which are irrelevant to the issue for determination and are not addressed in these reasons for decision. Otherwise, in summary, the applicant submits that: he is a disabled person with special needs and decision-makers must consider how these special needs can be accommodated his special needs can be accommodated by asking the Department to process the access application immediately there has been disability discrimination by not accommodating his special needs; and the relevant law is inconsistent with Commonwealth law and invalid to the extent of the inconsistency. I do not propose to entertain these submissions as they traverse issues and legislation outside my jurisdiction. Confining myself to a consideration of the issues that are within my jurisdiction,[9] I simply reiterate that the Department had the discretion to decide whether to accept the applicant’s evidence of identity electronically, and chose not to exercise that discretion. In my view, it was open for the Department to do so, and it would be inappropriate for me to revisit the Department’s decision. This is particularly so, given that the issue is now largely theoretical. As noted above,[10] some months ago, during informal resolution processes undertaken in the course of this review, the Department agreed to accept an electronic submission of certified identification from the applicant with a resubmitted application. This option would, within the legislative framework of this jurisdiction,[11] address in practical terms any detriment which, in the applicant’s view, he has suffered. DECISION For the reasons set out above, I affirm the decision under review and find that the Department was entitled to refuse to deal with the access application on the basis that it does not comply with the relevant application requirements under section 53 of the IP Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. ________________________ Anna Rickard Acting Assistant Information Commissioner Date: 20 May 2013 APPENDIX Significant procedural steps Date Event 31 October 2012 The access application was received by the Office of the Attorney-General and Minister for Justice. The Minister directed the Department deal with the access application under section 51 of the IP Act. 1 November 2012 The Department received the access application. 2 November 2012 The Department notified the applicant that the access application would be deemed noncompliant if he did not provide an original certified copy of his identification by 16 November 2012. The applicant emailed the Department a certified photocopy of a birth certificate. The Department asked the applicant to post the original certified copy of the birth certificate. The applicant explained to the Department that he is disabled and that it would be “an exceptional impost” on him to obtain the original certified copy of the birth certificate. 5 November 2012 The Department notified the applicant that the access application was noncompliant with the relevant application requirements of section 43 of the IP Act and requested he provide the original certified copy of the birth certificate. The applicant emailed the Department an uncertified copy of his driver licence. 16 November 2012 The Department notified the applicant the access application was still noncompliant and allowed him until 23 November 2012 to provide an original certified copy of the identification. 26 November 2012 The Department gave the applicant prescribed written notice of its decision that the access application did not comply with the relevant application requirements. The applicant applied for internal review of the decision. 21 December 2012 The Department affirmed the initial decision. The applicant applied to OIC for external review of the internal review decision. 2 January 2013 OIC asked the Department to provide documents relating to the application (access application, decision, internal review application, internal review decision, and other relevant correspondence) by 7 January 2013. 8 January 2013 OIC received the requested documents from the Department. 29 January 2013 OIC asked the Department to advise by 8 February 2013 whether it would accept electronic submission of the applicant’s certified identification if the applicant made a fresh application to the Department. 15 February 2013 The Department agreed to accept electronic submission of the applicant’s certified identification. 20 February 2013 OIC asked the applicant whether he would informally resolve the external review by agreeing to make a fresh application to the Department and submitting an electronic copy of the identification. The applicant notified OIC that he did not agree to informally resolve the external review on this basis. 21 February 2013 The applicant provided submissions supporting his case. OIC again asked whether the applicant would informally resolve the external review by agreeing to make a fresh application to the Department and submitting an electronic copy of the identification. 23 February 2013 The applicant provided submissions supporting his case. 19 March 2013 OIC indicated the next steps to the applicant and asked if he wished to proceed with the external review. The applicant confirmed that he wished to proceed with the external review. 12 April 2013 OIC conveyed its view to the applicant that the Department’s decision to refuse to deal with the access application was made in accordance with the IP Act and invited the applicant to provide submissions supporting his case by 29 April 2013 if he did not accept the view. The applicant did not accept OIC’s view and provided submissions supporting his case. [1] Section 51 of the IP Act. [2] In contrast to circumstances where a decision is deemed and the agency or Minister applies for further time – see section 106 of the IP Act.[3] Section 43(3)(a) of the IP Act. [4] Section 3(1) of the Information Privacy Regulation 2009 (Qld) (IP Regulation).[5] Section 3(2) of the IP Regulation.[6] Section 53(2) and (3) of the IP Act. [7] Section 53(5) of the IP Act. [8] Section 16(3) of the Electronic Transactions (Queensland) Act 2001 (Qld) 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.[9] That is, the issues related to the law canvassed at paragraphs 10-12 and 15 above.[10] See paragraph 8. [11] As mentioned above at paragraph 8, OIC has no power to remit and the Department has no power to then process the access application.

queensland

court_judgement

Queensland Information Commissioner 1993-

Park and Moreton Bay Regional Council; Orora Limited (Third Party); University of the Sunshine Coast (Fourth Party) [2020] QICmr 39 (23 July 2020)

Park and Moreton Bay Regional Council; Orora Limited (Third Party); University of the Sunshine Coast (Fourth Party) [2020] QICmr 39 (23 July 2020) Last Updated: 24 August 2020 Decision and Reasons for Decision Citation: Park and Moreton Bay Regional Council & Ors [2020] QICmr 39 (23 July 2020) Application Number: 314941 Applicant: Park Respondent: Moreton Bay Regional Council Third Party: Orora Limited (ACN 004 275 165) Fourth Party: University of the Sunshine Coast Decision Date: 23 July 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - BREACH OF CONFIDENCE - documents concerning the purchase and redevelopment of a former paper mill site - whether disclosure would found an action for breach of confidence - section 47(3)(a) and section 48 and schedule 3, section 8(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to Moreton Bay Regional Council (MBRC) under the Right to Information Act 2009 (Qld) (RTI Act) for access to various agreements in connection with MBRC’s purchase of ‘The Mill’ site at Petrie from Orora Limited (Orora), and the subsequent development of the site as a campus of the University of the Sunshine Coast (USC). MBRC consulted with Orora and USC under section 37 of the RTI Act. Each objected to disclosure of the documents that concerned them. Council decided[2] to refuse access to the documents on the basis that they comprised exempt information under section 48 and schedule 3, section 8(1) of the RTI Act (information the disclosure of which would found an action for breach of confidence), and that their disclosure would, on balance, be contrary to the public interest under section 49 of the RTI Act. The applicant applied[3] to the Office of the Information Commissioner (OIC) for external review of MBRC’s decision. For the reasons given below, I am satisfied that the requested information is exempt information under schedule 3, section 8(1) of the RTI Act. I therefore affirm MBRC’s decision refusing access to it. Background In 2013, Regional Development Australia and MBRC commissioned a study to review the viability of establishing a tertiary education facility within the Moreton Bay Region. In July 2015, following a period of negotiation, MBRC entered into a contract with Orora to purchase a 460 hectare site located within the Brisbane suburbs of Petrie, Kallangur and Lawnton for the primary purpose of developing a tertiary education precinct.[4] The site formerly housed the Amcor Paper Mill from 1957 until its closure in 2013. In November 2015, following a tender process, MBRC announced that it had entered into an agreement with USC to build a USC campus on the site. In conjunction with the State government, a Priority Development Area (PDA)[5] was declared on 2 September 2016 to facilitate the development of the USC campus and related infrastructure. The campus’ foundation facilities opened to students at the beginning of 2020. Remediation and development of the remainder of the site is continuing. Significant procedural steps relating to the external review are set out in the Appendix. Reviewable decision The decision under review is MBRC’s decision dated 14 October 2019. 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),[6] 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,[7] 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.’[8] Information in issue The information in issue (the Agreements) comprises the following agreements between MBRC and Orora: Contract of Sale – 20 July 2015 Priority Area Deed – 6 April 2017 Deed of Extension of Decommissioning Date – 4 May 2018 Deed of Variation of Contact for Sale and Extension Deed – 11 July 2019, and the following agreement between MBRC and USC: Development Agreement – 4 July 2018. Issues for determination The issue for determination is whether disclosure of the Agreements would found an action for breach of confidence under schedule 3, section 8(1) of the RTI Act. There is no discretionary component in this determination in the sense that I might grant access to the Agreements notwithstanding that they contain exempt matter, on the basis of some asserted public interest consideration or other factor arising in the circumstances of this case. To the extent that the applicant has submitted otherwise during the review, such submission is misconceived. While an agency has a discretion under the RTI Act to grant access to exempt information,[9] the Information Commissioner does not.[10] While MBRC, Orora and USC also claim that disclosure of the Agreements would, on balance, be contrary to the public interest,[11] it is not necessary for me to deal with that ground of refusal in this decision, given my findings about the application of the exemption contained in schedule 3, section 8(1).[12] Relevant law – exempt information The RTI Act gives a right of access to documents of government agencies.[13] 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’.[14] Breach of confidence 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 MBRC.[15] Following the decision of the Queensland Civil and Administrative Tribunal (QCAT) in Ramsay Health Care v Office of the Information Commissioner & Anor,[16] it has been established that the cause of action referred to in schedule 3, section 8(1) of the RTI Act can arise in either contract or equity.Contractual obligation of confidence Concerning contractual obligations of confidence, in B and BNRHA, Information Commissioner Albietz said: In the context of s.46(1)(a) the word "confidence" must be taken to be used in its technical, legal sense, thus: "A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose.” (F Gurry "Breach of Confidence" in P Finn (Ed.) Essays in Equity; Law Book Company, 1985, p.111.) My references to a cause of action for breach of a contractual obligation of confidence must be understood in this sense. A contractual term requiring that certain information be kept secret will not necessarily equate to a contractual obligation of confidence: an issue may arise as to whether an action for breach of the contractual term would satisfy the description of an "action for breach of confidence" (so as to fall within the scope of s.46(1)(a) of the FOI Act). An express contractual obligation of confidence ordinarily arises in circumstances where the parties to a disclosure of confidential information wish to define clearly their respective rights and obligations with respect to the use of the confidential information, thereby enabling the parties to anticipate their obligations with certainty. A mere promise to keep certain information secret, unsupported by consideration, is incapable of amounting to a contractual obligation of confidence, and its effectiveness as a binding obligation would depend on the application of the equitable principles discussed in more detail below. Establishment of contractual obligation for confidentiality Because MBRC and the third parties claim that the Agreements, including the confidentiality clauses contained in them, are exempt information, I am prevented by the operation of sections 107(1) and 108(3) of the RTI Act from discussing the contents of the clauses in any detail. I acknowledge that the inability of the applicant to examine the confidentiality clauses means that he 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. In BGC (Australia) Pty Ltd v Fremantle Port Authority,[17] Heenan J of the Western Australian Supreme Court said the following in relation to similar provisions contained in the Freedom of Information Act 1992 (WA) (WA FOI Act): One can readily appreciate that, as with any doubting Thomas, the appellant may not be convinced of the justification for this particular conclusion unless it sees and examines the evidence itself. However, on the basis that the confidentiality clause is itself part of the confidential information which may not be disclosed, that result is inescapable in the light of s 74(1) and (2) and s 90(1) and (3) of the Act. The legislation expressly acknowledges that it may be necessary to receive evidence and hear argument in the absence of the public and any party or representative of the party in order to preserve the confidentiality of exempt matter (s 90(2)). By this means the legislation ensures that the objective terms and effect of matter which is asserted to be exempt from disclosure because of confidentiality may be examined by an officer quite independent of the agency asserting a claim to confidentiality, namely, the Information Commissioner and, on appeal, by a Judge of this Court. That this scrutiny and examination, in order to protect the confidentiality of the material if the claim is justified, must be conducted without disclosure to the applicant, its counsel or solicitors is one example of these rare instances in which a party to litigation is deprived of full access to all material documents. However, this is not an isolated exception, and policy considerations which have prompted its acceptance, have been recognised in other areas of the law such as the power of a court to inspect documents in respect of which a claim for legal professional privilege has been made, or to scrutinise material relied upon for the issue of a search warrant, or to inspect documents for which a claim of public interest immunity has been asserted, without disclosing them to the party seeking inspection – see Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 46, 110. None of these examples constitutes any denial of natural justice because, if the claim for privilege, confidentiality or public interest immunity is justifiably made, the party seeking to inspect the documents has no right of any kind to do so. Justice is achieved and the law applied in these situations by an examination of the documents by an independent officer or court acting on settled principles. I have examined the Agreements in issue and the relevant provisions as to confidentiality contained in them. I am satisfied that Agreements a), c), d) and e) each contain a confidentiality clause requiring the parties to keep certain designated information confidential under a contractual obligation not to disclose that information, and that each clause extends to the terms of the agreement itself.[18] Agreement b) does not contain a separate confidentiality clause, but is, itself, ‘confidential information’ for the purposes of Agreement a).[19] While the obligations of confidence created in respect of the Agreements provide for disclosure in certain designated circumstances,[20] none of those circumstances have arisen in the present case. A number of the Agreements make provision for public statements about specified matters to be made with the agreement of both parties.[21] However, I am not satisfied that these ‘carve outs’ in the confidentiality clauses, undermine the operation of the confidentiality clauses such that MBRC could no longer be considered to be bound by an enforceable obligation of confidence in respect of the contents of the Agreements. I am also satisfied that the clauses continue to operate at the time of making my decision, and that there was an exchange of consideration moving between the parties to the Agreements. Enforceability of contractual obligations for confidentiality Given that he has not been able to examine the Agreements or make submissions about the construction and effect of the confidentiality clauses, the applicant’s case for disclosure of the Agreements has focused, in effect, on the argument that any contractual obligation of confidence between the parties ought not to be enforced on public interest grounds.[22] The public interest arguments advanced by the applicant in his external review application were as follows: ... My interests are solely in causing MBRC and USC to be open and transparent and to properly account to the public for their decisions and for their spending of public money. ... Which precise private, business, professional etc affairs are reasonably expected to be prejudiced? In what way? How could this be prejudicial to the public interest? How could it possibly be in the public interest to keep secret from the public any knowledge of the commercial and financial affairs of publicly owned entities? There is documented evidence in respect of the site being contaminated to an unacceptable level with PCBs and there is less substantiated information of asbestos, dioxins and other contaminants. This is concerning given that USC proposes to accept students in three months’ time. There is some indication that de-contamination is not progressing to plan and may not reach acceptable targets and reports that the previous owner [who it is understood had responsibility for de-contamination] has now handed the work over to MBRC. I regret that this information is so vague but that is the nature of disclosure by MBRC. In the interests of public health every effort must be made to inform the public of the situation, both in terms of health and in terms of costs and responsibility. Access to these documents will clarify many of the unknowns. In an email sent to OIC on 30 January 2020, the applicant submitted: It has been the practice of MBRC, in my opinion, to classify documents as Confidential, and to hold an excessive number of non-public meetings, not because of the content but in order to maintain the cloak of secrecy and to conceal information from ratepayers. This has occurred with the land purchase and with the agreement with the Sunshine Coast University [USC]; but more recently the contamination status of the land has also been concealed because of its potentially distressing nature. It is a clear responsibility in the public interest to make known the potential health dangers at the site but information about the possible hazards have been concealed. In his submission dated 24 May 2020, the applicant continued to focus his arguments for disclosure of the Agreements on public interest considerations: Although the assessment of my appeal will be made in terms of the RTI Act, I ask that broader principles that underpin our democracy be also considered. Governments do not exist in their own right, separate from or isolated from the people they represent. Nor do they spend their own money; they spend money belonging to those same people that they represent, and then only for the purposes that the people approve. In principle, governments should have no secrets from the people that they represent. Governments exist to carry out the will of the people. It is thus a fundamental principle of democratic government that the people can satisfy themselves that their will is being carried out and that their money is not being wasted. The RTI Act 2009 emphasises that government information is a public resource and that openness enhances the accountability of governments. The primary objective of the act is to give a RIGHT of access to information in a government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give access. The onus of proof is completely upon those denying access to show that the public interest is more clearly served by withholding information. ... Everything that a council does, all of its decisions and all of its expenditures must be made in the public interest; and it is in the public interest for the public to know all of the details. There are exceptions of course: personnel matters and details of court cases are obvious exceptions. However the public is always entitled to enquire about corruption, mismanagement, inefficiency and other irregularities. As a public agency, owned and funded by the public, a university is also obliged to act in the public interest and to be open, transparent and accountable. Although there is a public interest that confidences should be respected, preserved and protected by law; nevertheless that public interest may be outweighed by some other countervailing public interest that favours disclosure. I am of the opinion that the legal and moral requirements for local governments and publicly owned and funded universities to be open, transparent and accountable outweighs any other consideration. I am also of the opinion that in its refusal Council does not adequately explore this requirement but instead focuses heavily on reasons to deny release of the documents. ... By focussing exclusively upon the RTI Act; this appeal has been bogged down in technicalities and legalities. The risk is that such a focus may cause us to overlook the basic and fundamental principles of democratic government: openness, transparency and accountability. I appeal to the OIC to view this matter from a much broader perspective. It is difficult to comprehend that a democratically elected organisation, elected by the ratepayers of Moreton Bay; funded by the ratepayers of Moreton Bay, constituted to do the will of the ratepayers of Moreton Bay and to be accountable to the Ratepayers of Moreton Bay can, at the same time, have secrets from the ratepayers of Moreton Bay. The paragraph immediately above as extracted from the applicant’s submissions demonstrates a fundamental misunderstanding about this external review and the role of the Information Commissioner. My jurisdiction in considering the applicant’s application for external review is limited solely to the provisions of the RTI Act: I have no power to ‘view this matter from a much broader perspective’. If the information in issue meets the requirements for exemption under schedule 3 of the RTI Act, I have no power to order its disclosure, no matter how strongly an applicant believes its disclosure is in the public interest. Late in the course of this external review, QCAT issued its decision in Adani Mining Pty Ltd v Office of the Information Commissioner & Ors.[23] While in its decision in Ramsay, QCAT did not specifically address the issue of whether or not public interest considerations could be taken into account when considering the application of schedule 3, section 8(1) to contractual obligations of confidence imposed upon a government agency, the decision in Adani Mining found that they could not. In that decision, Member McGill SC discussed the relevant authorities and expressed the view that, apart from the possibility of disclosure arising from the nature of ’responsible government’,[24] there is no public interest exception in respect of a contractual obligation of confidence: The third error of law argued by the appellant was that, if contractual confidentiality did exist, public interest considerations were still relevant in determining whether that confidentiality would be enforced. Given her approach otherwise, this point was, understandably, dealt with very briefly by the first respondent. The appellant submitted that public interest considerations were not relevant in a case of contractual confidentiality, and that the passages in the decisions relied on by the first respondent were in error, or had been taken out of context. The earliest of these was Hughes Aircraft Systems International v Airservices Australia [1997] FCA 558; (1997) 76 FCR 151. The case was one arising out of a tender process, where it was held that there was a process contract between the parties, which included the imposition of an obligation as to confidentiality. That obligation was held to have been breached when the CEO of the defendant statutory corporation disclosed confidential information to the relevant minister, there being no statutory entitlement in the minister to obtain such information in that way. At p 246 Finn J said: Parties who contract with government agencies must, in matters of confidentiality, be taken to have done so subject to such lawful rights of access to information in the agency's hands as our laws and system of government confer on others. His Honour was there speaking about the possibility of disclosure arising from the nature of responsible government, as was made clear by the context of the statement. He was not laying down a principle about the relationship of contractual confidentiality and a statutory entitlement to information under something like the Act. To the extent that this passage was relied on as authority for the proposition that a public interest exception exists in respect of a contractual obligation of confidence, as in Seeney and Department of State Development; Berri Ltd (Third party) (2004) 6 QAR 354, [199], I consider that such reliance was unjustified. The operation of the Act must depend on the terms of the Act itself. Section 48(2) provides that Parliament has decided that disclosure of information in the cases identified in Schedule 3 would, on balance, be contrary to the public interest. If, as I consider is the case, contractual confidentiality falls within Schedule 3, it is subject to the judgment of Parliament as to where the balance of the public interest lies. The proposition 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 overrode the judgment of Parliament. If a particular category within Schedule 3 has a public interest element in the test anyway, that is a different matter, but the structure of s 48 is in my opinion clearly inconsistent with the existence of an implied requirement of a balance of public interest in favour of disclosure in respect of a case otherwise covered by Schedule 3. So if, outside the context of the Act, a situation in Schedule 3 would not have an element of public interest in disclosure, one is not to be implied by that context. The analysis in Crown Resorts Ltd v Zantran Pty Ltd (supra) shows that the enforceability in equity of a term of a contract providing for confidentiality is subject only to equitable defences applying to the enforceability in equity of a contractual term generally. So if a term is contrary to public policy, as providing for something to be done which is illegal, it will not be enforced. Zantran decided that there is no public interest in the efficient conduct of litigation which justifies the refusal to enforce a contractual obligation of confidentiality. This shows that rights of contract of this nature are not lightly to be disregarded in equity. The appellant also submitted that there is authority against the proposition that there is a “public interest” defence in a case of contractual confidentiality. It referred to Corrs Pavey Whiting & Byrne v Collector of Customs [1987] FCA 266; (1987) 14 FCR 434, 456, where Gummow J said that the principle that equity would not regard information as having the necessary element of confidentiality in certain circumstances where disclosure was in the public interest did not apply where there was a contractual protection of confidence. That decision has since been followed and applied. In these circumstances I do not consider that the first respondent was correct in stating the law when she said that public interest considerations apply in respect of contractual obligations of confidence, at least to the extent that there was a special public policy exception to contractual confidentiality in the context of the Act. In my opinion, there is no such exception. In these circumstances, it is unnecessary for me to address the argument advanced by the appellant, that the first respondent erred in elevating the public interest to be the determinative factor, in this context, where that approach had not been adopted by the first respondent. I should mention as well that, if there is a public interest defence to a cause of action for breach of contractual confidence, it would arise as a matter of defence, not as an element of the cause of action. But it has been said that, in applying such a provision from Schedule 3, the availability of any defence is to be disregarded. On this basis, the existence of any such defence to the enforcement in equity of contractual confidence would be irrelevant. [Footnotes omitted] I referred the applicant to this decision and advised him that I was bound to follow it, with the effect that his arguments about public interest considerations favouring disclosure of the Agreements could not be taken into account when considering contractual obligations of confidence. However, the applicant rejected the assertion that QCAT’s decision applied to the present circumstances because it dealt with disclosure of a ‘Term Sheet’, which is not a contract.[25] The applicant’s submission in this regard is misconceived. The decision in Adani Mining in fact has stronger application in the present circumstances because the information in issue here comprises formal and binding agreements about specified subject matter that contain express confidentiality clauses, rather than the Term Sheet which was not binding as a contract in respect of its subject matter (but about which QCAT decided there may have been a contract). The circumstances in this review are very similar to those that arose in the BGC case. The document in issue there comprised a contract for the sale of land by BHP Billiton Ltd (a private entity)to the Fremantle Port Authority (a government agency). Access to the contract of sale was refused on the basis that it was subject to a contractual obligation of confidence arising from its terms. In arguing for disclosure, the appellant submitted that the contract was unenforceable because it was ‘inconsistent with the general obligation of any agency to give access to documents established by s 10(1) of the [WA FOI Act] and that it is contrary to public policy to enforce a contractual term which may be included and relied upon simply to assert a freedom from the obligation of disclosure otherwise imposed by law.’[26] The appellant further submitted that a public body cannot enter into any contract inconsistent with the due discharge of its duties. The Court responded to the appellant’s arguments as follows:[27] In my view, the starting point, for dealing with these submissions, is to identify the nature of the right of access to documents held by agencies which the Freedom of Information Act of Western Australia establishes. Section 10(1) provides that the right of access is subject to, and in accordance with, the Act. While the legislation and the obvious policy of access to government documents is undoubtedly a guide to the interpretation of the legislation, it is equally plain that the Parliament expressly provided that certain documents or classes of documents were to be exempt from public access: compare Victorian Public Service Board v Wright [1986] HCA 16; (1986) 160 CLR 145 and Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 241; (1992) 36 FCR 111. Where, as in the present case, there is an express provision for certain documents which impose obligations of confidentiality to be exempt, there is no possibility of accepting an unqualified proposition that any means of imposing a confidential obligation on an agency not to disclose a document is necessarily inconsistent with the purposes of the legislation and is, for that reason, unenforceable. These authorities, however, support a proposition that where parties improperly assert, or attempt to create, an obligation of confidentiality in order to prevent disclosure of information or documents, not otherwise confidential, in order to avoid the provisions of the Act which, otherwise, would result in the documents or material being publicly accessible, that may well constitute an improper attempt to avoid public disclosure and to frustrate the public interest as expressed in this legislation. Such a situation would appear to be analogous to those contracts which, while not illegal as formed, become illegal as performed and hence unenforceable. If it is the intention of the parties to the contract to engage in conduct, or to achieve a purpose which is illegal or which has as its object the frustration or evasion of a statutory obligation such a contract, or the offending provision, will be unenforceable. But it will need to be established that the parties made the contract with the intention of engaging in unlawful conduct, or of avoiding or frustrating a statutory provision. This will require the person asserting that proposition to establish it by requisite proof because the normal inference should be that the parties intended to act lawfully: Meehan v Jones [1982] HCA 52; (1982) 149 CLR 571. It is, of course, theoretically possible that the parties to these contractual provisions may have included the terms providing for confidentiality and non-disclosure of the material for improper purposes, without any genuine belief that the material was confidential, or in order to avoid public access which otherwise was potentially available by recourse to the Freedom of Information Act. But there is no evidence to demonstrate, or even to suggest, that such an intention existed or that there was any impropriety in the obligation of confidentiality which was imposed by the contractual provisions. That is not to say that this must necessarily, or always be so, rather it is the only conclusion which should be drawn in the absence of evidence to the contrary, where the onus of establishing some improper or collateral purpose rests, as it does in this case, on the appellant. This decision supports the view expressed in Adani Mining to the effect 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. Following the observations in the BGC case set out above, I note for the sake of completeness that there is no material before me that would raise an issue about the genuineness of the obligation of confidentiality imposed by the Agreements, or that would suggest that the parties entered into the Agreements for some collateral or improper purpose inconsistent with the claim for exemption. In terms of the Agreements between Orora (a private entity) and MBRC regarding the sale, purchase and remediation of the Petrie Mill site, there is nothing before me to suggest that these negotiations were other than genuine commercial negotiations conducted at arm's length between a vendor and a purchaser each acting in its own interests and that, as a result of a mutual consensus, the negotiations resulted in an agreement for the exchange of information under which Orora insisted that the information disclosed be kept confidential.[28] As regards the relationship between USC and MBRC, I acknowledge that both are public entities, and that USC itself is an agency for the purposes of the RTI Act. However, the Agreement between these parties was entered into following a competitive tender process whereby potential education providers were required to submit proposed plans for a new university. I accept that the provision of tertiary educational services is a competitive field. I also note that one of USC’s functions is to ‘exploit commercially, for the university’s benefit, a facility or resource of the university’.[29] USC submitted that the negotiation and finalisation of the Agreement reflected extended and intense negotiation between USC and MBRC, with certain commercial decisions and concessions made, and that its disclosure to current or prospective education partners would place USC at a competitive disadvantage. In these circumstances, and accepting USC’s function to exploit commercial opportunities in providing its educational services, I am satisfied that the Agreement reflects genuine arms-length negotiations of a commercial nature between the parties, with each acting in its own interests. Lastly, in his email dated 30 May 2020 the applicant urged me to consider the relevance of the recent decision of the High Court of Australia to release correspondence between the Queen and the Governor-General during the three years prior to the dismissal of the Whitlam government in 1975. The decision in question is Hocking v Director-General of the National Archives of Australia.[30] It deals with the application of specific provisions of the Archives Act 1983 (Cth) and, particularly, the construction and application of the definition of ‘Commonwealth record’. It has no application to the RTI Act nor any relevance to the issues under consideration in this review. In summary, I acknowledge the arguments and submissions that the applicant has made about the public interest in disclosure of the Agreements and his strong and genuinely-held belief that it is in the public interest for MBRC to make a full disclosure of the Agreements to the community it represents and on whose behalf it entered into the Agreements. However, for the reasons explained above, if I am satisfied that information meets the requirements for exemption under schedule 3, section 8(1), there is no basis upon which public interest considerations can be taken into account. DECISION I affirm MBRC’s decision to refuse access by finding that the Agreements are exempt information under schedule 3, section 8(1) 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 23 October 2019 OIC received the application for external review. 25 October 2019 OIC emailed the applicant acknowledging receipt of his external review application. OIC emailed MBRC requesting preliminary information. 30 October 2019 MBRC provided preliminary information. 19 November 2019 OIC emailed the applicant to advise that the external review application had been accepted. OIC emailed MBRC requesting copies of the documents in issue. 28 November 2019 MBRC provided copies of the documents in issue. 5 December 2019 OIC provided the applicant with an update. 29 January 2020 OIC provided the applicant with an Information Sheet. 29 January 2020 OIC requested further information from MBRC. 12 February 2020 MBRC provided additional information to OIC. 19 February 2020 OIC invited MBRC to provide a submission. 20 February 2020 OIC invited Orora to provide a submission. 24 February 2020 OIC invited USC to provide a submission. 13 March 2020 OIC received Orora’s submission. 31 March 2020 OIC received USC’s submission. 16 April 2020 OIC communicated a preliminary view to the applicant. 1 May 2020 OIC received MBRC’s submission. 6 May 2020 OIC communicated a preliminary view to the applicant. 8 May 2020 OIC provided the applicant with a copy of a QCAT decision. 24 May 2020 OIC received a submission from the applicant. 30 May 2020 OIC received a submission from the applicant. [1] 6 August 2019.[2] 14 October 2019. [3] On the 18 October 2019, which was received by OIC on 23 October 2019. [4] The redevelopment of the site is stated to also include new health, retail, commercial and residential developments and community infrastructure: <https://www.dsdmip.qld.gov.au/economic-development-qld/priority-development-areas/the-mill-at-moreton-bay.html> (accessed 2 July 2020). [5] PDAs are parcels of land identified for development to deliver ‘significant benefits to the community’. The Minister for Economic Development Queensland may declare a PDA under the Economic Development Act 2012 (Qld). When a PDA is declared, Economic Development Queensland works with local government and other stakeholders to plan, assess and guide development within the PDA. This includes the preparation of a development scheme: <https://www.dsdmip.qld.gov.au/economic-development-qld/priority-development-areas-and-projects.html> (accessed 2 July 2020). [6] Which came into force on 1 January 2020. [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] XYZ at [573].[9] Section 44(4) of the RTI Act. [10] Section 105(2) of the RTI Act.[11] A separate ground for refusing access to information: sections 47(3)(b) and 49 of the RTI Act.[12] See 7CLV4M and Department of Communities (Unreported, Queensland Information Commissioner, 21 December 2011) at [20], where the Assistant Information Commissioner explained that when considering non-disclosure, the logical first step is to consider whether the information comprises exempt information and, only if it does not, is it 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: BL v Office of the Information Commissioner, Department of Communities [2012] QCATA 149 at [15]- [16].[13] Section 23(1)(a) of the RTI Act. [14] Sections 47(3)(a) and 48 of the RTI Act. [15] B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (B and BNRHA).[16] [2019] QCATA 66 (Ramsay).[17] [2003] WASCA 250; (2003) 28 WAR 187 at [16] (BGC case).[18] Clause 50.1 of the Contract of Sale and of the Deed of Variation of the Contract of Sale and Extension Deed; clause 16 of the Deed of Extension of Decommissioning Date; and clause 14 of the Development Agreement. [19] Clause 3.2 of the Priority Area Deed.[20] In recognition of the principle that an obligation of confidence, whether equitable or contractual, can be overridden by a statutory provision compelling disclosure of information, which includes the right of access contained in section 23 of the RTI Act: see the discussion in B and BNRHA at [99] – [102]. See also the discussion in Palmer and Townsville City Council [2019] QICmr 43 (3 October 2019). [21] Presumably in recognition of the duty of MBRC as a government agency to account to the public for its activities. These various public statements and other information in the public domain about the project were compiled by MBRC at the request of the OIC and communicated to the applicant under cover of OIC’s email dated 6 May 2020.[22] The applicant’s submissions contained in his external review application, as well as in his emails of 30 January 2020 and 24 May 2020.[23] [2020] QCATA 52 (Adani Mining).[24] As per the discussion by Finn J of the Federal Court in Hughes Aircraft Systems International v Airservices Australia [1997] FCA 558; (1997) 76 FCR 151. [25] Applicant’s email dated 24 May 2020. [26] At [26].[27] At [32] - [34].[28] Applying the BGC case at [42] – [44].[29] Section 5(h) of the University of the Sunshine Coast Act 1998 (Qld).[30] [2020] HCA 19.

queensland

court_judgement

Queensland Information Commissioner 1993-

Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 (30 June 1993)

Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 (30 June 1993) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION ) S 15 of 1993COMMISSIONER (QLD) ) (Decision No. 93002) Participants: ROY ECCLESTON Applicant - and - DEPARTMENT OF FAMILY SERVICES AND ABORIGINAL AND ISLANDER AFFAIRS Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - Refusal of access - consultation comments by one agency on policy proposals in development by another agency for eventual consideration by Cabinet - matter relating to deliberative processes of government - whether disclosure contrary to the public interest - factors relevant to the public interest.FREEDOM OF INFORMATION - proper construction of s.41 of the Freedom of Information Act 1992 (Qld) explained - the concept of the public interest in freedom of information legislation explained - objects of the Freedom of Information Act 1992 (Qld) explained - accountability of government - fostering informed public participation in government decision-making and policy forming processes - words and phrases : "deliberative processes of government".Freedom of Information Act 1992 (Qld) ss.5, 6, 7, 14(b), 21, 28(1), 34(2), 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 72, 76(2)(b), 81, 82, 87(2)(a), 88(2)Freedom of Information Act 1982 (Cth) s.36Acts Interpretation Act 1954 (Qld) s.27BJudicial Review Act 1991 (Qld) s.4, Part 4Freedom of Information Act 1989 (NSW) s.59AFreedom of Information Act 1982 (Vic) s.30Freedom of Information Act 1966 (US)Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1, (1992) 107 ALR 1Re Lianos and Secretary to Department of Social Security (1985) 7 ALD 475Re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589Re VXF and Human Rights and Equal Opportunity Commission (1989) 17 ALD 491 Re Waterford and Department of Treasury (No. 2) [1984] AATA 67; (1984) 5 ALD 588; 1 AAR 1Glasgow Corporation v Central Land Board [1955] UKHL 7; [1956] S.C. (HL) 1Sankey v Whitlam (1978) 142 CLR 1Commonwealth of Australia v John Fairfax and Sons Limited [1980] HCA 44; (1981) 55 ALJR 45; (1980) 32 ALR 485Attorney-General (UK) v Heinemann Publishers Pty Ltd (the Spycatcher case) (1987) 10 NSWLR 86Commonwealth of Australia v Northern Land Council and Another [1993] HCA 24; (1993) 67 ALJR 405Attorney-General v Jonathan Cape Ltd [1976] QB 752Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63R v the Inhabitants of the County of Bedfordshire (1855) 24 L.J.Q.B. 81Lion Laboratories Limited v Evans [1985] QB 526Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473Re Angel and Department of Arts, Heritage and Environment (1985) 9 ALD 113D v The National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] A.C. 171Attorney-General (NSW) v Quin (1990) 64 ALJR 627Re James and Others and Australian National University (1984) 6 ALD 687Re Burns and Australian National University (1984) 6 ALD 193Re Peters and Department of Prime Minister and Cabinet (No. 2) (1983) 5 ALN No. 218Australian Capital Television Pty Ltd v The Commonwealth (No. 2) [1992] HCA 45; (1992) 66 ALJR 695Attorney-General v Times Newspapers [1974] AC 273Re Howard and Treasurer of Commonwealth of Australia (1985) 3 AAR 169; 7 ALD 626Re Western Mining and Department of Conservation, Forests and Land (1989) 3 VAR 150Re Murtagh and Commissioner of Taxation [1984] AATA 249; (1983) 6 ALD 112Re Dillon and Department of the Treasury (1986) 4 AAR 320; 10 ALD 366Conway v Rimmer [1968] UKHL 2; [1968] AC 910Harris v ABC [1983] FCA 242; (1983) 50 ALR 551; 5 ALD 545Harris v ABC [1984] FCA 8; (1984) 1 FCR 150; 5 ALD 564Re Sunderland and Department of Defence (1986) 11 ALD 258In Re Grosvenor Hotel, London (No. 2) [1965] Ch 1210Rogers v Home Secretary [1973] AC 388Re Fewster and Department of Prime Minister and Cabinet (1986) 11 ALN N266Re Fewster and Department of Prime Minister and Cabinet No. 2 (1987) 13 ALD 139Re Bartlett and Department of Prime Minister and Cabinet (1987) 12 ALD 659Re Anderson and Department of Special Minister of State (No. 2) [1986] AATA 79; (1986) 4 AAR 414; 11 ALN N239Re Brennan and Law Society of Australian Capital Territory (No. 2) (1985) 8 ALD 10Kavvadias v Commonwealth Ombudsman [1984] FCA 179; (1984) 2 FCR 64Ryder v Booth [1985] VicRp 86; [1985] VR 869Re Pescott and Auditor-General of Victoria (1987) 2 VAR 93Penhalluriack v Department of Labour and Industry (County Court, Victoria, 19 December 1983, unreported)Re Smith and Administrative Services Department (Information Commissioner Qld, Decision No. 93003, 30 June 1993, unreported)Grant v Downs [1976] HCA 63; (1976) 135 CLR 674Re Heaney and Public Service Board (1984) 6 ALD 1310Re Porter and the Department of Community Services and Health (1988) 14 ALD 403Duncan v Cammell Laird and Co Ltd [1942] UKHL 3; [1942] AC 624Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 DECISION1. That part of the decision under review by which it was decided to refuse the applicant access to matter claimed to be exempt matter under s.41 of the Freedom of Information Act 1992 (Qld) is set aside.2. In substitution therefore, it is decided that the applicant is entitled to be given access to the matter contained in documents 1, 2, 3, 4, 5, 6 and 7 (being the documents referred to and described in paragraph 76 of the Reasons for Decision) which relates to assessment or advice of the consequences of the High Court decision in Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1, except for the matter contained in the last two subparagraphs of the final paragraph on page one of document 4, which is exempt matter under s.36(1)(d) of the Freedom of Information Act 1992 (Qld).Date of Decision: 30 June 1993...........................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) S 15 of 1993COMMISSIONER (QLD) ) (Decision No. 93002) Participants: ROY ECCLESTON Applicant - and - DEPARTMENT OF FAMILY SERVICES AND ABORIGINAL AND ISLANDER AFFAIRS Respondent REASONS FOR DECISIONBACKGROUND1 The applicant is a journalist, and Queensland Bureau Chief, for the national newspaper, The Australian. In that capacity, he has written several articles published in The Australian on topics relating to Aboriginal land rights, and in particular dealing with the Aboriginal Land Act 1991 (Qld) and the implications of the judgment given by the High Court of Australia on 3 June 1992 in the case of Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1, (1992) 107 ALR 1 (hereinafter referred to as the Mabo case or Mabo).2 On 24 November 1992, the applicant lodged with the Department of Family Services and Aboriginal and Islander Affairs (the Department) a written request under the Freedom of Information Act 1992 (Qld) (the FOI Act) for access to documents relating to "assessment or advice of the consequences for the Queensland Government of the recent decision of the High Court in the Mabo case". It is noted in the Department's records that in a telephone conversation on 18 December 1992 between the applicant and the Department's Senior FOI Officer, the application was clarified as being one for access to "those documents relating to assessments or advice which were provided within Queensland Government and those requested by Queensland Government".3 In a notification of decision letter (dated 28 January 1993) given under s.34(2) of the FOI Act, the Department notified the applicant that it held 124 pages of material which fell within the ambit of the request for access. The Department decided to give the applicant access in full to 62 pages, to give access to two pages from which exempt matter had been deleted (in reliance on s.43 of the FOI Act), and to refuse access to 60 pages claimed to be exempt from disclosure pursuant, variously, to s.36 (Cabinet matter), s.41 (matter relating to deliberative processes) and s.43 (legal professional privilege) of the FOI Act.4 On 8 February 1993 the applicant lodged a request under s.52 of the FOI Act for internal review of the decision to refuse him access to the documents, and parts of documents,claimed to be exempt. While the application for internal review was not in terms confined to the documents claimed to be exempt under s.41 of the FOI Act, it was only to that category of documents that some brief arguments by the applicant, in favour of disclosure, were addressed: "I contest in particular your decisions that release of certain documents involving the deliberative process of government would be contrary to the public interest. The notion that the public should be involved in the deliberative process was foreshadowed explicitly in Attorney-General Dean Wells' second reading speech, when he said the Bill would "provide a greater opportunity for the public to participate in policy-making and government itself". It is difficult for anyone to participate in policy-making if the government is making its decisions in secrecy, under the cloak of "public interest". The legislation itself, while not defining the public interest, says that such interest is served "by promoting open discussion of public affairs and enhancing government's accountability". Your decision does not recognise this new requirement on the public service, and I consequently seek a review."5 The application for internal review was considered by Mr D A C Smith, a senior officer of the Department who decided on 16 February 1993 to affirm the decision under review. Mr Smith's reasons for decision are analysed in more detail below. However, I think it is appropriate in passing to give credit to Mr Smith for providing a reasons statement which complies with statutory requirements and sets out an appropriately detailed explanation of the basis for his decision. Both the Information Commissioner and the applicant have been afforded a clear understanding of the basis for Mr Smith's decision, and this has certainly facilitated the process of external review.6 To the date of publication of this decision, the Office of the Information Commissioner has received some 119 applications for external review and in the course of investigating those applications, the reasons for a decision adverse to the applicant, both at first instance and on internal review, are carefully examined. It is a matter of some concern for the general administration of the FOI Act that many agencies, and especially internal review officers, do not appear to be fully and adequately complying with the statutory obligations imposed on them by s.34(2) (in particular paragraphs (f) and (g)) of the FOI Act, and s.27B of the Acts Interpretation Act 1954 Qld, in respect of the content of reasons statements. This is a matter which has been raised informally with the head of the Freedom of Information and Administrative Law Division in the Department of Justice & Attorney-General. I have on occasion exercised the discretion conferred on the Information Commissioner by s.82 of the FOI Act to require an agency to provide an additional statement of reasons where the statement provided to the applicant was inadequate for the purposes of satisfactorily progressing the conduct of my investigation and review. I could have done so in a great many more cases, if my only purpose was to ensure that decision-makers fully comply with the statutory requirements in respect of the content of reasons statement. Now that agencies have had some seven months experience of the practical application of the FOI Act, I hope that more attention will be paid to the quality of reasons statements. THE REVIEW PROCESS7 Mr Eccleston's application for review by the Information Commissioner was received on 22 February 1993. I requested the Department to provide me with copies of the documents to which Mr Eccleston had been refused access in accordance with the internal review decision of 16 February 1993. After these documents were produced and examined, concerns were raised directly with the Department about whether two pages, and part of the matter deleted from another two pages, could properly be claimed to be exempt under s.43 (legal professional privilege) of the FOI Act. The Department subsequently informed me that it did not wish to press its claim for exemption in respect of that matter, and I authorised the Department to allow Mr Eccleston to have access to it.8 [Similar procedures are adopted whenever it appears appropriate following examination and assessment of the documents in issue in a review proceeding before me. The FOI Act requires the Information Commissioner to conduct reviews with as little formality and technicality, and with as much expedition, as the requirements of the Act and a proper consideration of the matters before the Information Commissioner permits (s.72(1)(b)). It was Parliament's clear intention that the Information Commissioner provide a speedier, cheaper, more informal and more user friendly method of dispute resolution than the court system or tribunals which adopt court-like procedures,and to this end to try whenever possible to ensure that any unnecessary expense or delay is reduced or eliminated. I consider it appropriate in pursuit of those goals that consultation be undertaken directly with the agency concerned when examination and assessment of documents claimed to be exempt indicates that the agency may have misunderstood or misapplied the exemption provisions or other provisions of the FOI Act. In the absence of the applicant, I, or my staff, are free to discuss in detail the actual contents of the matter or documents claimed to be exempt (c.f. the prohibition on the disclosure to the applicant or the applicant's representative of exempt matter imposed by s.76(2) and s.87 of the FOI Act). By putting my views to an agency and inviting reconsideration of the exempt status of a particular document, it is possible that speedy concessions can be obtained for the applicant, with a consequent narrowing of the range of documents which remain in issue for formal determination by the Information Commissioner. Further progress towards settlement, or at least a narrowing of the issues in dispute, may be made in subsequent discussions with the applicant and the agency.]9 At a conference of the participants held on 19 May 1993 to clarify precisely what matters remained in issue and to discuss the procedure for further conduct of the review, Mr Eccleston stated that he did not wish to contest the Department's decision to refuse him access to those documents claimed to be exempt under s.36 (Cabinet matter) and s.43 (legal professional privilege) of the FOI Act. He wished to press for access only to the matter claimed to be exempt under s.41 (matter relating to deliberative processes) of the FOI Act. This left in issue some seven documents comprising 26 pages. In most of the documents, however, only a small amount of the matter fell within the terms of the applicant's FOI access request, that is, most of the documents dealt principally with material that cannot be characterised as relating to assessment or advice as to the consequences for the Queensland Government of the Mabo case. 10 Each participant was invited to consider whether it wished to put evidence before the Information Commissioner to establish any facts on which it wished to rely to advance its case. Neither participant wished to bring evidence, and both were content to put their case by way of written submission. Agreement was reached on a timetable and directions were made that:(a) the Department deliver to the Information Commissioner's office by 2 June 1993, a written submission detailing the arguments on which it relies to establish the exempt status of the documents or matter in issue; (b) a copy of the Department's written submission, with such deletions as are necessary to avoid the disclosure of matter claimed to be exempt, be delivered to the applicant by 4 June 1993; and (c) the applicant deliver to the Information Commissioner and the Department by 11 June 1993, a written submission setting out all arguments on which he relies to support his contention that the documents in issue are not exempt from disclosure under the FOI Act. 11 These directions were complied with and no deletions to the Department's written submission were necessary, for the purpose of providing a copy to the applicant.12 The issue raised for my determination is whether s.41 of the FOI Act has been correctly applied to those parts of the seven documents remaining in issue which fall within the terms of the applicant's FOI access request. The corresponding provisions of the freedom of information legislation of the Commonwealth of Australia and of Victoria are probably the most frequently litigated exemption provisions in those jurisdictions. There is a considerable amount of case law from the Commonwealth Administrative Appeals Tribunal (the Commonwealth AAT) and the Victorian Administrative Appeals Tribunal (the Victorian AAT), some of which is contradictory and confusing, and in some respects unsympathetic to the professed objects of freedom of information legislation. It is important that Queensland should choose carefully the guidance which it is appropriate to obtain from Tribunal decisions of other jurisdictions, so that a correct course is charted from the outset in the application of the deliberative process exemption in this State.THE MEANING OF SECTION 41 : CONTRAST WITH OTHER EXEMPTION PROVISIONS13 Section 41 of the FOI Act is in the following terms: "Matter relating to deliberative processes 41.(1) Matter is exempt matter if its disclosure - (a) would disclose - (i) an opinion, advice or recommendation that has been obtained, prepared or recorded; or (ii) a consultation or deliberation that has taken place; in the course of, or for the purposes of, the deliberative processes involved in the functions of government; and (b) would, on balance, be contrary to the public interest. (2) Matter is not exempt under subsection (1) if it merely consists of - (a) matter that appears in an agency's policy document; or (b) factual or statistical matter; or (c) expert opinion or analysis by a person recognised as an expert in the field of knowledge to which the opinion or analysis relates. (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."14 Perhaps the only neat categorisation which could be made of the 15 exemption provisions in Part 3 of the FOI Act is between those which call for the application of a public interest balancing test and those which do not. Section 41 falls into the former category but for reasons explained below the operation of its public interest balancing test is materially different from all other exemption provisions which fall into the former category, except s.48 (matter to which secrecy provisions of enactments apply).15 The only sections in Part 3 of the FOI Act which do not contain a public interest balancing test of some kind are s.36 (Cabinet matter), s.37 (Executive Council matter), s.43 (legal professional privilege) and s.50 (matter the disclosure of which would be contempt of Parliament or contempt of court). It should be noted for the sake of completeness that:(a) the public interest balancing test in s.45(1) qualifies only paragraph 45(1)(c) and not paragraphs 45(1)(a) and (b), with the result that trade secrets and information whose commercial value would be diminished by disclosure, will be exempt matter irrespective of any countervailing public interest considerations which might favour disclosure;(b) the exemption for research matter in s.45(3) is not qualified by a public interest balancing test; (c) the public interest balancing test in s.46(1) (which deals with matter communicated in confidence) qualifies only paragraph 46(1)(b) not paragraph 46(1)(a); and(d) while s.42(1) (matter relating to law enforcement or public safety) is not itself qualified by a public interest balancing test, the exception to s.42(1), which is contained in s.42(2), is qualified by a public interest balancing test.16 Most of the exemption provisions call for a judgment to be made about whether disclosure of particular matter contained in a document would have certain specified effects, which in Parliament's judgment would be injurious to the public interest.17 The exemptions in respect of Cabinet matter and Executive Council matter (ss.36 and 37) on the other hand, do not require any judgment to be formed about the likely effects of disclosure. Matter in a document is exempt upon proof of the facts which bring it within the prescribed class, irrespective of whether disclosure of the contents of the document would cause any damage to the public interest. This reflects Parliament's judgment that the maintenance of the convention of collective responsibility of all Ministers for decisions of Cabinet and advice tendered to the Governor by Executive Council (through protection of the confidentiality of Cabinet deliberations and decisions, and of Executive Council deliberations and advice) is a public interest of such importance to the proper functioning of our system of government that no other public interest considerations should be permitted to take precedence over it.18 Other exemption provisions, like s.43 (legal professional privilege) and s.46(1)(a) (disclosure which would found an action for breach of confidence) call for the application of a legal test to be derived from the general law. Because that aspect of the general law has itself been developed for the protection of important public interests, satisfaction of the legal test means that disclosure would be contrary to the public interest.19 Among the category of exemption provisions which call for the application of a public interest balancing test, the operation of the test in s.41 and s.48 is materially different from that of the other provisions (ss.38, 39, 40, 44, 45(1)(c), 46(1)(b), 47 and 49). In general, the latter group of provisions are framed so as to require an initial judgment as to whether disclosure of matter in a document would have certain specified effects, which if established will constitute a prima facie ground of justification in the public interest for non-disclosure of the matter (for example, under s.38(a): if disclosure of matter in a document could reasonably be expected to cause damage to relations between the State and another Government), unless the further judgment is made that the prima facie ground is outweighed by other public interest considerations, such that disclosure of the matter in the document "would, on balance, be in the public interest".20 By contrast, the application of s.41 to matter in a document does not call for an initial assessment of the effects of disclosure of that matter, but rather of whether it falls within a prescribed class (i.e. matter relating to deliberative processes as defined by s.41(1)(a)) which is ascertained by considering its proper characterisation in light of its role in the processes of government. Unlike s.36 and s.37, however, exemption is not complete upon proof of the facts which bring the matter in a document within the class prescribed by s.41(1)(a). The judgment must then be made, quite independently of the issue of whether the matter satisfies the description contained in s.41(1)(a), that disclosure of the matter would be contrary to the public interest.21 Thus, for matter in a document to fall within s.41(1), there must be a positive answer to two questions:(a) would disclosure of the matter disclose any opinion, advice, or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, (in either case) in the course of, or for the purposes of, the deliberative processes involved in the functions of government? and(b) would disclosure, on balance, be contrary to the public interest?22 The fact that a document falls within s.41(1)(a) (i.e. that it is a deliberative process document) carries no presumption that its disclosure would be contrary to the public interest. This is to be logically inferred, as a matter of statutory construction, from the fact that in s.41 -(a) Parliament has not provided that matter in a document is exempt (because damage to the public interest is demonstrated) merely on proof of the facts which bring it within a defined class (as is the case with the class of documents protected by s.36 and s.37 for example), but has added a separate and additional requirement which must be proved to establish exempt status; and(b) a finding that matter in a document falls within the class defined in s.41(1)(a) involves no assessment of the effects of its disclosure, such as is called for in the exemption provisions referred to in paragraph 19 above, which require a decision-maker to be satisfied that disclosure would have certain specified effects which are prima facie injurious to recognisable aspects of the public interest, subject to the existence in any particular case of countervailing public interest considerations favouring disclosure which outweigh and displace the public interest consideration which Parliament has recognised and provided for in the opening words of the exemption provision. 23 These factors were recognised in respect of s.36(1) of the Freedom of Information Act 1982 (Cth) (the Commonwealth FOI Act), a provision which in my opinion is not materially different from s.41(1) of the FOI Act, by Deputy President Hall of the Commonwealth AAT in Re Lianos and Secretary to Department of Social Security (1985) 7 ALD 475 at 493 (paras 66-67) and by Deputy President Todd of the Commonwealth AAT in Re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589 at 603, where he dealt with a submission by the respondent Department that "there was a general public interest in the non-disclosure of documents which form part of the decision-making process and which represent policy-making at a high level", in the following terms: "(42) Although the fact of documents having been created in the course of policy-making is relevant to s.36(1)(a), I am unable to see its relevance to the public interest. The existence of the separate, twin requirement of s.36(1)(b) clearly suggests that the fact of a document being of a type referred to in s.36(1)(a) is of no relevance to a consideration of the public interest. By creating two separate requirements in two separate paragraphs, as opposed to the method used in ss.33(1), 33A(5) and 39(2) and 40(2), the legislature appears to have put the two in contradistinction to one another. To accept Mr Gardiner's submission would amount to a dilution of the public interest requirement in s.36(1)(b)."24 I do not consider that any material difference was intended to be caused by the appearance of the words "on balance" in s.41(1)(b) of the FOI Act, which do not appear in the otherwise identical wording of s.36(1)(b) of the Commonwealth FOI Act. In particular, I do not think it can be suggested that the appearance of the words "on balance" is any kind of indication that there is an inherent public interest in the non-disclosure of deliberative process documents that has to be weighed against countervailing public interest considerations. If that had been Parliament's intention, it would surely have adopted the same drafting technique as appears in the exemption provisions listed in parentheses in the first sentence of paragraph 19 (above), and s.41(1)(b) would have appeared in these terms: "(b) unless its disclosure would, on balance, be in the public interest."25 Rather, I consider that the words "on balance" reflect a recognition by the legislature that in this context public interest considerations favouring disclosure will generally always exist (comprising at least those public interest considerations which underpin the grant in s.21 of a legally enforceable right of access to government documents, and which are given legislative recognition in s.5(1)(a) and (b) of the FOI Act) and must be outweighed by factors favouring non-disclosure to the extent that disclosure would be contrary to the public interest.26 In summary then, the fact that matter in a document falls within s.41(1)(a) carries no presumption that its disclosure would be contrary to the public interest - that is a separate requirement for exemption that must be separately established. (This is entirely appropriate when regard is had to the breadth of the range of documents that could fall within the description in s.41(1)(a), the vast majority of which could not conceivably have any adverse affect on the public interest if disclosed - see the wide interpretation given to the meaning of "deliberative process" in paragraph 28 below.) Moreover, in contrast to the other exemption provisions to which I have referred, Parliament has not sought to identify any facet of the public interest that may justify non-disclosure; for example, the kinds of prejudicial effects resulting from disclosure that would make disclosure contrary to the public interest are left entirely open.27 The critical words in s.41(1)(a) are "deliberative processes involved in the functions of government". (The word "government" is given a non-exhaustive definition in s.7 of the FOI Act as follows: "'government' includes an agency and a Minister;".) A document which embodies a communication between a Minister and an official may contain matter in the nature of advice, but it will not fall within s.41(1)(a) unless the advice was obtained, prepared or recorded in the course of, or for the purposes of, the deliberative processes of government. Matter in a document can fall within this exemption even though it originated outside government, but it must relate to the deliberative processes of government.28 There was some early controversy evident in the decisions of the Commonwealth Administrative Appeals Tribunal as to whether the words "deliberative processes" in s.36(1)(a) of the Commonwealth FOI Act were confined to policy forming processes. A brief history of the controversy is sketched in a later decision of the Commonwealth AAT, Re VXF and Human Rights and Equal Opportunity Commission (1989) 17 ALD 491 at pp.499-500 (paragraphs 29-31 inclusive). The position which has come to be accepted in the Commonwealth AAT is that 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. One passage in particular has come to be accepted as correctly expounding the meaning of the term "deliberative processes" involved in the functions of an agency. In Re Waterford and Department of Treasury (No. 2) [1984] AATA 67; (1984) 5 ALD 588 at 606: [1984] AATA 67; 1 AAR 1 at 19-20, the Commonwealth AAT (comprising Deputy President Hall, Mr I Prowse and Professor Colin Hughes) relied on the Shorter Oxford English Dictionary meaning of "deliberation" as "the action of deliberating: careful consideration with a view to decision" and said: "The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. Deliberations on policy matters undoubtedly come within this broad description. Only to the extent that a document may disclose matter in the nature of or relating to deliberative processes does s.36(1)(a) come into play. It by no means follows, therefore, that every document on a departmental file will fall into this category. Section 36(5) provides that the section does not apply to a document by reason only of purely factual material contained in the document (see, in this regard, the Full Court decision in Harris [1984] FCA 8; (1984) 51 ALR 581). See also s.36(6) relating to reports and the like. Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s.36(1)(a) applies. " [For another example of a document held to relate to purely procedural or administrative functions of an agency, rather than to deliberative processes, see Re VXF and Human Rights and Equal Opportunity Commission, cited above.]29 I consider that this passage should be accepted and applied in Queensland as correctly stating the meaning of the term "deliberative processes" in s.41(1)(a) of the FOI Act. In my opinion, further support for the proposition that deliberative processes extends beyond policy forming processes can be found in the wording of s.41(3)(b) (particularly sub-paragraph (iv) which has no counterpart in the Commonwealth FOI Act) which indicates Parliament's intention that deliberative processes preceding the exercise of a decision-making power under a statute or a publicly funded scheme, of the kind referred to in s.4 of the Judicial Review Act 1991, are covered by s.41(1)(a).30 Normally, deliberative processes occur toward the end stage of a larger process, following investigations of various kinds, establishing facts, and getting inputs from relevant sources, perhaps obtaining expert opinion or analysis from a technical expert. Section 41(1)(a) covers only matter which can properly be characterised as opinion, advice or recommendation, or a consultation or deliberation, that was directed towards the deliberative processes, or as they are sometimes referred to in decisions of the Commonwealth AAT the "pre-decisional thinking processes" of an agency or Minister.31 The s.41 exemption is not intended to protect the "raw data" or evidentiary material upon which decisions are made. This is evident from the terms of s.41(2), which provides that the s.41 exemption does not extend to matter which merely consists of factual or statistical matter, expert opinion or analysis, or any statement of policy already formulated which may apply to the making of a decision (matter that appears in an agency's policy document is excluded by s.41(2)(a), and the term "policy document" is defined in s.7). The use of the word "merely" in s.41(2), however, indicates that if for example factual or statistical matter is inextricably intertwined with matter expressing an opinion, advice or recommendation obtained for the purposes of a deliberative process - it may still be exempt under s.41, provided s.41(1)(b) is satisfied. Likewise, for expert opinion which is contributed in the course of, or for the purposes of, the deliberative process itself, rather than as technical data, or expert opinion evidence to be evaluated during the course of the deliberative process.32 Disclosure of the kind of information referred to in s.41(2) will not compromise the deliberative processes of government agencies, and will serve to some extent to inform members of the public of the nature of those processes, and perhaps if they are so inclined, to contest the validity of, or seek to correct errors in, the factual and technical assumptions on which government decisions are made. It is possible of course that factual or statistical information, or expert opinion or analysis, might be exempt under some other exemption provision in a particular case.33 Section 41(3)(b) also makes it clear that once a deliberative process is over and a final decision has been made under one of the sources of decision-making authority set out in s.41(3)(b)(i) to (iv) inclusive, exemption cannot be claimed in respect of the record of, as a formal statement of the reasons for, that final decision, order or ruling. Providing material to citizens which explains and justifies government decisions which affect them is a key element of government accountability, and is one of the key objects of the FOI Act recognised by Parliament in s.5(1)(a) of the FOI Act, and also Part 4 of the Judicial Review Act 1991.34 It is clear from the foregoing discussion that not only is the "public interest" a key element in the application of s.41, but also in the application of the majority of the exemption provisions in Part 3 of the FOI Act. As this is the first case for determination by the Information Commissioner which calls for the application of a Part 3 exemption provision, it is appropriate that I record some general observations about the concept of the "public interest" in the context of the FOI Act.THE NOTION OF "PUBLIC INTEREST" IN FOI LEGISLATION35 In Official Information (Integrity in Government Project: Interim Report 1) (Canberra , 1991) Professor Paul Finn summarised the changing constitutional landscape which has culminated in the Commonwealth Government and State Governments in Australia responding to public pressures for the enactment of freedom of information legislation (at pp.92-94): "The manner in which government manages - and is lawfully allowed to manage - information in its hands has a marked bearing both on the quality of the citizen-State relationship and on the vitality of the democracy in which it governs. In the 200 years of our legal and governmental history, the latitude given to government in this has been variable. To the extent that it is possible to make broad generalisations and disregarding the very early colonial period, one can discern three overlapping phases in our law's governing of information management generally and of official secrecy in particular. Each, as will be seen, reflects rather different assumptions about the nature and proper working of our constitutional system. Each, for a period, has been the predominant influence in our law ... While the impact of these phases has been variable in our nine governmental systems, and while the pace of legal development in them is by no means uniform, the following discussion will proceed on a broad national basis, emphasising the change in constitutional and democratic principles which are embodied in our law, and particularly in the emerging law of the last decade. Assigning labels to the three phases, the first can be described as one of "public interest paternalism" ... While using the "public interest" to set the legal limits to the protection of official information, deference to the Crown and its advisers left it very much to the Crown to determine both what constituted the public interest and what and when official information should be made publicly available. The second phase, and much the most influential in Australia, has been that of "governmental authoritarism" ... In it neither official secrecy nor the public availability of information was made to depend upon the "public interest". It allowed government to elevate its interests over all others; to regulate at its discretion the public dissemination of information; and, formally at least, to coerce subservience from its officials through stringent official secrecy regimes. The third and much the most recent phase, can be designated the liberal-democratic one. Its manifestations are various: in Freedom of Information and in Privacy legislation; in the common law's "public interest" test for protecting governmental information; and in the now less deferential attitude taken to government in privilege cases. While accepting that official secrecy has a proper and necessary province, the guiding ideas here are that: "the interests of government ... do not exhaust the public interest" (Glasgow Corporation v Central Land Board [1955] UKHL 7; [1956] S.C. (HL) 1 at 18-19, endorsed by Stephen J in Sankey v Whitlam (1978) 142 CLR 1 at 59); that the public availability of information is an important value to be promoted in a democratic society especially where this enables "the public to discuss, review and criticize government action" (Commonwealth of Australia v John Fairfax and Sons Limited [1980] HCA 44; (1981) 55 ALJR 45 at 49; [1980] HCA 44; (1980) 32 ALR 485 at 493 per Mason J) (the democratic theme); and that persons and bodies who supply confidential information to government about their own affairs have a legitimate interest in having the integrity and confidentiality of that information respected (the liberal theme). For the most part contemporary Australian law is in a period of transition from the second to the third of these phases. The power of government to act in the manner of its own choosing in the management of official information is being subordinated progressively to wider considerations of public interest. This trend in this particular sphere is not an isolated one. It reflects a wider and more general commitment to liberal-democratic ideals now evident in Australian public law generally." 36 Modern notions of the public interest underpin, and have been the catalyst for the enactment of, freedom of information legislation. In Attorney-General (UK) v Heinemann Publishers Pty Ltd (the Spycatcher case) (1987) 10 NSWLR 86 explicit recognition was given to a principle that lies at the heart of our democratic system - that government exists for the benefit of the community it serves and that government officials, both elected and appointed, do not hold office for their own benefit but for the benefit of the public they serve (per McHugh JA at p.191): "But governments act, or at all events are constitutionally required to act, in the public interest. Information is held, received and imparted by governments, their departments and agencies to further the public interest."37 The information which public officials, both elected and appointed, acquire or generate in office is not acquired or generated for their own benefit, but for purposes related to the legitimate discharge of their duties of office, and ultimately for the service of the public for whose benefit the institutions of government exist, and who ultimately (through one kind of impost or another) fund the institutions of government and the salaries of officials. 38 These considerations are reflected in the Attorney-General's second reading speech to the Queensland Legislative Assembly on the introduction of the Freedom of Information Bill (Parliamentary Debates [Hansard], 5 December 1991, at p.3850): "In conclusion, this Bill will effect a major philosophical and cultural shift in the institutions of Government in this State. The assumption that information held by Government is secret unless there are reasons to the contrary is to be replaced by the assumption that information held by Government is available unless there are reasons to the contrary. The perception that Government is something remote from the citizen and entitled to keep its processes secret will be replaced by the perception that Government is merely the agent of its citizens, keeping no secrets other than those necessary to perform its functions as an agent. Information, which in a modern society is power, is being democratised. I commend the Bill to the House."39 Thus notions of the public interest constitute the basic rationale for the enactment of, as well as the unifying thread running through the provisions of, the FOI Act. Section 21 of the FOI Act reverses the general legal position which (apart from the power of a court to order the disclosure of government-held information for use as relevant evidence in legal proceedings) accorded governments an unfettered discretion in the dissemination of information about its own actions and operations, merely informing the public of these as and when it felt the need to do so. The reversal of the general legal position is justified, inter alia, by public interest factors of the kind given explicit recognition by Parliament in s.5(1) of the FOI Act. 40 Subsections 5(2) and (3) of the FOI Act, however, also recognise that both secrecy and openness with respect to government held information are relative, not absolute, values; and that the FOI Act is intended to strike a balance between competing interests in secrecy and openness for the sake of preventing prejudicial effects to essential public interests, or to the private or business affairs of members of the community, in respect of whom information is collected and held by government.41 Part 3 of the FOI Act embodies Parliament's assessment of the interests which require, or may require protection to an extent which justifies an exception to the general right of access to government-held information conferred by s.21 of the FOI Act. As explained at paragraph 17 above, some exemption provisions (s.36 and s.37) reflect a public interest considered to be worthy of protection by according secrecy to any documents falling within a defined class, irrespective of whether prejudicial effects will follow from the disclosure of the actual contents of particular documents in that class. Most of the exemption provisions, however, operate according to whether a judgment can properly be made that disclosure of matter in a document will have certain prejudicial effects which Parliament has judged to be injurious to essential public interests or to the private or business affairs of members of the community in respect of whom information is collected and held by government. Some of these provisions, like s.45(1)(a) and (b), are not further qualified by the possibility that countervailing public interest considerations may outweigh the prejudicial effects of disclosure stipulated in the first part of the exemption provision (such that on balance disclosure would be in the public interest). Most of the exemption provisions in Part 3, however, (as noted above in paragraph 19) do contain this public interest balancing test. Thus, where apparently legitimate interests conflict, as will frequently arise when competing interests of individuals, of government in the conduct of its affairs, and of the public generally (or a substantial segment thereof) are sought to be protected or furthered in disputes over access to information, it is the balance of public interest which determines the particular interest(s) which it will be appropriate to protect, and whether by openness or secrecy. It is inherent in the process of balancing competing interests that one or more interests, whether public, individual or government interests, will in fact suffer some prejudice, but that that prejudice will be justified in the overall public interest.42 Because government is constitutionally obliged to act in the public interest, the protection which government can claim for its own interests cannot exceed that which is necessary to prevent possible injury to the public interest. The common law has long recognised, however, that important public interests are secured by the proper and effective conduct of government itself, so that there are likely to be many situations in which the interests of government can for practical purposes be equated with the public interest: for instance, the High Court of Australia has recently re-affirmed in Commonwealth of Australia v Northern Land Council and Another [1993] HCA 24; (1993) 67 ALJR 405, that the interest of government in the maintenance of the secrecy of deliberations within Cabinet constitutes a public interest that will be accorded protection by the courts in all but exceptional cases.43 By way of contrast, however, an important principle was enunciated by Mason J in Commonwealth of Australia v John Fairfax & Sons Ltd and Ors [1980] HCA 44; (1981) 55 ALJR 45; (1980) 32 ALR 485, which illustrates that the interests of government are not always synonymous with the public interest. The Commonwealth government sought an injunction to restrain the disclosure of confidential information about to be published in a book, with extracts from the book also to be published in the Age and the Sydney Morning Herald. To establish its case for an injunction to restrain the publication of the confidential information, the Commonwealth government had to show that it would suffer detriment from the unauthorised publication of the confidential information. Mason J said (at ALJR p.49, ALR p.493): "The question then, when the executive Government seeks the protection given by Equity, is: What detriment does it need to show? The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive Government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that Equity will not protect information in the hands of the Government, but it is to say that when Equity protects Government information it will look at the matter through different spectacles. It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the Government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise Government action. Accordingly, the Court will determine the Government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected. The Court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public's interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality. Support for this approach is to be found in Attorney-General v Jonathan Cape Ltd [1976] QB 752, where the Court refused to grant an injunction to restrain publication of the diaries of Richard Crossman. Widgery LCJ said (at pp. 770-771): "The Attorney-General must show (a) that such publication would be a breach of confidence; (b) that the public interest requires that the publication be restrained, and (c) that there are no other facets of the public interest contradictory of and more compelling than that relied upon. Moreover, the court, when asked to restrain such a publication, must closely examine the extent to which relief is necessary to ensure that restrictions are not imposed beyond the strict requirement of public need.""44 As this case was directly concerned with public interest considerations bearing on the publication of government information, the principles enunciated by Mason J are particularly apposite in the context of freedom of information legislation, and indeed some of his words are reflected in s.5(1)(a) of the FOI Act, which embodies the "democratic accountability" rationale for the enactment of freedom of information legislation.45 None of the foregoing discussion attempts to accord any precise meaning to the term "public interest", which is really a legal term of art. It is no coincidence that neither the FOI Act nor any other statute has attempted to define the term, nor that the courts have tended to avoid any comprehensive attempt at a similar task, considering it to be a term incapable of exhaustive definition. A provision was inserted into the Freedom of Information Act 1989 (NSW) by the Freedom of Information (Amendment) Act 1992 (NSW) to give some legislative guidance as to matters that should not be taken into account in the application of a public interest balancing test in an exemption provision, but it did not attempt a comprehensive definition of the public interest. Section 59A of the NSW Act now provides: "Public Interest 59A. For the purpose of determining under this Act whether the disclosure of a document would be contrary to the public interest it is irrelevant that the disclosure may: (a) cause embarrassment to the Government or a loss of confidence in the Government; or (b) cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason."46 The enactment of s.59A(a) may not have been strictly necessary, since such a principle is implicit in legal authorities dealing with the weighing of competing public interests relevant to the disclosure of government-held information. It is implicit in the passage quoted from Commonwealth v John Fairfax for instance that embarrassment to the government or exposing the government to criticism will not be a ground for refusing the disclosure of information. Similarly, public interest considerations would not protect against the disclosure of information relating to government impropriety. The Commonwealth AAT has accepted in cases determined under the Commonwealth FOI Act that there is a public interest in ensuring that a public authority acts within its lawful authority (Re Heaney and the Public Service Board (1984) 6 ALD 310 at p.323; Rae's case, cited above, at p.605). To allow considerations favouring secrecy to cloak the disclosure of impropriety on the part of a government agency or official would be a subversion of the constitutional responsibility of government to act in the public interest. (Thus in Sankey v Whitlam (1978) 142 CLR 1, one of the factors which led Stephen J, at p.56, to consider that disclosure of the government documents was required, was that the government's reliance on the need to safeguard the proper functioning of the executive arm of government and of the public service, seemed "curiously inappropriate" when the legal proceedings for which disclosure of the documents was sought alleged a grossly improper functioning of that very arm of government and of the public service which assists it.)47 The enactment of s.59A(b) may have been a response to the kinds of considerations discussed in paragraphs 136 and 137 below.48 The 1979 report of the Senate Committee on Constitutional and Legal Affairs on the draft Commonwealth Freedom of Information Bill contains (at pp.64-67) an informative discussion of the role which the notion of the "public interest" has to play in freedom of information legislation, and expresses the view that it is neither practicable nor desirable to seek to define the term "public interest" in this context: "5.21 In almost every submission where the phrase ["public interest"] was discussed objections were raised against its inclusion in any provision of the Bill. Many referred to it as an ill-defined or amorphous concept, one that eludes definition even by jurists and whose meaning may vary at the whim of a minister or official. Thus, many also felt that the inclusion of the phrase in the Bill will in fact work to the disadvantage of members of the public and will provide a loophole to be exploited by agencies. The suggestions for reform generally fell into three categories: that the phrase be discarded; that it be defined either in the Bill or by this Committee; or that an appeal to the Tribunal be allowed against any decision made on a public interest ground. 5.22 We cannot accept the thrust of this criticism as it is our firm opinion that a 'public interest' criterion is a very useful one that should be used throughout the Bill. ... 5.23 Basically, we are in favour of using the concept because we believe that by so doing the Bill can require both an agency and the Tribunal to consider many factors favouring disclosure that might otherwise be ignored. This opinion has been strengthened by the decision in the Sankey case in which their Honours individually identified aspects of the public interest that supported the case for non-disclosure on the one hand and disclosure on the other. The range of factors identified affords some guidance as to how the phrase 'public interest' may work in the context of the Bill. ... 5.25 To our mind, this analysis by the court indicates that 'public interest' is a convenient and useful concept for aggregating any number of interests that may bear upon a disputed question that is of general - as opposed to merely private - concern. Although in that case the starting point was the nebulous interest of 'due administration of justice' and 'proper functioning of the public service', the court broke these down to practical, recognisable considerations that were capable of being weighed one against the other. The 'public interest', which has been described as an amorphous concept, incapable of useful definition, proved to be a viable concept enabling all relevant considerations to be brought to bear. Nor do we think that the utility of this concept is confined to Crown privilege cases, where the court can weigh against the government's interest in confidentiality the litigant's 'need to know'. It does not appear that the 'need to know' criterion as applied to a single litigant made the balancing process in the Sankey case any more or less difficult. There is no reason for supposing that in a freedom of information case (where the particular applicant's interest is irrelevant) it would be more difficult for a tribunal to isolate factors that are related to the public's interest in disclosure, or 'need to know'. 5.26 Indeed it is perhaps possible to speculate on the basis of this judgment as to the utility of the concept of 'public interest' in various clauses in the Bill (particularly the exemptions). The main effect would be to allow the consideration of a range of factors that might otherwise be ignored. ... Coupled with an exemption protecting business and commercial information, such a criterion might permit argument as to whether the details of a particular manufacturing process designed, for example, to ensure health and quality controls, or safeguards against water or air pollution should be disclosed where there may be a strong public interest in examining the effectiveness of these controls and safeguards. ... 5.28 In our view then, 'public interest' is a phrase that does not need to be, indeed could not usefully, be defined - a task that many submissions asked us to undertake. Yet it is a useful concept because it provides a balancing test, by which any number of relevant interests may be weighed one against another. ... the relevant public interest factors may vary from case to case - or in the oft-quoted dictum of Lord Hailsham of Marylebone 'The categories of public interest are not closed'. It is essential therefore that wherever the phrase is used the Bill should provide scope for adequate argument as to what result the public interest may require. This scope will only exist if the Tribunal is empowered to adjudicate on the question. 'Public interest' is not a balancing test that is customarily applied by administrators. It is a test that must be weighed by an adjudicator who has no interest in the outcome of the proceeding and who is skilled by professional experience in weighing factors one against another. ... in many of the submissions ... [o]bjection was made not so much to a public interest ground but to the interpretation and application of it by administrators alone."49 The courts have occasionally made comments which shed some light on the meaning of "the public interest" when used as a legal term of art. In Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63 a case involving the Freedom of Information Act 1982 (Vic) (the Victorian FOI Act), a Full Court of the Supreme Court of Victoria said (at pp. 73-75): "In the present case, the learned judge recognised the existence of the public interest in the proper and due administration of criminal justice. It seems he considered that to give effect to the interest it was necessary for the exempt documents to be made available for public scrutiny. There are many areas of national and community activities which may be the subject of the public interest. The statute does not contain any definition of the public interest. Nevertheless, used in the context of this statute, it does not mean that which gratifies curiosity or merely provides information or amusement: cf. R v the Inhabitants of the County of Bedfordshire (1855) 24 L.J.Q.B. 81, at p.84, per Lord Campbell LJ. Similarly it is necessary to distinguish between "what is in the public interest and what is of interest to know": Lion Laboratories Limited v Evans [1985] QB 526, at p.553, per Griffiths LJ ... The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals: Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473, at p.480 per Barwick CJ. There are ... several and different features and facets of interest which form the public interest. On the other hand, in the daily affairs of the community events occur which attract public attention. Such events of interest to the public may or may not be ones which are for the benefit of the public; it follows that such form of interest per se is not a facet of the public interest."50 The last point made in this passage illustrates that a matter which is of interest to the public does not necessarily equate to a matter of public interest (see also in this regard Re Angel and Department of Arts, Heritage and Environment (1985) 9 ALD 113 at p.124). A further illustration of the courts' conception of the term "public interest" is to be found in the judgments of the High Court of Australia in Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473, where the issues involved an objection by Mr Sinclair on his own behalf and on behalf of the Fraser Island Defence Organisation to an application for the grant of a mining lease on Fraser Island. In the hearing before the Mining Warden, the objector had adduced extensive expert evidence of the damage to the environment that mining was likely to cause. The mining warden was required by statute to consider whether "the public interest or right will be prejudicially affected by the granting of an application for a mining lease", but in the result recommended that the applications for mining leases be granted. In the course of his decision, the mining warden stated that the objector represented "the views of a section of the public" and that he was unable to conclude from the evidence that "the interest of the public as a whole" would be prejudicially affected by the grants. Barwick CJ said (at p.480) that the mining warden had erred in drawing: "... the irrelevant distinction between the views of a section of the public and the public interest as a whole ... the interest, of course, must be the interest of the public and not mere individual interest which does not involve a public interest. Clearly enough, the material evidence by the appellant did relate to a public interest not limited to the interests of a less than significant section of the public".51 In the same case, Jacobs J said (at p.487): "The interest of a section of the public is a public interest but the smallness of the section may affect the quantity or weight of the public interest so that it is outweighed by the public interest in having the mining operation proceed. It does not, however, affect the quality of that interest. The warden looked for what he described as the public interest as a whole and he did so in contradistinction to the interest of a section of the public. Moreover, he limited the area of public interest to the section of the public who propounded the views expressed by the objector. This was not permissible. The views may have been propounded by a section of the public but the matters raised went to the question of the interest of the public as a whole. The warden appears not to have given weight to the fact that the evidence produced by the objectors should be regarded as evidence on the public interest generally and needed to be weighed in all the circumstances of the public interest whether or not the evidence and the views therein were put forward by a large or a small section of the public."52 In other words, the interest which the objector Mr Sinclair sought to protect, i.e. the environment and unique character of Fraser Island, was properly to be characterised as a public interest, and it could not be deprived of that character because it was only a small segment of the public that was seeking to protect that interest.53 Sankey v Whitlam and Others (1978) 142 CLR 1 was a case in which the High Court of Australia reviewed the law relating to public interest immunity (formerly known as Crown privilege) by which the law attempts to reconcile, in specific cases, competing claims by government that the public interest would be injured by the disclosure in legal proceedings of government-held information, with the public interest that a court of justice performing its functions should not be denied access to relevant evidence. Stephen J said (at p. 60): "Relevant aspects of the public interest are not confined to strict and static classes. As Lord Hailsham of St Marylebone observed in D. v The National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] A.C. 171, at p.230, "The categories of public interest are not closed ...". In that case their Lordships discerned an aspect of the public interest, hitherto unremarked and which was quite unconnected with the affairs of central government but which were nevertheless proper to weigh in the balance and which in the outcome sufficed to outweigh that other public interest which exists in there being available to the court the information necessary for it to do justice between litigants. That case provides an illustration of the need to consider the particular nature of the proceedings in which the claim to Crown privilege arises in order to determine what are the relevant aspects of public interest which are to be weighed and what is to be the outcome of that weighing process. It was just such a recognition of the need to take account of what was in issue in the particular case that led Lord Keith, in Glasgow Corporation v Central Land Board [1955] UKHL 7; [1956] SC (HL) 1 at p.25, to cite with approval an earlier authority which spoke of the possibility that "a matter of private right might be of such magnitude, and might indeed be so related to public interest, as to make the problem a delicate one and difficult to solve" and then to go on to consider the magnitude of the private right in the instant case, concluding that "everything must depend on the particular circumstances of the case. It is impossible to lay down broad and general rules". "54 Likewise, under freedom of information legislation, the task of determining, after weighing competing interests, where the balance of public interest lies, will depend on the nature and relative weight of the conflicting interests which are identifiable as relevant in any given case.55 While in general terms, a matter of public interest must be a matter that concerns the interests of the community generally, the courts have recognised that: "the public interest necessarily comprehends an element of justice to the individual" (per Mason CJ in Attorney-General (NSW) v Quin (1990) 64 ALJR 627). Thus, there is a public interest in individuals receiving fair treatment in accordance with the law in their dealings with government, as this is an interest common to all members of the community. Similarly, the fact that individuals and corporations have, and are entitled to pursue, legitimate private rights and interests can be given recognition as a public interest consideration worthy of protection, depending on the circumstances of any particular case.56 Such factors have been acknowledged and applied in several decisions of the Commonwealth AAT; for example in Re James and Others and Australian National University (1984) 6 ALD 687 at p.701, Deputy President Hall said: "87 In [Re Burns and Australian National University (1984) 6 ALD 193] my colleague Deputy President Todd concluded that, for the purposes of the Freedom of Information Act, the concept of public interest should be seen as embodying public concern for the rights of an individual. Referring to a decision of Morling J, sitting as the former Document Review Tribunal (Re Peters and Department of Prime Minister and Cabinet (No. 2) (1983) 5 ALN No. 218) Deputy President Todd said: "But what is important is that his Honour clearly considered that there was a public interest in a citizen having such access in an appropriate case, so that if the citizen's 'need to know' should in a particular case be large, the public interest in his being permitted to know would be commensurately enlarged." (at 197) I respectfully agree with Mr Todd's conclusion ... The fact that Parliament has seen fit to confer upon every person a legally enforceable right to obtain access to a document of an agency or an official document of a minister, except where those documents are exempt documents, is to my mind a recognition by Parliament that there is a public interest in the rights of individuals to have access to documents - not only documents that may relate more broadly to the affairs of government, but also to documents that relate quite narrowly to the affairs of the individual who made the request."57 The force of this principle has been recognised, at least in so far as it relates to documents concerning the personal affairs of an applicant for access, in s.6 of the FOI Act, which is in the following terms: "Matter relating to personal affairs of applicant 6. If an application for access to a document is made under this Act, the fact that the document contains matter relating to the personal affairs of the applicant is an element to be taken into account in deciding - (a) whether it is in the public interest to grant access to the applicant; and (b) the effect that the disclosure of the matter might have".THE PUBLIC INTEREST IN ACCOUNTABILITY OF GOVERNMENT AND PUBLIC PARTICIPATION IN GOVERNMENT58 The democratic rationale for the enactment of freedom of information legislation, the cornerstone of which is the conferral of a legally enforceable right to access government-held information, is encapsulated in the notions of accountability and public participation. With the object of assisting to secure a more healthy functioning of the democratic aspects of our system of government, and in particular a government responsive to the public it serves, the FOI Act is intended to:(a) enable interested members of the public to discover what the government has done and why something was done, so that the public can make more informed judgments of the performance of the government, and if need be bring the government to account through the democratic process; and (b) enable interested members of the public to discover what the government proposes to do, and obtain relevant information which will assist the more effective exercise of the democratic right of any citizen to seek to participate in and influence the decision-making or policy forming processes of government. 59 The public participation rationale for freedom of information legislation is inherently democratic in that it affords a systemic check and balance to any tendency of the small elite group which ultimately manages and controls the processes of high level government policy formulation and decision-making, to seek participation and input only from selected individuals or groups, who can thereby be accorded a privileged position of influence in government processes.60 The public interest in accountability of government has been given express recognition by Parliament in s.5(1)(a) and (b) of the FOI Act which refer to the public interest being served by promoting open discussion of public affairs and enhancing government's accountability, and to the desirability of the community being kept informed of government operations. The Fitzgerald Report (which recommended that consideration be given to the enactment of FOI legislation in Queensland) warned (at p.126) of the dangers to the public interest posed by an excessive preoccupation with secrecy in government: "A Government can deliberately obscure the processes of public administration and hide or disguise its motives. If not discovered there are no constraints on the exercise of political power ... The risk that the institutional culture of public administration will degenerate will be aggravated if, for any reason, including the misuse of power, a Government's legislative or executive activity ceases to be moderated by concern for public opinion and the possibility of a period in Opposition ... The ultimate check on public maladministration is public opinion which can only be truly effective if there are structures and systems designed to ensure that it is properly informed. A Government can use its control of Parliament and public administration to manipulate, exploit and misinform the community, or to hide matters from it. Structures and systems designed for the purpose of keeping the public informed must therefore be allowed to operate as intended. Secrecy and propaganda are major impediments to accountability which is a prerequisite for the proper functioning of the political process. ... Information is the lynch-pin of the political process. Knowledge is, quite literally, power. If the public is not informed, it cannot take part in the political process with any real effect."61 Similar concerns were addressed by McHugh J of the High Court of Australia in Australian Capital Television Pty Ltd v The Commonwealth (No. 2) [1992] HCA 45; (1992) 66 ALJR 695 at p.743: "If the institutions of representative and responsible government are to operate effectively and as the Constitution intended, the business of government must be examinable and the subject of scrutiny, debate and ultimate accountability at the ballot box. The electors must be able to ascertain and examine the performances of their elected representatives and the capabilities and policies of all candidates for election. Before they can cast an effective vote at election time, they must have access to the information, ideas and arguments which are necessary to make an informed judgment as to how they have been governed and as to what policies are in the interests of themselves, their communities and the nation. ... Only by the spread of information, opinions and arguments can electors make an effective and responsible choice in determining whether or not they should vote for a particular candidate or the party which that person represents. Few voters have the time or the capacity to make their own examination of the raw material concerning the business of government, the policies of candidates or the issues in elections even if they have access to that material. As Lord Simon of Glaisdale pointed out in Attorney-General v Times Newspapers [1974] AC 273 at 315: "People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions. Much of such fact-finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument.""62 Governments of all persuasions spend substantial sums of public money in disseminating information about those operations and achievements which they wish to make known to the public. It is legitimate in the interests of a free flow of information between the public, its elected representatives, and the agencies of government established to serve the public interest, that government Ministers and agencies should employ staff and expend public funds to help ensure that the public is kept informed. That there is potential for abuse, however, was recognised in the Fitzgerald Report (at pp.141-2) which referred to the ability of government media units, with almost exclusive control over the release of official information and complementary news management techniques, to control and manipulate the information obtained by the media and disseminated to the public. (This topic is explored in more detail in the Electoral and Administrative Review Commission's Report on Review of Government Media and Information Services, April 1993, No. 93/R1.)63 Freedom of information legislation provides some check against this potential for manipulation of the dissemination of government-held information, and affords a measure of reciprocity in access to information between government and the governed, by conferring on members of the public a legally enforceable right to obtain government-held information which is of interest or concern to them.64 The two basic democratic justifications for the enactment of freedom of information legislation (accountability of, and fostering informed public participation in, government) have received widespread recognition. For instance, the former Deputy Premier of New South Wales, Mr Wal Murray, in the second reading speech upon the introduction of the Freedom of Information Bill to the New South Wales Parliament in 1988, said: "This Bill is one of the most important to come before this House because it will enshrine and protect the three basic principles of democratic government, namely, openness, accountability and responsibility ... It has become common place to remark upon the degree of apathy and cynicism which the typical citizen feels about the democratic process ... This feeling of powerlessness stems from the fact electors know that many of the decisions which vitally affect their lives are made by, or on advice from, anonymous public officials, and are frequently based on information which is not available to the public. The government is committed to remedying this situation." (Legislative Assembly Debates, New South Wales, 2 June 1988, p. 1399).65 The enhancement of public participation in government is not a purpose given explicit recognition in the FOI Act itself, though it is probably implicit in some of the concepts expressed in s.5(1), for example, "promoting open discussion of public affairs". (Certainly, the Explanatory Notes to the Freedom of Information Bill, referred to in paragraph 67 below, entertain no doubt on this topic.) It is clear, in any event, from materials comprising the legislative history leading up to the passage of the FOI Act, that it was one of the purposes sought to be achieved by the legislation. At paragraph 3.36 of the Electoral and Administrative Review Commission's Report on Freedom of Information (December 1990, No. 90/86), it is said that: "The fairness of decisions made by government, and their accuracy, merit and acceptability, ultimately depend on the effective participation by those who will be affected by them. Further, when access to information is denied to the public it is denied its right to exercise control over government. FOI legislation is crucial if access to information is to be obtained, and thereby participation in the processes, and control of, government is to be achieved." (See also paragraphs 7.19, 7.108.)66 In his second reading speech on the Freedom of Information Bill, the Attorney-General, the Hon. D M Wells, said (Parliamentary Debates [Hansard], 5 December 1991, at p. 3849): "Freedom of information legislation throughout Australia enshrines and protects three basic principles of a free and democratic government, namely, openness, accountability and responsibility ... [after repeating the terms of s.5(1) of the FOI Act] ... The Bill enables people to have access to documents used by decision-makers and will, in practical terms, produce a higher level of accountability and provide a greater opportunity for the public to participate in policy making and government itself."67 The Explanatory Notes to the Freedom of Information Bill 1991 (circulated by the Attorney-General for the benefit of Members of Parliament) say in respect of clause 5 (now s.5 of the FOI Act): "The clause states two basic reasons for the enactment of FOI legislation. First, the public interest is served by public participation in, and the accountability of, government. Second, the public interest is served by enabling persons to have access to documents held by government which contain information which relates to their personal affairs. The clause acknowledges that the public interest is also served by the non-disclosure of certain information, where disclosure would harm the essential public interests or the private or business affairs of members of the community."68 Of interest in this context is part of an article by English legal academic David Feldman (D Feldman, "Democracy, the Rule of Law and Judicial Review", [1990] FedLawRw 1; (1990) 19 Federal Law Review 1, at p.2-4) in which he attempted to define a category of higher order democratic rights, which cannot, in a democracy, be subject to political interference: "The reason for desiring public political institutions to be organised democratically is that democracy allows individuals a say in the terms and conditions on which social rules which bind them are developed. Intrinsically undemocratic social organisations may make the trains run on time but are bad because, regardless of the benefits which they produce, they deny the autonomy of individual citizens by denying them a voice in the determination of policies, rules and procedures. ... ... there are (higher order) democratic rights. These should be respected and protected by a system which claims to be democratic; failure in this will represent a lapse from the democratic ideal. ... These higher order rights secure each citizen's access to the machinery of political decision-making. ... This provides a reason for individuals to subject some of their interests and freedom of choice to the public political process for some purposes. If it is ever rational for citizens to accept that their rights and obligations will be fixed by social institutions, it will be so only if the institutions operate under rules which guarantee to all citizens an equal right to influence decisions about the form and behaviour of those institutions. ... Some rights, at least are necessary to democratic institutions. For instance, it would be undemocratic to deny the vote to blacks, Jews or women because that would contravene the principle of political equality. On the other hand, it would not be illegitimate to fix a minimum voting age, so long as it is reasonably related to the age at which people are regarded as capable of discharging civic responsibilities and applies to all groups in a non-discriminatory way. These limitations on the majority's power to disenfranchise a minority are not limitations on democracy. They are an essential part of democracy. The same applies to a wide range of rights, which take up a special status as higher order democratic rights which need special protection under a democratic constitution. These include freedom of speech and association, the right to receive information which is relevant to public political decisions which one is entitled to make or influence, and perhaps the right to be provided with forums for speech and association." (my emphasis)69 The right of access to government-held information conferred by freedom of information legislation, and aimed at promoting (as at least one of its objects) informed public participation in the processes of government, can be seen to further what Feldman would classify as the higher order democratic right underlined in the passage just quoted.70 There are strong echoes of Feldman's argument for the recognition of higher order democratic rights in the opinions of the majority judges of the High Court of Australia in Australian Capital Television Pty Ltd v the Commonwealth [No. 2] [1992] HCA 45; (1992) 66 ALJR 695 in which it was held that Part IIID of the Broadcasting Act 1942 (Cth) (introduced into that Act by the Political Broadcast and Political Disclosures Act 1991 (Cth)) was invalid in its entirety because of its severe impairment of the freedoms previously enjoyed by citizens to discuss public and political affairs and to criticise Federal institutions -freedoms embodied by constitutional implication in an implied guarantee of freedom of communication as to public and political discussion. Mason CJ said at p.703: "The very concept of representative government and representative democracy signifies government by the people through their representatives. Translated into constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their representatives. ... The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act. Freedom of Communication as an Indispensable Element in Representative Government Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticise government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. By these means the elected representatives are equipped to discharge their role so that they may take account of and respond to the will of the people. Communication in the exercise of this freedom is by no means a one-way traffic, for the elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and actions in government and to inform the people so that they may make informed judgements on relevant matters. Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative." (my emphasis)71 It is implicit in this passage, and in particular the sentences underlined, that citizens in a representative democracy have the right to seek to participate in and influence the processes of government decision-making and policy formulation on any issue of concern to them (whether or not they choose to exercise the right). The importance of FOI legislation is that it provides the means for a person to have access to the knowledge and information that will assist a more meaningful and effective exercise of that right.72 The FOI Act must be applied in a manner that pays appropriate regard to the objects which the framers of the legislation sought to achieve.73 Already, after less than a year of operation of the FOI Act, views have been publicly expressed by some Ministers and administrators that the FOI Act and other Fitzgerald inspired accountability mechanisms have "gone too far", and constitute an expensive and inefficient distraction to the performance of the main tasks of government. One can anticipate a lack of sympathy in many quarters of the Queensland public sector to the inconvenience posed by the added and time-consuming burdens of new accountability measures and demands for greater public scrutiny and public participation, particularly at a time when the Queensland public sector, in common with other Australian governments, has been embracing the ethic of the "new managerialism", designed to engender and exploit a corporate management public service mentality in the interests of cost cutting and obtaining the government's desired outcomes with the most efficient use of limited public resources.74 However, the scheme of the FOI Act can accommodate the conflict which may sometimes occur between the public interest in the effective and efficient conduct of government business, and the public interest in accountability of, and public participation in, government processes. There will be some instances where it is neither practicable nor appropriate for public participation or consultation in a government decision-making or policy forming process. The appropriate balance in the public interest will be struck according to the relative weight of the competing interests at play in any particular set of circumstances. Sometimes the public interest in accountability and public participation will outweigh the public interest in the effective and efficient use of limited government resources to obtain the government's desired outcomes. A certain amount of inefficiency in getting things done should be a burden that democratic governments are prepared to accept as the price of honouring the higher values of the democratic process. [On the virtues of public participation in the policy forming functions of government, see T Sherman, "Administrative Law - The State of Play", Canberra Bulletin of Public Administration, No. 66, October 1991, 63-68.]75 The significance of the foregoing discussion to the present case is that s.41 of the FOI Act is the exemption provision whose application will most frequently call for the resolution of the tension between the objects which the FOI Act seeks to attain, and the tradition of secrecy which has surrounded the way in which government agencies make decisions which affect the public. Unless the exemption provisions, and s.41 in particular, are applied in a manner which accords appropriate weight to the public interest objects sought to be achieved by the FOI Act, the traditions of government secrecy are likely to continue unchanged.NATURE OF THE MATTER TO WHICH THE APPLICANT HAS BEEN REFUSED ACCESS76 The applicant has been refused access to matter contained in seven separate documents (comprising 26 pages) which the Department has described as follows:Document 1 A memorandum, dated 11 August 1992, of a Senior Legal Officer (within the(2 pages) Department) relating to consultations with another agency;Document 2 A letter dated 5 August 1992 from the Director-General of the Department to(4 pages) the Chief Executive of another agency;Document 3 A letter dated 27 November 1992 from an Assistant Divisional Head of the(7 pages) Department to a Senior Manager in another agency;Document 4 An undated letter from the Director-General of the Department to a Chief(5 pages) Executive of another agency;Document 5 A memorandum, dated 20 August 1992, of a Policy Resource Officer (in the(3 pages) Department) relating to consultations with another agency and including matters for discussion with the Crown Solicitor;Document 6 A letter dated 14 August 1992 from a Divisional Head (within the Department)(3 pages) to a Senior Executive in another agency;Document 7 An undated Departmental brief for the Minister.(2 pages)77 It is only a part of each document that falls within the terms of the applicant's specific request for access to documents relating to assessment or advice of the consequences for the Queensland Government of the High Court decision in the Mabo case: in document 1, one sub-paragraph; in document 2, four paragraphs; most of document 3; in document 4, three paragraphs and an attachment; in document 5, one paragraph and an attachment; in document 6, four paragraphs; in document 7, one paragraph.78 Section 87(2)(a) of the FOI Act prohibits the Information Commissioner from including in a decision on a review, or in the reasons for such a decision, matter that is claimed to be exempt matter. Without disclosing the matter claimed to be exempt, it is permissible and necessary for the sake of explaining my reasons for decision, to make some brief observations on the general nature of the matter claimed to be exempt, and to describe in general terms the nature and purpose of the document in which it appears.79 In so doing, I propose to rule on some portions of the matter claimed to be exempt, where I consider that the result required by the application of the exemption provisions is clear cut. I also propose to identify those parts of the matter claimed to be exempt which I am satisfied fall within the terms of s.41(1)(a) of the FOI Act, and which call for careful consideration of the public interest balancing test under s.41(1)(b) which I have applied below at paragraphs 146 to 185.80 Document 1 is an internal Departmental memorandum recording the substance of a telephone conversation between the author and an officer of another agency, in the latter's capacity as the officer having responsibility for the development of a draft Coastal Protection Bill. The first paragraph is the relevant paragraph and it merely records the then proposed steps in the process of preparation and circulation of the draft Bill, indicating the expected time lines. It is in that context that one sentence refers to matters raised by the Department concerning the Bill's relationship to the Mabo case and how they will be addressed during the process of development of the Bill. 81 It is clear from other documents in issue that some organisations external to government have been afforded the opportunity of consultation on the draft Coastal Protection Bill. I do not accept that any injury to the public interest could flow from the incidental revelation that this Bill was being developed in August 1992, and the then-expected time lines for the process.82 In my opinion, the paragraph, generally, and the particular subparagraph which falls within the terms of the applicant's FOI access request, are entirely innocuous and I cannot foresee that any injury to the public interest could occur as a result of its disclosure. It evidences none of the characteristics relied on by the Department in its reasons for decision on internal review and in its written submission to the Information Commissioner (see paragraphs 94 to 96 below) as indicating that disclosure may prejudice the effective and proper workings of government or cause unnecessary public concern or confusion. Indeed so innocuous is the matter in question that it is difficult to see any benefit to the public interest that might arise from its disclosure. Having regard to the terms in which s.41(1) is framed, however, if the public interest considerations favouring disclosure and non-disclosure are in effect evenly balanced or neutral, the exemption is not made out, and an applicant is entitled to have access. The FOI Act does not require an applicant to demonstrate that disclosure of a deliberative process document would be in the public interest; an applicant is entitled to access unless an agency can establish that disclosure of a deliberative process document would be contrary to the public interest.83 Document 2 is a letter from the Director-General of the Department to the Chief Executive of another agency, responding to an invitation to comment on the draft Coastal Protection Bill. All proposed legislation must be approved by Cabinet and a consultation process prescribed by the Queensland Cabinet Handbook (see p.102 and p.32) requires that the agency and Minister sponsoring a legislative proposal must ensure that consultation occurs with any relevant agencies or organisations affected by the proposal. Document 2 has been prepared as part of that consultation process; it submits to the agency sponsoring the draft Bill, the Department's views on matters (falling within its portfolio responsibilities) that may be affected by provisions of the draft Bill. One such matter is the implications of the Mabo case for some provisions of the draft Bill. It is mentioned in one paragraph on page 2 and dealt with in three paragraphs on page 3, the first of which (comprising one sentence only) can really only be characterised as a pure statement of fact (and one of which the applicant is doubtless well aware). I am satisfied that this paragraph comprises merely factual matter, which is capable of being severed from surrounding matter which is in the nature of opinion, advice or recommendation. It cannot therefore be exempt under s.41, by virtue of s.41(2)(b). The remaining three paragraphs fall within the terms of s.41(1)(a) and their exempt status depends on the application of s.41(1)(b), which is considered below.84 Document 3 is a letter by an officer of the Department to an officer of another agency written in response to a request for consultation comments on a draft strategic plan, in the context of formulating a Queensland Government position. The context suggests that the draft strategic plan will ultimately be submitted for Cabinet endorsement, though the contents of document 3 suggest that the draft strategic plan was not then in a particularly late stage of development. It appears that only three paragraphs in a document of seven pages do not relate to matters connected with the consequences of the Mabo case. The matter contained in the document clearly falls within the terms of s.41(1)(a), and its exempt status depends on the application of s.41(1)(b), which is considered below.85 Document 4 is a letter from the Director-General of the Department to the Chief Executive of another agency addressing the Department's concerns on matters within the Department's portfolio responsibilities, that are affected by proposals in a document prepared by the other agency and which is referred to as the final draft of a Cabinet submission. Document 4 contains three paragraphs and an attachment which fall within the terms of the applicant's FOI access request. The first sentence of the first of the relevant paragraphs comprises purely factual matter. It is in fact identical to the sentence referred to in paragraph 83 above, and for the same reasons there referred to, I am satisfied that this sentence is not exempt matter. There is other factual matter in the first of the relevant paragraphs, but it is inextricably bound up with the expression of opinion which brings the matter in the first paragraph within the terms of s.41(1)(a) of the FOI Act. It cannot therefore be characterised as merely factual matter so as to attract the application of s.41(2)(b). Its exempt status, and the exempt status of the attachment to document 4, depend on the application of s.41(1)(b), which is considered below.86 The consideration of the second of the relevant paragraphs in document 4 creates difficulty because it quotes three sentences from the final draft of the Cabinet submission which document 4 addresses. Although the Department has not relied upon s.36 in its submission, I am satisfied that the three sentences quoted from the final draft Cabinet submission fall within s.36(1)(d) of the FOI Act, being matter that is exempt matter because it is an extract from a draft of matter mentioned in s.36(1)(a), i.e. matter that 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. I am further satisfied that the first of the quoted sentences is not exempt matter under s.36(1) because it is merely factual matter, the disclosure of which would not involve the disclosure of any deliberation or decision of Cabinet (i.e., it falls within the exception to s.36(1) provided for in s.36(2) of the FOI Act). The second and third of the quoted sentences cannot be characterised as merely factual matter, and hence I find that they constitute exempt matter under s.36(1)(d) of the FOI Act.87 By virtue of s.88(2) of the FOI Act, the Information Commissioner has no power to direct that access be given to matter that is established to be exempt matter. This contrasts with the general discretion conferred on agencies and Ministers by s.28(1) of the FOI Act which allows them (when responding to an application for access under the FOI Act) to choose whether to refuse, or to grant, access to exempt matter or an exempt document. Section 14(b) also reserves to agencies and Ministers the right to give access to exempt matter outside of the framework of the FOI Act, provided that it would not be illegal or improper to do so.88 When the matter which I have found at paragraph 86 above to be exempt matter, is severed from the second of the relevant paragraphs in document 4, the balance of that paragraph can properly be characterised as merely factual matter. Hence it is not exempt matter by virtue of s.41(2)(b).89 The third of the relevant paragraphs in document 4 comments specifically on the second and third of the sentences quoted from the final draft Cabinet submission (which I have decided are exempt from disclosure under s.36(1)(d) of the FOI Act). It poses two questions about those sentences, but in a way which does not reveal their nature or content. The third paragraph is for practical purposes, meaningless, without access to the material on which it is commenting. Its disclosure therefore could neither benefit nor harm the public interest. Consistently with my comments in paragraph 82 above, I consider that the s.41 exemption does not apply to this paragraph - the public interest considerations bearing on disclosure are entirely neutral and hence disclosure would not be contrary to the public interest.90 Document 5 is an internal Departmental memorandum recording the substance of oral consultations between less senior officers of the Department and of the agency sponsoring the final draft Cabinet submission which was the subject of document 4. The only real significance of the document for the applicant's FOI request is its reference to the attachment comprising questions which Departmental officers have suggested should be referred to the Crown Solicitor, and which raise specific concerns as to the implications of the Mabo case. The relevant matter falls within the terms of s.41(1)(a), and its exempt status depends on the application of s.41(1)(b), which is considered below.91 Document 6 is a letter from a Divisional Head within the Department to a Divisional Head within the agency sponsoring the draft Cabinet submission that was the subject of document 4. Only four paragraphs deal with implications of the Mabo case. Again the sentence referred to in paragraphs 83 and 85 appears, and for the same reasons there referred to I consider that it is not exempt from disclosure by virtue of s.41(2)(b). The balance of the matter in issue relates to the form of questions which it is suggested the addressee should refer to the Crown Solicitor for legal advice. This material falls within the terms of s.41(1)(a), and its exempt status depends on the application of s.41(1)(b), which is considered below. 92 Document 7 is a Departmental briefing note to the Minister which deals generally with issues relating to a draft Coastal Protection Bill in preparation by another agency. Unlike the other documents considered, this document does not provide opinion, advice or recommendation for the purposes of a deliberative process. It is in the nature of an information paper, to provide information to the Minister. It does, however, record very briefly (in one paragraph) the substance of consultation comments provided by the Department on the implications of the Mabo case, to the agency preparing the draft Bill. This paragraph therefore falls within s.41(1)(a), since its disclosure would disclose opinion, advice or recommendation that was prepared for the deliberative processes of government. Its exempt status depends on the application of s.41(1)(b), which is considered below.SUBMISSIONS BY THE PARTICIPANTS93 The relevant matter contained in the seven documents which falls within the terms of s.41(1)(a) of the FOI Act has been identified above. To qualify for exemption under s.41(1), it must also be demonstrated that disclosure of the matter would, on balance, be contrary to the public interest. Pursuant to s.81 of the FOI Act, the agency which made the decision under review has the onus of establishing that the decision was justified.94 The Department's written submission to me repeated and relied on the reasons for decision given by the Departmental decision-maker at internal review level. That reasons statement sets out the facts relied on as the basis of the decision as follows: "(1) Agencies are routinely requested by other agencies to provide comment on policy and legislation, prior to a proposal being submitted to Cabinet. (2) The documents concerned contain advice and comment on proposed co-ordinated policy and legislation. (3) These proposals have not yet been approved or considered by Cabinet."95 The reasons statement then correctly stated the test which must be satisfied for matter to be exempt matter under s.41(1), and then summarised the main points from the applicant's application for internal review, as set out at paragraph 4 above. The reasons statement then addressed the application of s.41(1)(b) in the following terms: "The argument in favour of disclosure "in the public interest" has been put in detail, and correctly, by the applicant, referring to the object of and reasons for the FOI Act, as outlined in sections 4 and 5 (1) of the Act. The applicant has not presented any further and specific considerations in favour of disclosure. I need as well to consider the provisions of section 5(2) and (3) of the Act - the recognition of Parliament that 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 essential public interests; and the intent of the Act to strike a balance between competing interests. In this situation, one public interest [in the public having access and being informed] is in conflict with another public interest [the view that to release the documents would be contrary to the public interest of maintaining the proper workings of government]. In respect of this application, in considering the public interest of maintaining the proper workings of government, including effective decision making processes, I have adopted the following broad propositions: * It is essential to the workings of government for agencies which have a primary responsibility for the development of legislation or some other particular proposal for Cabinet or other senior level of consideration, that those agencies be able to freely consult with other agencies of government. * Those consultations are often the expression of one point of view only. * At certain phases of this process, confidentiality is essential and may otherwise confuse the community if a number of different single-interest views were being publicly canvassed. At these phases, particularly with Cabinet documents and those in preparation, access is confined even within agencies to a very senior level and tight security control. * The release of an individual agency's comments and opinions may be detrimental to the workings of government as a whole and to the responsibilities of government in the development of policy and legislation. * If the requesting agency knew that the views of another agency were to be made public, it may be less inclined to canvass those views and interests; in the co-operative workings and reversal of roles in another matter, the commenting agency may likewise be reluctant to seek the views of another important agency. Thus the matter under consideration may not be subjected to the fullest possible scrutiny and comment, leading to a less than full consideration, to the detriment of the public interest. It is in the public interest that policy and other decisions be taken only after the frankest possible expression of views between officers and agencies of the government. * Premature disclosure of what may only be an opinion of one agency and not the final proposal of government may lead to premature debate, unnecessary concern and confusion in the community. In respect of the documents in question, they fall into the categories of: * Comments of a sensitive nature, made at a sensitive time in the process involved in the functions of government, that is, consideration of proposals for legislation or other Cabinet considerations. * Comments on highly complex issues that are not yet well understood in the community. * Communications or relating to communications between agencies at a senior level. Balancing the competing public interests, * the general public interest of disclosure so that the public is informed and can participate in the processes of government and government is able to be held more accountable, which interest is recognised in the FOI Act itself and is proposed by the applicant, is recognised; * specifically, achieving certainty in understanding the High Court decisions in the Mabo matter is also recognised to be in the public interest; * the desirability of preventing a prejudicial effect to the general public interest of maintaining effective decision making processes in government, based on the propositions outlined above, is in the present matters under consideration, a substantial public interest; and * certainty in relation to the High Court decision in the Mabo matter is a considerable distance from being reached in the community at all levels - politically, legally and in respect of the views of government and of special interest groups, in particular the Aboriginal and Torres Strait Islander people. There continues to exist many related sets of facts that are not clearly determined by the Court decision and in relation to which a great deal of uncertainty exists. Public expression of the views of one agency or person in this debate would reasonably be expected to lead to uninformed and premature debate in issues that remain legally highly complex and undecided and to a great deal of confusion and unnecessary concern, for the various interests groups and individual persons. It would be detrimental to this public interest to release the documents in question. The interests of maintaining effective and proper workings of government and of not causing public concern are in this issue substantial, and in my view, on balance, they significantly outweigh the competing interests. Decision: The documents referred to in respect of consideration of this exemption provision come within the provisions of section 41(1)(a) of the FOI Act. To release the documents would, on balance, be contrary to the public interest, pursuant to section 41(1)(b) of the Act. The material therefore is exempt and the original decision is affirmed."96 The case made in the reasons statement on internal review was supplemented by a general reference to the principles outlined in the cases of Sankey v Whitlam (1978) 142 CLR 1; Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626, 3 AAR 169; Re Western Mining and Department of Conservation, Forests and Land (1989) 3 VAR 150. It was submitted that: "The principles from these cases that are relied on in respect of the documents under consideration are: * these documents [particularly ... 2, 3, 4 and 6] were generally created by a senior officer; * senior officers would have difficulty in discharging the responsibilities of their office if every document prepared to enable policies to be formulated was liable to be made public; * the documents are sensitive, prepared at a sensitive stage of government policy-making consideration; * they are documents created in the course of development of policy by another agency and eventually for Cabinet consideration; * release of the information may inhibit frankness and candour in future exchanges of information between agencies in pre-decisional consultations; sound working relationships between agencies of government are essential to the efficient operation of government and this is in the public interest; * release of the information, which represents one particular view of one agency, where there may be a number of other views held by other agencies or by the agency with carriage of the issues, may cause confusion and unnecessary debate. Thus the view is reinforced that the documents come within the provisions of s.41(1) of the FOI Act and that to release them would, on balance, be contrary to the public interest."97 Finally, it was submitted that certain material in items 4 and 5 is exempt matter pursuant to s.43 (legal professional privilege) of the FOI Act as it was brought into existence for the purposes of obtaining legal advice from the Government's legal adviser, the Crown Solicitor.98 The applicant responded to the Department's submission on the application of the public interest balancing test in s.41, as follows: "Firstly, ... [s.41] ... places the onus on the Department to prove its case. It requires that the Department must satisfy you that, on balance, the release of the documents wold be "contrary to the public interest". I believe that it would not be sufficient for the Department to argue in broad terms about the possible difficulties for the public service which could result from release of these documents; rather it should be able to demonstrate that some real detriment will result. On my reading of its response to you, the Department has not done this. Instead it merely refers to a number of previous cases from which certain principles are drawn. It says that the documents were generally created by senior officers and that these senior officers would have difficulty doing their job "if every document prepared to enable policies to be formulated was liable to be made public". I do not seek every document prepared; merely the ones set out in my request. Nor do I see any validation of the claim that public servants could not in future do their job if these PARTICULAR documents were released. In any event, I have difficulties with the general proposition that public servants ought to be able to work in isolation of the public they serve. The Department also says the documents are "sensitive". What does this mean precisely? Does it mean the Minister or the Premier will become upset if they are released? Does it mean they are controversial? Neither of these reasons would be sufficient to block their release. Such a meaningless description is clearly not a good enough reason to keep the documents hidden from public gaze. Further, the Department says the documents were created by another agency for eventual Cabinet consideration. Surely this excuse could apply to any number of documents and ought not be used as a reason for exemption without some evidence that these documents particularly will be against the public interest. The Department speaks of problems with lack of frankness and candour. The government's own FOI manual, page 131, says that such arguments are often put and points out this is unlikely to be sufficient without some additional clear public detriment. In my view, none has been demonstrated to you. The Department also suggests that releasing the view of one agency may lead to public confusion and unnecessary debate. There are two points to rebut this - the reality and the philosophical. In reality, there are already so many different views about Mabo, so much public confusion, that the release of a small number of this Department's documents could not conceivably exacerbate the situation - whatever it said. Philosophically, this idea is objectionable and goes to the general point I want to make. The public is far more mature than the Department seems to believe. It is quite capable of making a rational decision once presented with accurate information. It is capable of differentiating between a draft position and a final position, between one Department's view and that of a government. This level of discernment by the electorate is necessary to elect governments ... in the first place; it is the cornerstone of our society. It is called democracy. And for it to function properly, people need to know what is going on. They are indeed entitled to know, and the FOI Act is not just recognition of this, but also that in the past the overwhelming public service ethos has been the opposite. In my view it is beyond argument that governments across Australia in recent years have been damaged far more by their activities carried out hidden from public scrutiny than by the release of any documents under FOI or for that matter, information leaked to reporters. The Fitzgerald Inquiry in Queensland and the WA Inc Royal Commission have revealed much political and other official corruption carried out at least in part BECAUSE of inadequate scrutiny. Among other things, Fitzgerald questioned the role of the Queensland media; the WA Inc Royal Commission proposed a standing investigatory body on official corruption and a greater review role for the Upper House. Accordingly, it is in the public interest to encourage and enforce the release of information wherever possible. The arguments that governments and their bureaucrats cannot function in the public gaze must be rejected. Governments leak confidential information when it suits them, and the public interest is not claimed to be at risk then. Ensuring that the most information possible is made available on request under FOI is surely one of the best weapons at preventing problems revealed by Fitzgerald and others. I also draw your attention to relevant comments by the Attorney-General, Mr Dean Wells, in the second reading speech introducing the FOI Bill. Wells said that the access would allow greater public participation in policy-making ... he clearly then envisaged the public release of information which makes up the so-called deliberative process. Wells also said the "Bill replaces this presumption of secrecy with a presumption of openness". And in his accompanying media release, Mr Wells said "opening the books to such an extent could be considered brave - it could even be considered foolhardy. But we believe the government exists to serve the people - the information held by the government for that purpose belongs to the people. We are prepared to wear the consequences". Of course in making your decision you must consider the importance of the subject matter itself. Undoubtedly the Mabo case is one of the most important decisions the High Court has made. The issue is one of the most crucial modern Australia has considered. As I write this, the Council of Australian Governments has failed to reach a common view; and aboriginal groups around the nation have been making new land claims. It is difficult to conceive of a matter of greater genuine public interest and importance than Mabo. The Australian newspaper has given the issue greater and more serious attention than any other media outlet. It has nominated Eddie Mabo posthumously as its Australian of the Year. This newspaper believes it has demonstrated its genuine interest in this matter. And I urge you on the paper's behalf to reject the general and inadequate arguments that release of the documents sought would be contrary to the public interest."ANALYSIS OF THE DEPARTMENT'S SUBMISSION99 Having considered the arguments put forward by the Department in the light of my examination of the matter claimed by the Department to be exempt, I consider that the Department has failed to establish that any damage would be caused to the public interest in maintaining effective and proper workings of Government, by the disclosure of the relevant parts of the deliberative process matter contained in the seven documents identified in paragraph 76 above. Nor do I accept that disclosure of the matter claimed to be exempt would be injurious to the public interest by leading to premature debate, unnecessary concern and confusion in the community. 100 In the specific circumstances of this case, therefore, I do not consider that any public interest considerations favouring non-disclosure have been established which could weigh against the two public interests identified in the reasons for decision on internal review as weighing in favour of disclosure. I have set out in more detail below my reasons for rejecting the public interest considerations said by the Department to favour non-disclosure. Those reasons will be more readily understood in the light of my following comments on the three cases on which the Department sought to rely in this matter.101 Re Howard and Treasurer of the Commonwealth of Australia (1985) 3 AAR 169 was a case decided by the President of the Commonwealth AAT at a time when that body had little more than two years experience in determining appeals under the Commonwealth FOI Act. The documents in issue in the case comprised advice to the Treasurer on the implications and estimated cost of tax options, given in the course of the deliberative process involved in the formulation of the 1984/85 Federal budget. The case was therefore somewhat exceptional in terms of the technical complexity and extreme political sensitivity of the deliberative process documents in issue. It was also a case where a "conclusive" certificate had been issued under s.36(3) of the Commonwealth FOI Act, so the Tribunal was not exercising a merits review function, but was confined to the issue of whether reasonable grounds existed for the issue of the certificate. (Certificates of a similar kind may be issued by the Minister under the FOI Act, but only in respect of ss.36, 37 and 42.) I do not doubt that a correct decision was reached on the application of the relevant provisions of the Commonwealth FOI Act to the documents in issue. The Tribunal, however, made what I consider, with the benefit of hindsight, to have been an ill-advised attempt to formulate a list of five general principles to indicate when disclosure of a deliberative process document is likely to be contrary to the public interest. For reasons explained below, I consider some of those five principles (hereinafter referred to as the five Howard criteria) are incorrect and should not be followed in Queensland, while the others all require significant cautionary qualifications. 102 In its comments under the topic heading "Public Interest", the Tribunal commenced by quoting a passage from a prior decision of the AAT (Re Murtagh and Commissioner of Taxation [1984] AATA 249; (1983) 6 ALD 112 at 121) which has been accepted and applied in subsequent decisions of the AAT, warning against the introduction of class claims (i.e. a claim that disclosure of a document would be contrary to the public interest because of its membership of a particular class, usually defined according to its role in the processes of government, rather than because disclosure of the actual contents of the document would be contrary to the public interest) to the consideration of public interest factors under s.36 of the Commonwealth FOI Act: "It is clear that the public interest is not to be limited by the prescription of categories or classes of documents the disclosure of which to the public would be contrary to the public interest. The public interest is not to be circumscribed. All documents must be examined to ascertain whether, having regard to the circumstances, their disclosure would be contrary to the public interest."103 Another passage from Murtagh (at p.123) was quoted: "... Broadly speaking, s.36 can be seen as an attempt of the legislature to protect the integrity and viability of the decision-making process. If the release of documents would impair this process to a significant or substantial degree and there is no countervailing benefit to the public which outweighs that impairment, then it would be contrary to the public interest to grant access."104 While I can understand the general notions about the weighing of competing interests expressed in this passage, I share the concerns expressed by Deputy President Todd in the subsequent case of Re Dillon and Department of the Treasury (1986) 4 AAR 320 at p.330 about the vagueness of the public interest ground identified in the first sentence of the passage above: "The first public interest ground offered [by the respondent] was that there was a public interest in "protecting the viability of the decision-making process". Without more, this is too vague and amorphous a concept to be considered a legitimate public interest. It is, moreover, a tag which an agency could easily attach to any document which is sought not to be disclosed and which, if accepted, would greatly reduce the review function of the Tribunal in this jurisdiction."105 After discussing authorities under the United States Freedom of Information Act 1966 (the U.S. FOI Act), and referring to cases on public interest immunity (Conway v Rimmer [1968] UKHL 2; [1968] AC 910 and Sankey v Whitlam) and a list of some of the earliest decisions of the Commonwealth AAT dealing with the s.36 exemption under the Commonwealth FOI Act, the Tribunal in Howard set out its attempt to formulate general principles to indicate when disclosure of a deliberative process document is likely to be contrary to the public interest. The relevant passage (at p.634-5) is in the following terms: "From such authorities and from decisions of Tribunals ... it is possible to postulate that in each case the whole of the circumstances must be examined including any public benefit perceived in the disclosure of the documents sought but that: (a) the higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed; (b) disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest; (c) disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest; (d) disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest; (e) disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process. The FOI Act has been in operation since 1 December 1982 ... the Tribunal has not yet received evidence that disclosure under the FOI Act has in fact led to a diminishment in appropriate candour and frankness between officers. As time goes by, experience will be gained of the operation of the Act. The extent to which disclosure of internal working documents is in the public interest will more clearly emerge. Presently, there must often be an element of conjecture in a decision as to the public interest. Weight must be given to the object of the FOI Act."106 The words which introduced the list of the five criteria provide some balance by referring to the need in each case to examine the whole of the circumstances including any public benefit perceived in the disclosure of a document. Likewise the paragraph which follows the list of the five criteria sounds a note of scepticism about whether disclosure under the FOI Act does lead to a diminishment in appropriate candour and frankness between officials, and also states that weight must be given to the object of the FOI Act. That paragraph also rather suggests that the preceding five criteria should not be regarded as set in concrete, but as indicators which might require revision with the gaining of greater experience in the operation of the Act and of the extent to which disclosure of deliberative process documents is in the public interest. These factors, however, are rarely acknowledged when the five Howard criteria are called in aid to support the non-disclosure of documents.107 I consider that the formulation of the five Howard criteria was ill-advised for a number of reasons. First, it placed an unwarranted emphasis on factors justifying non-disclosure, and provided an easy checklist of factors that could be called in aid to justify non-disclosure. No similar set of criteria specifying considerations which favoured disclosure was enunciated.108 Second, the terms in which the criteria were framed, using words like "tends not to be", "is likely to be", "may be unfair to", "may prejudice", and referring only to general and mostly intangible kinds of harm (e.g. prejudice to the "integrity of the decision-making process"), has given government agencies the impression that it is sufficient to point in a general and speculative way to largely intangible kinds of harm to the public interest, instead of requiring them to state with precision the kinds of tangible harm to effective government decision-making processes (or other aspects of the public interest) that can be expected to flow from disclosure.109 Third, in respect of at least the first two of the criteria, aspects of the class claim ( against which the Tribunal specifically warned in the passage from Murtagh quoted earlier in the Howard decision itself) were permitted to re-enter by the specification of categories of documents disclosure of which tends not to be in the public interest (high-level documents, policy documents) without any qualifying reference to the overriding need to consider whether disclosure of the actual contents of such documents would be injurious to the public interest.110 Fourth, the Tribunal seems to have drawn on principles from United States case law interpreting the fifth exemption, (b)(5), of the US FOI Act (see especially at p.633 of the case report) which are not necessarily appropriate to the materially different wording and structure of s.36 of the Commonwealth FOI Act (a fact which was recognised by Beaumont J in Harris v ABC [1983] FCA 242; (1983) 50 ALR 551 at p.563, and by a Full Court of the Federal Court of Australia in Harris v ABC [1984] FCA 8; (1984) 1 FCR 150 at p.154). Exemption 5 in the US FOI Act excludes from the obligation of disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency". The US legislature was prepared to express its exemption in terms which incorporated by reference the US law with respect to a government agency's privilege from production in legal proceedings (which would roughly equate to the English and Australian law of Crown privilege/public interest immunity plus legal professional privilege) and thereby accepted the limitations inherent in that law, with its very narrow focus on public interest considerations favouring disclosure - see paragraph 116 below. The Commonwealth Parliament, on the other hand, and all State legislatures that have followed it, chose to adopt a quite different statutory formula which left wide open the range of competing interests that might bear on the question of whether disclosure of particular deliberative process documents would on balance be contrary to the public interest. There is no requirement to import notions from the law of discovery in legal proceedings into the interpretation of s.36 of the Commonwealth FOI Act or s.41 of the FOI Act, and attempts to do so should be tempered by an appreciation of the quite different objects that the law is seeking to achieve in these two different contexts.111 Fifth, the Tribunal has drawn on some principles expressed in the leading English and Australian authorities on Crown privilege/public interest immunity and sought to apply them in a manner that is quite inappropriate, having regard to the materially different context and objects of freedom of information legislation. Take for instance the passage from the judgment of Lord Reid in Conway v Rimmer which was quoted in Howard's case shortly before the formulation of the five criteria, and seems to have influenced the formulation of at least the second and fourth of those criteria. That passage from Lord Reid's judgment is in the following terms (at p.952): "I do not doubt that there are certain classes of documents which ought not be disclosed whatever their content may be. Virtually everyone agrees that Cabinet minutes and the like ought not to be disclosed until such time as they are only of historical interest. But I do not think that many people would give as the reason that premature disclosure would prevent candour in the Cabinet. To my mind the most important reason is that such disclosure would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind. And that must, in my view, also apply to all documents concerned with policy making within departments, including, it may be, minutes and the like by quite junior officials and correspondence with outside bodies. Further, it may be that deliberations about a particular case require protection as much as deliberations about policy. I do not think that it is possible to limit such documents by any definition, but there seems to me to be a wide difference between such documents and routine reports. There may be special reasons for withholding some kinds of routine documents, but I think that the proper test to be applied is to ask, in the language of Lord Simon in Duncan's case [1942] UKHL 3; [1942] AC 624 at 642, whether the withholding of a document because it belongs to a particular class is really 'necessary for the proper functioning of the public service'." (my emphasis)112 The sentences which I have underlined express principles which I consider to be particularly inappropriate for transposition into the context of freedom of information legislation. It is doubtful that Lord Reid's remarks about disclosure creating or fanning ill-informed or captious public or political criticism have ever been accepted by the High Court as reflecting an appropriate justification for Crown privilege/public interest immunity in Australian law. In Sankey v Whitlam, Gibbs ACJ after quoting those remarks of Lord Reid, said (at p.40): "Of course, the object of the protection is to ensure the proper working of government and not to protect Ministers and other servants of the Crown from criticism, however intemperate and unfairly based."113 Mason J after referring to the same passage said (at p.97): "I also agree with his Lordship that the efficiency of government would be seriously compromised if Cabinet decisions and papers were disclosed whilst they or the topics to which they relate are still current or controversial. But I base this view, not so much on the probability of ill-formed criticism with its inconvenient consequences, as upon the inherent difficulty of decision-making if the decision-making processes of Cabinet and the materials on which they are based are at risk of premature publication."114 In addition, Lord Reid's comments appear to be contrary to the principles enunciated by Mason J in Commonwealth of Australia v John Fairfax and Sons, as set out in paragraph 43 above, and inconsistent with Mason CJ's comments in the Australian Capital Television Pty Ltd v Commonwealth (No. 2) as set out in paragraph 70 above (though legal questions of a different kind were under consideration in those cases).115 It is important to remember that both Conway v Rimmer and Sankey v Whitlam were decided in an era when the prevailing law was that, apart from the curial processes of discovery, interrogatories and subpoena, the Executive government could not be compelled to disclose any information which it possessed. The authority of the courts was limited to compelling disclosure of government-held information for the purpose of its use as relevant evidence in court proceedings, and the courts were generally conscious that they were exercising an exceptional power. (Those two cases were in fact among the first in their respective jurisdictions to mark the end of a longstanding trend of judicial deference to the judgment of the Executive government as to whether the public interest would be injured by disclosure in court proceedings of government-held information.)116 It is particularly important to bear in mind that in the Crown privilege/public interest immunity cases, there is only one facet of the public interest for which disclosure of government information is being sought, and it is generally the only public interest consideration favouring disclosure which is placed on the scales in the weighing process which occurs in these cases, namely, the public interest in the due administration of justice by the courts, in that litigants should be entitled to have their disputes resolved by the courts in the light of all relevant and admissible evidence which bears on the dispute. Occasionally other public interest considerations favouring disclosure have been recognised in these cases, but generally only as factors which neutralise a claim of harm to the public interest through disclosure, which is advanced by the government party. The only purpose for which disclosure is being contemplated is for use in court proceedings. Public interest considerations relating to open and accountable government are not directly relevant in that context, and this is especially so of the cases decided against a background where the prevailing law accepted that Executive governments otherwise possessed a largely unfettered discretion as to the release or withholding of information. 117 Freedom of information legislation, however, has turned on its head the natural order that had prevailed for centuries with respect to the disclosure of government-held information. It has done so in the pursuit of objects of the kind discussed in paragraphs 58 to 75 above. Among its avowed objects are to facilitate informed scrutiny and indeed criticism of the performance of Government. The comments of Lord Reid underlined in the passage above (and indeed several other facets of the public interest recognised in some of the Crown privilege cases as weighing against disclosure of government information) must be recognised as the product of a different legal order, and as being inimical to the attainment of the avowed objects of freedom of information legislation. 118 Decisions in the Crown privilege/public interest immunity cases can provide guidance as to aspects of the public interest which have been acknowledged by the courts to exist, and as to how the process of identifying and balancing competing public interests is to be approached. But in my opinion, the leading authorities on Crown privilege/public interest immunity must be used with a keen awareness of the factors which I have referred to above, which may make some statements of principle incompatible with, and unsuitable for application within, the very different legal framework of freedom of information legislation.119 The five Howard criteria have been subjected to telling criticism by Deputy Presidential members of the Commonwealth AAT in subsequent cases (some of which are referred to below), by academic critics (see for example S. Zifcak, "Freedom of Information: Torchlight but not Searchlight", Canberra Bulletin of Public Administration No. 66, October 1991, 162 at p.165; P. Bayne, "Freedom of Information : Democracy and the protection of the processes and decisions of government", (1988) 62 ALJ 538) and in the EARC Report on Freedom of Information at paragraph 7.121-7.127 inclusive. The five Howard criteria have also, however, been uncritically embraced and applied by some members of the Commonwealth AAT and some members of the Victorian AAT (doubtless influenced to some extent by the stature of the presiding member of the Tribunal), and probably also by a host of FOI decision-makers eager to embrace a simple set of criteria set out in such general and easily manipulable terms, all of which are directed toward affording support for a finding that disclosure of documents would be contrary to the public interest.120 In respect of the first of the Howard criteria, I endorse what was said by Deputy President Todd in Re Dillon and Department of Treasury (1986) 4 AAR 320 at 331 in response to an argument by the respondent (relying on the first of the Howard criteria) that as the documents in issue involved high-level communications their disclosure would be contrary to the public interest: "It is enough to say that I consider that the mere fact of a document being a high level communication does not make its disclosure contrary to the public interest. If any doubt were entertained on this point reference to ss.3 and 11 of the Act, dealing with the Act's object and granting the basic right of access, discloses that documents in the possession of a Minister and official documents of a Minister are treated on an equal footing with more mundane documents in the possession of an agency."121 These remarks are equally applicable to the FOI Act, in light of its corresponding provisions. Deputy President Todd made the same point in Re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589 in which he sought to characterise the Howard criteria (at p.597) as "empiric conclusions ... not intended to be used as determinative guidelines for the classification of information". At p.603, Deputy President Todd said: "... I do not consider that because the documents are 'high-level' correspondence their disclosure is necessarily contrary to the public interest. It may be that high-level correspondence is more likely than lower-level material to have characteristics which make its disclosure contrary to the public interest. If so, it is those characteristics, and not the mere fact of it being high-level, which makes its disclosure contrary to the public interest. Once again, this can readily be seen by reference to ss.3 and 11 (stating the object of the Act and giving the basic right of access) which treat all the documents of an agency and official documents of a Minister on an equal basis. I do not regard any of the cases cited by Mr Gardiner as suggesting otherwise. In each case where the disclosure was considered to be contrary to the public interest, careful regard was had to the character of the document."122 In Re Dillon, Deputy President Todd also dealt (at p.332) with an argument based on the second of the Howard criteria: "... Miss Kenny [for the government party] submitted that the public interest leant towards non-disclosure where the documents were made in the course of, and subsequent promulgation of, policy. While I consider that this would be a matter relevant to s.36(1)(a), I am unable to see its relevance to the public interest. The separate, twin requirement of s.36(1)(b) clearly suggests that the fact of a document being of a type referred to in s.36(1)(a) is of no relevance to a consideration of the public interest. By creating two separate requirements in two separate paragraphs, as opposed to the method used in ss.33(1), 33A(5), 39(2) and 40(2), the legislature has put the two in contradistinction to one another. To accept Miss Kenny's argument would amount to a dilution of the public interest requirement in s.36(1)(b)."123 In my opinion, the second Howard criterion is plainly wrong. The only material which could support its formulation is contained in some of the U.S. case law under Exemption 5 of the U.S. FOI Act and in some of the Australian and UK authorities on Crown privilege/public interest immunity. I have already stated my view that it was quite inappropriate to transpose those principles into the context of Australian freedom of information legislation. To uphold the second Howard criterion in the very broad terms in which it is stated would defeat one of the main purposes of the FOI Act which is to allow citizens access to documents that will permit informed participation in the development of government policy proposals which are of concern to them.124 The third of the five Howard criteria, the "candour and frankness" argument has been viewed with a healthy scepticism by most presiding members of the Commonwealth AAT. Indeed some have made remarks which suggest that inhibition of candour and frankness is unlikely ever to suffice as a ground of injury to the public interest that would justify non-disclosure of documents under FOI legislation (see for example Re VXF and Human Rights and Equal Opportunity Commission (1989) 17 ALD 491 at p.504-5, paragraphs 48 and 52; Re Sunderland and Department of Defence (1986) 11 ALD 258 at p.263).125 There is respectable support for such an approach in decisions of the High Court of Australia. In Sankey v Whitlam (1978) 142 CLR 1 at p.62-63, Stephen J said: "The affidavits sworn by members of the present ministry and by senior public servants make it clear that all the claims to Crown privilege are class claims, not contents claims; it is not suggested that to disclose the contents of any of the documents, the Loan Council documents apart, will of itself result in detriment to the public interest flowing directly from the nature of what is disclosed. The detriment perceived is, rather, that generalised form of apprehended harm which, it is said, will flow from a realisation by Cabinet Ministers and by public servants that what they conceived to be confidential communications can, in the event of appropriate curial proceedings being instituted, become public knowledge. Those who urge Crown privilege for classes of documents, regardless of particular contents, carry a heavy burden. ... Sometimes class claims are supported by reference to the need to encourage candour on the part of public servants in their advice to Ministers, the immunity from subsequent disclosure which privilege affords being said to promote such candour. The affidavits in this case make reference to this aspect. Recent authorities have disposed of this ground as a tenable basis for privilege. Lord Radcliffe in the Glasgow Corporation case remarked [1955] UKHL 7; (1956 SC(HL) 1 at page 20) that he would have supposed Crown servants to be "made of sterner stuff", a view shared by Harman LJ in the Grosvenor Hotel case [1965] Ch at p.1255; then in Conway v Rimmer [1968] AC 901, Lord Reid dismissed the "candour" argument but found the true basis for the public interest in secrecy, in the case of Cabinet minutes and the like, to lie in the fact that were they to be disclosed this would "create or fan ill-formed or captious public or political criticism". ... and see as to the ground of "candour" per Lord Morris, Lord Pearce and Lord Upjohn. In Rogers v Home Secretary [1973] AC at p.413, Lord Salmon spoke of the "candour" argument as "the old fallacy"."126 The comments of Lord Upjohn in Conway v Rimmer to which Stephen J referred were (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 views in the course of his duty on some subject, such as even the personal qualifications and delinquencies of some colleague, by the 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 everyone else in every walk of professional, industrial and commercial life who everyday has to express views on topics indistinguishable in substance from those of the servants of the Crown."127 Also in Sankey v Whitlam, Mason J said (at p.97): "... The possibility that premature disclosure will result in want of candour in Cabinet discussions or in advice given by public servants is so slight that it may be ignored, despite the evidence to the contrary which was apparently given and accepted in Attorney-General v Jonathan Cape Limited [1976] QB 752. I should have thought that the possibility of future publicity would act as a deterrent against advice which is specious or expedient."128 Gibbs ACJ was prepared to leave open the possibility that "in some matters at least" the frankness and candour argument may be persuasive, though the example he chose in illustration related to the assessment of personal and professional qualities for suitability to high office, rather than to policy-forming processes. He 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."129 The dominant approach which has applied in the Commonwealth AAT is exemplified by what was said by Deputy President Todd in Re Fewster and Department of Prime Minister and Cabinet No. 2 (1987) 13 ALD 139 at 141 (paragraph 11). After quoting the five Howard criteria, he said: "With respect, proof of the "indicators" set out by the Tribunal in para (c) of the passage quoted has been, in the light of subsequent consideration in other cases, culminating in the first Fewster case, so elusive as to attract consistent scepticism on the part of the Tribunal. When married to the principle that, in the absence of an ability to secure exemption under a particular class (such as Cabinet documents), it is the information in the particular document that counts, it is in my view really time that agencies stopped repeating the "candour and frankness" claim under s.36 unless a very particular factual basis is laid for the making of the claim."130 In the earlier Fewster case (1986) 11 ALN N266, Deputy President Hall was reviewing the grounds of exemption relied upon in a conclusive certificate issued under s.36 of the Commonwealth FOI Act, those grounds being in the following terms: "(1) In respect of documents 1, 2 and 3, disclosure would undermine the necessary confidentiality between Commonwealth Ministers and thereby inhibit their proper expression and exchange of views and opinions on matters relating to government policy. (2) In respect of document 3, disclosure would undermine the necessary confidentiality relating to considerations of matters which deal, inter alia, with sensitive discussions between the Commonwealth and the State Governments. (3) In respect of documents 4 and 5, disclosure would adversely affect the operation of the Department by inhibiting the frank and open expression of advice, opinion and recommendation by senior officers to the Prime Minister. "131 Deputy President Hall's comments on these grounds were as follows (at p. N270-1): "(37) I agree with Mr Bayne that, as expressed in the s.36 certificate, and as supported by Mr McInnes' affidavit evidence, the grounds relied upon were thinly-veiled "class" claims. Although couched in terms that purported to relate to the individual documents, the substance of the ground in each case (as Mr McInnes' affidavit evidence made clear) was that to release the particular document (or part of document) would "increase the expectation that such documents would be released in the future" and would thus prejudice either the necessary "confidentiality" that must exist in high level communications between Ministers or the necessary "candour and frankness" with which advice to Ministers must be expressed. In other words, so the argument ran, the need to ensure confidentiality and candour and frankness in future "similar" documents is of such overriding importance in the public interest, that the present documents should not be disclosed. Such an argument, if accepted by the Tribunal, would lead inevitably to the conclusion that all deliberative process documents of the kind in question are exempt from disclosure under the Act. To disclose one such document would be likely to destroy the climate of confidentiality and candour and frankness which is essential to communication between and with Ministers. (38) In my view, a proposition in those broad terms cannot be sustained for the purposes of s.36(1)(b) of the FOI Act. ... no justification is to be found within the language of s.36 of the Act for a "class" claim of exemption. As framed, grounds 1 and 2 would be satisfied on proof that the communications in question were "confidential" communications between Ministers (ground 2, in my view, being no more than a particular application of ground 1). Ground 3 would be satisfied on proof that the minute contained "candid and frank" advice from a senior public servant to the Prime Minister. In my view, more than that is required for the purposes of s.36(1)(b). (39) Where parliament has deemed it necessary to give paramountcy to the undoubted public interest in confidentiality and candour and frankness by protecting a class of documents containing high level communication from disclosure under the Act, it has done so by express proscription. Thus, by force of s.34(1)(a) of the Act, a document is an exempt document if it is a document that has been submitted to Cabinet for its consideration, being a document that was brought into existence for that purpose. Similar provision has been made with respect to Executive Council documents: see s.35(1)(a). The document is exempt upon proof of the facts which bring it within the prescribed class, regardless of the actual contents or subject matter: see Re Anderson and Department of Special Minister of State (No. 2) [1986] AATA 79; (1986) 4 AAR 414 at 441-2; [1986] AATA 79; 11 ALN N239; cf Re Lianos and Secretary, Department of Social Security (1985) 7 ALD 475 at 493. Parliament has not gone on to provide, as it might well have done, had it been so minded, that documents containing confidential communications between Ministers or between senior public servants and Ministers are also exempt, as a class, from disclosure under the Act. Rather, the question whether such communications should be exempt has been left to be determined having regard to the contents of each document, in the light of the public interest test posed by s.36(1)(b): see Lianos at 494-5. The need to ensure candour and frankness in the expression of advice etc and to maintain confidentiality, where appropriate, are left, in my view, as facets of the public interest to be weighed and evaluated in each case with other competing considerations. They are relevant but not determinative considerations: see Re Brennan and Law Society of Australian Capital Territory (No. 2) (1985) 8 ALD 10 at 21; cf Re Lianos at 496. (40) The Tribunal has repeatedly indicated its reluctance to accept the candour and frankness argument, particularly when presented, in substance, as a "class" claim ... ."132 I consider that the approach which should be adopted in Queensland to claims for exemption under s.41 based on the third Howard criterion (i.e. that the public interest would be injured by the disclosure of particular documents because candour and frankness would be inhibited in future communications of a similar kind) should accord with that stated by Deputy President Todd of the Commonwealth AAT in the second Fewster case (see paragraph 129 above): they should be disregarded unless a very particular factual basis is laid for the claim that disclosure will inhibit frankness and candour in future deliberative process communications of a like kind, and that tangible harm to the public interest will result from that inhibition.133 I respectfully agree with the opinion expressed by Mason J in Sankey v Whitlam that the possibility of future publicity would act as a deterrent against advice which is specious or expedient or otherwise inappropriate. It could be argued in fact that the possibility of disclosure under the FOI Act is, in that respect, just as likely to favour the public interest. 134 Even if some diminution in candour and frankness caused by the prospect of disclosure is conceded, the real issue is whether the efficiency and quality of a deliberative process is thereby likely to suffer to an extent which is contrary to the public interest. If the diminution in previous candour and frankness merely means that unnecessarily brusque, colourful or even defamatory remarks are removed from the expression of deliberative process advice, the public interest will not suffer. Advice which is written in temperate and reasoned language and provides justification and substantiation for the points it seeks to make is more likely to benefit the deliberative processes of government. In the absence of clear, specific and credible evidence, I would not be prepared to accept that the substance or quality of advice prepared by professional public servants could be materially altered for the worse, by the threat of disclosure under the FOI Act. 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. 136 The formulation of the fourth of the Howard criteria seems to be based on principles gleaned from the Crown privilege/public interest immunity cases which are incompatible with the objects and legal framework of the FOI Act. The fourth criterion suggests that, without regard to questions of injury to effective government processes, a judgment may be made that disclosure of particular information will confuse the public or lead to unnecessary debate. This seems to me to be impliedly inconsistent with the views expressed by a majority of judges of the High Court of Australia in Australian Capital Television Pty Ltd v Commonwealth [No. 2] (see paragraph 70 above, and paragraph 180 below) as to the indispensability in a representative democracy of freedom of communication in relation to public affairs and political discussion. 137 This fourth criterion is based on rather elitist and paternalistic assumptions that government officials and external review authorities can judge what information should be withheld from the public for fear of confusing it, and can judge what is a necessary or an unnecessary debate in a democratic society. I consider that it is better left to the judgement of individuals and the public generally, as to whether information is too confusing to be of benefit or whether debate is necessary. Public response (or lack of it) is more likely to be a reliable determinant (than individual judgment) of what constitutes necessary or worthwhile debate. I note that this criterion was singled out for special comment by the Senate Standing Committee on Legal and Constitutional Affairs in its "Report on the Operation and Administration of the Freedom of Information Legislation" (1987). I find the Committee's criticism of the fourth Howard criterion logical and compelling. The Committee said (at p.166-8): "11.6 In general, the Committee is satisfied by the way the public interest test has been applied. However, the Committee regards one aspect with concern. In Re Howard and Treasurer of Commonwealth of Australia, Justice Davies extracted from earlier cases a number of guidelines as to when disclosure will not be in the public interest. One of these was that 'disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest'. 11.7 In commenting upon this guideline, the Committee does not seek to second guess the Tribunal's decision. The Committee recognises that selecting one of a list of five factors to which the Tribunal adverted in its decision may distort the significance attributed by the Tribunal to that factor. 11.8 However, this guideline has been adopted in subsequent cases, and appears to be gaining currency amongst decision-makers. The Committee is concerned that, under this guideline, FOI decision-makers may take it upon themselves to decide what will and will not confuse the public and what is an 'unnecessary debate' in a democratic society. 11.9 In one case in which the guideline was applied, access was sought to a document prepared for a senior policy advising committee. The Tribunal ... said on this point: If it were possible to put together all the written and oral submissions made to the committee, the discussions of those submissions and any other element that led to the making of the final decision, and to make all that material available to one who was qualified to understand it and debate it, perhaps confusion could be avoided. That is not however the situation with which we are confronted at the moment. We have only one ingredient in the debate the disclosure of which could possibly distort the validity of the final decision that was made. 11.10 The Committee regards with some concern the implication that access to material would be given to 'one who was qualified to understand it and debate it', but not to a member of the general public or, as in this case, a journalist. 11.11 In Re Howard, the documents concerned possible taxation options. With respect to the particular guideline, the Tribunal said: 'disclosure of the documents could lead to confusion and debate about taxation proposals which were not in fact adopted by the Government'. The implication is that the Australian community lacks the sophistication to distinguish between a proposal canvassed as an option and a proposal actually adopted. Debate after the event on an option that was not adopted is presumably 'unnecessary debate'. 11.12 The Committee regard the Australian community as more sophisticated and robust than the guideline assumes. The Committee acknowledges that documents relating to policy proposals considered but not adopted can be used to attempt to confuse and mislead the public. But the Committee considers that such attempts, if made, will be exposed. The process of doing so will lead to a better public understanding of the policy formation process. 11.13 Consistent with its attitude to the basis on which deletions should be able to be made, the Committee records its conclusion that possible confusion and unnecessary debate not be factors to be considered in calculating where the public interest lies."138 The fifth of the Howard criteria may be justified in particular circumstances. For instance, I find unexceptionable the decisions of the Federal Court of Australia in Harris v Australian Broadcasting Commission (cited above, paragraph 110) 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. The response of those persons might result in further refinement or greater balance in those reports. (Significantly, those judgments are not inconsistent with the proposition that once a response has been received and a final balanced report made, the disclosure of both interim and final reports would not necessarily be contrary to the public interest). I consider it particularly important, however, to endorse the comments made by Deputy President Todd in Rae's case (at p.606) in response to a submission by the respondent (relying on the fifth Howard criterion) that disclosure of any of the documents would be contrary to the public interest because "it would not fairly disclose the reasons for a decision subsequently taken or yet to be taken": "I agree with Mr Bayne that a distinction may be drawn between the disclosure of a 'preliminary' document which contains criticism of a specific individual and a 'preliminary' document which reflects a stage of thinking in the policy making process ... It is true that the documents to which access is currently sought are different from the documents in Harris and Kavvadias and the rationale for the public interest findings in those cases is not directly applicable here. Moreover, the documents here relate to a continuing administrative process. It will rarely be possible to say of any policy document that it reflects the ultimate view of government from which there will be no departure. If the fact of a document not accurately reflecting current government policy were a determinative public interest consideration, no policy document would ever be released, for it is always possible that some person some day might read such a document in the mistaken belief that it represents current thinking. There will no doubt be instances where an interim document by its very nature, or because of circumstances surrounding it, ought not be released. Harris and Kavvadias afford two such examples. But it will not be enough for a respondent to rely on the mere fact of the contents of a document being subject to change to support a claim that disclosure would be contrary to the public interest."139 It follows that in my opinion, it would be unsatisfactory for Queensland government agencies and Ministers to apply uncritically the five Howard criteria to determining questions under s.41(1)(b) of the FOI Act of whether or not the disclosure of deliberative process documents would be contrary to public interest. I consider that the second and fourth of the Howard criteria are wrong in principle, and should not be applied in Queensland; and further that the first, third and fifth of the Howard criteria should not be applied without regard to the qualifications on their relevance and appropriateness which I have made or endorsed in the foregoing discussion.140 The decision of the Victorian AAT on which the Department sought to rely in its written submission, Re Western Mining Corporation and Department of Conservation Forests and Lands (1989) 3 VAR 150, also constitutes an unsatisfactory precedent because of its uncritical application of the Howard criteria. The Tribunal in that case was even moved to remark that it was according weight to evidence given on behalf of the Department in an attempt to establish the Howard criteria, which involved "a substantial element of speculation" in its assessment of the consequences of disclosure. In my opinion, an external review authority should be cautious of accepting that damage to the public interest will flow from the disclosure of deliberative process material unless a government agency or Minister can establish that specific and tangible harm can be expected to flow from disclosure.141 There are passages in the Western Mining decision which suggest to me that the Tribunal has proceeded on a misunderstanding of principle. At p.157, the Tribunal says: "It is well established that the Tribunal's task in regard to this aspect of s.30(1) is to balance the public interest in pursuing the statute-given entitlement to access against the public interest in protecting the deliberative processes of Government: Ryder v Booth [1985] VicRp 86; [1985] VR 869 at 879; Re Pescott and Auditor-General of Victoria (1987) 2 VAR 93 at 96."142 Section 30(1) of the Victorian FOI Act is for practical purposes indistinguishable from s.36(1) of the Commonwealth FOI Act and s.41(1) of the FOI Act. To interpret it as though Parliament had intended to give effect to a fully fledged public interest in protecting the deliberative processes of Government seems to me to be inconsistent with the proper inferences to be drawn from a careful construction of the provision, and which I have expressed in paragraphs 20 to 26 above and which Deputy President Todd of the Commonwealth AAT expressed in the passage quoted in paragraph 23 above (with which I respectfully agree).143 In my opinion the only intention which can properly be attributed to the wording of each of these exemption provisions is that the respective legislatures intended that deliberative process matter be protected from disclosure only to the extent that disclosure of particular deliberative process matter would be contrary to the public interest. The Tribunal in Western Mining cited two authorities in support of the proposition quoted above, but a quick reference to those authorities shows that they afford no support for a proposition stated in such broad terms as the one quoted.144 The real source of that proposition appears to be a passage from the judgment of Lazarus J in Penhalluriack v Department of Labour and Industry (County Court, Victoria, 19 December 1983, unreported p.29) which is set out at the bottom of p.155 of the Tribunal's decision. The passage is in these terms: "It is sufficiently apparent that the purpose of [s.30 of the Victorian FOI Act] is to protect the deliberative processes of government and to ensure that measure of confidentiality which will enable policy and the like decisions to be taken after the frankest possible interchange of views and ideas between officers of the public service and between them and their Minister, as well as between members of the Ministry."145 Again, this passage considered in isolation, considerably overstates the extent of any apparent legislative purpose that could be gleaned from s.30 of the Victorian FOI Act, as a matter of statutory construction, and evidences an assumption about the protection of candour and frankness which should not be preferred to the more logical approach of the Commonwealth AAT decisions endorsed above at paragraphs 133 to 135.APPLICATION OF s.41(1)(b)146 In essence, the Department's decision in this matter was that the interests of -(a) maintaining effective and proper workings of Government; and(b) not causing confusion and unnecessary concern to the public in respect of the implications of the Mabo case;on balance outweigh -(c) the general public interest in disclosure so that the public is informed and can participate in the processes of government, and government is able to be held more accountable, which interest is recognised in the FOI Act itself; and(d) the interest in achieving certainty in understanding the High Court decision in the Mabo case.147 The Department's written submission to the Information Commissioner, and its written reasons for decision on internal review, attempt to set out specific reasons (which largely overlap between the two documents) as to why disclosure of the documents in issue would be contrary to the public interest in maintaining effective and proper workings of government.148 Many of the factors so identified, and set out at paragraphs 95 and 96 above, are phrased in very general and speculative terms, with the use of the word "may" qualifying most of the verbs that appear. I have to make due allowance for the fact that the Department did not in its reasons statement or written submission wish to address the particular contents of the matter claimed to be exempt, so as to avoid disclosing such matter to the applicant. Rather I have assessed whether the concerns of potential harm raised by the Department in general terms could be applied to the particular contents of the documents in issue. 149 As should be clear from the authorities endorsed in the course of my analysis of the Department's submission, I would not accept an argument that these documents fall within a class of documents (such as agency consultation comments on proposals for legislation, or agency consultation comments on proposals intended for eventual submission to Cabinet) the disclosure of which would be contrary to the public interest, irrespective of whether the disclosure of the contents of particular documents would be contrary to the public interest (see also Re Bartlett and Department of Prime Minister and Cabinet (1987) 12 ALD 659 at p.662, affirming that "disguised class claims" will not be permitted under s.36 of the Commonwealth FOI Act).150 One group of reasons given is that the documents in issue (particularly documents 2, 3, 4 and 6) were "created by senior officers for communication between agencies at a senior level", and "senior officers would have difficulty in discharging the responsibilities of their office if every document prepared to enable policies to be formulated was liable to be made public". Fortunately, I do not have to deal with every document prepared to enable policies to be formulated, but only with the matter claimed to be exempt in the seven documents in issue in this case. Different public interest considerations may present themselves in different cases, and judgments must be made on a case by case basis. None of the documents in issue in this case are communications between Ministers. The only document addressed to a Minister was merely an information paper (document 7). Two of the documents are communications between Department Heads, and the rest are between less senior officers. I accept and endorse the criticism made of the first Howard criterion (see paragraphs 120 and 121 above) in that the fact of documents being "high-level" correspondence is irrelevant in itself as an indicator that disclosure of the documents may be contrary to the public interest. It is at best an indicator to alert one to the possibility that these documents may require more careful scrutiny for factors that may point to tangible harm which would follow from disclosure of the actual contents of the documents (which factors, if identified, may therefore have to be weighed in the public interest balancing process against other relevant factors).151 The first two points made in the internal review decision are put simply as broad, and unexceptionable propositions: "* It is essential to the workings of Government for agencies which have a primary responsibility for the development of legislation or some other particular proposal for Cabinet or other senior level of consideration, that those agencies be able to freely consult with other agencies of Government. * Those consultations are often the expression of one point of view only."152 I can readily agree with those propositions, while observing that it is up to the Department to satisfy me that disclosure of the documents in issue in this case will inhibit free consultation between agencies of the Government to an extent that is contrary to the public interest.153 The Department appears to have three broad arguments in this regard -(a) in the course of development of policy for eventual consideration by Cabinet, confidentiality is essential at certain phases of the process (I prefer the use of the term "secrecy" rather than "confidentiality" in this context so as to avoid any suggestion that the FOI Act recognises mutual obligations of confidence in respect of the communication of deliberative process documents, which plainly, in light of the terms of s.46(2) of the FOI Act, it does not);(b) release of the documents in issue may inhibit frankness and candour in future exchanges of information between agencies in predecisional consultations, as agencies may be less inclined to canvass the views and interests of other agencies; thus policy development proposals may not be subjected to the fullest possible scrutiny, comment and consideration, to the detriment of the public interest;(c) the release of an individual agency's comments and opinions may be detrimental to the workings of government as a whole and to the responsibilities of government in the development of policy and legislation.154 The Department also puts a variation of argument (c) which seems to be based on the fourth Howard criterion, in that apart from any injury to government processes, it is suggested that if the single interest views of an agency (or a number of different single interest views of agencies) were being publicly canvassed, it may cause premature and unnecessary debate, concern and confusion in the community.155 The trouble with argument (a) is that the Department has not attempted to specify the precise phases in the course of the development of policy for eventual consideration by Cabinet at which secrecy is claimed to be essential, and to relate those phases to the documents in issue in this case. Leaving aside document 7 which is merely an information paper, there are indications in documents 1, 2 and 3 which suggest that the policy proposals on which they are commenting are not in a particularly refined or late stage of development. Documents 4, 5 and 6 relate to a draft Cabinet submission. It was actually described in the undated document 4 as a "final draft Cabinet submission", but the nature and extent of the comments contained in document 4 suggest that considerable revision would have been required in any event. The Department's internal review decision informs us that, as of 16 February 1993, none of the proposals had yet been approved or even considered by Cabinet. The Department understood this to have still been the case early in June 1993.156 The FOI Act contains specific provisions which afford more than adequate protection for the Cabinet process. Section 36 not only provides complete protection for official records of Cabinet and any matter the disclosure of which would disclose any deliberation or unpublished decision of Cabinet (which arguably is all that is necessary for the maintenance and protection of the convention of collective responsibility of Ministers for Government decisions), it also affords complete protection to a range of documents intended to play a role in Cabinet deliberations and decision-making, irrespective of whether disclosure of their actual contents would harm the public interest. Thus any matter in a document which -(a) has been submitted to Cabinet for its consideration; or(b) is proposed by a Minister to be submitted to Cabinet for its consideration;and which (in either case) was brought into existence for the purpose of submission for consideration by Cabinet (or which is a draft or copy of, or contains any extract from any such matter) is exempt irrespective of countervailing public interest considerations which may favour disclosure.157 No claim has been made by the Department in this case that the documents in issue fall within the class protected by s.36 of the FOI Act, nor in my opinion could such a claim have validly been made. In particular there is nothing to suggest that the documents in issue are proposed by a Minister to be submitted to Cabinet for its consideration, and were brought into existence for that purpose.158 There are sound reasons why the class of documents entitled to strict protection under s.36 of the FOI Act should be narrowly confined. To do so will permit full scope to the object of fostering informed public participation in the processes of developing policy proposals, and this in turn will benefit the Cabinet process itself and through it, the public interest. I do not suggest that elected governments do not have the legitimacy and authority to make decisions without public consultation. In circumstances requiring urgent government action, there may be no practical alternative, and some government decision-making and policy-forming processes may be quite inappropriate for public consultation. There can be no doubt, however, that public consultation is a natural expression of the democratic process, and most governments are aware that to ignore it would be to their own peril. The mobilisation of majority public opinion against the announcement of a new government policy proposal tends to signal a government in difficulty.159 It is instructive on this point (and indeed in respect of each of the Department's three broad arguments set out in paragraph 153 above) to have regard to the Queensland Cabinet Handbook (which is a document in the public domain, issued by the Government in August 1992, and available for purchase through Goprint). It contains a foreword by the Premier welcoming its publication as a step in the "consolidation of open and accountable Government in Queensland". On the topic of consultation in the preparation of Cabinet documents, the Cabinet Handbook says (at p.32-35): "Consultation is an essential part of the development of all Cabinet documents. It should commence as soon as possible and carry through to Ministerial clearance of the final draft of the document. Consultation should be held with any relevant agencies or organisations affected by the proposal including Ministers, Departments and other bodies such as employers, unions, community and special interest groups. A brief summary of the nature of the consultation process undertaken within the public sector and with non-government organisations must be provided. Ministers have a responsibility to their colleagues to ensure that consultation takes place at Ministerial and Departmental level on all matters in which other portfolio interests are involved. Consultation is the responsibility of the initiating Minister and, except in special circumstances, must take place before the matter is formally submitted to the Cabinet Secretariat. ... Consultation with persons or organisations external to Government should be a routine part of policy development, but should not involve the unauthorised disclosure of previous or proposed discussions or deliberations by Cabinet. Non-government organisations or persons may not be given a Cabinet document for comment. Results of Consultation Cabinet Submissions and Memoranda should state the extent of agreement or disagreement arising from the consultation process and should not be unduly delayed because of the failure to reach full agreement on all the recommendations. The results of consultation must be adequately reflected and recorded. Where there is agreement amongst those consulted, it is sufficient to record this fact and to state which Ministers, Departments, committees, employers, unions, professional groups, community groups and others have been consulted. Where agreement has not been reached on a significant issue, this should be indicated briefly on the cover sheet and cross referenced to detailed information in the body of the document. The Cabinet document should concisely state any differing views from agencies or non-government organisations that either support a proposal with reservations or do not support a proposal and where subsequent agreement cannot be reached. Direct summary quotations from these groups should be used wherever possible."160 In the pursuit of open and accountable government, the Queensland Government has placed a high value on the importance of consultation in the development of Government policy proposals. This is in sympathetic accord with the public participation objects of the FOI Act discussed at paragraphs 58 to 75 above. Interestingly, the only embargo which the Cabinet Handbook (see the fourth paragraph of the extract quoted) places on the disclosure of information to persons and organisations external to government (to allow for meaningful consultation) is that no Cabinet document, or previous or proposed discussions or deliberations by Cabinet, are to be disclosed. This roughly accords with the scope of the protection afforded by s.36 of the FOI Act.161 The extracts from the Cabinet Handbook quoted above seem to contemplate a managed process of consultation, where the agency developing a proposal for consideration by Cabinet selects the persons or organisations who will be accorded the opportunity of consultation. (Pages 27-28 of the Cabinet Handbook discuss the use of Green papers and White papers in a consultation process for policy development, which is aimed at achieving a high level of information dissemination, public discussion and comment, and which is open to all; but the Cabinet Handbook contains no guidelines which indicate when that process should be adopted, leaving it to the choice of individual Ministers and Chief Executives.) 162 The right of access to government-held information conferred by the FOI Act may assist interested persons or organisations who are not selected for participation in a consultative process, first, to discover that an agency is developing a policy proposal, and second, to obtain the information which would permit meaningful participation; for instance by seeking to make their views known to the agency or the responsible Minister.163 The general tenor of the Cabinet handbook on the subject of consultation is quite consistent with the notion that if an interested person or organisation has views to contribute to a policy formulation process, they should be taken into account with all other relevant views, so that the deliberation and decision-making processes within Cabinet itself can take account of all facets of public opinion, and all views which for instance question the factual or technical bases of a proposal under consideration. Not all relevant information is in the possession of Government. The process of public consultation is generally a learning process, both for the government officials and the members of the public who engage in it. Not even our elite bureaucratic policy makers have a monopoly on wisdom. In the processes of Cabinet deliberation and decision, the relative strengths and weaknesses of all relevant options will be canvassed, so that Cabinet can make an informed choice according to its judgment of what the public interest requires. The Cabinet process is likely to produce better outcomes, in the public interest, when the legitimate concerns of all interested persons and groups have been taken into account, and the factual and technical data and assumptions on which a proposal is based have been exposed to the scrutiny of interested persons and groups.164 I have difficulty accepting the Department's argument that there are certain phases in the development of policy for eventual consideration by Cabinet, at which secrecy is essential. First, it has elements of a "disguised" class claim, which (I have already stated) is not a permissible approach to the application of s.41(1)(b) of the FOI Act. Second, if there is any such phase it should be confined as strictly as possible so as to maximise the opportunities for fostering informed public participation in the processes of policy development. It is obviously preferable that public participation should occur in the pre-Cabinet phase of policy development, so that Cabinet deliberations can take account of the legitimate concerns of all interested persons and groups. Doubtless the emphasis of the Cabinet Handbook on consultation in the development of policy is aimed at avoiding or minimising hostile public reaction to the announcement of government policy decisions, by those whose legitimate concerns have not been taken into account (always allowing, of course, that there will be many areas where it is impossible to reconcile all competing interests).165 I doubt that there is any phase common to the development of all proposals for eventual consideration by Cabinet, in which secrecy is essential. There may be particular kinds of policy proposals where secrecy is essential, for instance, secrecy in the development of new taxation proposals may be of the highest importance until their public announcement, but not necessarily thereafter. Similarly, where premature disclosure of a proposal intended eventually for consideration by Cabinet might create unfair advantage to particular individuals to the detriment of the public at large, or prejudice Government negotiating strategy in such a way as to prejudice the public interest, secrecy may be essential. Each case must be judged on its merits. The fact (adverted to in the Department's reasons for decision on internal review) that during some phases, "access is confined even within agencies to a very senior level and tight security control" is in itself irrelevant. This is doubtless a longstanding practice in government agencies, predating the fundamental change with respect to rights of access to government-held information that has been effected by s.21 of the FOI Act. 166 At the very latest stage of the policy development process, immediately prior to Cabinet deliberation, it is possible that documents may be generated for the purposes of a deliberative process, that do not fall within the terms of s.36 of the FOI Act, but whose relationship to the Cabinet process is such as to raise some of the public interest considerations which underpin the s.36 exemption itself. Considerations of this kind were accepted as being relevant public interest considerations under s.36(1)(b) of the Commonwealth FOI Act in Re Porter and the Department of Community Services and Health (1988) 14 ALD 403 at p.409, where the documents in issue were agency consultation comments on a draft Cabinet submission. The applicability of this part of Porter's case to the FOI Act would have to be approached with caution, however, for two reasons.167 First, the system of consultation comments under the Commonwealth Cabinet Handbook, as described in Porter's case, appears to operate in a manner that is materially different from the system under the Queensland Cabinet Handbook. It appears that the Commonwealth system described in Porter required consultation comments on a draft Cabinet Submission to be attached to the Cabinet Submission itself. In the words of the Tribunal (at p.409): "When prepared, the comment is destined to go before Cabinet ...". This is not necessarily the case with consultation comments under the process described in the Queensland Cabinet Handbook.168 The last three paragraphs quoted in the extract from the Queensland Cabinet Handbook at paragraph 159 above, recognise that consultation with interested parties should aim at reaching full agreement on all recommendations in a Cabinet document, but will not always be successful. Where agreement has been reached, only the identities of those consulted needs to be recorded. Consultation comments by government agencies will not then find their way into the Cabinet document. They may do so, however, where there is disagreement on a significant issue. The editorial judgment is left to the agency responsible for the preparation of the Cabinet document as to whether it will paraphrase an agency's consultation comments or provide a summary quote, in discharge of its duty to "concisely state the differing views".169 It will be impossible to tell in advance of course whether (and if so, which part of) an agency's consultation comments may ultimately appear in a Cabinet document. That in itself constitutes a sound practical reason why public interest considerations of the kind recognised in Porter are not likely to be enlivened until the very latest stage of the policy development process, immediately prior to Cabinet deliberation, when the issues that will require resolution by Cabinet (and are therefore likely to be the subject of deliberation within Cabinet) are finally being isolated, and made the subject of deliberative process advice.170 Second, Porter was a case involving review of the issue of a conclusive certificate under s.36(3) of the Commonwealth FOI Act, and the Tribunal was therefore not exercising a merits review jurisdiction, but rather a supervisory jurisdiction confined to the issue of whether reasonable grounds existed for the certificate's claim that disclosure of the documents would be contrary to the public interest. The limited nature of the review being undertaken in Porter's case (explained at p.405-6) may have inhibited the identification and weighing of countervailing public interests to those public interest grounds identified in the conclusive certificate. No similar restriction can be placed on the Information Commissioner's power to review the merits of a refusal of access to documents based on s.41 of the FOI Act. Assuming for the moment that public interest considerations of the kind recognised in Porter are potentially applicable to consultation comments by Queensland government agencies on Cabinet proposals, this certainly would not require acceptance of a proposition that consultation comments on Cabinet proposals constitute a class of documents requiring protection in the public interest. Whether the public interest considerations recognised in Porter are applicable at all to a particular document would have to be considered in the light of its actual contents and of evidence as to the issues identified in a final Cabinet submission as requiring deliberation and resolution by Cabinet. Competing public interest considerations could weigh the balance in favour of disclosure, e.g. the public interest in fostering informed public participation in government policy forming processes.171 I think it is highly unlikely in any event that public interest considerations of the kind recognised in Porter could be proved to be anything more than speculative, at any stage in the policy development process prior to the time frame between the final opportunity given to government agencies to comment on a draft Cabinet document and the actual lodgement of the Cabinet document with the Cabinet Secretariat. If that should prove to be the case, it would leave sufficient scope for interested persons to use the FOI Act to facilitate informed participation in the process of policy development.172 The Department has not sought in this case to rely on Porter, and there is therefore no evidence before me to suggest that any part of the relevant matter contained in the documents in issue in this case is destined to go before Cabinet as an issue requiring deliberation and decision. I cannot therefore be satisfied that there is a public interest in non-disclosure of any part of the relevant matter in issue for the sake of protecting the secrecy of Cabinet deliberations. 173 In summary, the Department's argument (a) (see paragraph 153 above) fails to satisfy me that the public interest in the proper and efficient workings of government requires that secrecy be accorded to the relevant matter in issue in this case.174 As to the Department's argument (b), I do not accept that there is any real possibility that disclosure of the documents in this case under the FOI Act will mean that agencies will not consult other relevant or interested agencies on the development of Cabinet proposals. There are too many checks and balances in the Cabinet process, and any agency sponsoring a proposal for consideration by Cabinet which did not seek the views of agencies with relevant contributions to make, would certainly be exposed and censured. 175 Nor do I accept that disclosure of the documents in issue in this case would result in agency consultation comments on Cabinet proposals becoming less frank and candid. I have examined the contents of the documents in issue very carefully, and I can find nothing in their expression which is likely to have been written more circumspectly, nor anything in their contents which is likely to have been withheld, had the authors known that the documents would be disclosed. The documents reflect considerable credit on the Department, disclosing nothing but conscientious endeavours to bring to the attention of other agencies the possible implications of the Mabo case for the policy proposals in development. I do not accept that professional public servants would be inhibited from raising with another agency known to be bringing a proposal before Cabinet, any opinion, advice or recommendation of a similar kind to that put forward in the documents in issue in this case.176 The Department's argument (c) is difficult to evaluate without particulars of specific detriment to the workings of government as a whole, likely to flow from disclosure of the relevant matter in issue in this case. There is none that is apparent to me on the face of the documents. The phrasing of argument (c) tends rather to invite an applicant to make an FOI request of every relevant government agency, so as to avoid being met with the argument that it is detrimental to seek documents from just one. In view of the particular subject matter that the applicant wished to obtain, however, it was obviously appropriate to seek disclosure from the Department. It was pre-eminently the agency likely to be giving assessments on the possible consequences of the Mabo case in a number of different contexts. While many other agencies are likely to have submitted consultation comments on the policy proposals which are the subject of the documents in issue, it is not really fair to say that the applicant is seeking the views of just one agency on those policy proposals. He is seeking the views of the appropriate agency on one significant topic, which happens to traverse a number of different policy areas. The Department has not satisfied me that release of its comments and opinions on that one significant topic, for which it has special responsibility, would be detrimental to the workings of government as a whole.177 The Department also appears to be putting a variation of argument (c), to the effect that, quite apart from any detriment to the workings of government, it would be contrary to the public interest for the views of one agency on the Mabo case to be released as this could reasonably be expected to lead to uninformed and premature debate, confusion and unnecessary concern. This argument reflects the fourth Howard criterion, which for reasons stated earlier I consider to be wrong in principle and inappropriate to be followed in Queensland.178 In any event, I do not accept that disclosure of the relevant matter in issue in this case would cause premature and unnecessary debate, concern and confusion in the community to an extent that would be contrary to the public interest. I consider that the electorate in general, and certainly that segment of it which takes a keen interest in political matters, is aware that conflicting interests have to be reconciled in most of the difficult policy areas in which Governments have to make decisions, and that there would be something severely deficient with the processes of government if alternative views and different policy options were not being put, and on occasions put strongly, in advice received by the Government. In the processes of Cabinet deliberation and decision, the relevant strengths and weaknesses of competing views and options will be canvassed, so that Cabinet can make an informed choice according to its judgment of the public interest. I consider that the electorate is capable of distinguishing between an individual agency's policy advice and a Government decision arrived at after consideration of all relevant advice.179 In my opinion, it is likely to be a rare case where exposure of an individual agency's views on a policy proposal in development would lead to a degree of premature debate, and unnecessary concern and confusion in the community, sufficient to amount to an injury to the public interest. The very process of community debate about government proposals should be valued in a democratic society and if unrepresentative views are expressed by one agency, this can be corrected through the process of community debate itself. 180 In the instant case, however, the documents in issue relate to a topic which has been for some time the subject of widespread community debate, and is of major concern to the Commonwealth Government and all State and Territory Governments in Australia. It is apparent that there is already some confusion and concern in some quarters. However, one does not clear up confusion and concern by suppressing information and stifling public debate. The following remarks of Mason CJ in Australian Capital Television Pty Ltd v Commonwealth (No. 2) [1992] HCA 45; (1992) 66 ALJR 695 (at p.706), though directed to a different kind of legal issue, are, in my opinion, nonetheless apposite in this context: "The raison d'être of freedom of communication in relation to public affairs and political discussion is to enhance the political process (which embraces the electoral process and the workings of Parliament), thus making representative government efficacious. ... Experience has demonstrated on so many occasions in the past that, although freedom of communication may have some detrimental consequences for society, the manifest benefits it brings to an open society generally outweigh the detriments. All too often, attempts to restrict the freedom in the name of some imagined necessity have tended to stifle public discussion and criticism of government. The Court should be astute not to accept at face value claims by the legislature and the Executive that freedom of communication will, unless curtailed, bring about corruption and distortion of the political process."181 I accept and endorse two points that were made in the applicant's written submission, viz: "The public is far more mature than the Department seems to believe. It is quite capable of making a rational decision once presented with accurate information. It is capable of differentiating between a draft position and a final position, between one Department's view and that of a Government ...",and "Undoubtedly the Mabo case is one of the most important decisions the High Court has made. The issue is one of the most crucial modern Australia has considered ... It is difficult to conceive of a matter of greater genuine public interest and importance than Mabo."182 I consider that there is a public interest in having as much information as possible to enable adequate public debate on an issue of widespread public concern. The Department's internal review decision seemed to accept this as a public interest which favoured disclosure of the documents in this case, but one that was outweighed by the possibility of generating confusion and unnecessary concern.183 The relevant matter in issue in this case relates to the possible implications of the Mabo case for three separate policy proposals involving environmental protection matters. Environmental protection is an area where a great many competing interests are generally in play, for example, the interests of economic development versus conservation, the public interest in job creation during a time of economic recession, and the interests of those who already live and work in the areas subject to the new proposals. Policy development in the area of environmental protection generally requires a process of consultation with interested persons and organisations outside government, and it is clear from the documents in issue that this has occurred in the development of the policy proposals to which the documents relate. The process has included consultation with a number of Aboriginal groups. It must be a regular occurrence in any well-managed consultation process, that differing views of interested parties are disclosed and discussed with a view to attempting to reconcile the differences. The fact that the Department has contributed its views to a consultation process of this kind makes it even less likely that there is an overriding need for the preservation of secrecy in respect of its consultation comments. 184 In my opinion the disclosure of the deliberative process matter in issue in this case will have a beneficial, educative effect for the public, drawing attention to the possible implications of the Mabo case, and to the fact that issues relating to the existence or extinguishment of native title constitute a further competing interest that must be taken into account in environmental protection matters (an area which is already of considerable public interest and concern). I do not think it can harm the community to have information that will enable it to appreciate all the possible implications of the Mabo case, irrespective of whether preliminary or tentative concerns expressed in the documents in issue prove ultimately to be justified. No person or group and no Government in Australia has a ready solution to all the problems and potential implications of the Mabo case. The eventual working out of solutions or liveable compromises, whether through government leadership or legal action, is more likely to be assisted than harmed by the disclosure of relevant information which promotes informed debate (cf. s.5(1)(a) of the FOI Act).185 The Department has failed to satisfy me that disclosure of the relevant deliberative process matter contained in the seven documents identified in paragraph 76 above, would be contrary to the public interest.186 It remains to deal with the Department's argument that certain material in documents 4 and 5 (and I assume also document 6 which contains similar matter) is exempt matter pursuant to s.43 of the FOI Act in that it was brought into existence for the purposes of obtaining legal advice from the Government's legal adviser, the Crown Solicitor. Without disclosing the matter claimed to be exempt, it is sufficient to explain that in those documents the Department has drawn another agency's attention to the possible implications of the Mabo case for the policy proposal which the other agency was developing, and has suggested the form of a number of questions which the other agency (it is suggested) should refer to the Crown Solicitor for legal advice. 187 In my opinion, this material is not exempt under s.43 of the FOI Act. The essence of legal professional privilege in Australia is that it attaches to all oral or written confidential communications between a client and the client's barrister or solicitor, made or brought into existence for the sole purpose of seeking or giving legal advice, or for the sole purpose of use in existing or anticipated litigation (the authorities are discussed in more detail in my decision in Re Smith and Administrative Services Department, Decision No. 93003 given on 30 June 1993). In Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 at p.63, Mason and Wilson JJ restated the principle in terms applicable to the relationship between government agencies and professional lawyers employed by government as follows: "The common law ... recognises that legal professional privilege attaches to confidential, professional communications between government agencies and their salaried legal officers undertaken for the sole purpose of seeking or giving legal advice or in connection with anticipated or pending litigation."188 In Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 685, Stephen, Mason and Murphy JJ said of the doctrine of legal professional privilege: "The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. ... As a head of privilege, legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision. Nonetheless, there are powerful considerations which suggest that the privilege should be confined within strict limits."189 Here, the matter claimed to be exempt under s.43 is not contained in, and does not purport to be, a confidential written communication between a client and the client's legal adviser. The matter in issue has been communicated between agencies, not between an agency and its legal adviser. The Department no doubt contemplated in bringing this material into existence that the other agency would act on its suggestion and seek legal advice, though it must have remained a matter of discretion for the agency to whom the Department's documents were addressed, whether it chose to seek legal advice, and if so, whether it chose to use the precise form of the questions suggested by the Department.190 Section 43 of the FOI Act is not subject to a public interest balancing test The only issue is whether the matter claimed to be exempt would or would not be privileged from production in a legal proceeding on the ground of legal professional privilege. In my opinion it would not. 191 The result is that the applicant is entitled to have access under the FOI Act to all of the matter in the seven documents identified in paragraphs 76 and 77 above as falling within the terms of his FOI access request, with the exception of the material which I identified in paragraph 86 above as being exempt matter under s.36(1)(d) of the FOI Act.192 All of the matter that was claimed to be exempt is contained within larger documents, which (it is clear from the phrasing of the Department's decision letters) were also considered to be exempt in full under s.41(1). The balance of material in the seven documents was not in issue before me, and I have not ruled upon it. It is a matter for the Department whether it wishes to release some or all of the surrounding material so that the applicant can see the context of the material in which he has a particular interest. Under s.28(1) of the FOI Act, the Department has a discretion to release exempt matter if it so chooses. ...........................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Abbot and Marohasy and Central Queensland University [2017] QICmr 54 (21 November 2017)

Abbot and Marohasy and Central Queensland University [2017] QICmr 54 (21 November 2017) Last Updated: 8 December 2017 Decision and Reasons for Decision Citation: Abbot and Marohasy and Central Queensland University [2017] QICmr 54 (21 November 2017) Application Number: 313081 Applicant: Abbot and Marohasy Respondent: Central Queensland University Decision Date: 21 November 2017 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTERESTINFORMATION - documents in relation to PhD candidature - attribution of authorship in published journal article - contribute to innovation and the facilitation of research - prejudice research of an agency or person – whether disclosure would, on balance, be contrary to the public interest- section 47(3)(b) of the Right to Information Act 2009(Qld)ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS- NONEXISTENT OR UNLOCATABLE DOCUMENTS - applicants contend additional documents exist in relation to PhD supervision and application for grants - whether agency has taken all reasonable steps to locate documents - whether access to documents can be refused on the ground that they are nonexistent or unlocatable - section 47(3)(e) of the Right to Information Act2009 (Qld) REASONS FOR DECISION Summary The access application that is the subject of this review was made to Central Queensland University (CQU) under the Right to Information Act 2009 (Qld) (RTI Act). It sought access to: All documents, including emails, letters and memos, with any reference to Dr Abbot between 1/3/2015 and [26 August 2016][1] held at CQU sent by or to [5 members of CQU staff] All documents, including emails, letters and memos, with any reference to Ms Marohasy between 1/3/2015 and [26 August 2016] held at CQU sent by or to the following staff members to [5 members of CQU staff] All documents, including emails, letters and memos, with any reference to rain or rainfall forecasting or prediction between 1/3/2015 and [26 August 2016] held at CQU sent by or to the following staff member: Professor A All documents, including emails, letters and memos, with any reference to rain or rainfall forecasting or prediction between 1/3/2015 and [26 August 2016] held at CQU sent by or to the following PhD student: Student B All documents, including emails, letters and memos, with any reference to rain or rainfall forecasting or prediction between 1/3/2015 and [26 August 2016] held at CQU sent by or to the CQU Office of Research relating to any grant applications (internal or external) in any way relating to rain or rainfall forecasting or prediction All letters and memos, with any reference to rain or rainfall forecasting or prediction relating to sugar industry between 1/9/2015 and the present date held at CQU exchanged between Student B and Professor A All letters and memos, with any reference to rain or rainfall forecasting or prediction relating to sugar industry between 1/9/2015 and [26 August 2016] held at CQU exchanged between Student B or Professor A and the publisher (IWA) of the journal Water Science and Technology. CQU located 2672 pages[2] responsive to the access application. CQU did not issue a decision in relation to these pages within the required processing period, and was therefore deemed to have made a decision refusing access to the requested information. The applicants[3] applied to the Office of the Information Commissioner (OIC) for external review of CQU’s deemed decision to refuse access to information. In the course of this review, some of the information located by CQU was released to the applicants, and the applicants accepted that some of this information could be deleted or refused.[4] In terms of the remaining issues in this review, I find that: 229 pages may be refused on the ground that their disclosure would, on balance, be contrary to the public interest;[5] and any further documents the applicants contend CQU should have located may be refused on the ground that they are nonexistent or unlocatable.[6] Background The applicants conduct research in relation to rainfall forecasting and artificial neural networks. [7] The applicants were previously employed as academics at CQU. While at CQU, Applicant 1 supervised a Doctor of Philosophy (PhD) candidate, Student B, in relation to the topic of rainfall forecasting using artificial neural networks. After the applicants left CQU, Student B was allocated a different PhD supervisor, Professor A, and continued his PhD research on the topic. Student B and Professor A published an article in the academic journal ‘Water Science and Technology’ entitled ‘Monthly rainfall forecasting using neural networks for sugarcane regions in Eastern Australia’ (the Article).[8] The Article identifies Student B and Professor A as its authors. It refers to earlier articles published by the applicants, five of which are listed as references at the end of the Article. The applicants raised concerns with CQU that Student B, and members of CQU’s staff had used their work without permission and failed to appropriately attribute authorship in the Article. CQU conducted an investigation into concerns of the applicants. The investigation did not make any adverse findings about the conduct of Student B, Professor A or any other members of staff. The access application was made to CQU shortly after the applicants were asked to provide further evidence of their assertion about the authorship of the Article. Significant procedural steps relating to the external review are set out in the Appendix. Reviewable decision The decision under review is the decision refusing access to the requested information CQU is deemed to have made under section 46(1) of the RTI Act. Evidence considered The evidence, submissions, legislation, and other material considered in reaching this decision are disclosed in these reasons (including footnotes and the Appendix). Information in issue Of the 2672 pages located by CQU and provided to OIC, CQU agreed to release 1601 pages[9] and 348 part pages to the applicants. Of the remaining 723 pages and 348 parts pages, the applicants’ submissions relate to 229 pages, constituting a confirmation of candidature report (Report) and associated Powerpoint presentation (Presentation).[10] Given the applicants’ submissions on two occasions focused on their concerns about the use of their work without permission or attribution of authorship, OIC invited the applicants[11] to make submissions on the other four categories of information.[12] OIC advised the applicants that if no submissions on the other four categories of information were received, the applicants would be taken to accept OIC’s views regarding these categories of information and they would not be dealt with further in this review. No further submissions have been received,[13] and consequently these four categories of information are no longer in issue in this review. Accordingly, the remaining Information in Issue is the 229 pages[14] that constitute the Report and associated Presentation. Issues for determination The issues for determination in this review are whether: the Information in Issue may be refused on the ground that its disclosure would, on balance, be contrary to the public interest; and any further documents the applicants contend should have been located by CQU may be refused on the ground that they are nonexistent or unlocatable. Preliminary issue Before considering the issues for determination set out above, it is necessary to first address the scope of the access application that is the subject of this review. The scope of the access application submitted by the applicants to CQU is detailed at paragraph 1; however, the applicants requested[15] that the scope of the application be amended after CQU issued a Charges Estimate Notice (CEN) to them on 30 September 2016.[16] CQU did not agree to the amendments, nor did CQU issue a second and final CEN within the prescribed period,[17] or issue a notice of deemed decision. In these circumstances, given CQU did not agree to the amendment of the scope proposed by the applicants, and noting that the applicants would not be disadvantaged on external review by consideration of the original scope on external review, I am of the view that the scope of the access application is the original scope as set out at paragraph 1. I am satisfied that both the Information in Issue and the further documents that, in the applicants’ view, should have been located by CQU fall within this scope. Is disclosure of the Information in Issue contrary to the public interest? Relevant law The RTI Act is to be administered with a pro-disclosure bias.[18] Under the RTI Act, a person has a right to be given access to documents of an agency subject to certain limitations,[19] including the grounds for refusing access.[20] One such ground is that disclosure of the information would, on balance, be contrary to the public interest.[21] The RTI Act identifies various factors that may be relevant to deciding the balance of the public interest and explains the steps that a decision-maker must take[22] in deciding the public interest, as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure[23] 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 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. Applicants’ submissions The applicants provided a number of submissions to OIC during the course of the review. The submissions provide extensive information about concerns that the applicants initially raised with CQU, and have since raised with the Crime and Corruption Commission (CCC).[24] In brief, the applicants’ concerns relate to the concepts and methodologies used in the Article, which the applicants consider to be identical to those used in numerous papers published by them;[25] and to results in four tables in the Article, which they consider to be exact copies of more than five months of work by Applicant 1.[26] The submissions also address the adequacy of CQU’s investigation regarding these concerns. The applicants’ submissions raise what they consider to be specific public interest factors regarding the contravention of CQU’s codes of conduct and violation of their moral rights. They consider that these specific factors arise from use of their concepts, methodologies and results without permission or attribution of authorship. I consider that these particular concerns do not raise novel public interest factors; rather, they fall within broader categories of public interest factors favouring disclosure which are, for the most part,[27] listed in schedule 4 of the RTI Act. I have carefully considered each of the applicants’ submissions below, to the extent they are relevant to these factors. Findings Irrelevant factors I do not consider that any irrelevant factors arise in this matter. Factors favouring disclosure Accountability and transparency The applicants did not make any submissions about accountability and transparency of CQU specifically. However, they have made the following contentions, which enliven accountability and transparency considerations:[28] Student B and potentially other individuals employed by CQU have breached the CQU Code of Conduct for Research[29] by failing to attribute authorship to the applicants the rights of the Research Sponsor, as the individual who provided financial support for the research, have been violated under the CQU’s Code of Conduct for Research; and there is ‘very strong evidence’ of misconduct by staff under CQU Code of Conduct and there is a duty of senior administration staff at CQU to take appropriate action. Given these submissions, it is necessary that I consider whether disclosure of Information in Issue could reasonably be expected to: promote open discussion of public affairs and enhance CQU’s[30] accountability;[31] and inform the community of CQU’s operations including, in particular, the policies, guidelines and codes of conduct followed by CQU in its dealings with members of the community.[32] By way of general background, CQU has submitted that a confirmation of candidature report and presentation are drafted by a PhD candidate at an intermediate stage of the research, and considered by the Research Higher Degrees Committee (Committee). The Committee use the confirmation of candidature report to assess a PhD candidate’s progress towards specific and generic learning outcomes related to the research, as provided for in the Higher Education Standards (Thresholds Framework) 2015 (Cth) (Framework).[33] As a confirmation of candidature report is assessed according to the Framework, which is a national regulation, I consider that the release of Student B’s Report could reasonably be expected to inform the community about CQU’s confirmation of candidature procedure and its compliance with the Framework. In respect of the Presentation, I note that an invitation to Student B’s PhD confirmation presentation was distributed by email to CQU staff.[34] This email did not distribute the Report or the associated Presentation; however, it did invite a broad audience to attend the PhD confirmation presentation, where I understand Student B used the Presentation which forms part of the Information in Issue. It is my understanding of the confirmation of candidature process that Student B’s Report has been provided to the Committee to consider in accordance with the Framework, and the Presentation has been observed by members of the community who attended Student B’s confirmation of candidature event. In light of the above I consider that there has been sufficient oversight and scrutiny of the Report and Presentation so as to lessen the weight to be given to the transparency and accountability public interest factors in favour of disclosure. Accordingly, I consider that these factors[35] should be afforded a moderate weight. [3]Deficiencies in conduct The applicants submit[36] that the release of the Report will demonstrate that: The concept, scope and experimental design of the [research] were created exclusively by [the applicants] ... The significant skill, judgement and labour involved in screening prospective geographical sites was performed exclusively by [the applicants] ... Every one of the 104 rainfall and temperature input data files were created exclusively by [the applicants] ... 95% of the 208 output fields providing the results, including for subsequent calculations of over 300 forecasts skill scores appearing in the infringing publication, were created by [the applicants]. I understand the applicants submit that they contend the Information in Issue would reveal or substantiate deficiencies in the conduct of: Student B and Professor A – in using their concepts, methodologies and results without permission or proper attribution of authorship; and CQU – in failing to properly conduct an investigation into the applicants’ concerns about conduct that ‘may result in disciplinary action’.[37] Accordingly, it is necessary that I consider whether the disclosure of Information in Issue could reasonably be expected to: allow or assist inquiry into the possible deficiencies in the conduct or administration of CQU, an employee of CQU or other individual;[38] and reveal or substantiate that CQU, an employee of CQU or other individual has engaged in misconduct or negligent, improper or unlawful conduct.[39] I will now consider the conduct of Student B and Professor A, then CQU, in turn. Conduct of Student B, Professor A and other CQU employees I recognise that research conducted by Student B which has been published in the Article and appears within the Report examines artificial intelligence in rainfall forecasting—a topic on which the applicants have published a number of papers. I also recognise that Applicant 1 supervised Student B in relation to his PhD research until the time that the applicants ceased employment with CQU. The supervision arrangements for Student B were then in flux until Student B was allocated Professor A as a supervisor. The applicants submit that Student B and Professor A have breached the CQU Code of Conduct for Research. I have reviewed this Code and I note that it applies to ‘research degree candidates’ generally. I also note that the Code states as follows in relation to authorship: 7.1 To be named as author, a researcher must have made a substantial scholarly contribution to the work and be able to take responsibility for at least part of the work they contributed. Authorship depends to some extent on the discipline, but must be attributed to any participant who can be deemed to have made a substantial contribution to: the conception and design of the research analysis and interpretation of the research (or part thereof); drafting significant parts of the work or critically revising it so as to contribute to the interpretation. It is not tied to position, profession and does not depend on whether the contribution was paid or voluntary. ... 7.4 Provision of material, routine technical support, or made measurements of a routine nature is not sufficient to warrant authorship. Substantial intellectual input is required. I have reviewed the Article. While the applicants are not listed as authors, the text of the Article includes the relevant citations to research conducted by the applicants, and five of the applicants’ papers are included in the ‘References’ section at the end of the Article. Thus, the level of attribution given to the applicants in the Article is clear on the face of the Article itself. Noting this position and the content of the Information in Issue, I am unable to identify how disclosure of the Information in Issue would shed any further light on the attribution given to the applicants in the Article. As to whether the disclosure of the Information in Issue will provide insight into the conduct of other CQU researchers and academics, it seems to me that it is of limited use. This is because the Report is in the nature of a progress report assessing whether Student B is compliant with meeting specific and generic learning outcomes, and the Presentation summarises information in this regard. The Information in Issue does not provide insight into who will be credited with what level of attribution in the final PhD thesis. In these circumstances, on the material before me, I am unable to identify how release of Information in Issue would reveal that Student B, Professor A or any other individuals employed by CQU engaged in any deficient conduct. Conduct of CQU The applicants have also made submissions that the investigation by CQU into their concerns was: an "independent" report [CQU] commissioned from [investigator], paid for by CQU to support their position. [The Investigator] has no particular expertise in the intellectual property area and his conclusions are not supported by application of the relevant laws of Australia. [The Investigator] appears to be someone CQU regularly engages in their recurrent issues with dispute resolution with employees and former employees. The applicants wrote to CQU[40] with the purpose of advising CQU of: ‘concerns over a likely breach of CQU’s Intellectual Property and Moral Rights Policy and Code of Conduct for Research, to put [CQU] on notice of that breach, and to respectfully ask [CQU] for assistance in ensuring the breach does not continue.’ The applicants further contend that: ...the [Article] is ‘at best, an adaption of [the applicants’] manuscript and at worst a copy. ... [The applicants] consider that the reproduction or adaption of [their] manuscript without permission of [the applicants] constitutes blatant infringement of their copyright rights. ... In the circumstance, [the applicants] ask that [CQU] take immediate steps to assist in determining whether [Professor A] or [Student B], or any other CQU staff are involved in the incident and if so direct them to have Water Science & Technology: Water Supply journal to correct the online version (and any future printed copies) of the article to: (a) include both of our clients as main authors of that article, showing affiliation with the Climate Modelling Laboratory, Noosa, Queensland; and (b) to include attribution to our client’s benefactor... CQU conducted investigations in response to the allegations raised by the applicants. Prior to CQU concluding this investigation, CQU wrote to the applicants requesting that they ‘provide any additional evidence they may have in support of the allegation that [the applicants] were the original authors of [the] work.’ [41] There is no evidence before me to suggest that the applicants responded to this request from CQU. The investigation did not make any adverse findings against Student B, Professor A, or any other member of CQU staff. I note that the applicants have submitted that they have made a complaint to the CCC in relation to their concerns.[42] While I am not privy to the content of this complaint, nor whether the CCC has or will progress it, I note that the CCC has power to investigate concerns within its jurisdiction by obtaining information directly from the agency concerned. In these circumstances, in light of both the CQU investigation and my comments at paragraph 41, I consider that release of the Report would have limited use in demonstrating that CQU engaged in any deficient conduct. Given my conclusions at paragraphs 42 and 47 above, I am satisfied that these factors do not apply in relation to the Information in Issue. 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 would nonetheless warrant low to no weight. Administration of justice for the applicant The applicants have made two key submissions[43] which contend that the release of the Information in Issue contributes to the administration of justice. These submissions are that: the applicants’ moral rights have been violated under the Australian Copyright Act 2000[44] by the omission of their authorship of the Article (Moral right infringement); and the applicants require evidence to make a complaint of fraud (Criminal complaints).[45] Accordingly, I have considered whether disclosure of the Information in Issue could reasonably be expected to contribute to the administration of justice for a person.[46] 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.[47] I have considered these requirements in relation to two key submissions of the applicants below. Moral right infringement The Copyright Act 1968 (Cth) (Copyright Act) gives copyright owners the exclusive right to do certain acts related to their material. In relation to academic material, CQU’s ‘Intellectual Property And Moral Rights Policy’[48] states that: ...the University owns any Intellectual Property developed, acquired or contributed by its staff, in the performance of their duties and or using University facilities and resources. Academic staff, as the creators of copyright material, hold moral rights, which include the right: of integrity of authorship of a work[49] to take action against false attribution of authorship;[50] and to object to derogatory treatment of originator’s work which prejudicially affects their honour or reputation.[51] The applicants have submitted that they hold the moral rights to material which was used by Professor A and Student B in the Article. They further submit that, while they consented to Student B using their academic work, specifically the results that the applicants had generated, in order to draft an abstract and make an oral presentation to the International Conference on Sustainable Water Management in December 2015, they did not consent to the use of their academic work in further publications. I have construed the applicants’ submission to be that they consider that they have suffered loss or damage, in that their moral rights have been infringed in relation to attribution of authorship.[52] In order for the public interest factor regarding the administration of justice for a person to apply, each of the three criteria must be satisfied. I do not consider it necessary to consider the first two criteria as set out in paragraph 51 above, as I am satisfied that the third criteria is not met. My reasons for this conclusion follow. The question is whether disclosing the information held by CQU would assist the applicants to pursue a remedy, or evaluate whether a remedy is available or worth pursuing. I note that the applicants already have access to the Article which they claim has infringed their rights. I consider that the Information in Issue is separate and distinct from the Article. It differs both in terms of content—including progressed, developed and revised details in relation to the research which has been and will be conducted as part of Student B’s PhD—and also in that it is subject to the assessment procedures of CQU. In my opinion, it is more likely that information contained within the Article, information released to the applicants through informal resolution, and the applicants’ correspondence with Student B may be of some value in demonstrating whether a legal remedy is available. In the event that the applicants decide to commence any proceedings, it is reasonable to expect that they may avail themselves of relevant court disclosure processes. In these circumstances, I consider the comments of the Information Commissioner in Phyland and Department of Police[53] 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 ... In these circumstances, I am unable to identify how disclosure of the Information in Issue would assist the applicants to assess the viability of pursing any action regarding the Article. Criminal complaints The applicants have submitted:[54] It is overwhelmingly in the public interest that all information I have requested be disclosed, so that all relevant evidence can be made available to the Crime and Corruption Commission. I note that the recent case of [a former researcher at the University of Queensland (Researcher C)] also involved false attribution of authorship on scientific papers and resulted in a criminal conviction for fraud. As the applicants have drawn correlations between their concerns and the investigation into Researcher C, I have considered whether the facts of this matter support the factor favouring the disclosure of the Information in Issue. By way of summary, Researcher C was formerly employed by the University of Queensland (UQ). Researcher C published a number of papers related to Parkinson’s disease research and received financial benefit, in the form of grants and a bursary, as a results of this research. Following a referral from UQ, CCC conducted an investigation into the conduct of Researcher C, and her colleague (Researcher D). The outcome of the CCC investigation was that Researcher C was charged with six offences related to research fraud and the misuse of associated grant money[55] and Researcher D was later charged with 16 fraud-related offences related to fabricating research findings and fraudulently applying for public and private research funding.[56] It is the role of CCC to consider whether to progress the applicants’ complaints. I note that CCC has extensive powers to compel an agency or individual to disclose information as part of its investigation. Accordingly, it is not necessary for an individual who has made a complaint to CCC to provide CCC with all the relevant evidence. Given these considerations, I am unable to identify how disclosure of the Information in Issue would advance the administration of justice either generally or specifically for the applicants. I am satisfied that this public interest factor does not apply. However, I note that even if this conclusion were incorrect, and this factor applied, it would nonetheless warrant low to no weight. Innovation and the facilitation of research The applicants have submitted:[57] I think that given the events of the past week [April 2017] with Cyclone Debbie, public interest considerations would very strongly support correct dealing with intellectual property so as not to hamper development of this major problematical area in Queensland. Given these submissions, I have considered whether the disclosure of the Information in Issue could reasonably be expected to contribute to innovation and facilitation of research.[58] I have considered the ordinary meaning of the ‘contribute’[59] and ‘facilitate’,[60] as these terms are not defined in the RTI Act. While, as stated in paragraphs 37 and 38, I recognise that the applicants have generated a number of papers in relation to the topic of rainfall and artificial neural networks, and also supervised Student B at the initial stages of this PhD research, I consider that, in having access to the Article, the applicants have already been provided with the research that Student B has published. As the Information in Issue relates to an intermediate assessment in the PhD process, I consider that the disclosure of this information will go some way toward better informing the community of the concepts, and preliminary results and analysis of the research. I am also of the view that the disclosure of the Information in Issue has the potential to facilitate further research. However, I also note that the research is not yet completed, the Information in Issue is relatively inconclusive, in that the methodology is yet to be fully deployed and tested, and findings are preliminary in nature.[61] Given this position, I consider that the capacity of the Information in Issue to contribute to or facilitate further research is necessarily limited, when compared with information relating to completed, peer reviewed research. Accordingly, I am satisfied that this factor warrants moderate weight in the circumstances of this review. Other factors favouring disclosure I have carefully considered all other public interest factors listed in schedule 4, part 2 of the RTI Act and can identify no other factors that apply and weigh in favour of disclosure of the Information in Issue. Factors favouring nondisclosure Prejudice or harm to research In the circumstances of this review, it is necessary to consider whether disclosure of the Information in Issue: could reasonably be expected to prejudice the research of an agency or person;[62] or would disclose the purpose or results of research of an agency or person, and could reasonably be expected to have an adverse effect on that agency or person, thereby causing public interest harm.[63] As stated in paragraphs 28 and 72, the Report is an intermediate stage of the PhD research and is akin to a progress report. CQU has recently confirmed to OIC that Student B has not yet compl[64]ed his PhD research.64 I consider that releasing the Report and the associated Presentation would disclose methodology, preliminary results and analysis within Student B’s research which are not yet publicly available. I acknowledge that Student B disclosed some information in relation to the research in the PhD confirmation presentation; however, I consider that the information disclosed was brief and general in nature. Further, I note that, in an email dated 29 February 2016 to Professor A, Student B stated in relation to the Presentation:[65] I have tried to summarize the main points of the Confirmation of Candidature report and added them into the presentation. I added only one slide about the review, which summarizes in general the methods being used for rainfall prediction. If there is a need to go deeper, I will change it and discuss some of the studies being deployed by others. I recognise that the applicants did assist Student B at the initial stages of his PhD research and thus already possess some insight into the nature of the research. However, I also consider that Student B’s research for his PhD has progressed and developed since the applicants’ departure from CQU, and that the Report and Presentation reflect the intermediate stage of this research. In these circumstances, I consider that disclosing the Information in Issue could reasonably be expected to prejudice and harm Student B’s research, at least until such time that Student B has completed his research. In this regard, I note that disclosure under the RTI Act—where there can be no restriction on its use, dissemination or republication—could enable other researchers at different universities to gazump the research he is progressing. I also consider that disclosing the Information in Issue could reasonably be expected to prejudice and harm Student B’s prospects of publishing further articles. The Article is the only published paper related to Student B’s PhD research of which I am aware. I am of the view that, while some research in relation to Student B’s PhD research has been published in the Article, there is a reasonable expectation that the content of the Report has the potential to lead to further publication. Making the Information in Issue publicly available could, in my opinion, reasonably be expected have an adverse effect on Student B, by enabling others to use it for the purpose of publication before Student B has had the benefit of publishing his findings. The RTI Act provides that the public interest harm factor[66] will not apply if the information in issue concerns research which was carried out by the access[6] applicant.[67] The applicants submit that Student B’s research relied upon their methodology and testing which they had conducted over a number of months. In this regard, I note that the applicants are referring to the Article and not the Report. At stated in paragraph 77, I recognise that the applicants assisted Student B in the initial stages of his PhD; however, the Information in Issue is constituted by documents that are separate and distinct from t[68] Article,68 both in terms of content and also in that they are subject to the assessment procedures of CQU. In these circumstances, I am satisfied that research, as set out in the Information in Issue, is not the applicants’ research, and therefore the exception to the research [69]rm factor69 cannot apply. In these circumstances, I consider that disclosure of the Information in Issue could reasonably be expected to cause a public interest harm by allowing others to gazump the research he is progressing, or publish papers before he has done so. Given the importance of university research to the community as a whole, and the need to ensure that it attracts individuals capable of performing it as their livelihood, I consider that these factors warrant significant weight. Balancing the 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. [70] I have taken into account the various factors enlivened by the applicant’s submissions as well as other factors identified by me. I have set out below the weight apportioned to each of the public interest factors for and against the disclosure of the Information in Issue. I have then balanced those factors against each other to ascertain where the balance of the public interest lies. I have afforded the accountability and transparency factors favouring disclosure moderate weight in light of the Information in Issue’s ability to inform the community about PhD procedures and CQU’s compliance with them. I have also afforded moderate weight to the factor favouring disclosure regarding contributing to innovation and the facilitation of research, noting that the value of the Information in Issue is lessened given the research is incomplete. In relation to the other factors, I have afforded a low to no weight to the factors favouring disclosure relating to revealing or substantiating deficiencies in the conduct of CQU, Student B and any other employees of CQU. Similarly, I am satisfied that the administration of justice for a person factor favouring disclosure warrants low to no weight. In contrast, I am satisfied that the disclosure of the Information in Issue could reasonably be expected to prejudice Student B’s research, and have an adverse effect on his ability to publish articles regarding his PhD. I have afforded these factors significant weight. Taking into account all the consideration set out above, I am satisfied that, on balance, the public interest factors favouring nondisclosure of the Information in Issue outweigh the public interest factors favouring disclosure.Conclusion Based on the information before me, I am satisfied 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.[71] Further documents the applicants believe CQU failed to locate Relevant law As noted above[72], there are some limitations on the right of access under the IP Act, including grounds for refusal of access.[73] Relevantly, one such ground is that access to a document may be refused if the document is nonexistent or unlocatable.[74] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[75] 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.[76] To be satisfied that a document is nonexistent, the Information Commissioner has previously recognised that a decision-maker must rely on their particular knowledge and experience and have regard to a number of key factors, including:[77] the administrative arrangements of government the agency structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested document/s and the nature of the government activity to which the request relates. When proper consideration is given to relevant factors, it may not be necessary for searches to be conducted. This is the case in circumstances where it is ascertained 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. Searches may also be relied on to satisfy the decision-maker that a document does not exist. If searches are relied on to justify a decision that the documents do not exist, all reasonable steps must be taken to locate the documents.[78] What constitutes reasonable steps will vary from case to case as the search and enquiry process an agency will be required to undertake will depend on which of the key factors are most relevant in the particular circumstances. To determine whether a document exists, but is unlocatable, the RTI Act requires consideration of whether there are reasonable grounds to be satisfied that the requested document has been or should be in the agency’s possession; and whether the agency has taken all reasonable steps to find it.[79] In answering these questions, regard should again be had to the circumstances of the case and the key factors set out above.[80] Applicants’ submissions Prior to the applicants making an application for external review the applicants made submissions to CQU that:[81] I have some concerns that some communications are missing from the list you have provided. For example your list indicates zero emails between [Professor A] and [Student B]. I have several emails within this category already in my possession. Can you please explain why these have been omitted from your list. At an early stage of the review, the applicants submitted:[82] I have reason to believe that the sufficiency of search requirements were not met by CQU in their response to my RTI request last year when they provided a numerical list of relevant documents within the scope of the request. I responded to CQU by giving examples of failure to include all documents. I never received a response. ... I request all documentation within CQU regarding [the Article] and also all correspondence between CQU and the publisher of the Journal of Water Science and Technology in relation to the paper. ... I would like to know if there are grant applications by CQU staff based on [the Article]. The original response from CQU indicated relevant email communication with the Office of Research. The applicants submitted in later correspondence:[83] [I]f there are any documents, or parts of documents, that are currently being concealed that relate to the following, the public interest is overwhelmingly in favour of immediate disclosure: Correspondence relating to generation of results for publication of [the Article], including any communication with the publisher; and Any correspondence that relates to applications for, or distribution of, grants or other financial gain, on the basis of publication or anticipated publication of [the Article]. Steps taken by CQU to locate the documents CQU provided OIC with search certifications regarding the searches which were conducted in relation to the scope of the application. OIC considered that the searches conducted by CQU, including the locations searched, the individuals who conducted the searches and the search terms which were used, appeared appropriately targeted and comprehensive. However, as Student B and Professor A were located in different geographical locations, OIC considered it reasonably possible that further documents may exist. OIC requested[84] that CQU conduct further searches for documents responsive to the access application, specifically: email correspondence between Professor A and Student B regarding guidance about the nature of the research, planning and preparation for drafting the Article (Search 1); and email correspondence between the applicants and Student B in relation to guidance about the nature of the research, planning and preparation for drafting the Article (Search 2). OIC further requested[85] that CQU conduct further searches of Professor A’s email account to confirm that all relevant documents had been identified in earlier searches (Search 3). Findings Searches 1 and 3 As noted above,[86] the applicants submit that CQU should have located further correspondence between Professor A and Student B. Searches 1 and 3 were directed at conducting all reasonable searches for email correspondence falling within the scope of the access application—that is, containing any reference to the terms ‘rain or rainfall forecasting or prediction’, as specified in items 3. to 7. of the scope as set out at paragraph 1. Search 1 involved searches of Professor A’s email account for emails containing these terms, while Search 3 involved further searches of Professor A’s email account for such emails. In CQU’s responses regarding Searches 1 and 3, CQU: advised that PhD students and their supervisors are not required to document their interactions in a standard format. provided OIC with two search certifications completed by Professor A; and confirmed that CQU’s Information Technology Department (IT Department) had conducted searches of Professor A’s CQU user profile and email account, and CQU Student B’s CQU student profile and email account. I will address each of these aspects of CQU’s response in turn. Communications between PhD student and supervisor The initial searches conducted by CQU during the processing period located some emails between Professor A and Student B which included reference to rain or rainfall or forecasting or prediction. These emails constitute communications related to the publication of the Article, including amendments to the abstract, to ensure that it was compliant with the publisher’s requirements. The initial searches did not, however, locate a high volume of documents evidencing communications between Professor A and Student B or the PhD research more generally. Given this position, OIC made enquiries with CQU about communications between a PhD student and their supervisor. CQU submitted that there is no expectation that email correspondence, file notes or other documentation will detail every interaction between those parties. Professor A’s email account Three separate searches for documents were undertaken in respect of Professor A’s CQU user profile and CQU email account. Professor A was initially requested to undertake searches on 20 September 2016. He conducted searches of his office computer and email account between 23 and 26 September 2016. The search certification[87] indicates that: no documents were located on Professor A’s office computer and, in relation to this outcome, Professor A noted that he ‘very rarely uses his office computer for storing research students’ documents’ and ‘there is no research grant application in this area’; and seven documents were located in Professor A’s email account using the search terms of the applicants’ names, ‘rainfall’, ‘forecasting/prediction’. On external view, OIC requested[88] that Professor A conduct further searches of ‘any and all emails to or from [Student B]’ which ‘in any way (either explicitly or implicitly) relates to [the Article]’. In his search certification[89] provided in response to this request, Professor A indicated that he had ‘already provided some relevant emails. The papers are normally discussed in our weekly student-supervisor meetings.’ OIC also requested that CQU’s IT Department conduct searches[90] of Professor A’s email account for emails to and from three known email accounts of Student B.[91] As a result of these searches, CQU located five additional emails and provided copies of them to OIC. Of the five additional emails that were located, OIC identified four contained no reference to the terms rain, rainfall, forecasting or prediction and therefore fell outside the scope of the access application. One email was taken to fall within the scope of the application, due to the fact that it contained the term forecasting. CQU accepted that no grounds of refusal under the RTI Act applied to this email, and therefore released a copy of it to the applicants.[92] Student B’s email account CQU’s RTI/IP Unit requested that its IT department conduct searches[93] of the relevant servers and backups for any emails and files which form part of Student B’s CQU email account and student user profile dated between 1 March 2015 and 26 August 2016. The search certification[94] for these searches identified that searches were conducted of: the entire content of Student B’s home drive; and Student B’s email mailbox and email archive. The searches of the email mailbox and archive were specifically for the terms of rain, rainfall, forecasting or prediction in respect of the subject and content of the emails. The searches located 346 files on Student B’s home drive, 5 emails in the mailbox and 26 emails in the email archive. Search 2 The above outcome of the searches regarding Student B’s email account related to all emails in that account, regardless of sender or recipient—and therefore applies to emails between Student B and the applicants, as well as emails between Student B and Professor A. The applicants have submitted[95] that they are in possession of a number of emails sent to them by Student B which, in their view, CQU should have located in its searches. I have carefully considered these emails and am satisfied that this is not the case. Most of these emails contain no reference to the terms rain, rainfall, forecasting or prediction and therefore cannot be within the scope of the access application. Further, noting that Student B corresponded with the applicants using both his CQU email account and other personal email accounts (for example, a Gmail account),[96] it is not clear whether some of the emails raised by the applicants were sent to or from Student B’s CQU email account. Any emails sent to or from Student B using email accounts other than his CQU email account would not be held by or be available to CQU, and therefore cannot comprise documents of CQU[97] for the purpose of the applicants’ access application under the RTI Act. CQU’s searches generally As stated at paragraph 98, OIC considered that CQU’s initial searches appeared appropriately targeted and comprehensive. OIC requested that CQU undertake Searches 1 and 2, due to the fact that Student B and Professor A were located in different geographical locations. In their most recent submissions,[98] the applicants raised the following documents: Correspondence relating to generation of results for publication of [the Article], including any communication with the publisher; and Any correspondence that relates to applications for, or distribution of, grants or other financial gain, on the basis of publication or anticipated publication of [the Article]. In response, OIC had CQU’s IT Department undertaken further searches of Professor A’s CQU email account for emails containing the words ‘rain’, ‘rainfall’, ‘forecasting’ or ‘prediction’—that is, Search 3. Searches 1, 2 and 3 have each involved CQU conducting searches of emails. This was considered appropriate, given the scope of the application specifies documents ‘sent by or to’ Professor A and Student B[99] or ‘exchanged between’ parties including Professor A and Student B;[100] and also given low likelihood that any correspondence occurred by other means such as post or facsimile. In assessing the sufficiency of the searches conducted by CQU, I have noted the 2670 pages of responsive information initially located by CQU, and the locations searched, the individuals who conducted the searches, and the search terms used to locate these pages. I have also noted the further searches conducted for emails—that is, Searches 1, 2 and 3—and the fact that these searches located five additional emails, one of which fell within the scope of the access application and has been released. Further, I have noted the relevance of the terms used in the scope of the access application, which confine responsive documents to documents containing references to the applicants, or the words ‘rain’, ‘rainfall’, ‘forecasting’ or ‘prediction’. Also, I have noted the relevance of the words ‘sent by or to’ or ‘exchanged between’, which necessarily limit items 3. to 7. of the scope to correspondence between specified parties, rather than other types of documents. I have, as indicated above, considered it unlikely that any such correspondence occurred by means other than email. In this regard, I also consider it relatively likely that communications between Professor A and Student B occurred, at times, by telephone rather than via correspondence. Finally, as stated at paragraph 117 above, I have noted that, at times, Student B used personal email accounts (for example, a Gmail account) rather than his CQU email account. Taking the above considerations into account, I am satisfied that CQU has ensured that appropriate staff have conducted comprehensive, appropriately targeted searches of locations where it was reasonable to expect that responsive documents, including those raised by the applicants on external review, would be found.Conclusion In these circumstances, I am satisfied that: CQU has taken all reasonable steps to locate documents falling within the scope of the access application responsive to the applicants’ sufficiency of search concerns, including concerns related to: the generation of results for publication of the Article; and applications for, or distribution of, grants or other financial gain, on the basis of publication or anticipated publication of the Article; and there are reasonable grounds to be satisfied that any additional documents responsive to the scope of the access application are nonexistent or unlocatable, and may be refused on this ground.[101] DECISION I vary the decision CQU is deemed to have made refusing access to the Information in Issue and find: the 229 pages of Information in Issue may be refused under section 47(3)(b) of the RTI Act on the ground its disclosure would, on balance, be contrary to the public interest; and any further documents the applicants contend CQU should have located may be refused under section 47(3)(e) of the RTI Act on the ground 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. A RickardAssistant Information Commissioner Date: 21 November 2017 APPENDIX Significant procedural steps Date Event 21 November 2016 OIC received the application for external review. 21 November 2016 OIC requested copies of the processing documents from CQU. 21 November 2016 OIC acknowledged the receipt of the external review application to the applicants. 22 November 2016 OIC received processing documents from CQU. 7 December 2016 OIC communicated acceptance of the external review application to CQU and requested that CQU provide the documents responsive to the access application which it had located. 8 December 2016 OIC communicated acceptance of the external review application to the applicants. 8 December 2016 By email, the applicants notified OIC of Applicant 1’s absence and the date of his return. 17 January 2017 OIC received documents as requested from CQU. 22 February 2017 By telephone, OIC requested that CQU provide a document that was missing from the copies CQU had provided to OIC. 22 February 2017 By email, CQU provided the missing document to OIC. 8 March 2017 By email, OIC requested that the applicants clarify the scope of their application. 9 March 2017 By telephone, the applicants conveyed to OIC that they did not wish to narrow the scope of the external review application. 10 March 2017 By telephone, OIC requested further documents from CQU. 10 March 2017 CQU provided the further documents to OIC. 13 March 2017 By telephone, OIC requested further documents from CQU. 14 March 2017 CQU provided the further documents to OIC. 10 April 2017 By email, the applicants provided submissions in relation to the review. 21 April 2017 By telephone and email, OIC requested that CQU provide further documents to assist the external review. 21 April 2017 CQU provided the further documents to OIC. 4 May 2017 OIC requested that CQU undertake further searches for responsive documents. 16 May 2017 OIC received submissions from CQU regarding the further searches undertaken by it. 13 June 2017 By telephone, OIC confirmed to CQU that: the access application will be processed under the RTI Act only; and the CQU was unable to claim some information as irrelevant information, as it is within the scope of the access application. 19 July 2017 By telephone, OIC contacted CQU to confirm the confirmation of candidature process and whether Student B had completed the PhD. 25 September 2017 OIC conveyed a preliminary view to CQU and requested that it respond by 4 October 2017 if it wished to make any submissions. 30 September 2009 By email, the applicants contacted OIC seeking an update on the review. 3 October 2017 By telephone, OIC provided the applicants with an update. 5 October 2017 By telephone, CQU requested an extension of time for its response to OIC’s preliminary view. 6 October 2017 OIC received a response from CQU stating that it accepted OIC’s preliminary view. 6 October 2017 By telephone, OIC advised the applicants that CQU had accepted OIC’s preliminary view and discussed the next steps in the review. 19 October 2017 OIC conveyed a preliminary view to the applicants and requested that they respond by 2 November 2017 if they wished to make any submissions. 20 October 2017 OIC asked that CQU release the information it had agreed to release to the applicants and confirm the release to OIC. 25 October 2017 By telephone, OIC contacted the applicants to confirm the applicants’ address. 25 October 2017 By telephone, CQU confirmed that the information it had agreed to release to the applicants had been sent to the applicants. 30 October 2017 The applicants provided submissions in response to the preliminary view and requested an extension of time to review and consider the information CQU had released to them. 31 October 2017 OIC granted the applicants an extension of time until 6 November 2017 to allow for their delayed receipt of the information CQU had released to them. 1 November 2017 OIC requested CQU conduct further searches in relation to Professor A’s email account. 6 November 2017 The applicants provided further submissions and requested a further extension of time. 6 November 2017 CQU provided all search certificates related to Professor A’s email and confirmed that five additional emails had been located. 8 November 2017 CQU confirmed that the additional searches had been completed and no additional documents beyond the emails provided to OIC on 6 November were located. 8 November 2017 By telephone, OIC contacted the applicants to discuss their submissions responding to OIC’s preliminary view received on 30 October 2017 and 6 November 2017 and their request for a further extension of time to provide further submissions. 8 November 2017 By email, OIC wrote to the applicants noting that their submissions appeared to relate only to the sufficiency of CQU’s searches and the 229 pages referred to in OIC’s preliminary view as Category E Information. OIC advised the applicants that, in absence of any further submissions to the contrary, they would be taken to accept OIC’s views regarding the four other categories of information referred to in OIC’s preliminary view as Categories A to D Information. The applicants were invited to make any further submissions they wished to make in response to OIC’s preliminary view by 13 November 2017. 14 November 2017 OIC issued a preliminary view to CQU in relation to the additional information which was located and provided to OIC on 6 November 2017. 17 November 2017 OIC requested that CQU release an additional document to the applicants. [1] The access application sought documents until the ‘current date’. Under section 27 of the RTI Act, the access application is taken to seek documents in existence as at 26 August 2016, being the date CQU received a valid access application. [2] These pages consist of the 2670 pages initially located by CQU, and the 2 pages located by CQU in November 2017, which OIC requested that CQU release to the applicant on 17 November 2017. [3] While the original access application appears to have been made by Dr Abbot (Applicant 1) on behalf of Ms Marohasy (Applicant 2), on the material before OIC (including an authority signed by Applicant 2), OIC accepts that both parties intended that they be considered applicants. Accordingly, OIC has proceeded with this external review on the basis that the access application was made by Applicant 1, on behalf of himself and Applicant 2, and submissions made by Applicant 1 have been made on behalf of both parties. [4] See paragraphs 13 and 14 below. [5] Sections 47(3)(b) and 49 of the RTI Act.[6] Sections 47(3)(e) and 52(1) of the RTI Act. [7] In their submissions, the applicants provided copies of a number of articles related to their research in this area. [8] The Article states that it was first received by the journal on 28 January 2016, accepted in revised form on 31 May 2016, and published online on 20 June 2016. It is OIC’s understanding that the Article was subject to investigation by an organisation called ‘Retraction Watch’ in August 2016; however, the Article nonetheless continues to be available on the publisher’s website. [9] This number includes the pages that CQU agreed to release on 17 November 2017. [10] These 229 pages were referred to as Category E Information in OIC’s correspondence to the applicant dated 19 October 2017.[11] By email dated 8 November 2017.[12] Specifically: Category A Information - a portion of one page that OIC considered may deleted on the basis that it is irrelevant to the access application; Category B Information - 152 pages and a portion of one page that OIC considered may be refused on the ground that they were subject to legal professional privilege and therefore exempt information; Category C Information - parts of 61 pages of CQU’s financial information concerning corporate credit cards details and bank account details that OIC considered would, on balance, be contrary to the public interest; and Category D Information – 331 pages and parts of 298 pages of personal information of individuals other than the applicants (such as work mobile telephone numbers, dates of birth, addresses, usernames, passwords, study commencement dates, information about periods of leave for CQU staff, and personal opinions in email correspondence) that OIC considered would, on balance, be contrary to the public interest.[13] OIC requested that the applicants provide any further submissions by 13 November 2017. As of the date of this decision, no further submissions have been received from the applicants.[14] Specifically, pages 2236-2269, 2291-235, and 2361-2490 in File 4 of the information located by CQU. [15] On 10 October 2016.[16] Specifically, the applicants requested that their application be ‘split’, with items 1. and 2. to be dealt with under a separate application under the Information Privacy Act 2009 (Qld); and items 3. to 7. to be considered under the RTI Act application. They also requested that items 6. and 7. of the scope be amended. [17] In the circumstances of the present matter, the date the prescribed period ended was 28 October 2016. [18] Section 44 of the RTI Act. [19] Section 23 of the RTI Act.[20] In section 47(3) of the RTI Act. These grounds are to be interpreted narrowly: section 47(2)(a) of the RTI Act. [21] Section 47(3)(b) of the RTI Act. [22] Section 49(3) of the RTI Act.[23] Schedule 4 of the RTI Act sets out a non-exhaustive list of factors favouring disclosure and nondisclosure, and public interest harm factors, for deciding whether disclosing information would, on balance, be contrary to the public interest. [24] In their submissions dated 30 October 2017, the applicants stated that they had recently made a complaint to the CCC.[25] Submissions dated 6 November 2017. Of ten papers by the applicants cited in their submissions, seven precede 2016, and therefore clearly precede the Article. Two, or possibly four, of these seven papers were cited in the Article (here, some uncertainty arises because of small differences in the descriptions of two papers between the submissions and the Article). These papers were among the five in total by the applicants that were included as citations in the Article.[26] In their submissions dated 6 November 2016, the applicants contend that tables 5, 6, 7 and 8 in the Article are exact copies of skill scores generated by Applicant 1.[27] Apart from considerations regarding deficiencies in conduct by persons other than agencies and officials, which are not covered by schedule 4, part 2, items 5 or 6, but which can be considered in any event, given the non-exhaustive nature of the factors in schedule 4 (see footnote 23 above).[28] Submissions dated 10 April 2017 and 30 October 2017. [29] Which is available at https://www.cqu.edu.au/policy/sharepoint-document-download?file_uri=%7BBE8380F3-F86D-4C55-AC0D-84A81EAFD6A2%7D/Code%20of%20Conduct%20for%20Research.pdf.[30] Some of the factors favouring disclosure and nondisclosure refer to the ‘Government’. As CQU is established under the Central Queensland University Act 1998 (Qld) and its functions are for a public purpose, it is a ‘public authority’ within the meaning of section 16 of the RTI Act, and, in turn, an ‘agency’ within the meaning of section 14 of the RTI Act, and therefore part of the ‘Government’ referred to in these factors.[31] Schedule 4, part 2, item 1 of the RTI Act.[32] Schedule 4, part 2, item 3 of the RTI Act.[33] As set out in CQU’s Confirmation of Candidature procedure (Effective Date: 10 April 2017).[34] See email dated 11 March 2016 at page 2188 in File 3 which indicates the email was sent to [email protected], [email protected], [email protected], and [email protected]. au. [35] That is, schedule 4, part 2, items 1 and 3 of the RTI Act.[36] ‘Statement of evidence’ provided by applicants with applicants’ submissions dated 30 October 2017. [37] CQU’s Code of Conduct for Research states at page 1: ‘Failure to act in accordance with the principles and practices of the Code may constitute a breach, resulting in an allegation for deviation from the Code or misconduct in research.’[38] Schedule 4, part 2, item 5 of the RTI Act. While ‘other individual’ is not specified in this item, it is possible to consider this public interest factor in terms of other individuals, as well as agencies and officials, given the factors in schedule 4 are non-exhaustive—see section 49(3)(b) and (c) of the RTI Act.[39] Schedule 4, part 2, item 6 of the RTI Act. In terms of ‘other individual’, see footnote 39. [40] Letter dated 18 July 2016. [41] Email from CQU’s In-house Solicitor to the Solicitor acting for the applicants and Person 1 dated 8 August 2016. [42] Submission dated 30 October 2017.[43] Submissions dated 10 April 2017 and 30 October 2017. [44] I assume that the applicants are referring to the Copyright Act 1968 (Cth) and the Copyright Amendment (Moral Rights) Act 2000 (Cth).[45] The applicants have cited the criminal conviction of Ms Caroline Barwood, a Parkinson’s disease researcher, formerly of the University of Queensland. [46] Schedule 4, part 3, item 17 of the RTI Act. [47] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 at [17] and confirmed in 1OS3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011)[48] Available on the CQU website. [49] Section 195AQ of the Copyright Act. [50] Section 195AP of the Copyright Act.[51] Section 195AO of the Copyright Act.[52] Submissions dated 10 April 2017 and 30 October 2017. [53] (Unreported, Queensland Information Commissioner, 31 August 2011) at [24]. [54] Submissions dated 6 November 2017. [55] CCC media release dated 31 October 2014 entitled ‘University researcher to appear in court on fraud offences’. [56] CCC media release dated 12 December 2014 entitled ‘Former researcher to face court over alleged fraud’.[57] Submissions dated 10 April 2017. [58] Schedule 4, part 2, item 19 of the RTI Act.[59] The Macquarie Dictionary online defines ‘contribute’ as: 1.to give in common with others; give to a common stock or for a common purpose: to contribute money, time, help. 2.to furnish to a magazine or journal. 3. to make contribution; furnish a contribution.[60] The Macquarie Dictionary online defines ‘facilitate’ as: 1. to make easier or less difficult; help forward (an action, a process, etc.).2. to assist the progress of (a person).[61] Confirmed in telephone conversations between CQU and OIC on 14 July 2017 and 20 November 2017.[62] Schedule 4, part 3, item 15 of the RTI Act.[63] Schedule 4, part 4, section 7(3) of the RTI Act.[64] See footnote 61. [65] See page 2235 in File 4 of the information located by CQU.[66] Schedule 4, part 4, section 7(3) of the RTI Act.[67] Schedule 4, part 4, section 7(4) of the RTI Act.[68] As stated in paragraph 57. [69] In schedule 4, part 4, item 7(4) of the RTI Act.[70] Section 44 of the RTI Act. [71] Section 47(3)(b) and 49 of the RTI Act.[72] Paragraph 20. [73] Set out in section 47(3) of the RTI Act. [74] Sections 47(3)(e) and 52 of the RTI Act. [75] Section 52(1)(a) of the RTI Act. [76] Section 52(1)(b) of the RTI Act. [77] 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) (PDE). 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. [78] As set out in PDE at [49]. See also section 130(2) of the RTI Act. [79] Section 52(1)(b) of the RTI Act. [80] Pryor at [21]. [81] Email to CQU dated 10 October 2016.[82] Submissions dated 10 April 2017. [83] Submissions dated 6 November 2017. [84] In a letter dated 4 May 2017.[85] In an email date 1 November 2017. [86] At paragraphs 95 and 96. [87] Dated 27 September 2016.[88] Email to CQU dated 4 May 2017. [89] Dated 15 May 2017.[90] These searches were not undertaken by the IT Department at the same time as it conducted searches regarding Student B (see paragraph 112). [91] As identified among the information located by CQU.[92] On 17 November 2017.[93] As Student B is not a CQU employee, he was not asked to conduct any searches himself.[94] Dated 7 November 2016 and completed by the Data Centre Operations Manager of CQU’s IT department. [95] Submissions dated 10 April 2017. [96] Submissions dated 10 April 2017 and 30 October 2017.[97] Section 12 of the RTI Act. [98] Submissions dated 6 November 2017. [99] Items 3., 4.,and 5. of the scope as set out at paragraph 1. [100] Items 6. And 7. of the scope as set out at paragraph 1. [101] Under sections 47(3)(e) and 52(1) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Simpson MP and Department of Transport and Main Roads [2011] QICmr 31 (29 July 2011)

Simpson MP and Department of Transport and Main Roads [2011] QICmr 31 (29 July 2011) Last Updated: 8 September 2011 Decision and Reasons for Decision Application Number: 310373 Applicant: Simpson MP Respondent: Department of Transport and Main Roads Decision Date: 29 July 2011 Catchwords: RIGHT TO INFORMATION – APPLICATION FOR ACCESS TO INFORMATION – REFUSAL OF ACCESS – DOCUMENTS NON-EXISTENT – applicant contended additional documents should exist – whether there are reasonable grounds for agency to be satisfied that no further documents exist – whether agency has taken all reasonable steps to locate further documents – whether access to documents can be refused under sections 47(3)(e) of the Right to Information Act 2009 (Qld) on the ground set out in section 52(1)(a) of the Right to Information Act 2009 (Qld) Contents REASONS FOR DECISION Summary The applicant applied to the Department of Transport and Main Roads (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to documents regarding the business case for the New Queensland Drivers Licence (NQDL) for the period January 2002 to June 2010. In response to a Charges Estimate Notice (CEN), the applicant revised the wording of her request (Revised Application) as follows: All correspondence and briefing notes between the Minister for Transport and the Department of Transport and Main Roads regarding the original business case for the New Queensland Drivers License and any variations to this business case, particularly concerning the cost escalation and problems of implementation of the project from January 2002 – June 2010. In its decision, the Department advised the applicant that it had located one document, comprising 106 pages, responsive to the scope of the Revised Application. The Department refused access to that document on the ground that it comprises exempt information pursuant to section 48 of the RTI Act.[1] On external review, the applicant accepted that the document was considered by the Cabinet Budget Review Committee, and therefore was exempt information. However, the applicant submitted that there should be additional documents within the scope of her application, and the Department should have identified these. In this regard, the applicant advised that she did not intend to revise the terms of her application so significantly that only one document was within its scope,[2] and stated that the Department’s interpretation of the Revised Application was too narrow. For the reasons set out below, I vary the Department’s decision and find that: all reasonable steps have been taken by the Department to locate the additional documents sought; and there are reasonable grounds for the Department to be satisfied that no additional documents responsive to the Revised Application exist. Reviewable decision The decision under review is the Department’s decision dated 27 August 2010. Background Significant procedural steps relating to the application are set out in the Appendix to this decision. Evidence considered In making this decision, I have taken into account the following: the applicant’s original access application and Revised Application the Department’s decision submissions provided by the applicant records and certification of searches and submissions provided by the Department file notes of telephone conversations between Office of the Information Commissioner (OIC) staff, the applicant and the applicant’s staff file notes of telephone conversations between OIC staff and the Department 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. Issues for determination The issues to be determined in this review are: the scope of the applicant’s Revised Application; and the sufficiency of the Department’s searches to locate documents responsive to the Revised Application. Each of these issues shall be dealt with separately. Scope of the Revised Application In relation to the scope of the Revised Application, the applicant submitted that: the CEN issued by the Department regarding the applicant’s original access application showed 67.5 hours of processing charges at a total estimate of $1,566 in response to the CEN and advice from the Department that the search area was too broad, the applicant narrowed the terms of her application to the Revised Application; and she did not intend to narrow the terms of her application so significantly that only one document[3] was within its scope. For the purpose of the RTI Act, a “reviewable decision”[4] that can be reviewed by OIC[5] is a decision[6] regarding the applicant’s access application. Necessarily, when narrowing of the access application has occurred,[7] the reviewable decision relates to the narrowed access application, rather than the original access application. In these circumstances, it is not possible for OIC to interpret the narrowed access application more broadly than its terms. This is the position even in circumstances where an applicant may, on receipt of the reviewable decision, consider that they have legitimate reasons for wishing to revert to broader terms. Accordingly, while I acknowledge the applicant’s view that the terms of her Revised Application were limited at the suggestion of the Department, I am satisfied that: the “reviewable decision” that the applicant applied for OIC to review is the Department’s decision regarding the applicant’s Revised Application; and it is not possible for OIC to interpret the Revised Application more broadly than its terms. Previous OIC decisions have considered the issue of the construction and interpretation of access applications.[8] In such decisions,[9] it has been noted that the terms of an application set the parameters for an agency’s search efforts. On this basis, I am satisfied that: the terms of the Revised Application set the parameters for the Department’s search efforts; and I am required to consider the Department’s search efforts in this context. In this regard, the applicant submits that: the Department has interpreted the scope of the Revised Application too narrowly; and ‘documents over and above the actual business case which relate to cost escalations since the original business case’ should be within scope.[10] Previously, the Information Commissioner has 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 author of the words for clarification. However, when there is no ambiguity, no such clarification is required.[11] In this external review, I am satisfied that there is no ambiguity in the terms of the wording of the Revised Application, and that the documents sought by the applicant are: correspondence and briefing notes between the Minister for Transport and the Department of Transport and Main Roads regarding the original business case for the NQDL and any variations to this business case. In relation to the applicant’s submission that ‘documents over and above the actual business case which relate to cost escalations since the original business case’ should be included in the revised scope,[12] I am satisfied that such documents would fall within the scope of the Revised Application to the extent that they comprise variations to the NQDL business case, but not otherwise.[13] In response to the applicant’s concerns that the Department interpreted the Revised Application too narrowly, the Department submits that it took the following approach to identifying documents within the scope of that Revised Application: Firstly, only documents detailing communications between the department and the Minister were considered as relevant ... This limitation of the scope, to only relate to communications between the Department and the Minister, was intentionally done to exclude the large volume of documents that may have been captured otherwise. The applicant was aware of this at the time of negotiating the scope of the request. Secondly, the scope was limited to the original business case proposal and any variations to that proposal. As provided in the Statement of Reasons for the original RTI Decision, all subsequent briefings to the Minister were provided verbally. On this basis, [the Department] determined that no other documents exist. From [the Department’s] discussions with the applicant’s Electoral Office staff, the information being sought was specifically communications between the Minister and the Department, that is, what had the Minister been informed of in relation [to] the business case proposal or any variations to the proposal. In this case the business case proposal was refused as being exempt matter and ... no other documents relevant to the scope of the application exist. That is not to say that there are no documents relating to the NQDL business case proposal “concerning the cost escalation and problems of implementation of the project from January 2002 – June 2010”, only that there are no documents that show communications between the Minister and the Department regarding this matter. [14] After careful consideration of the information before me, I am satisfied that the Department has not interpreted the terms of the Revised Application too narrowly. Further, I am satisfied that two documents that the Department claimed were outside the scope of the Revised Application, that were produced to OIC by the Department in the course of the external review, do not fall within the terms of the Revised Application. Sufficiency of search The applicant submits that there should be additional documents within the scope of the Revised Application. In this regard, she submits that:[15] there have been significant cost escalations, as well as variations to the business plan and implementation problems, and the Minister would have been provided with documents reflecting the changes to the project she would expect that there would be some briefing documents and notes to the Minister’s office within the scope of the Revised Application; and regarding the Department’s submission that all subsequent briefings to the Minister were provided verbally, ‘there would be briefing notes documenting these briefings (whether typed or hand-written) which would fall within scope of our request ... [E]ven verbal briefings to the Minister about cost escalation and problems of implementation of the project would [have] their contents minuted and documented.’[16] The RTI Act provides that access to a document may be refused[17] if the document is nonexistent or unlocatable.[18] A document is nonexistent if there are reasonable grounds for the agency or Minister dealing with the access application to be satisfied that the document does not exist.[19] The RTI Act is silent on how an agency or Minister can be satisfied that a document does not exist. However in PDE and the University of Queensland[20] (PDE) the Information Commissioner explained that, to be satisfied that a document does not exist, an agency must rely on its particular knowledge and experience, having regard to various key factors including: the administrative arrangements of government the agency structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including but not exclusive to its information management approach) other factors reasonably inferred from information supplied by the applicant including: ○ the nature and age of the requested document/s ○ the nature of the government activity the request relates to. Alternatively, an agency may rely on searches to satisfy itself that a document does not exist. In such cases the Information Commissioner indicated in PDE that in order to substantiate a conclusion that there are reasonable grounds to be satisfied that the document does not exist, it may be necessary for the agency or Minister to take all reasonable steps to locate the document sought. To ensure all reasonable steps have been taken to locate documents, a decision-maker should make enquiries and undertake searches of all relevant locations, having regard to the key factors listed above.[21] What steps has the Department taken to find the documents? As mentioned above, the terms that set the parameters of the Department’s search efforts are those specified in the Revised Application, and I am required to consider the Department’s search efforts in the context of those terms. As a part of the external review process, OIC asked the Department to make submissions regarding the searches it had undertaken in order to make its decision, and to conduct any further searches necessary to locate further documents responsive to the Revised Application. In response, the Department made the following submissions: [S]earches were undertaken within the Enterprise Information and Systems Division (now I Division) of the Department ... The reason searches were only undertaken in this division is because it and its predecessor the Business Services Division in Queensland Transport were the areas having primary carriage of the new Queensland Drivers Licence (NQDL) project ... On receipt of your letter, I [a]gain went to I Division and asked them to prepare a detailed submission documenting all of the searches undertaken at the time and also if any additional searches could be done ... Unfortunately I Division have advised that no further documents have been located that are relevant to the scope of this external review.[22] The following documents accompanied the Department’s submissions:[23] “Document/Retrieval Request” form completed prior to the Department’s decision; and records of additional searches and certification of such searches by the Acting Chief Information Officer of the Department’s Division I in response to OIC’s request. In his certification of the searches, the Acting Chief Information Officer of the Department’s I Division stated: In May 2006, Cabinet approved the final Business Case for the NQDL initiative and approved that Expressions of Interest be sought for a Public Private Partnership. In September 2007, the Cabinet Budget Review Committee decided that a Public Private Partnership was not a viable proposition and approved the progression of the NQDL project under a traditional procurement model. No variations have been made to the original NQDL Business Case to reflect the change in the delivery of the NQDL project. No documentation was located regarding briefing material to the Minister on the Business Case and ... [it is] presume[d] that any briefings were done verbally.[24] In response to further queries by OIC, the Department submitted: ... [T]he scope was limited to the original business case proposal[25] and any variations to that proposal. As provided in the Statement of Reasons for the original RTI Decision, all subsequent briefings to the Minister were provided verbally. On this basis, [the Department] determined that no other documents exist. ... In this case the business case proposal was refused as being exempt matter ... ... no other documents relevant to the scope of the application exist. That is not to say that there are no documents relating to the NQDL business case proposal “concerning the cost escalation and problems of implementation of the project from January 2002 – June 2010”, only that there are no documents that show communications between the Minister and the Department regarding this matter.[26] I note that, in the above submissions, the Acting Chief Information Officer of the Department’s I Division presumed that any briefings provided to the Minister were provided verbally, whereas the Department subsequently submitted that all briefings provided to the Minister were provided verbally. In response to further queries by the OIC regarding documentation recording verbal briefings provided to the Minister,[27] the Department advised[28] that additional searches had been undertaken to attempt to locate such documentation. However, no additional documents were located. This outcome was confirmed to the Assistant Director of Right to Information and Privacy by the Director of the NQDL project.[29] In response to further queries by OIC regarding a statement made by an officer of the Department prior to the applicant’s narrowing of the scope of her application, that '[t]he biggest hurdle we are coming across in this situation is the first part of your request "all briefing documents to Minister's office about the New Queensland Drivers Licence ..." This part of your request is basically what is making the application so large'[30], the Department provided to OIC the series of emails in which this comment was made. On careful consideration of the information before me, I am satisfied that the officer’s reference to ‘briefing documents’ relates to documents attached to briefing notes, as well as briefing notes themselves, and therefore the comment is not indicative of a substantial number of briefing notes that could potentially fall within the scope of the Revised Application. Findings on sufficiency of search I consider that the locations identified by the Department as having documents responsive to the Revised Application appear reasonable based on the Department’s policy and practice. The evidence before me indicates that the Department has undertaken a thorough search of these locations. There is nothing before me to suggest that the records or certification of searches completed by the Department’s staff are not credible. However, on careful consideration of the nature and thoroughness of the Department’s searches, the applicant’s assertion that more documents responsive to her Revised Application should exist, given the events that occurred in the relevant period, is not sufficient evidence upon which I can make a finding that further documents falling within the scope of the Revised Application do exist. In conclusion, I am satisfied that: the Department has undertaken searches for the documents sought by the applicant in all relevant locations, having regard to the Department’s practices and procedures in relation to information management and other administrative practices such searches comprise all reasonable steps to locate the documents there are reasonable grounds for the Department to be satisfied that no additional documents responsive to the Revised Application exist; and access may be refused pursuant to section 47(3)(e) of the RTI Act on the ground set out in section 52(1)(a) of the RTI Act that further documents do not exist. DECISION I vary the decision under review by finding that access to additional documents responsive to the Revised Application can be refused under section 47(3)(e) of the RTI Act on the ground set out in section 52(1)(a) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ Jenny Mead Right to Information Commissioner Date: 29 July 2011APPENDIX Significant procedural steps Date Event 14 July 2010 The applicant lodges an RTI application. 28 July 2010 The Department issues its CEN. 17 August 2010 Given the charges in the CEN, the applicant revises the scope of her application. 27 August 2010 The Department issues its decision. 14 September 2010 The applicant applies to OIC for external review of the decision. 20 September 2010 The Department provides OIC with copies of relevant documents. 29 September 2010 The applicant accepts that one document considered by the Cabinet Budget Review Committee is exempt information under schedule 3, section 1 of the RTI Act. 8 October 2010 OIC confirms to the parties that the external review application has been accepted. OIC requests that the Department provide submissions addressing the extent of searches conducted during the processing of the access application. 21 October 2010 The Department provides OIC with a submission including the “Document/Retrieval Request” form completed prior to the Department’s decision, and records and certification of searches requested by OIC. 4 November 2010 OIC conveys a written preliminary view to the applicant. 18 November 2010 The applicant provides a submission. 1 December 2010 OIC requests that the Department provide copies of two documents identified as being “out of scope” and submissions in support of its interpretation of the Revised Application 15 December 2010 The Department provides OIC with copies of two “out of scope” documents and a submission. 15 February 2011 OIC invites the applicant to provide a final submission. 28 February 2011 The applicant provides a final submission. 16 June 2011 OIC requests that the Department conduct further searches and provide a submission addressing the applicant’s concerns about verbal briefings. 4 July 2011 The Department provides OIC with a submission. 12 July 2011 OIC requests that the Department provide information about comments regarding documents falling within the initial scope of the application made by it to the applicant prior to her revision of the scope of her application. 13 July 2011 The Department provides OIC with information regarding the context in which the comments were made. [1] In particular Cabinet information as set out schedule 3, section 1 of the RTI Act.[2] That is, the document that the applicant accepted is exempt from disclosure under section 48 of the RTI Act.[3] That is, the document that the applicant accepted is exempt from disclosure under section 48 of the RTI Act.[4] Defined in schedule 6 of the RTI Act.[5] On application by the applicant under section 85 of the RTI Act.[6] That is, a deemed, considered or internal review decision made by an agency or Minister—see section 45, 46 and 83 of the RTI Act.[7] Under section 36 in response to a CEN (as in this external review); or alternatively, under section 42 in response to an agency or Minister’s refusal to deal with the application because of the effect on the agency’s or Minister’s functions.[8] While these decisions have considered the issue in the context of the Freedom of Information Act 1992 (Qld), the principles have equal application to a consideration of the issue in the context of the RTI Act.[9] Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 (Cannon) paragraph 8; Robbins and Brisbane North Regional Health Authority [1994] QICmr 19; (1994) 2 QAR 30 (Robbins) at paragraph 17.[10] By letter dated 16 November 2010.[11] Robbins at paragraph 16.[12] By letter dated 16 November 2010.[13] Robbins at paragraph 17.[14] By correspondence dated 15 December 2010.[15] As summarised from the request for external review dated 14 September 2010, and correspondence dated 16 November 2010 and 28 February 2011.[16] By correspondence dated 28 February 2011.[17] Section 47(3)(e).[18] Sections 47(3)(e) and 52 of the RTI Act.[19] Section 52(1)(a).[20] Unreported, Queensland Information Commissioner, 9 February 2009. Note — Although PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld), the requirements of that section are replicated in section 52 of the RTI Act. [21] See PDE at paragraph 49.[22] By correspondence dated 21 October 2010.[23] A copy of these documents and the Department’s submissions were provided to the applicant by correspondence dated 4 November 2010.[24] By way of additional information detailed on the Certification prepared by the Acting Chief Information Officer, Information Division, Department of Transport and Main Roads on 14 October 2010.[25] That is, the document that the applicant accepted is exempt from disclosure under section 48 of the RTI Act.[26] Correspondence dated 15 December 2010.[27] As suggested in the applicant’s submissions dated 28 February 2011.[28] By correspondence dated 4 July 2011.[29] Given this outcome, it is unnecessary for me to determine whether documentation recording verbal briefings provided to the Minister falls within the scope of the Revised Application.[30] Referred to by the applicant in her correspondence dated 18 November 2010.

queensland

court_judgement

Queensland Information Commissioner 1993-

Murphy and Health Quality and Complaints Commission [2009] QICmr 39 (9 July 2009)

Murphy and Health Quality and Complaints Commission [2009] QICmr 39 (9 July 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210563 Applicant: Ms E Murphy Respondent: Health Quality and Complaints Commission Third Party: A Medical Practitioner Decision Date: 9 July 2009 Catchwords: ADMINISTRATIVE LAW - FREEDOM OF INFORMATION – QUEENSLAND – REFUSAL OF ACCESS – EXEMPT MATTER – MATTER COMMUNICATED IN CONFIDENCE - whether disclosure of the matter in issue would found an action for breach of confidence under section 46(1)(a) of the Freedom of Information Act 1992 (Qld) – whether the matter in issue falls under section 46(2) of the Freedom of Information Act 1992 (Qld) Contents REASONS FOR DECISION Summary 1. On the information available to me, I am satisfied that section 46(1)(a) of the FOI Act does not apply in this case to exempt the Matter in Issue because the Matter in Issue falls within section 46(2) of the Freedom of Information Act 1992 (Qld) (FOI Act). Background 2. By letter dated 29 January 2008, the applicant applied to the Health Quality and Complaints Commission (Commission) for access to a range of documents relating to her late husband (FOI Application). 3. On 1 April 2008 the Commission decided to grant the applicant full access to 894 documents and partial access to 9 documents (Original Decision). 4. By letter dated 9 April 2008, the applicant sought internal review of the Original Decision (Internal Review Application). 5. By letter dated 26 June 2008, the Commission sought to affirm the Original Decision. However, as the internal review decision was not made within the time limits prescribed under the FOI Act, the Commission is taken to have affirmed its Original Decision on or about 8 May 2008 (Affirmed Decision). [1] 6. By letter dated 15 July 2008 the applicant applied to this Office for external review of the Commission’s decision (External Review Application). Decision under review 7. The decision under review is the Affirmed Decision (referred to at paragraph 5 above). Steps taken in the external review process 8. By letters dated 27 August 2008, Acting Assistant Commissioner Jefferies indicated to the parties in this review that this Office would be conducting an external review of the Affirmed Decision to partially exempt/exclude 9 documents under the FOI Act. In her letter to the Commission, Acting Assistant Commissioner Jefferies requested that further submissions in support of its claim for exemption under section 46(1)(a) of the FOI Act be provided. 9. By letter dated 6 September 2008, the applicant provided further written material for consideration in the review. 10. By letter dated 8 September 2008, the Commission responded to Acting Assistant Commissioner Jefferies’ letter at paragraph 8 above. 11. By letter dated 2 October 2008, the applicant provided additional written material for consideration in the review. 12. By letter dated 14 October 2008 Acting Assistant Commissioner Jefferies advised the Commission and the Third Party of her preliminary view regarding the application of section 46(1)(a) of the FOI Act to the Matter in Issue. 13. In a telephone conversation on 23 October 2008, the Commission confirmed that it accepted the preliminary view above. 14. In a telephone conversation on 4 November 2008, the Third Party indicated he wished to contest the preliminary view and would be providing submissions in support of his case. 15. By letter dated 7 November 2008, the Third Party provided written submissions for consideration in the review. 16. By letter dated 20 January 2009, Assistant Commission Corby responded to the Third Party’s letter above and advised the Third Party of her preliminary view. 17. By letter dated 2 February 2009, the Third Party indicated that he maintained his objection to release of the Matter in Issue and did not accept the preliminary view on the basis that the Matter in Issue should qualify for exemption from disclosure under sections 44(1) and 46(1)(a) of the FOI Act. 18. During the period March to May 2009 the Third Party’s submissions were considered and further legal research undertaken. 19. By letter dated 9 June 2009, the third party was provided with a further preliminary view concerning the application of sections 44(1) and 46(1)(a) of the FOI Act. 20. By letter dated 9 June 2009, the Commission was provided with a further preliminary view concerning the application of section 46(1)(a) of the FOI Act. 21. By letter dated 26 June 2009, the Commission (also acting on behalf of the Third Party) responded to my preliminary view above in respect of the application of section 46(1)(a) of the FOI Act[2] and indicated that it did not accept my view. 22. In making my decision in this matter, I have taken the following into consideration: • the FOI Application, Internal Review Application and External Review Application • the Commission’s Original Decision and letter dated 26 June 2008 • written correspondence received from the applicant, the Commission and the Third Party during the course of the review • file notes of telephone conversations between a staff member of the Office and the applicant throughout the review • file notes of telephone conversations between a staff member of the Office and the Commission throughout the review • file notes of telephone conversations between a staff member of the Office and the Third Party throughout the review • the Matter in Issue • relevant sections of the FOI Act • previous decisions of the Queensland Information Commissioner and decisions and case law from other Australian jurisdictions as identified in this decision. Matter in issue 23. The Commission initially claimed that nine of the located documents qualified for partial exemption or exclusion under the FOI Act. 24. During the course of the review, the applicant indicated that she was not interested in pursuing access to information contained within six of the documents.[3] 25. Accordingly the matter in issue in this review comprises the Third Party’s name as it appears on three documents [4] (Matter in Issue). Findings Relevant law Section 46(1)(a) of the FOI Act 26. Section 46(1)(a) of the FOI Act provides: 46 Matter communicated in confidence (1) Matter is exempt if - (a) its disclosure would found an action for breach of confidence; or ... Application of section 46(1)(a) of the FOI Act 27. The Information Commissioner set out the correct approach to the interpretation and application of section 46(1) of the FOI Act in the decision of ‘B’ and Brisbane North Regional Health Authority:[5] • an action for breach of confidence may be based on either a contractual or equitable obligation of confidence • the test for exemption under section 46(1)(a) of the FOI Act is to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, with appropriate standing to bring an action to enforce an obligation of confidence claimed to bind the agency not to disclose the information in issue. Is there an obligation of confidence? 28. An obligation of confidence may arise, either expressly or impliedly, between the parties to a contract.[6] 29. In the current circumstances the Commission and the Third Party have confirmed the following: • although the Commission did not enter into a written contract with the Third Party, when the Third Party commenced as an independent clinician with the Commission, he was advised by the Commission that his name would not be disclosed • verbal representations, of the type made to the Third Party were also made to other independent clinicians prior to their commencement with the Commission • the Commission is currently in the process of drafting a proforma contract for signature by its independent clinicians which will state that the name of the independent clinician will be kept confidential. 30. In view of the information provided, I am satisfied that: • a contractual obligation of confidence existed between the Commission and the Third Party • this contractual obligation required the Commission to ensure that the Third Party’s name was not disclosed. 31. It is an agreed fact that despite the contractual obligation noted above, the Commission inadvertently disclosed the Third Party’s name to the applicant on two prior occasions. Is section 46(1) of the FOI Act excluded by section 46(2) of the FOI Act? 32. While it appears the Matter in Issue is exempt under section 46(1)(a) of the FOI Act, I must also consider whether the Matter in Issue is excluded from the operation of section 46(1) of the FOI Act by section 46(2) of the FOI Act. 33. Section 46(2) of the FOI Act provides: 46 Matter communicated in confidence ... (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. 34. Section 46(2) of the FOI Act is aimed at ensuring that the protections offered by the two exemptions in section 46(1) are largely for the benefit of ‘outside’ third party information supplied to government. 35. As stated by the Information Commissioner in ‘B’[7] section 46(2) of the FOI Act: ... 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. 36. Similarly, the Information Commissioner noted in Cairns Port Authority and Department of Lands [8] that one of the purposes of section 46(2) of the FOI Act is to: ... prevent the possibility of agencies attempting to circumvent the public interest component of the test for exemption of deliberative process matter under s.41(1), by purporting to attach obligations of confidence to intra-agency and inter-agency communications of deliberative process matter, in the hope of attracting exemption under s.46(1). 37. Consistent with Parliament’s intention expressed in section 4(6) of the FOI Act, sections 46(1) and 46(2) of the FOI Act must be interpreted in a way that best achieves the purpose of the FOI Act 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. 38. Given the objectives of the FOI Act and the policy intent of this legislation being to extend as far as possible the right of the community to have access to government-held information, it is inconsistent for government agencies to attempt to ‘contract out’ of their obligations under the FOI Act. The prevalence of such arrangements was recently acknowledged by the FOI Independent Review Panel chaired by Dr David Solomon AM in its comprehensive review of the FOI Act.[9] 39. The Commission submits that the independent clinicians provide an important service which enables it to fulfil its functions. Accordingly, the Commission has previously argued[10] that if the names of its independent clinicians were disclosed, it would have difficulty sourcing medical practitioners to this role and the future supply of such advice would be prejudiced. The Third Party also submits that if his identity (in connection with the Commission) was made known, he may be subject to ostracism by colleagues if a Commission decision involving those individuals was unfavourable. 40. In the absence of any supporting evidence, I do not consider the above submissions should be accorded any weight. This is particularly so in light of the fact that other agencies which fulfil similar investigative functions requiring the involvement of appropriately qualified medical practitioners to provide opinions, such as the Medical Board of Queensland: • do not assure the doctors providing the requested opinion that their identity will remain confidential • provide the complainant with the name of the medical practitioner whose opinion was sought during the assessment of the allegation/complaint. 41. The Parliament recognised in the FOI Act that the public interest is served by promoting open discussion of public affairs and enhancing government’s accountability. It is therefore inappropriate for agencies, in the absence of circumstances that would justify non-disclosure, to refuse to disclose the names of persons assisting it in the performance of its functions, particularly where those individuals are remunerated for their services. 42. The FOI Act makes provision for certain circumstances where the disclosure of the Matter in Issue may be inappropriate. Those circumstances include where a staff member can reasonably expect that the disclosure of their name may result in a serious act of intimidation or harassment. In such cases the onus is on the agency to claim an appropriate exemption provision of the FOI Act[11] and provide sufficient evidence in support of such a claim. 43. In this review, to determine whether the Matter in Issue falls under section 46(2) of the FOI Act I must consider whether the Matter in Issue is: • matter of a kind mentioned in section 41(1)(a) of the FOI Act • was communicated by a person other than the individuals mentioned in section 46(2)(a) of the FOI Act. Is the Matter in Issue of a kind mentioned in section 41(1)(a)? 44. Section 41(1)(a) provides: 41 Matter relating to deliberative processes (1) Matter is exempt if its disclosure - (a) would disclose - (i) an opinion, advice or recommendation that has been obtained, prepared or recorded; or (ii) a consultation or deliberation that has taken place; in the course of, or for the purposes of, the deliberative processes involved in the functions of government... 45. As set out in this Office’s FOI Concept: “Deliberative Process” (available at www.oic.qld.gov.au) a deliberative process: • refers to the pre-decisional thinking processes of an agency • tends to occur toward the end stage of a larger process after information has been obtained from different sources. 46. Upon receiving a complaint, the Commission decides whether to accept it for action (known as an assessment decision).[12] 47. During this assessment phase, and prior to making an assessment decision, it is the usual practice of the Commission[13] to seek clinical advice about the conduct and practice of the health service provider. In relation to this clinical advice I note: • the purpose of the clinical opinion is to assess whether the health service provided was reasonable • clinical advice is sought solely for the purpose of statutory assessment under the HQCC Act • where practicable, internal clinicians (as opposed to external clinicians) are used. 48. In relation to the clinical opinion described above, the Commission submits that the opinions of its independent clinicians are meaningful without the clinicians name. Accordingly it argues that whilst the independent clinician’s qualification may accompany the clinical opinion, there is no need for the name of the independent clinician to also be disclosed. 49. In respect of the Commission’s submission above, I do not agree that an opinion on its own without the name of the person giving the opinion if fully meaningful to a reader because: • whilst the clinician’s qualifications may indicate he/she is qualified to provide a clinical opinion, it provides no insight into that person’s professional background and experience – both of which are relevant to determining whether the independent clinician was suitably qualified to review a particular complaint • a reader is unable to identify possible conflicts of interest with an independent clinician if they are not privy to that person’s identity • a reader should have the ability to scrutinise and be able to satisfy themselves that the opinion has been provided by an appropriately qualified professional. 50. Having regard to the process outlined above, it is my view that: • the steps taken by the Commission in assessing a complaint prior to making an assessment decision comprise a deliberative process of the Commission • in the current circumstances the Third Party’s advice/opinion was obtained during the assessment of the applicant’s complaint and as such occurred during a deliberative process of the Commission • the Third Party’s name is not to be regarded as separate from the advice/opinion given because it is his name and qualifications which give to the advice/opinion its status as ‘clinical advice/opinion’ and his name and qualifications are an integral part of the opinion • the Matter in Issue is matter of a kind mentioned in section 41(1)(a) of the FOI Act. Is the Third Party an officer of an agency? 51. As previously stated, if the Matter in Issue is matter of the kind mentioned in section 41(1)(a) of the FOI Act and comprises a communication by any of the persons/bodies identified in section 46(2)(a) of the FOI Act, then section 46(1)(a) of the FOI Act will not apply. 52. In the current circumstances the relevant question is therefore whether the Third Party is an ‘officer of an agency’ within the meaning of section 46(2)(a)(iii) of the FOI Act. 53. An officer (in relation to an agency) is defined under section 7 of the FOI Act to include: a) the agency’s principal officer; and b) a member of the agency; and c) a member of the agency’s staff; and d) a person employed by or for the agency. 54. Therefore provided the Third Party satisfies one of the above situations, he will be regarded as an officer of the Commission for the purposes of section 46(2)(a)(iii) of the FOI Act. 55. In respect of this issue, the Commission submits that the Third Party is neither an employee or officer of the Commission because: • section 187 of the Health Quality and Complaints Commission Act 2006 (Qld) (HQCC Act) requires that staff of the Commission, other than the chief executive officer are to be employed under the Public Service Act 2008 (Qld) (PS Act) • its ‘other staff’ are employed as public service officers under section 8 of the PS Act • the Third Party is not employed under the PS Act. 56. Instead the Commission submits the Third Party fulfills the role of a ‘contractor’ to the Commission because he: • is ‘contracted’ to provide advice to staff at the Commission • has no decision-making power and does not act on behalf of the Commission or represent the Commission in any way • does not contribute to the business of the Commission except in the provision of his independent clinical opinion • does not receive any other benefits (other than remuneration) in terms of superannuation, holiday pay or sick leave • does not have free access to the Commission premises other than on the day of his attendance • does not have control over any aspect of the Commission’s resources, assets or workflows. 57. I note the Commission is established as a body corporate which may sue and be sued in its corporate name.[14] Its office, established under section 174 of the HQCC Act is comprised of the chief executive and other staff, the latter of which are employed under the PS Act. Notwithstanding this, it is clear that the Commission has the statutory authority to engage persons in other capacities given its current employment arrangements with the Third Party. 58. I accept that the Third Party is not employed under the PS Act and is therefore not a member of the agency’s staff for the purposes of section 7(c) of the FOI Act. However the Third Party may still be considered to be an officer of the Commission under section 7(d) of the FOI Act if it can be established that he is a person employed by or for the Commission. 59. As the term ‘employed’ is not defined within the FOI Act or the Acts Interpretation Act 1954 (Qld), in accordance with the rules of statutory interpretation it should be interpreted according to its plain and natural meaning, best ascertained by its dictionary definition. Although the word ‘employed’ is not specifically defined, derivatives of it include:[15] Employ: to use the services of (a person) Employee: a person working for another person or a business firm for pay. Self-employed: deriving one’s income from one’s own work, profession, or business, and not as a salary from an employer. and in the New Shorter Oxford Dictionary (4th P Edition) include: Employ: the state or fact of being employed, esp. for payment; use or retain the services of (a person), esp. in return for payment; pay (a person) to work for oneself or one’s organization. 60. It is clear from the above definitions that the word ‘employed’ contemplates an individual deriving income as a consequence from working or providing a service to another person or an organisation. Based on the information made by the Commission about the working conditions of the Third Party and the definitions noted above, for the purposes of the FOI Act, the Third Party is a person employed by or for the Commission. 61. The Commission has argued that the Third Party is a contractor not an employee. The test to be met is whether the Third Party is ‘employed by or for’ the Commission. The FOI Act is silent in what capacity a person might be employed. The Third Party might be employed as a contractor or consultant. The capacity in which the Third Party is employed is not critical. It is whether or not the Third Party is ‘employed’. In view of this, I do not consider the factors submitted by the Commission in support of the Third Party being a contractor have any bearing upon whether the Third Party is an officer of the Commission for the purposes of the FOI Act because persons employed within agencies: • do not necessarily need to have decision-making power or be seen to have control over an agencies’ resources • all fulfil a role within the agency which contributes to its business and functioning • may be remunerated on a basis which takes into account other benefits • may be restricted in terms of the hours or days which they may work. 62. The FOI Act covers many groups of persons including individuals employed by certain Government owned corporations and under various awards. Therefore the fact that a person is not employed under the PS Act or considered a ‘public service officer’ under that Act is irrelevant to a consideration of whether that individual is an officer of the agency under the FOI Act. 63. In my view the nature of the employment relationship between the Commission and the Third Party is such that he is a person employed by or for the Commission under section 7(d) of the FOI Act. Accordingly, I am satisfied that: • the Third Party fulfils the role of an officer of the Commission for the purposes of section 46(2)(a)(iii) of the FOI Act • section 46(1) of the FOI Act does not apply in the circumstances, meaning the Matter in Issue does not qualify for exemption under this provision of the FOI Act. DECISION 64. For the reasons stated above, I set aside the decision under review and find that the Matter in Issue: • falls under section 46(2) of the FOI Act and therefore does not qualify for exemption under either section 46(1)(a) of the FOI Act • should be disclosed to the applicant. ________________________ J Kinross Acting Information Commissioner Date: 9 July 2009 [1] However, for the purpose of the review, I will take into account the Commission’s views as expressed in its letter of 26 June 2008.[2] As no response was received from the Third Party (or the Commission acting on his behalf) in respect of my preliminary view on section 44(1) of the FOI Act, I have assumed for the purposes of this review that the Third Party accepts my view on the application of that provision.[3] As confirmed in a letter to the applicant dated 25 November 2009.[4] Folio 25 of File 1 and folios 19 and 22 of File 2.[5] [1994] QICmr 1; (1994) 1 QAR 279 (‘B’).[6] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10.[7] At paragraph 35.[8] [1994] QICmr 17; (1994) 1 QAR 663 at paragraph 41.[9] See pages 90-96 of the FOI Independent Review Panel, The Right to Information Reviewing Queensland’s Freedom of Information Act (2008).[10] In its letter to this Office dated 8 September 2008.[11] And as of 1 July 2009, under the Right to Information Act 2009 (Qld).[12] See 59 and 60 of Health Quality and Complaints Commission Act 2006 (Qld) (HQCC Act).[13] under Part 9 of its complaint manual.[14] Section 11 of the HQCC Act.[15] Macquarie Dictionary Online (Fourth Edition) www.macquariedictionary.com.au.

queensland

court_judgement

Queensland Information Commissioner 1993-

P44 and Queensland Police Service [2020] QICmr 59 (13 October 2020)

P44 and Queensland Police Service [2020] QICmr 59 (13 October 2020) Last Updated: 19 January 2021 Decision and Reasons for Decision Citation: P44 and Queensland Police Service [2020] QICmr 59 (13 October 2020) Application Number: 315322 Applicant: P44 Respondent: Queensland Police Service Decision Date: 13 October 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - DISCLOSURE DECISION - ONUS ON EXTERNAL REVIEW - agency consulted external review applicant as a third party under section 37 of the Right to Information Act 2009 (Qld) - external review applicant objected to disclosure - whether a decision not to disclose is justified - section 87(2) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - address of an individual convicted for setting fire to access applicant’s property - administration of justice for individual- whether disclosure would, on balance, be contrary to the public interest - section 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary On 14 November 2019, the Queensland Police Service (QPS) received an application under the Right to Information Act 2009 (Qld) (RTI Act) for information about the investigation of a fire which occurred on 5 April 2018 and damaged a residential property that was formerly leased to the external review applicant (Applicant) by the access applicant (Landlord).[1] QPS located relevant information and consulted the Applicant about disclosure of that information.[2] The Applicant objected to disclosure.[3] After considering the Applicant’s disclosure objections, QPS refused access to one page and one audio recording but decided to fully or partially disclose the remaining information.[4] On 14 April 2020, the Applicant applied to the Office of the Information Commissioner (OIC) for external review of QPS’s decision to disclose information contrary to his objections.[5] The Applicant contends that disclosure of particular information QPS had decided to disclose would, on balance, be contrary to the public interest. For the reasons set out below I affirm QPS’s decision to disclose the Information in Issue and find that the Applicant has not discharged the onus of establishing that disclosure of the Information in Issue would, on balance, be contrary to the public interest and a decision not to disclose the Information in Issue is justified. Reviewable decision The decision under review is QPS’s decision dated 9 March 2020. Evidence considered 6. The evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). I have given careful consideration to all relevant issues raised by the Applicant in his various submissions. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act),[6] particularly the rights to privacy and reputation and to seek and receive information.[7] I consider a decision-maker will be ‘respecting’ and ‘acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the Information Privacy Act 2009 (Qld) (IP Act) and the RTI Act.[8] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[9] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[10] Information in issue During the external review: the Applicant identified the specific information which he maintains should not be disclosed the Landlord accepted that access to some of that information may be refused;[11] and QPS has released to the Landlord any remaining information that the Applicant has not specifically objected to the disclosure of. The information remaining in issue appears on six pages.[12] The RTI Act limits the extent to which I can describe this information,[13] however, I can confirm that it comprises the Applicant’s address and five additional words (Information in Issue). Onus on external review The participant in the external review application who opposes the disclosure decision has the onus of establishing that a decision not to disclose the information is justified, or that the Information Commissioner should give a decision adverse to the person who wishes to be given access to the information.[14] Therefore, the Applicant bears the onus of establishing that, under the provisions of the RTI Act, the Information in Issue should not be disclosed to the Landlord. Issue for determination The Applicant submits that access should be refused to the Information in Issue as its disclosure would, on balance, be contrary to the public interest. Accordingly, that is the issue for determination in this review. The Applicant requested that his contact details be released ‘ONLY to the legal representatives of the other party as per mentioned in the Right to Information Act’.[15] The RTI Act confers no power on the Information Commissioner to exact any undertaking, or to impose any condition, concerning the disclosure and use of release information. For this reason, I am unable to impose any restrictions to ensure that only the legal representatives of the Landlord will have access to the Information in Issue. Relevant law The RTI Act confers a general right to access documents of an agency,[16] however, this right is subject to limitations, including grounds for refusal of access.[17] It is Parliament’s intention that these refusal grounds are to be interpreted narrowly[18] and that the RTI Act be administered with a pro-disclosure bias.[19] One such ground of refusal is where disclosure of information would, on balance, be contrary to the public interest.[20] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[21] identify factors irrelevant to the public interest and disregard them identify factors in favour of disclosure of information identify factors in favour of nondisclosure of information; and decide whether, on balance, disclosure of the information would be contrary to the public interest. Findings Irrelevant factors I have taken no irrelevant factors into account in making my decision. Factors favouring disclosure QPS must be transparent and accountable about how it investigates incidents of arson. In this matter, the Applicant was charged and convicted for starting a fire on the Landlord’s property. I am satisfied that disclosure of the information which QPS decided to disclose (including the Information in Issue) could reasonably be expected to enhance QPS’s accountability and transparency, as it would provide information about the investigative actions taken by QPS and reveal contextual information to the decision to charge the Applicant. This gives rise to factors favouring disclosure.[22] Given the limited nature of the Information in Issue, I consider these factors carry only moderate weight. The RTI Act recognises that the public interest will favour disclosure of information where disclosure could reasonably be expected to contribute to the administration of justice for a person.[23] In Willsford and Brisbane City Council[24] 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 arises if an access applicant demonstrates: 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 in issue would assist the applicant to pursue the remedy or to evaluate whether a remedy is available or worth pursuing.[25] The approach of the Information Commissioner in Willsford and Brisbane City Council was more recently applied by the Assistant Information Commissioner in EF9TO8 and Department of Transport and Main Roads[26](EF9TO8) in relation to the registered address of a vehicle that was required for the pursuit of a legal remedy. Similar to the circumstances in EF9TO8, the Landlord in this case seeks the Applicant’s address in order to pursue a legal remedy and requires address details to commence (and serve) those proceedings. It is not in dispute that the fire, for which the Applicant was convicted, caused damage to the Landlord’s property and the Landlord has a reasonable basis for seeking to commence legal action against the Applicant.[27] In these circumstances, I am satisfied that the facts of this case meet the requirements set out in Willsford and that disclosure of the address could reasonably be expected to contribute to the administration of justice for the Landlord by enabling them to pursue a legal remedy by commencing civil action. On this basis, I afford significant weight to this factor favouring disclosure of the Applicant’s address. Factors favouring nondisclosure The RTI Act recognises that disclosing an individual’s personal information to someone else can reasonably be expected to cause a public interest harm[28] and that disclosing information that could reasonably be expected to prejudice the protection of an individual’s right to privacy will favour nondisclosure.[29] Personal information is defined by section 12 of the IP Act as:[30] ...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. I am satisfied that the Applicant’s address comprises his personal information and that the above factors in relation to privacy and personal information apply. In relation to the Applicant’s address, I consider that both these factors carry significant weight. However, as the remaining Information in Issue does not identify any individual or comprise personal information, I do not consider the personal information and privacy factors apply to that information. The Applicant generally contends that disclosing the Information in Issue will be unjust, as the arson incident has already been dealt with in the completed criminal proceedings[31] and the prospect of being involved in further legal proceedings in respect of the arson incident is stressful to him.[32] Factors favouring nondisclosure will arise 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;[33] and impede the administration of justice generally, including procedural fairness, or for a person.[34] The Applicant acknowledges that he was convicted of setting the fire on 5 April 2019. In these circumstances, I am satisfied that the nondisclosure factor relating to fair treatment does not apply to the Information in Issue. While I acknowledge that the Applicant may be apprehensive about future civil proceedings being commenced against him in respect of the arson damage, the Applicant has not provided any evidence which reasonably indicates that disclosure of this particular Information in Issue could be expected impede procedural fairness or the administration of justice for him in any such future proceedings. Although the Applicant bears the onus of establishing that disclosure of the Information in Issue would, as he contends, be contrary to the public interest, I have considered whether any other factors listed in schedule 4, parts 3 and 4 of the RTI Act apply. Taking into account the nature of the Information in Issue, I can identify no other public interest factors which favour nondisclosure.[35] Balancing the public interest In balancing the public interest, I will first consider the Applicant’s address. This is the information that is the focus of the Landlord’s access application and of core concern to the Applicant. I acknowledge that this information is the personal information of the Applicant and that the Applicant is concerned about the impact of any disclosure of this information on him personally. For this reason, I have attributed significant weight to the public interest factors favouring nondisclosure that seek to protect the privacy and personal information of the Applicant. Weighing against these factors, however, is the significant weight I have attributed to the public interest factor favouring disclosure which relates to the administration of justice for the Landlord. It is not in dispute that the Applicant caused damage to the Landlord’s property and has been criminally convicted as a result. The Landlord has established that there is a civil remedy available to them, however, in order to pursue this remedy and to commence proceedings against the Applicant, the Landlord requires the Applicant’s address. The applicant has not provided any alternate address for the service of legal documents. Given this background, I am satisfied that the administration of justice factor carries significant and determinative weight in favour of disclosure of the address information. With respect to the remaining information in issue, I consider that as it does not comprise the personal information of the Applicant, there is insufficient weight that can be attributed to any factors favouring nondisclosure of this information that would outweigh the general prodisclosure bias of the RTI Act, and the moderate weight that can be attributed to the factors relating to the transparency and accountability of QPS. Accordingly, I find that disclosure of Information in Issue would not, on balance, be contrary to the public interest.[36] DECISION I affirm QPS’s decision to disclose the Information in Issue and find that the Applicant has not discharged the onus of establishing that disclosure of the Information in Issue would, on balance, be contrary to the public interest and a decision not to disclose the Information in Issue is justified. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.S MartinAssistant Information Commissioner Date: 13 October 2020 APPENDIX Significant procedural steps Date Event 14 April 2020 OIC received the application for external review. 20 May 2020 OIC requested submissions from the Applicant to explain the delay in lodging the external review application and asked QPS to provide further information. 20 May 2020 OIC received submissions from the Applicant. 26 May 2020 OIC received the requested information from QPS. 27 May 2020 OIC advised the Applicant, QPS and the Landlord that the external review application had been accepted and asked the Applicant and the Landlord to provide information. 2 and 3 June 2020 QPS provided to the Applicant (via email) a copy of the located information, redacted to reflect its disclosure decision. The Applicant advised he was unable to open the emailed documents. 10 June 2020 The Applicant advised that information had been posted to him. 17 June 2020 The Landlord confirmed they continue to seek access to the requested information. The Applicant advised that he had not received the posted information. 19 June 2020 OIC notified the Applicant that documents were awaiting his collection and asked him to detail his disclosure concerns by 26 June 2020. 23 June 2020 OIC received the Applicant’s submissions by telephone. 24 June 2020 OIC conveyed a preliminary view to the Applicant. 3 July 2020 OIC received the Applicant’s further submissions. 8 July 2020 OIC wrote to the Landlord confirming that they wish to lodge an application with the Queensland Civil and Administrative Tribunal and they require information to support and serve that application. 11 August 2020 OIC conveyed a preliminary view to the Applicant and received further submissions from the Applicant. OIC conveyed a preliminary view to the Landlord and the Landlord confirmed that they accepted the preliminary view that access could be refused to some information. 25 August 2020 OIC received the Applicant’s further submissions. 2 September 2020 OIC confirmed the preliminary view to the Applicant. 4 September 2020 OIC confirmed the preliminary view to the Applicant and received further submissions from the Applicant. 8 September 2020 OIC confirmed to the Applicant that QPS would disclose to the Landlord the information which was not the subject of his remaining disclosure objections. OIC also confirmed the preliminary view to the Applicant about his remaining disclosure objections and invited the Applicant to make final submissions by 22 September 2020. [1] Application dated 14 November 2019. As the Landlord did not seek to participate in this external review, their identity is not disclosed in this decision. [2] Under section 37 of the RTI Act. [3] On 17 February 2020. [4] On 9 March 2020. Access was deferred to the information which QPS decided to disclose. The information to which access was refused is not in issue in this review. [5] Although the external review application was received four days outside the period specified in section 88 of the RTI Act, I decided, as a delegate of the Information Commissioner, to extend the time for the applicant to apply for review. [6] Which came into force on 1 January 2020. [7] Sections 21 and 25 of the HR Act. [8] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111]. [9] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [10] XYZ at [573]. [11] Being portions of information on 24 pages. [12] Pages 2, 3, 10, 32, 47 and 55. I note that the deletion of certain other information appearing on these pages is not in issue in this review. [13] Section 108(3) of the RTI Act. [14] Section 87(2) of the RTI Act. [15] Applicant’s submissions dated 3 July 2020. [16] Section 23 of the RTI Act. [17] Section 47 of the RTI Act. [18] Section 47(2)(a) of the RTI Act. [19] Section 44 of the RTI Act. [20] 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. [21] Section 49(3) of the RTI Act. [22] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act. [23] Schedule 4, part 2, item 17 of the RTI Act. [24] [1996] QICmr 17; (1996) 3 QAR 368 (Willsford). [25] Willsford at paragraph 17. This approach was recently affirmed in 1OS3KF and the Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011).[26] [2016] QICmr 19 (3 June 2016). [27] Access applicant submissions dated 3 October 2020. [28] Schedule 4, part 4, section 6(1) of the RTI Act. [29] Schedule 4, part 3, item 3 of the RTI Act. [30] This definition is adopted by schedule 5 of the RTI Act. [31] External review application. [32] External review application. [33] Schedule 4, part 3, item 6 of the RTI Act. [34] Schedule 3, part 3, items 8 and 9 of the RT Act. [35] For example, I cannot see how its disclosure could, for example, prejudice the flow of information to the police (Schedule 4, part 3, item 13 of the RTI Act) or prejudice an agency’s ability to obtain confidential information (Schedule 4, part 3, item 16 and schedule 4, part 4, section 8 of the RTI Act). 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 combined weight that I have afforded to the public interest factors that favour the disclosure of the Information in Issue. [36] Sections 47(3)(b) and 49 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

H12 and Metro North Hospital and Health Service [2020] QICmr 36 (26 June 2020)

H12 and Metro North Hospital and Health Service [2020] QICmr 36 (26 June 2020) Last Updated: 24 August 2020 Decision and Reasons for Decision Citation: H12 and Metro North Hospital and Health Service [2020] QICmr 36 (26 June 2020) Application Number: 314575 Applicant: H12 Respondent: Metro North Hospital and Health Service Decision Date: 26 June 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST - information identifying medical and administrative staff - transparency and accountability in public health system - allegations of misconduct - prejudice to other individuals’ right to privacy - public interest harm through disclosure of personal information - whether disclosure would, on balance, be contrary to the public interest - whether access to information may be refused under section 47(3)(b) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - NONEXISTENT OR UNLOCATABLE DOCUMENTS - public hospital records relating to care and treatment of applicant’s deceased adult son - whether agency has taken all reasonable steps to locate documents - whether further documents exist - whether access to documents may be refused under sections 47(3)(e) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to Queensland Health[2] under the Right to Information Act 2009 (Qld) (RTI Act) seeking access to information concerning his deceased adult son.[3] In particular, the applicant sought information relating to blood tests, pathology records and scans, his complaint to the Office of the Health Ombudsman (OHO), and a ‘clinical review’ into his son’s death. MNHHS located 77 pages and various radiology images, and decided to give access to this information, subject to the redaction[4] of staff details (Staff Personal Information). MNHHS refused access to the Staff Personal Information on the basis that it was exempt information.[5] The applicant sought external review by applying to the Office of the Information Commissioner (OIC). Further documents[6] were located on review, and released to the applicant by MNHHS, with Staff Personal Information redacted.[7] The information that remains in issue in this review is the Staff Personal Information redacted from the original documents and from the additional documents located on external review. The applicant also raised concerns about the sufficiency of MNHHS’ searches. For the reasons set out below, I vary the deemed decision and find that: disclosure of the Staff Personal Information would, on balance, be contrary to the public interest and therefore, access to it may be refused under section 47(3)(b) of the RTI Act; and MNHHS has taken all reasonable steps to locate information responding to the application and access to any further information may be refused under section 47(3)(e) of the RTI Act on the basis that is nonexistent under section 52(1)(a) of the RTI Act. Background Significant procedural steps taken during the external review are set out in the Appendix. Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including in footnotes and the Appendix). The decision under review is the decision deemed to have been made by MNHHS refusing access to all of the information requested in the access application.[8] The applicant sought internal review by MNHHS but due to the impact of the deemed decision, the RTI Act required him to proceed directly to the Information Commissioner for external review.[9] The applicant has ongoing concerns about the circumstances surrounding his internal review application.[10] I acknowledge those concerns but also note that the applicant has not been disadvantaged in terms of review rights as he remained entitled to apply for external review, and his application was accepted by the Information Commissioner.[11] The applicant provided extensive written submissions to the Information Commissioner supporting his case.[12] While I have carefully reviewed all of those submissions, certain concerns the applicant has raised are not matters which the Information Commissioner has jurisdiction to consider in conducting an external review under the RTI Act.[13] Accordingly, in reaching this decision, I have only considered the applicant’s submissions to the extent they are relevant to the issues for determination on external review. In reaching this decision, I have also had regard to the Human Rights Act 2019 (Qld),[14] particularly the applicant’s right to seek and receive information.[15] 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.[16] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. Information in issue The only information remaining in issue is the Staff Personal Information that has been redacted from pathology records and internal and external MNHHS correspondence records.[17] The Staff Personal Information is comprised of the names, initials and identifying position titles of medical and administrative staff, email addresses, phone numbers, signatures and one incidental reference to a staff member’s travel away from the hospital. Issues for determination The primary issue for determination is whether access to the Staff Personal Information may be refused under the RTI Act. MNHHS submitted[18] that access to the Staff Personal Information should be refused on the basis that disclosure could reasonably be expected to result in staff being subjected to a serious act of harassment or intimidation.[19] During the review, I formed the view that the requirements of that exemption were not satisfied, in the circumstances of this case.[20] MNHHS subsequently submitted that disclosure would, on balance, be contrary to the public interest. Therefore, that is the only ground of refusal I have considered in these reasons. During the review, the applicant accepted that the ‘clinical review’ aspect of his sufficiency of search concerns had been addressed.[21] However, as his general concerns about sufficiency of search extended beyond that particular issue, I have, in these reasons, considered whether MNHHS has taken all reasonable steps to locate documents in response to the scope of the application. The applicant also raised concerns about the conduct of the MNHHS’ decision-maker[22] in processing his access application and in dealing with his internal review application,[23] and generally about the procedure followed on external review.[24] I have noted the applicant’s concerns, however, these procedural issues, and the administration of the access application are not within my external review jurisdiction. My role, in conducting merits review is to ‘step into the shoes’ of the primary decision-maker to determine what is the correct and preferable decision concerning access to documents,[25] not to investigate the agency’s procedures or allegations relating to the conduct of agency officers. While I note the Information Commissioner has obligations relating to disciplinary action, I do not consider that there is any evidence in this case to enliven those provisions.[26] With respect to the applicant’s concerns about the procedure followed on external review, I am satisfied that this process has been conducted in accordance with the requirements of the RTI Act. Noting that the Information Commissioner has the broad discretion as to the procedure to be followed on a review, I consider the applicant has been afforded an opportunity to advance submissions in support of his case, with adequate time to respond, and that the agency’s position and OIC’s view on the issues was conveyed clearly, with reference to relevant legal provisions. Staff Personal Information Relevant law Under the RTI Act, access to documents may be refused to the extent they comprise information the disclosure of which would, on balance, be contrary to the public interest.[27] 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.[28] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[29] 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. No irrelevant factors arise in the circumstances of this case and I have not taken any into account in making my decision.[30] 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.[31] I consider that disclosure of the Staff Personal Information could reasonably be expected to enhance the accountability of MNHHS and provide contextual information.[32] In considering the weight to be afforded to these factors, I note that the applicant has already been granted access to a significant amount of information, and the nature of the Staff Personal Information is such that it does not provide insight into the extent or type of care provided to the applicant’s son, or the actions taken by the hospital following his son’s death. I have considered the applicant’s submissions that ‘more than not, [such information] has great importance as to a person’s actions, negligence, unlawful acts etc.’[33] However, I remain of the view that given the nature of the Staff Personal Information, these factors only carry low weight. I have also considered the applicant’s submission that redaction of the Staff Personal Information means that he is not able to ascertain the identity of those he considers failed to carry out their duties in their office. He submits that on occasions, their conduct may amount to breaches, misconduct, criminal conduct, or negligence, and that some comments in the documents may amount to defamation.[34] Factors favouring disclosure will arise if disclosure could reasonably be expected to: allow or assist inquiry into possible deficiencies in the conduct or administration of an official[35] reveal or substantiate that an agency or official has engaged in misconduct, or negligent, improper or unlawful conduct[36] advance fair treatment in accordance with the law in dealings with agencies;[37] or contribute to the administration of justice generally (including procedural fairness) or for a person.[38] I acknowledge the applicant’s submission that the Staff Personal Information is required in order to ‘establish the causal connection between parties as to evidence, commission of various breaches, negligence of parties and for defamation purposes’. The applicant further submits:[39] I need to know the identity of those involved in malfeasance, is far greater in the public interest, than me not caring less about those not involved and disregarding their identity as valueless, though I must first be able to determine those who have no involvement. Only the full disclosure will allow me to make such a determination. I have considered these submissions, and accept that to a certain extent, disclosure of the identity of every person involved in the applicant’s son’s care (and in subsequent hospital and OHO processes) may allow for a targeted inquiry into alleged wrongdoing, and allow actions or statements to be attributed to particular individuals. However, in terms of the weight to be attributed to the factors listed above, the information already released to the applicant provides him with detailed information about pathology and radiology results/findings, correspondence with OHO, and the mortality review into his son’s death. I consider the information that has been released already assists the applicant’s inquiry into his various allegations of deficiencies/misconduct, and provides significant insight into the topics raised by his access application, advancing his fair treatment when dealing with the relevant hospitals. In terms of the factors concerning the administration of justice, assuming that the applicant has a reasonable basis for pursuing a remedy, my view is that he would already have the information needed to do so, i.e. detailed information about pathology and radiology results/findings and the names of the relevant agency and hospitals. In the event that MNHHS or one of the relevant hospitals were defending an action in relation to the applicant’s son’s care, it would be a matter for them to join particular individuals as co-defendants; the applicant does not need their names or identifying details to commence an action/proceeding. Accordingly, in the circumstances, I afford each of the above factors low weight. The applicant has noted[40] that a factor favouring disclosure will arise where disclosure of the information could reasonably be expected to reveal environmental or health risks or measures relating to public health and safety.[41] While I acknowledge that the access application was for information concerning his son’s health care, the nature of the information remaining in issue (being the personal information of staff) is such that it is not capable of revealing a health risk, or measures relating to public health or safety. Accordingly, I am not satisfied that this factor applies. Factors favouring nondisclosure Personal information and privacy The RTI Act recognises that disclosure would cause a public interest harm[42] if it would disclose personal information of a person, whether living or dead.[43] The term ‘personal information’ is defined as follows in the RTI Act:[44] 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. The Staff Personal Information is comprised of information about individuals whose identities are apparent, as it includes their names, contact details or other identifying information. Accordingly, I am satisfied that it comprises the personal information of those individuals and that the public interest harm factor applies. I accept that the harm arising from the disclosure of routine personal work information of public servants is generally low, on the basis that officers are performing public duties. However, in the particular circumstances of this case, I consider that the harm arising from disclosure is deserving of higher weight. I take this view because the information appears in the context of staff dealing with end-of-life care and serious illness, either as a frontline service-provider, or in dealing with concerns/complaints the applicant raised after his son’s death, as a grieving family member. These are challenging and confronting scenarios that I consider go beyond the routine work day-to-day duties of public servants. Accordingly, I afford this factor moderate weight. A separate factor favouring nondisclosure will arise where disclosing information could reasonably be expected to prejudice the protection of an individual’s right to privacy.[45] 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.[46] For the reasons discussed in the preceding paragraph, I am satisfied that disclosure of the Staff Personal Information would interfere with the personal sphere of the relevant staff.[47] I also note that some of the Staff Personal Information is comprised of incidental references to relatively junior administrative staff, information that discloses work locations/direct contact details, or personal travel information. Accordingly, I afford this factor moderate weight. Balancing the public interest I acknowledge the pro-disclosure bias of the RTI Act and the important public interest in ensuring that a public health provider, such as MNHHS, is accountable for its actions and transparent in its operations, and treatment of patients. However, the applicant has been granted access to a significant volume of information which I consider, has allowed a substantial degree of insight into MNHHS’ actions and operations. I am not satisfied that the Staff Personal Information would meaningfully advance those public interest factors to any significant degree. Similarly, given the information that has already been released, I do not consider that the Staff Personal Information would meaningfully assist the applicant’s inquiry, reveal or substantiate his allegations of misconduct or negligence, or significantly advance his fair treatment or assist in the administration of justice. On the other hand, given the context in which the Staff Personal Information appears, I am satisfied that disclosure would intrude into other individuals’ personal spheres and cause a moderate level of public interest harm in disclosing their personal information in this case. In summary, while the public health system must be accountable for its actions, that must be balanced against the public interest in individuals’ personal details being protected. On balance, I find the factors favouring disclosure are outweighed by the moderate weight of the factors which seek to safeguard the personal information and right to privacy of other individuals. Therefore, I find that Staff Personal Information may be refused under section 47(3)(b) of the RTI Act as disclosure would, on balance, be contrary to the public interest. Sufficiency of search On review, the applicant raised concerns that MNHHS had not located:[48] attachments to certain emails from OHO[49] progress updates and notification of the Coroner’s decision from OHO[50] all documents regarding a proposed conciliation with Queensland Health all documents concerning advice, recommendations or suggestions by OHO; and information concerning a clinical review into the death of his son. During the review, MNHHS located documents responding to items 1 and 5 above, and these documents were provided to the applicant (with Staff Personal Information redacted).[51] In relation to item 5, while the applicant agreed that all reasonable steps have now been taken to locate all documents, he remains dissatisfied with the clinical review process that was conducted by the hospital. Under the RTI Act, the external review jurisdiction does not extend to considering whether information recorded in agency documents meets an applicant’s expectations. Further, I am unable to investigate or comment upon the thoroughness (or otherwise) of a particular agency process. In considering whether MNHHS has taken all reasonable steps to locate information in relation to items 2, 3 and 4 above, I have taken into account that documents responding to items 2 and 4 would be held within MNHHS’s central communications unit (which is called ‘MD16’), or within MNHHS’ legal services team. In relation to item 3, I understand that any such records would be held by MNHHS’ Consumer Liaison Office (Safety and Quality Unit). I have considered records of searches and enquiries conducted within each of these units, as well as evidence of further searches of the Office of the Executive Director (in relation to each hospital) and MNHHS’ electronic document and records management system.[52] I am satisfied that the searches conducted by MNHHS were targeted to the appropriate areas, comprehensive and reasonable in the circumstances. Taking into account MNHHS’ recordkeeping practices as they relate to the type of documents requested by the applicant, the searches conducted,[53] and the information located, I am satisfied that MNHHS has taken all reasonable steps to locate information in response to the application. Accordingly, I find that access to any further information may be refused on the basis that it does not exist.[54] DECISION I vary the deemed decision and find that access to: the Staff Personal Information may be refused under section 47(3)(b) of the RTI Act as its disclosure would, on balance, be contrary to the public interest; and any further information may be refused under section 47(3)(e) of the RTI Act on the basis that it is nonexistent, under section 52(1)(a) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.K ShepherdAssistant Information Commissioner26 June 2020 APPENDIX Significant procedural steps Date Event 16 April 2019 OIC received the application for external review. 18 April 2019 OIC requested preliminary documents from MNHHS. 29 April 2019 MNHHS supplied the preliminary documents to OIC. 13 May 2019 OIC advised the applicant and MNHHS that the application for external review had been accepted, and noted certain processing issues. OIC requested the information in issue and search records from MNHHS. 20 June 2019 OIC received the information in issue, processing documents and search records from MNHHS. OIC received submissions from the applicant. 4 October 2019 OIC wrote to the applicant clarifying the scope of the review. OIC requested that MNHHS provide a submission, search records and conduct further searches. 9 October 2019 OIC received a submission from the applicant. 15 October 2019 OIC wrote to the applicant and confirmed the sufficiency of search issues to be considered. 22 October 2019 OIC wrote to MNHHS and clarified the sufficiency of search issues to be considered. 31 October 2019 OIC received submissions and copies of additional located documents from MNHHS. 19 November 2019 OIC conveyed its preliminary view to MNHHS. 4 December 2019 OIC received a submission from MNHHS. 6 December 2019 OIC requested further information from MNHHS. 17 February 2020 OIC requested that MNHHS urgently provide the requested information. 19 February 2020 OIC received further information from MNHHS. 3 March 2020 OIC requested that MNHHS release additional information to the applicant. 4 March 2020 OIC conveyed a preliminary view to the applicant. 4 March 2020 The applicant advised OIC by telephone that he did not agree with the preliminary view, and raised certain procedural issues. 10 March 2020 MNHHS advised that additional information had been released to the applicant by post. 21 March 2020 OIC received submissions from the applicant, and a request for an extension of time to provide further submissions. 25 March 2020 OIC provided the applicant with an extension of time to provide further submissions, until 29 May 2020. 28 May 2020 OIC received further submissions from the applicant. [1] Access application dated 15 December 2018.[2] On 10 January 2019, the application was transferred to Metro North Hospital and Health Service (MNHHS).[3] In April 2013, the applicant’s adult son passed away in the Palliative Care Unit of Prince Charles Hospital. [4] On 13 pages.[5] Decision dated 18 February 2019. However, that decision was issued outside the statutory timeframe, resulting in a deemed decision under section 46 of the RTI Act. The decision was treated by OIC as an early submission setting out MNHHS’ position on disclosure.[6] 24 pages.[7] On 11 pages.[8] See footnote 5 above. [9] Section 81 of the RTI Act. [10] Including that he was provided with the incorrect email address to submit this application resulting in MNHHS expressing the view to him that it was not received within the prescribed statutory timeframe for internal review. MNHHS wrote to the applicant on 16 April 2019 seeking to address his concerns and confirming his right to apply for external review. [11] Despite it too being made, technically, out of time. OIC exercised the discretion to accept the external review application. [12] Submissions to OIC dated 20 June 2019, 9 October 2019, 21 March 2020 and 28 May 2020. I have also considered the applicant’s internal and external review applications. [13] Confirmed in OIC’s letter to the applicant dated 4 October 2019.[14] Referred to in these reasons as the HR Act, and which came into force on 1 January 2020.[15] Section 21 of the HR Act. [16] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[17] Appearing on 13 pages of the information originally released, and 11 pages of the information located on external review. [18] Both in its decision letter dated 18 February 2019, and in submissions dated 31 October 2019, 4 December 2019 and 19 February 2020.[19] Schedule 3, section 10(1)(d) of the RTI Act.[20] Having regard to MNHHS and the applicant’s submissions concerning the issue.[21] Submissions dated 28 May 2020, page 9. The applicant accepted that MNHHS took all reasonable steps to locate all documents concerning the ‘clinical review’ into his son’s death. He did however, express disappointment that the content of that document did not meet his expectations. [22] And the conduct of Queensland Health in relation to his internal review application. [23] As outlined in his application for external review dated 16 April 2019.[24] Applicant’s submissions dated 28 May 2020, pages 12 and 19.[25] Section 105(1)(b) of the RTI Act. [26] Under section 113 of the RTI Act, at the completion of an external review, if the Information Commissioner is of the opinion that there is evidence that an agency’s officer has committed a breach of duty or misconduct in the administration of the Act and the evidence is, in all the circumstances, of sufficient force to justify doing so, the Information Commissioner must bring the evidence to the notice of the principal officer of the agency.[27] Section 47(3)(b) of the RTI Act. Section 47(2)(b) of the RTI Act requires the grounds to be interpreted narrowly.[28] 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.[29] Section 49(3) of the RTI Act. [30] Including the factor concerning the seniority of the person who created the document, which was raised by the applicant in his submissions.[31] Section 44(1) of the RTI Act.[32] Schedule 4, part 2, items 1 and 11 of the RTI Act. The applicant also raised schedule 4, part 2, item 3 of the RTI Act, but given the nature of the Staff Personal Information, I do not consider this factor applies.[33] Applicant’s submissions dated 28 May 2020, page 33.[34] Applicant’s submissions dated 28 May 2020, pages 37 and 39.[35] Schedule 4, part 2, item 5 of the RTI Act.[36] Schedule 4, part 2, item 6 of the RTI Act.[37] Schedule 4, part 2, item 10 of the RTI Act.[38] Schedule 4, part 2, item 16 and item 17 of the RTI Act.[39] Applicant’s submissions dated 28 May 2020, page 45.[40] Applicant’s submissions dated 28 May 2020, page 16.[41] Schedule 4, part 2, item 14 of the RTI Act.[42] Schedule 4, part 4, item 6(1) of the RTI Act. In Kelson v Queensland Police Service & Anor [2019] QCATA 67, Daubney J, President of the Queensland Civil and Administrative Tribunal explained that the Information Commissioner is ‘not required to reason how the disclosure of the personal information could amount to a public interest harm; that harm is caused by the very disclosure of the information itself’ at [94]. [43] The applicant has raised concerns about reliance on a separate factor that applies in relation to the personal information of a person who has died under schedule 4, part 3, item 5 of the RTI Act. For clarity I note that I do not consider this factor applies (as the information is about staff, not the applicant’s son) and I have not relied on this factor in reaching my decision.[44] See schedule 5 of the RTI Act which refers to section 12 of the Information Privacy Act 2009 (Qld).[45] Schedule, 4, part 3, item 3 of the RTI Act.[46] 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].[47] While the privacy interest in routine work information of public servants ordinarily carries low weight, it is relevant to consider the specific context in which the information appears and circumstances of the case: see for example O52 and Queensland Ombudsman [2020] QICmr 31 (11 June 2020) at [67].[48] As set out in the applicant’s internal review application dated 15 March 2019 and submissions to OIC on 9 October 2019. OIC confirmed and then clarified the scope of the applicant’s concerns by letters dated 4 October 2019 and 15 October 2019.[49] Attachments to certain emails dated 3 December 2014 from OHO. [50] Which were referred to in a letter from OHO to the Director-General of Queensland Health dated 27 November 2014.[51] Thereby resolving those issues. [52] Search records in relation to the original located documents were provided to OIC by MNHHS on 20 June 2019, and search records following further searches conducted on external review were provided to OIC by MNHHS on 4 December 2019 and 19 February 2020.[53] An agency may 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.[54] Section 47(3)(e) and 52(1)(a) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Holt & Reeves and Education Queensland [1998] QICmr 4; (1998) 4 QAR 310 (20 April 1998)

Holt & Reeves and Education Queensland [1998] QICmr 4; (1998) 4 QAR 310 (20 April 1998) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 98004Application S 101/95 Participants: ANN PATRICIA HOLT ERIN ACUSHLA REEVES Applicants EDUCATION QUEENSLAND Respondent ROSEMARY McNAUGHT JAN DIERY LYN MULLER Third Parties DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - 'reverse FOI' application - matter in issue comprising audiotapes, and written notes, of meeting between school principal and parents concerning teacher behaviour - whether audiotapes, claimed to be the property of one of the parents, are "documents of an agency" as defined in s.7 of the Freedom of Information Act 1992 Qld, and therefore subject to the application of that Act, while they remain in the physical possession of the respondent - words and phrases: the meaning of "possession", as used in the context of the definition of "document of an agency" in s.7 of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - 'reverse FOI' application - whether information communicated in meeting between school principal and parents was information of a confidential nature that was communicated in confidence - whether the effect of s.99 and s.103 of the Public Service Management and Employment Regulation 1988 Qld was inconsistent with the existence of an understanding or obligation of confidence - application of s.46(1)(a) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.7, s.21, s.25, s.46(1)(a), s.46(1)(b), s.51(1),s.51(2)(e), s.81Freedom of Information Act 1982 Cth s.4Freedom of Information Act 1982 VicPublic Service Management and Employment Regulation 1988 Qld s.99, s.103Public Service Regulation 1997 Qld s.15, s.16(2) ii "B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279Birrell and Victorian Economic Development Corporation, Re (1989) 3 VAR 358Myers and Queensland Treasury, Re [1995] QICmr 6; (1995) 2 QAR 470Pope and Queensland Health, Re [1994] QICmr 16; (1994) 1 QAR 616Price and Surveyors Board of Qld, Re (Information Commissioner Qld, Decision No. 97017, 27 October 1997, unreported)Smorgon v ANZ, FCT v Smorgon [1976] HCA 53; (1976) 134 CLR 475Sullivan and Department of Industry, Science and Technology, Re (1996) 23 AAR 59 DECISION I set aside the decision under review (which is identified in paragraph 5 of my accompanying reasons for decision). In substitution for it, I decide that--(a) the audiotapes in issue fall within the definition of "document of an agency" in s.7 of the Freedom of Information Act 1992 Qld, and are subject to the application of that Act while they remain in the physical possession of the respondent; and(b) the matter in issue (which is identified in paragraph 13 of my accompanying reasons for decision) is exempt matter under s.46(1)(a) of the Freedom of Information Act 1992 Qld.Date of decision: 20 April 1998............................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS Page Background 1External review process 2Matter in issue 3Issues for determination 3Are the audiotapes "documents of an agency"? 3Application of s.46(1)(a) 8 Specific identification of the confidential information for which protection is sought 9 The "necessary quality of confidence" 9 Receipt of information in such circumstances as to import an obligation of confidence 11 Actual or threatened misuse of confidential information 15 Detriment to the confider 15Conclusion 16 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 98004Application S 101/95 Participants: ANN PATRICIA HOLT ERIN ACUSHLA REEVES Applicants EDUCATION QUEENSLAND Respondent ROSEMARY McNAUGHT JAN DIERY LYN MULLER Third Parties REASONS FOR DECISION Background1. This is a 'reverse-FOI' application by the applicants who object to the respondent's decision to grant the third parties access, under the Freedom of Information Act 1992 Qld (the FOI Act), to audiotape recordings, and written notes, of a meeting between the applicants and the Principal of Fig Tree Pocket State School ("the School"). The applicants contend that the audiotapes are not the property of the respondent, and so are not "documents of an agency" for the purposes of the FOI Act. They further contend that the meeting was a confidential meeting and that, to the extent that the FOI Act applies to them, the written and taped records of the meeting are exempt matter under s.46(1) of the FOI Act.2. On 6 February 1995, the Principal of the School, Mr Waldron, held a meeting with three parents of children attending the School - Mrs Holt, Mrs Reeves and Mrs London.(Mrs London originally was an applicant for external review, but subsequently withdrew from the review. For ease of reference, I will use the word "applicants" to describe all three parents up to the time of Mrs London's withdrawal, and the remaining two parents thereafter.) 3. At the time of the meeting, the third parties were teachers at the School. By letter dated 13 February 1995, the third parties applied to the respondent (then known as the Department of Education, and hereinafter referred to as "the Department") under the FOI Act, for access to audiotape recordings and written notes of the meeting. The third parties stated that they believed that allegations against them were made at the meeting, and that the meeting had been taped, the tapes currently being in the possession of Mr Waldron. Further, the third parties stated that they believed that Mr Waldron had made written notes of the meeting.4. By letters dated 15 March 1995, the Department consulted with each of the applicants, in accordance with s.51(1) of the FOI Act, to ascertain whether they objected to disclosure of the tapes and notes of the meeting. Each of the applicants objected to disclosure of that material. On 5 April 1995, contrary to the applicants' views, Mr E Spring of the Department decided that the tapes and notes did not comprise exempt matter under the FOI Act, and that access to them should be granted.5. By letter dated 18 April 1995, Mrs Holt, on behalf of each of the applicants, applied for internal review of Mr Spring's decision. Mr P Parsons of the Department conducted the internal review, and, by letter dated 5 May 1995, informed the applicants that he had decided to affirm Mr Spring's decision.6. By letter dated 30 May 1995, the applicants applied to me for review, under Part 5 of the FOI Act, of Mr Parsons' decision. The applicants asserted that the tapes belonged to one of them (Mrs Holt), that the meeting had been taped at their instigation, and that the tapes had been loaned to Mr Waldron subsequent to the meeting, to allow him to review and expand upon the written notes he had made, but on the condition that he return the tapes. The applicants enclosed statutory declarations by each of them, attesting to the matters summarised in the preceding sentence. They also enclosed copies of letters sent to the Principal, Mr Waldron, and to Mr Parsons, by a firm of solicitors retained by Mrs Holt, demanding the return of the audiotapes which were asserted to be the property of Mrs Holt. The applicants disputed that the tapes were "documents of an agency" within the meaning of s.7 of the FOI Act. They also asserted that they had been expressly promised confidential treatment of the information conveyed to the Principal.External review process7. I obtained copies of the matter in issue from the Department, and a copy of a statutory declaration by Mr Waldron dated 28 April 1995. On 3 August 1995, I wrote to the third parties to inform them of the review. Each of them applied for, and was granted, status as a participant in the review. 8. On 22 August 1995, Mrs London attended at my office to give a statement to one of my investigative officers, concerning the meeting with Mr Waldron, the taping of that meeting, and what occurred with the audiotapes thereafter. The statement was typed and forwarded to Mrs London for execution. Mrs London was advised that once her statement was finalised, it would be forwarded to the other two applicants, Mrs Holt and Mrs Reeves, and that, in the event that they were in agreement with the contents of Mrs London's statement, I would not require them to provide separate statements.9. However, Mrs London did not sign and return her statement, and some time later, she indicated to my office that she wished to withdraw her application for external review. The Deputy Information Commissioner then contacted the other two applicants, Mrs Holt and Mrs Reeves, to ascertain whether they wished to continue to object to disclosure of the tapes and notes. Both advised that they wished to continue with their objections.10. By letter dated 7 February 1997, I wrote to the applicants (now Mrs Holt and Mrs Reeves) to advise them of the preliminary views which I had formed with respect to the disclosure of the tapes and notes. In the event that they disagreed with my preliminary views, I invited the applicants to lodge submissions and/or evidence in support of their contentions. The applicants did not respond, nor did they reply to a further letter from my Office, which requested a response by no later than 12 March 1997. 11. By letter dated 18 April 1997, the Department was invited to lodge a written submission and/or evidence in support of its decision that the matter in issue was not exempt under s.46(1) of the FOI Act, and a number of issues were raised for the Department's consideration.The Department provided a response dated 20 May 1997, together with a statutory declaration by Mr Waldron dated 16 May 1997, and a statutory declaration by Ms Joyce Gray dated 14 May 1997. Ms Gray was the officer responsible for carrying out, on behalf of the Department, a formal investigation into the dispute at the School. Copies of that material were forwarded to the third parties, who were invited to respond. Messrs Hill & Taylor, solicitors, responded on behalf of the third parties with a written submission dated 27 June 1997. That submission acknowledged that the third parties were not in a position to submit any evidence on the key issues for my determination, and indicated that the third parties were prepared to acquiesce in the Department's submissions dated 20 May 1997. The solicitors for the third parties took the opportunity to address submissions on issues of general principle said to be relevant to this case.12. Copies of the Department's submission and the third parties' submission were then forwarded to the applicants, and a copy of the third parties' submission was forwarded to the Department.Matter in issue13. The matter in issue in this external review consists of the following: Mr Waldron's notes of a meeting which the applicants attended at his office on 6 February 1995; and two audiotapes which record parts of the discussion which took place at the meeting.14. The audiotapes reveal that the meeting was, for the most part, a general discussion of perceived problems at the School, largely revolving around behaviours of unnamed teachers.The aim of the applicants was to seek an explanation from the Principal of the actions he would take to resolve those problems. The approach of the Principal was to suggest general strategies which might be adopted without singling out any teacher. During the latter part of the tapes, some references are made to specific instances of teacher behaviour. It is likely that a person with a reasonable knowledge of events occurring at the School at the relevant time, could discern the identities of teachers involved in those instances.Issues for determination15. Two issues have been raised for my consideration: whether the audiotapes are "documents of an agency" as defined in s.7 of the FOI Act, and hence subject to the application of the FOI Act; and whether the tapes, and Mr Waldron's notes, comprise exempt matter under s.46(1) of the FOI Act.Are the audiotapes "documents of an agency"?16. In my letter to the applicants containing my preliminary views, I advised them that the outcome of my decision with respect to the audiotapes would make no difference to the status of the eight pages of notes which comprise Mr Waldron's record of the meeting. The notes are clearly documents of an agency. Even if I were to determine that the tapes are not documents of an agency, the notes of the meeting would remain in issue.17. On the evidentiary material available to me, there are significant gaps, and areas of inconsistency, regarding the ownership of the tapes and the circumstances under which they came into the possession of the Department. The evidentiary material available to me consists of: statutory declarations by Mr Rodney John Waldron dated 28 April 1995 and 16 May 1997 a statutory declaration by Ms Joyce Gray dated 14 May 1997 a statutory declaration by Ann Patricia Holt dated 31 May 1995 a statutory declaration by Erin Acushla Reeves dated 31 May 1995 a statutory declaration by Laura London dated 31 May 1995 a draft statement by Laura London (unsigned, and undated) prepared by a member of my staff during an interview with Ms London letter of demand from Thynne and Macartney, Solicitors (acting on behalf of Mrs Holt), to Mr Waldron, dated 16 May 1995.18. The state of the evidence is such that the Department frankly admitted, in its written submission dated 20 May 1997, that it could not be sure whether the two audiotapes in its possession, which it has identified as falling within the terms of the relevant FOI access application (and were then being held by the Department's Freedom of Information and Judicial Review Unit), were the original tapes owned by Mrs Holt, or copies made by the Department. If it were necessary for the purposes of my review to determine the question of legal ownership of the two audiotapes in the possession of the Department, I would have found it necessary to convene an oral hearing to assess the reliability of the recall of various witnesses, and test aspects of their evidence. However, I do not consider it necessary to resolve that issue, because, if I proceed on the assumption that the material lodged on behalf of the applicants is correct, I consider that the audiotapes are still "documents of an agency" (i.e., the Department) and subject to the application of the FOI Act, for so long as they remain in the physical possession of the Department. That issue turns on the correct interpretation of the term "document of an agency", which I have explained below. However, I should briefly refer to what is material in the evidence with respect to the issues I am obliged to determine in this review.19. The applicants and Mr Waldron agree that the audiotapes used to record their meeting on 6 February 1995 were supplied by one of the applicants (the applicants say that the tapes were the property of Mrs Holt), and were taken away by the applicants after the meeting. Mrs Holt asserts that on 7 February 1995, Mr Waldron requested that he be allowed to borrow the tapes, and that on 8 February 1995 Mr Waldron came to Mrs Holt's home and took away the tapes on the express understanding that they would be returned as soon as possible. The letter of demand dated 16 May 1995 from Mrs Holt's solicitors to Mr Waldron states: "Our client instructs us that the tape recording in question ... is her property and that the tapes were lent to you for the purposes of copying/and or general access for subsequent verification." Thus, it appears that Mr Waldron was authorised to make copies of the tapes for his administrative purposes. However, Mr Waldron does not say that he made a copy of those tapes, nor what became of the ones borrowed from Mrs Holt. (Mr Waldron seems to believe that the original tapes remained in the possession of Mrs Holt, and that Mrs Holt made copies of them which came into the possession of the Department.) Ms Gray says that she was given what she understood to be a copy of an original tape held by Mrs Holt, and that she (Ms Gray) made no further copies.20. Accepting Mrs Holt's account of events, at the time of lodgment of the relevant FOI access application (13 February 1995), the audiotapes she had loaned to Mr Waldron were (and apparently still remain) documents in the possession of the Department, having been received in the Department when they came into the possession of Mr Waldron in his official capacityas an officer of the Department. (It appears that they subsequently came into the possession of Ms Gray in her official capacity as an officer of the Department, and that they are now in the possession of the Department's Freedom of Information and Judicial Review Unit.) On that basis, the audiotapes were (and remain) documents of an agency (i.e., the Department) which are subject to the application of the FOI Act, in accordance with the definition of the term "document of an agency" in s.7 of the FOI Act:"document of an agency" or "document of the agency" means a document in the possession or under the control of an agency, or the agency concerned, whether created or received in the agency, and includes-- (a) a document to which the agency is entitled to access; and (b) a document in the possession or under the control of an officer of the agency in the officer's official capacity;21. I consider that the word "possession" in the above definition is properly to be construed as meaning physical possession, rather than legal possession (i.e., possession based on legal ownership of property in a document). I note that a contrary view was expressed by Jones J (President) of the Victorian Administrative Appeals Tribunal in Re Birrell and Victorian Economic Development Corporation (1989) 3 VAR 358 at pp.376-377, where Jones J, interpreting the word "possession" in the corresponding definition in the Freedom of Information Act 1982 Vic (the Victorian FOI Act), said that: "... a situation could arise where an agency has mere custody of documents that would not amount to possession and therefore the documents would not be subject to the FOI Act...". Jones J was construing a definition of "document of an agency" which (unlike the corresponding definition in s.7 of the Queensland FOI Act) did not include the words "or [a document] under the control of an agency" and "a document to which the agency is entitled to access". It is clear from the full context of his decision that Jones J was concerned to establish that an agency could not defeat the application of the FOI Act merely by parting with physical possession of documents. By interpreting "possession" as meaning "...legal or constructive possession: that is the right and power to deal with the document in question", Jones J closed the door on that avenue for potential avoidance of the application of the Victorian FOI Act. A necessary incident of his interpretation, however, was that documents in the physical possession, but not the legal possession, of an agency were not subject to the application of the Victorian FOI Act.22. However, I consider that an interpretation which excludes, from the ambit of the word "possession", documents of which an agency merely has custody, or physical possession without legal possession, is too difficult to reconcile with the presence in the relevant definition of the words "whether ... received in the agency", which, according to their natural and ordinary meaning, are apt to include documents that are merely in the physical possession of an agency. In my view, mere physical possession of documents by an agency is sufficient to make them "documents of an agency" for the purposes of the FOI Act. I consider that the interpretation (and supporting analysis) of the word "possession" in the definition of "document of an agency" in s.4 of the Freedom of Information Act 1982 Cth (the Commonwealth FOI Act) given by Mr Bayne (Senior Member) of the Commonwealth Administrative Appeals Tribunal in Re Sullivan and Department of Industry, Science and Technology (1996) 23 AAR 59, at pp.66-69, is more logically compelling than that adopted in Re Birrell. Given that the 'mischief' which Jones J was concerned to avoid in Re Birrell has already been excluded by the presence of the words "or [a document] under the control of an agency" and "a document to which the agency is entitled to access" in the definition of "document of an agency" in s.7 of the Queensland FOI Act, I consider that the interpretation adopted in Re Sullivan is to be preferred, and should be followed, in construing the word"possession" in the definition of "document of an agency" in s.7 of the Queensland FOI Act.In Re Sullivan, the Tribunal held that it was not appropriate to draw a distinction between situations where an agency merely has custody of a document, and where it has legal possession. In the definition of "document of an agency", the word "possession" means physical possession.23. Applying that analysis to the documents in issue, it is clear that (a) the tapes are in the physical possession of the Department and (b) the tapes were received by Mr Waldron (an officer of the Department) in the performance of his official duties as Principal of the School. It is my view that, regardless of who owns the tapes, they are presently "documents of an agency" within the meaning of s.7 of the FOI Act, and they will be subject to the application of the FOI Act for so long as they remain in the possession of the Department.24. The interpretation which I have endorsed may create problems of a practical nature for FOI administrators in some (probably comparatively rare) instances in which the documents subject to a valid FOI access application include documents, legally owned by a private citizen or corporation, which are in the temporary custody of an agency which is subject to the application of the FOI Act. An authorised FOI decision-maker may have to take into account the prospects of the documents being returned to their legal owners on request, or in the ordinary course of an agency's dealing with documents of that kind (e.g., commercial agreements lodged with the Office of State Revenue for assessment and payment of duty, and thereafter returned to the lodging party: see Re Myers and Queensland Treasury (1995) [1995] QICmr 6; 2 QAR 470 at pp.482-483, paragraphs 51-52) or the prospects of the legal owners exercising their rights to reclaim physical possession of the documents, prior to the time at which a decision on access is required to be given, or prior to the time at which access is to be given in accordance with an agency decision to grant access. Nevertheless, if the documents are still in the physical possession of the relevant agency at those times, then I consider that the documents must be dealt with in accordance with the provisions of the FOI Act. The contingency I have referred to may have to be allowed for, for example, in advice given to the applicants about the granting of access and arrangements for obtaining access. (I do not mean to suggest that every owner of a document in the temporary custody of a government agency is likely to require its return on learning that it has been the subject of an FOI access application. If the document has no particular sensitivity for its owner, there is not likely to be any objection to disclosure to an interested member of the public.)25. I do not consider that the right of access to documents of an agency conferred by s.21 of the FOI Act was intended to interfere, or should be construed as interfering, with bona fide property rights of a private citizen or corporation in a document that has been placed in the temporary custody of a government agency (cf. D C Pearce and R S Geddes, Statutory Interpretation in Australia, 3rd ed. 1988, at pp.102-103). Thus, for example, I do not consider that an agency is required to withhold a document from its lawful owner (assuming the lawful owner has given notice requiring the return of the document) merely for the purpose of permitting an applicant for access under the FOI Act to obtain access to the document.However, if an agency is not satisfied that legal ownership of a document, which is subject to a valid access application under the FOI Act, vests in a private citizen or corporation purporting to require the return of the document (or, indeed, if an agency is not satisfied that the legal owner of a document has a present entitlement to possession as against the agency, for example, where the agency has a legal entitlement to retain custody of documents owned by others while the agency undertakes certain functions), then I consider that the agency should not part with possession of the document, as to do so may defeat the "legally enforceable right" of access to documents of an agency (including documents in the physical possession of an agency) which Parliament has seen fit to confer on citizens under s.21 of the FOI Act.26. Thus, if, in the present case, the Department had been satisfied that Mrs Holt was the legal owner of the audiotapes in its possession, I consider that it should have returned them to Mrs Holt on receipt of her demand for their return. That is a legal issue (dependent on the application of principles of property law) which, in theory, is quite distinct from the application of the FOI Act. The fact that the third parties had requested access to the audiotapes under the FOI Act would not, in my opinion, have afforded sufficient justification for denying or interfering with Mrs Holt's legitimate property rights. However, since the Department was not satisfied, after making relevant inquiries, whether the audiotapes in its possession were those owned by Mrs Holt or copies owned by the Department, I consider that it was proper for it to retain possession of the tapes to which the third parties had, prima facie, a legally enforceable right of access by virtue of the fact that the tapes were in the physical possession of the Department at the time that the third parties lodged the relevant FOI access application, and the fact that the Department had decided (subject to review by the Information Commissioner) that the tapes were not exempt from disclosure to the third parties. 27. It was open to Mrs Holt to commence legal proceedings to prove her ownership of the audiotapes, and if she was able to satisfy a court of her ownership, the Department would have been obliged to return the tapes to her on demand or on receipt of a court order. Mrs Holt had sufficient time to pursue that option while the Department was restrained from giving the third parties access to the audiotapes by the operation of s.51(2)(e) of the FOI Act, i.e., for so long as it took for the applicants' 'reverse FOI' applications to be finalised. If, however, I had decided in this case to affirm the Department's decision that the audiotapes were not exempt from disclosure to the third parties, and the audiotapes remained in the possession of the Department as at the date of my decision (Mrs Holt having failed to enforce her asserted right to possession of the tapes as their legal owner), then I consider that the third parties would have had a legally enforceable right of access to the audiotapes in accordance with s.21 of the FOI Act, for so long as the audiotapes remained in the possession of the Department.28. I note that in this case, Mrs Holt's claim to ownership of the audiotapes apparently rests on the claim that she purchased the blank audiotapes used to record the discussion at the meeting of 6 February 1995, and later supplied the tapes to Mr Waldron only by way of temporary loan.Ordinarily, people who forward documents to government agencies, irrespective of whether they purchased the blank paper, blank tape or other material of record, do so on the basis that property in the document passes to the recipient agency which is to retain and use the document for its administrative purposes. I do not believe Mrs Holt has any legitimate claim to legal ownership of the information recorded on the audiotapes. (Whether she has any entitlement in equity to restrain the Department from disclosing the information in breach of an obligation of confidence owed to her by the Department is a separate issue.) If the Department, for its administrative purposes, had wished to make copies of the tapes on its own blank audiotapes, I do not think there was any impediment to its doing so (see paragraph 19 above). If it had done so prior to receipt of the third parties' relevant FOI access application, the Department's own copies would have been subject to that access application, and presumably the return to Mrs Holt of the audiotapes she claims to own would not have concerned the third parties, or affected their quest for access to a record of the discussions at the meeting of 6 February 1995.29. I find that, regardless of the question of ownership of the audiotapes in issue, both the tapes, and Mr Waldron's notes, of the meeting on 6 February 1995 are "documents of an agency", which are subject to the application of the FOI Act. I am required, therefore, to determine whether or not they are exempt from disclosure to the third parties, as asserted by the applicants.Application of s.46(1)(a) 30. The applicants claim that the matter in issue is exempt under s.46(1) of the FOI Act. I note that, under s.81 of the FOI Act, the ultimate legal onus is on the Department to justify its decision that the matter in issue is not exempt from disclosure to the third parties (although, this being a 'reverse FOI' application, there is also a practical onus on the applicants to ensure that there is sufficient material before me from which I can be satisfied that each element of the exemption provisions they rely upon is established: see Re Pope and Queensland Health [1994] QICmr 16; (1994) 1 QAR 616 at pp.621-622, paragraph 17). The applicants appear to rely on both s.46(1)(a) and (b) in claiming exemption, but I do not find it necessary to consider the application of s.46(1)(b). Section 46(1)(a) of the FOI Act provides: 46.(1) Matter is exempt if-- (a) its disclosure would found an action for breach of confidence; ...31. I discussed the requirements for exemption under s.46(1)(a) in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279. There clearly was no contractual obligation of confidence between the applicants and Mr Waldron. The issue then is whether the circumstances in which information was communicated to Mr Waldron by the applicants at the meeting on 6 February 1995 gave rise to an equitable obligation of confidence binding Mr Waldron and the Department not to disclose that information to the third parties, without the authorisation of the applicants. In such a case, 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. It is my view that there are identifiable plaintiffs (the applicants) who would have standing to bring an action for breach of confidence. In Re "B", I explained that there are five cumulative criteria which must be established to found an action in equity for breach of confidence:(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).32. I will deal with each of these requirements in turn.Specific identification of the confidential information for which protection is sought33. I am satisfied that criterion (a) is established, in that it is possible to specifically identify the information in issue. The "necessary quality of confidence"34. Both Mr Spring and Mr Parsons of the Department determined, in their respective decisions, that the matter in issue no longer retained the necessary quality of confidence. They found that the various topics discussed at the meeting had become known to a number of persons, and that the information therefore no longer possessed a degree of secrecy sufficient for it to be the subject of an obligation of confidence. On the evidentiary material available to me, I consider that those findings were mistaken.35. The meeting between the applicants and Mr Waldron followed an earlier meeting between parents and an Acting Principal of the School in December 1994, at which complaints against teachers were raised. It is clear that teachers became aware of the identities of some parents who attended the earlier meeting, and some of the detail of the matters discussed. Following the earlier meeting, two of the applicants received letters from a firm of solicitors acting on behalf of certain teachers, in which defamation proceedings against the parents were threatened. This may explain why the applicants were concerned, at the outset of the subsequent meeting with Mr Waldron on 6 February 1995, to obtain express assurances of confidential treatment for information conveyed.36. Shortly after the applicants' meeting with Mr Waldron on 6 February 1995, Ms Gray was appointed to conduct a formal investigation on behalf of the Department. On the basis of information supplied to my staff during initial inquiries with Ms Gray, it appeared that the fact that the nature of some complaints against teachers had become known to the teachers, did not necessarily indicate that the details of the information conveyed by the applicants at the meeting of 6 February 1995 had been disclosed to the third parties. I therefore requested that the Department provide me with information as to the course and outcome of the investigations conducted into the dispute at the School, and any information as to whether the specific details of the applicants' meeting with Mr Waldron were passed on to teachers, including the third parties.37. In response, the Department supplied me with statutory declarations by Mr Waldron and Ms Gray.In his statutory declaration dated 16 May 1997, Mr Waldron stated:I maintain that the 6 February 1995 meeting, at the time, had a high quality of confidence and that it was to deal with issues or actions and not personalities.Every effort was made to (a) ensure teachers' names weren't stated, and (b) that the level of confidence be maintained so that a solution to the situation remained possible....Any information was not passed on by me because there was no action directly attributed to any teacher. Every effort was made to ensure teachers were not named. ...My belief is that the meeting had a high degree of confidentiality and for me that confidentiality remains. Issues raised at the meeting may have been restated at other venues but to assume they were restated would possibly incur a breach of the original confidentiality. Once the investigation started the situation was out of my control, but personally, the meeting's discourse remained confidential. I cannot comment on the effects of subsequent events as the conduct of the investigation took the matter out of my control.38. In her statutory declaration dated 14 May 1997, Ms Gray gave the following account of relevant aspects of the investigation and its conduct:1. I was appointed, in 1995, to the role of investigation officer required to undertake the investigation of issues raised by parents against three teachers and the principal of Fig Tree Pocket State School.2. The investigation was conducted according to procedure outlined in the Public Sector Management Standard for Discipline. Of particular note in this investigation, was the application of an aspect of the Standard which permitted the withholding of information and the preparation of evidence in summary form where there may be a threat to the wellbeing of a witness.(Section 4.2.3 Pg. 29 PSM Standard for Discipline). This section of the Standard was put into effect because of overt threats to the parents that the employees would, after the investigation, take legal action against them.3. The relevant section of the Standard was put into effect through a process devised with [legal advice]. Through this process, both initial allegations of parents, and the evidence of parents to the inquiry, were "generalised".While the employees were aware of the nature of the allegations and could respond to them, particular allegations, and particular items of evidence, were not linked to particular parents.4. Shortly after the investigation was initiated, I was provided with an audiotape which, it was explained recorded a meeting between the principal of the school and some parents. I understand the meeting was held shortly before the formal investigation was initiated.5. In the role of investigating officer, I listened to the content of the tape at a stage of the investigation when allegations had already been "generalised".(It is of note that allegations were made by a group significantly larger than those who have been publicly associated with the investigation).6. The content of the tape contains specific allegations against teachers. As far as I can recall, no teacher was named. The information on the tape reiterated in broad terms that which was received through the investigative process. Thus the allegations on the tape were perceived to be involved in the already generalised allegations which were presented to the employees for response....8. I did not share the contents of the tape with the teachers concerned. The contents of the tape were dealt with in the manner described in 6 above. In this way, the teachers had an opportunity to respond to allegations it contained.39. The significance of this evidence is that the information contained in the documents in issue has not been disclosed by Mr Waldron, or Ms Gray, to the third parties or others. Ms Gray listened to the tapes after she had already formulated "generalised" allegations against the Departmental officers subject to her investigation, based on the concerns expressed by a group of parents significantly larger than just the applicants. Ms Gray considered that the substance of the specific concerns discussed on the tapes was subsumed within, or adequately covered by, the "generalised" allegations already formulated to be put to the subjects of Ms Gray's investigation. Ms Gray therefore saw no need to put the specific concerns, and details of discussion, recorded on the tapes to the subjects of her investigation.40. The third parties are aware of "generalised" allegations which adequately convey the substance of the concerns discussed on the audiotapes, and know that those "generalised" allegations reflect the concerns of a large group of parents. (In contrast, disclosure of the documents in issue would tie specific concerns to the applicants.) There is nothing before me to suggest that the contents of the tapes themselves, or Mr Waldron's notes of the meeting, have been made known to the third parties. In the circumstances, I consider that the matter in issue retains the "necessary quality of confidence", and criterion (b) set out in paragraph 31 above is satisfied.Receipt of information in such circumstances as to import an obligation of confidence41. In his initial decision on behalf of the Department, Mr Spring accepted that all of the participants in the meeting of 6 February 1995 understood that the information conveyed in the meeting was to be treated in confidence:I considered that the meeting took place in circumstances of mutual confidence.The information was provided by the [applicants] under assurances that no teacher would have access to the contents of the conversation. It was also the expressed wish of the [applicants] (agreed to by the Principal) that no teacher would be singled out and blamed for any particular behaviour, and the [applicants] asserted that they never mentioned any teacher by name. ...... I agree that there was an initial mutual understanding of confidentiality.42. However, Mr Spring considered that the mutual understanding of confidentiality could not survive the application of the disclosure requirements in s.46 and s.65 of the Public Service Management and Employment Regulation 1988, and the requirements of natural justice. He found that criterion (c) set out in paragraph 31 above was not established.43. The internal review decision-maker considered that statements in Mr Waldron's statutory declaration dated 28 April 1995 negated the existence of an equitable obligation of confidence.I cannot see any statements in that statutory declaration which warranted that conclusion, and the statements in Mr Waldron's later statutory declaration dated 16 May 1997 (see paragraph 37 above) indicate that there was an express mutual understanding on the part of all the participants in the meeting on 6 February 1995 that the information discussed was to be treated in confidence.I note also that each of the brief statutory declarations provided by the applicants describes the meeting with Mr Waldron as a "pre-arranged, confidential meeting". I consider that the available evidence supports those parts of Mr Spring's findings which are reproduced in paragraph 41 above.44. As I stated in Re "B" (at paragraphs 92-93), a relevant consideration in determining whether the circumstances relating to the communication of confidential information to a government agency are such as to impose an equitable obligation of confidence on the recipient, is the use to which the government agency must reasonably be expected to put the information in the discharge of its functions. It appears that at the time of the meeting Mr Waldron consideredhe would be able to deal with the concerns raised by the parents by general strategies aimed at all teaching staff, without the need to pass on any details of what was discussed at the meeting. In that sense, I consider that it was reasonable for both Mr Waldron and the parents to understand that the meeting was conducted on a confidential basis.45. From the evidence of Ms Gray as to the part which the audiotapes played in the conduct of her investigation, and the manner in which procedural fairness was afforded to the subjects of her investigation, I am satisfied that procedural fairness did not require disclosure of the audiotapes to the third parties, and was not a factor telling against recognition and enforcement by equity of the express mutual agreement, between the participants in the meeting of 6 February 1995, that the information provided by the applicants would be treated in confidence.46. In his initial decision on behalf of the Department, Mr Spring regarded s.46 and s.65 of the Public Service Management and Employment Regulation 1988 Qld (the PSME Regulation) as telling against the existence of, or perhaps overriding, an equitable obligation of confidence. Section 46 and s.65 of the PSME Regulation were renumbered in a subsequent reprint as s.99 and s.103, respectively. At the time of the meeting on 6 February 1995 (until they were superseded on 5 July 1997 by s.15 and s.16 of the Public Service Regulation 1997 Qld), those provisions were in the following terms:úReports to be noted by officers 99.(1) A report, item of correspondence or other document concerning the performance of an officer which could reasonably be considered to be detrimental to the interests of that officer, shall not be placed on any official files or records relating to that officer unless the officer has initialled the document and has been provided with--(a) a copy of the document; and(b) the opportunity to respond in writing to the contents of the document within 14 days of receipt of the copy. (2) When an officer responds in writing, the response shall also be placed on the official file or record. (3) Where an officer refuses to initial a document, it may nevertheless be placed on the file or record but the refusal shall be noted.úAccess 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.47. I am satisfied, on the basis of my examination of the matter in issue and Mr Waldron's evidence, that Mr Waldron and the applicants went to some pains to ensure that no teacher was named in their discussion, and that behaviours rather than individuals were discussed, so that there was no obligation on Mr Waldron to disclose his records of the discussion to any particular teacher(s).I am satisfied that Mr Waldron had no intention of placing his notes of the discussion, or theaudiotapes if he had retained them, on any official files or records relating to a particular teacher or teachers, and that he did not do so. In response to my inquiry, the Department has confirmed that the third parties were not given access to the matter in issue pursuant to s.99 or s.103 of the PSME Regulation. As I have mentioned, Ms Gray stated in her statutory declaration that, during the course of her formal investigation, the third parties were provided with generalised, written allegations by parents and were given the opportunity to respond to those allegations. Ms Gray considered that disclosure of copies of the matter in issue to the third parties was not required for the purposes of her investigation.48. In my view, the correct analysis of what occurred is that an equitable obligation of confidence binding Mr Waldron, and through him the Department, not to disclose the matter in issue without the authorisation of the applicants, came into existence with the express agreement for confidential treatment of the discussions at the meeting of 6 February 1995. No disclosure has yet occurred which is inconsistent with the continued existence of that obligation of confidence.49. It is well established that an obligation of confidence, whether equitable or contractual, can be overridden by compulsion of law, in particular by a statutory provision compelling disclosure of information: see, for example, Smorgon v ANZ, FCT v Smorgon [1976] HCA 53; (1976) 134 CLR 475 at pp.486-490. The existence of a provision like s.99 of the PSME Regulation could arguably forestall the recognition and enforcement of an equitable obligation of confidence in respect of information that would be (or would inevitably become) subject to disclosure pursuant to an obligation imposed by statute or delegated legislation. However, for the reasons indicated at the commencement of paragraph 47 above, I do not consider that that was the case here.50. Section 99 and s.103 of the PSME Regulation required the interpretation and application of some rather vague terms such as "official files or records relating to the officer" and "departmental file or record held on the officer". Moreover, under s.99 of the PSME Regulation, the obligation to disclose adverse information to an officer arose only at the point prior to placement of the adverse information on any official files or records relating to the officer. 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.51. Section 15 and s.16(2) of the Public Service Regulation 1997 Qld, which came into force on 5 July 1997, have their own vagaries, but, generally speaking, they respectively re-state the obligation previously imposed on employing agencies by s.99 of the PSME Regulation, and the entitlement previously conferred on employees by s.103 of the PSME Regulation, in less qualified terms: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. (2) The employing authority must ensure that the employee's written response is placed on the record. (3) This section applies subject to section 10(5).Access to employee's record 16(1) ... (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. (3) The employee must not remove anything from the record.52. Section 16(2) of the Public Service Regulation would embrace any departmental record about a particular employee, regardless of when the record came into existence. The only potentially difficult aspect of its interpretation that might arise in some instances is whether a particular document requested by a public service employee is a departmental record about the employee (cf. Re Price and Surveyors Board of Qld (Information Commissioner Qld, Decision No. 97017, 27 October 1997, unreported) at paragraphs 26-29). However, s.16(2) of the Public Service Regulation is still a provision which only takes effect if and when an employee elects to exercise the entitlement which it confers. Thus, as explained at paragraph 50 above, the mere existence of s.16(2) of the Public Service Regulation should not ordinarily affect the recognition, in the application of s.46(1)(a) of the FOI Act, of an existing obligation of confidence.53. An issue of interpretation similar to that described in the preceding paragraph could arise in respect of the words "about a public service employee's performance" in s.15(1) of the Public Service Regulation. There could also be instances where the precise ambit of the word "performance" becomes a material issue in the interpretation and application of s.15(1). I note, however, that s.15(1) no longer requires that a relevant document be about to be placed on "official files or records relating to that officer", but only on "a departmental record", before the obligation to make disclosure to the relevant employee arises. In my opinion, this wording significantly enlarges the circumstances in which s.15 of the Public Service Regulation arguably forestalls the recognition and enforcement of an equitable obligation of confidence (notwithstanding any express assurance of confidential treatment that might have been given to a confider by the recipient of information, on behalf of an agency which is subject to the application of the Public Service Regulation) capable of binding an agency in respect of information that would be or inevitably become subject to disclosure under s.15 of the Public Service Regulation. Indeed, it is arguable that it is now impossible for an agency subject to the application of the Public Service Regulation to receive information about an employee's performance, that could reasonably be considered to be detrimental to the employee's interests, on the basis of any agreement or understanding that it would be treated in confidence as against the employee.54. Section 15 of the Public Service Regulation would not apply so as to now require the Department to disclose the documents in issue (assuming they could properly be regarded as "about a public service employee's performance" and "could reasonably be considered to be detrimental to the employee's interests") since they had already been placed on a Departmental record prior to 5 July 1997 (though apparently not on an official file or record relating to a particular officer or officers, so as to attract the application, prior to 5 July 1997, of s.99 of the PSME Regulation).55. On the basis of the material before me, including the contents of the matter in issue, I consider that there was an express mutual understanding among those present at the meeting of 6 February 1995, that information conveyed in the meeting would be kept confidential. The meeting was intended to address general concerns held by the parents. It is clear that Mr Waldron sought to adopt a broad approach to the issues raised, by addressing general issues of teacher behaviour rather than singling out individual teachers or complaints. I consider that it was reasonable for Mr Waldron to believe that he could address the concerns raised at the meeting by way of implementing general initiatives with teaching staff, without the need to disclose to individual teaching staff the details of what occurred at the meeting. It is true that some references were made to particular situations from which individual teachers could be identified by persons with knowledge of those situations, but in my view, those instances were used as illustrations of general problems, rather than being specific complaints about individual teachers, which the parents sought to have recorded or investigated. 56. I find that the matter in issue was communicated in such circumstances as to fix Mr Waldron and the Department with an equitable obligation of conscience not to disclose the matter in issue to the third parties, without the consent of the applicants. I am not satisfied that anything has subsequently occurred that would prevent the continued recognition and enforcement in equity of that obligation of confidence. I find that criterion (c) set out in paragraph 31 above is satisfied.Actual or threatened misuse of confidential information57. As the applicants continue to object to disclosure of the matter in issue, I find that criterion (d) set out in paragraph 31 above is satisfied and that disclosure of the matter in issue to the third parties would constitute a misuse, or unauthorised use, of the matter in issue.Detriment to the confider58. Turning to the final requirement of s.46(1)(a) - that detriment is likely to be occasioned to the applicants if the matter in issue were to be disclosed - I stated at paragraph 111 of Re "B" that such detriment is fairly easily established: In particular, it is not necessary to establish that threatened disclosure will cause detriment in a pecuniary sense: detriment can be as ephemeral as embarrassment... a loss of privacy or fear... and indirect detriment, for example, that confidential information may gravely injure some relation or friend." I find that criterion (e) set out in paragraph 31 is also satisfied.59. Since I am satisfied that all the criteria necessary to found an action in equity for breach of confidence are established, I find that the matter in issue is exempt matter under s.46(1)(a) of the FOI Act.Conclusion60. For the foregoing reasons, I set aside the decision under review. In substitution for it, I decide that--(a) the audiotapes in issue fall within the definition of "document of an agency" in s.7 of the FOI Act, and are subject to the application of the FOI Act while they remain in the physical possession of the Department; and(b) the matter in issue is exempt matter under s.46(1)(a) of the FOI Act.............................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Lonsdale and James Cook University [2015] QICmr 34 (15 December 2015)

Lonsdale and James Cook University [2015] QICmr 34 (15 December 2015) Last Updated: 19 January 2017 Decision and Reasons for Decision Citation: Lonsdale and James Cook University [2015] QICmr 34 (15 December 2015) Application Number: 312328 Applicant: Lonsdale Respondent: James Cook University Decision Date: 15 December 2015 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - applicant contended scope of access application should be interpreted to include two 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 DOCUMENTS - applicant seeking documents regarding arrangements made with pet food companies - 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 or are unlocatable - sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to James Cook University (JCU) for access to the following documents under the Right to Information Act 2009 (Qld) (RTI Act): Please supply details of research funds, sponsorships, agreements and contracts between pet-food companies and the James Cook University, its staff and students. Where possible please group the contributions into categories: Capital contributions for buildings, laboratories, library endowments, etc Current account funding for research projects, lecturer salaries, textbooks, etc Contributions in kind including student excursions, guest lecturers, product supply, teaching materials, teaching aids, etc Such agreements will for the most part be with the Veterinary Faculty. Other departments of the University may have ties with pet-food companies. Please supply copies of correspondence, email messages and memoranda that relate to the arrangements entered into by individuals and the University. In the course of this application and review, the following two issues have arisen for OIC’s consideration: whether the following documents located by JCU are within the terms of the scope of the access application: an agreement between JCU Univet Pty Ltd and a pet food company (Agreement); and Powerpoint slides from an ‘unbranded’ clinical nutrition lecture given by a pet food company (Lecture Slides); and whether JCU has taken all reasonable steps to locate documents relevant to the scope of the application. For the reasons set out below, I vary the decision under review and find that: neither the Agreement nor the Lecture Slides are within the terms of the scope of the access application; and access to further documents is refused under sections 47(3)(e) and 52 of the RTI Act on the basis that they are nonexistent or unlocatable. Background Significant procedural steps relating to the application and external review are set out in the Appendix. Reviewable decision The decision under review is the deemed decision JCU is taken to have made under section 46(1)(a) of the RTI Act refusing access to the requested documents. 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). Whilst I have carefully considered all of the applicant’s submissions, not all matters raised are relevant to the issue for determination. I have summarised and addressed the applicant’s submissions below to the extent they are relevant to the issue for determination. In respect of the applicant’s submissions that are not relevant to the issue for determination, these generally relate to what the applicant alleges to be illegality on the part of pet food companies. OIC’s jurisdiction under the RTI Act relates only to decisions about access to documents held by agencies and does not extend to consideration of these matters.[1] 1) ScopeRelevant law Section 24(2)(b) of the RTI Act provides that an access application must: give sufficient information concerning the document to enable a responsible officer of the agency ... to identify the document[.] There are sound practical reasons for the documents sought in an RTI application being clearly and unambiguously identified, including that the terms of an access application set the parameters for an agency’s response and the direction of an agency’s search efforts.[2] Accordingly, an applicant cannot unilaterally expand the terms of an application.[3] The Information Commissioner has previously outlined the following principles to be followed in interpreting an access application which is framed in imprecise or ambiguous terms:[4] the object of the exercise is to ascertain the author's intended meaning the question is not necessarily to be approached in the same manner as the interpretation of a statute or legal document seeking clarification of the intended meaning of an access application is a practice to be encouraged; and it can rarely be appropriate to apply legal construction techniques to the words of an access application 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 access application. However, where there is no ambiguity in an access application, it is unnecessary to seek clarification about the scope.[5] Although the scope of an access application should not be interpreted legalistically or narrowly, it is important that agencies be able to restrict their searches for documents with reference to an access application’s scope.[6] a. Agreement Background JCU’s initial decision[7] found that ‘[n]o documents were located as such’, and made no reference whatsoever to the Agreement. In the internal review decision, JCU referred in passing to a ‘sponsorship agreement’, but did not make any decision regarding access to this document. In the external review application, the applicant requested an external review, and made no submission about the Agreement or the ‘sponsorship agreement’. In a telephone conversation with an OIC staff member to clarify the issues in respect of which the applicant sought review,[8] the applicant referred to the Lecture Slides and to his general sufficiency of search query; however, he made no reference to the Agreement or the ‘sponsorship agreement’. On informing JCU that its decision was to be externally reviewed,[9] OIC considered it necessary to ask JCU about the ‘sponsorship agreement’ which had been referred to in the internal review decision, in order for OIC to determine if this document came within the scope of the access application. JCU provided OIC with a copy of the Agreement, and submitted that it fell outside the scope of the application.[10] OIC subsequently sought[11] a further submission from JCU about why it did not consider the Agreement to come within the scope of the access application. In summary, JCU submitted[12] as follows: ... the Agreement is “out of scope”. In support of [JCU’s] view it is argued that as the original request from the applicant sought access to information about “research funds, sponsorships, agreements and contracts between pet-food companies and JCU, its staff and students”, and the Agreement in question is not between the pet-food company and JCU, then it must follow that the document being sought is “out of scope”. OIC conveyed a preliminary view to the applicant that the Agreement did not fall within the scope of the access application.[13] In response, the applicant submitted:[14] he is concerned that information is being hidden from scrutiny JCU Univet Pty Ltd is, on the evidence available to him, a wholly owned and controlled entity of JCU regardless, the documents and information are in JCU’s possession, and this is the ‘defining aspect’ from a previous OIC decision;[15] and where any ambiguity or uncertainty exists, he suggests that the Queensland Government’s broad objectives of, amongst other things, ‘[making] Queensland the most open and accountable government in Australia’, take precedence.[16] Findings Relevantly, in this matter, the applicant specified that he was seeking access to ‘details of research funds, sponsorships, agreements and contracts between pet-food companies and the James Cook University, its staff and students’. The Agreement is between the company named JCU Univet Pty Ltd and a pet food company. JCU is not a party to the Agreement. As OIC informed the applicant in the preliminary view,[17] JCU is a separate legal entity from JCU Univet Pty Ltd, although it is acknowledged that JCU Univet Pty Ltd is a related entity (controlled public sector entity) of JCU, being wholly owned by JCU.[18] I am satisfied that JCU correctly interpreted the limits of the scope of the access application, and that the access application’s scope does not cover agreements etc with persons or entities other than those listed in the access application. I do not consider there to be an ambiguity in interpreting the scope of the access application; rather, the applicant clearly listed only ‘James Cook University, its staff and students’ as being the entity or persons in relation to whom he was seeking agreements etc. As JCU Univet Pty Ltd is a separate legal entity from JCU, I consider that the access application scope does not extend to the Agreement, given it is only between JCU Univet Pty Ltd and a pet food company, and none of ‘James Cook University, its staff [or] students’ are parties to the Agreement. Accordingly, I consider that the access application’s scope does not cover the Agreement. b. Lecture Slides Background JCU’s initial decision found that ‘[n]o documents were located as such’. However, in providing information in response to the issues raised in the access application, JCU referred to the Lecture Slides. In the internal review decision, JCU decided to refuse access to the Lecture Slides after stating: The original decision has found no documents matching your request but in the course of considering the headings under which you sought to have the information requested reported back to you, the decision maker had identified a document [the Lecture Slides] which fell within one of these headings. The decision maker however, it would appear, has refused access to the document ... On external review: JCU’s initial decision-maker informed OIC[19] of his view that the Lecture Slides were not within the scope of the access application an OIC staff member raised with the applicant[20] the fact that OIC would be required to consider whether the Lecture Slides came within the scope of the access application in response to OIC raising this issue, the applicant submitted[21] that: it is difficult to draft an access application to capture all desired documents—on the one hand, he did not want to be too precise so as to limit what he would receive, while on the other hand, he was mindful of not engaging in a broad ‘fishing expedition’ which might be rejected outright by JCU; and he believes the Lecture Slides come within the scope of what he applied for, because he had listed ‘Contributions in kind including ... teaching materials’ in the access application JCU’s internal review decision-maker informed OIC: firstly,[22] that he had only addressed the Lecture Slides in the internal review decision as they had been discussed in the initial decision; and subsequently[23] (and in contrast to the findings of the initial decision), that ‘[a]s the Internal Review Officer, [he] also took the view that no documents that fell within the scope of the request were located’; and JCU submitted[24] the following: As previously stated JCU contends that [the applicant] did not request the [Lecture Slides] as part of his original access application, instead having asked for information about “research funds, sponsorships, agreements and contracts between pet-food companies and JCU, its staff and students”. Therefore, it is our view that ... this document is out of scope. OIC conveyed a preliminary view to the applicant that the Lecture Slides did not fall within the scope of the access application.[25] In response, the applicant submitted[26] that: he is concerned that OIC was ‘trying to split hairs’ in forming the view that the Lecture Slides were out of scope he is concerned that information is being hidden from scrutiny all of the teaching material provided by ‘the junk food makers’[27] represents the practical manifestation of their agreements with JCU, as it is the ‘outward consummation of their agreements/contracts’ the teaching material is clearly in JCU’s possession the teaching material represents contributions in kind, as requested in the access application Charles Sturt University had released several complete sets of lecture notes in its response to the applicant’s access application to that university; and where any ambiguity or uncertainty exists, he suggests that the Queensland Government’s broad objectives of, amongst other things, ‘[making] Queensland the most open and accountable government in Australia’, take precedence.[28] In his submission,[29] the applicant also asked the following question: If the [Lecture Slides] are not a component of an agreement; if they are not in the possession of JCU; if they are not contributions in kind, then the question needs to be put: What are they? Findings On my reading of the scope, the applicant was essentially seeking access to the following documents: ... details of research funds, sponsorships, agreements and contracts between pet-food companies and the James Cook University, its staff and students. ... ... copies of correspondence, email messages and memoranda that relate to the arrangements entered into by individuals and the University. I consider that the Lecture Slides clearly do not come within the scope of any of these types of documents. I note the applicant’s submissions regarding his reference to teaching materials in the access application scope. However, it is relevant to note that this reference appears in the following context: ... Where possible please group the contributions into categories: Capital contributions for buildings, laboratories, library endowments, etc Current account funding for research projects, lecturer salaries, textbooks, etc Contributions in kind including student excursions, guest lecturers, product supply, teaching materials, teaching aids, etc ... [emphasis added] I am satisfied that the access application cannot reasonably be interpreted as seeking copies of the actual contributions in kind (eg, teaching materials or textbooks). Rather, what was clearly being requested was for any located agreements etc to be sorted into different categories according to the subject matter of the agreement etc. I do not consider the reference to teaching materials to be an ambiguity which required clarification regarding what the applicant was seeking. Further, the fact that a university in another jurisdiction may have given access to complete sets of lecture notes in response to an application by the applicant is not relevant to the issue for determination in this review. Accordingly, I consider that the access application’s scope does not cover the Lecture Slides. Submissions regarding ‘document of an agency’ and public interest issues As summarised above at paragraphs 17 and 25, some of the applicant’s submissions relate to whether the Agreement and the Lecture Slides are in JCU’s possession and whether their disclosure would or would not, on balance, be contrary to the public interest under the RTI Act. The issue of whether the Agreement and the Lecture Slides are within JCU’s possession is not relevant to the preliminary issue to be determined of whether they are within the scope of the access application. The issue of whether the Agreement and the Lecture Slides are within JCU’s possession is only relevant to determining whether they meet the definition of a ‘document of an agency’.[30] In this review, given my finding that neither the Agreement nor the Lecture Slides are within the scope of the access application, it is unnecessary to consider whether they are in the possession or under the control of JCU—ie, whether they are ‘documents of an agency’. As for the public interest factors favouring disclosure advanced by the applicant, the conclusions I have reached above relate only to a preliminary step: that of assessing whether the Agreement or the Lecture Slides come within the scope of the access application. Accordingly, given my finding that neither the Agreement nor the Lecture Slides are within the scope of the access application, it is unnecessary to reach a conclusion regarding where the balance of the public interest lies in granting or refusing access to them. As OIC has previously noted to the applicant,[31] it is open to him to make a new and differently worded access application, should he still seek access to the Agreement or the Lecture Slides. 2) Sufficiency of searchRelevant law Under the RTI Act, an individual has a right to be given access to documents of an agency.[32] However, this right of access is subject to limitations, including the grounds on which access to information may be refused.[33] An agency may refuse access to documents which are nonexistent[34] or unlocatable.[35] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[36] 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.[37] 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’s structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including, but not limited to, its information management approaches); and other factors reasonably inferred from information supplied by the applicant, including the nature and age of the requested documents, and the nature of the government activity to which the request relates.[38] By considering the factors above, an agency may ascertain that a particular document was not created because, for example, its processes do not involve creating the specific document. In such instances, it is not necessary for the agency to search for the document. It is sufficient that the relevant circumstances to account for the nonexistent document are explained. An agency may also rely on searches to satisfy itself that documents do not exist. The Acting Information Commissioner indicated in PDE that if an agency does rely on searches to justify a decision that documents do not exist, all reasonable steps must be taken to locate the documents.[39] Such steps may include enquiries and searches of all relevant locations identified after consideration of the key factors listed above. In assessing whether a document exists, but is unlocatable, it is necessary to consider: whether there are reasonable grounds for the agency to be satisfied that the requested document has been or should be in the agency’s possession; and whether the agency has taken all reasonable steps to find the document.[40] In answering these questions, regard should be had to the circumstances of the case and to the key factors set out above.[41] JCU’s decisions JCU’s initial decision noted that searches had been conducted by the College of Public Health, Medical & Veterinary Sciences and Research Services, but found that ‘[n]o documents were located as such’. However, JCU’s initial decision then noted that ‘relevant staff [had] provided answers to [the applicant’s] questions’ under headings a.) to c.) of the access application scope, and JCU had grouped these answers accordingly. JCU’s internal review decision provided no further details about the extent of the searches. Sufficiency of search issue raised on external review In the external review application, the applicant requested an external review, and made no submission about the sufficiency of JCU’s searches. In a telephone conversation with an OIC staff member to clarify the issues in respect of which the applicant sought review,[42] the applicant raised a general sufficiency of search query by submitting that he still sought ‘everything else’ he had originally applied for. In an email[43] to OIC, the applicant stated: For the most part I suspect you will find documents between the vet school, Hill's (Colgate-Palmolive) and Royal Canin (Mars Inc.). JCU’s search records and enquiries JCU provided OIC with a copy of its search records and enquiries.[44] In summary, the documents provided to OIC show the following: the initial decision-maker received signed search certifications from: the then Head of Veterinary Science, within the unit Discipline of Veterinary Science;[45] and the Manager, Research Ethics & Grants, within the unit Research Services[46] these search certifications showed: desktop and manual searches of personal and business files by two senior officers (the Head of Clinical Sciences, and the Director of Veterinary Hospital) within the unit Discipline of Veterinary Science; and a search of the research database which returned no results evidencing research contracts with pet food companies; and a large number of follow-up emails between the initial decision-maker and the then Head of Veterinary Science, in order for the initial decision-maker: to ensure that no relevant documents existed—eg, a number of emails dealt with the issue of whether any further documentation existed regarding the Lecture Slides; and to obtain any possible information which responded generally to the issues raised by the access application—this formed the basis of the information provided in the initial decision in response to headings a.) to c.) of the access application scope. Applicant’s submissions OIC contacted the applicant to summarise JCU’s search records and enquiries and to convey OIC’s preliminary view that JCU had taken all reasonable steps to locate documents relevant to the access application.[47] In his response,[48] the applicant: submitted that: he adheres to the view that JCU has not provided sufficient information as requested in the access application he believes it to be ‘absurd in the extreme’ that only two documents—the Agreement and the Lecture Slides—represent the sum total of all JCU documents the subject of this application; and OIC should take account of the allegations of major illegality on the part of JCU colluding with its ‘junk pet-food paymasters’ stated that he would like to draw OIC’s attention to the 500 pages of documents released by Murdoch University[49] referred to: the public interest favouring disclosure related to where disclosure of information could reasonably be expected to reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct;[50] and OIC’s powers on external review in respect of requiring searches and documents etc and examining witnesses;[51] and requested that a much more detailed forensic enquiry be carried out on JCU’s ‘secret dealings with junk pet-food companies’ in response to his access application. Findings On the information before me, including JCU’s search records and enquiries, I consider that officers of JCU have: conducted searches of all relevant files and databases for the types of documents raised by the applicant; and identified relevant staff and made enquiries of them regarding the possible existence and location of documents requested by the applicant. In these circumstances, on consideration of the entirety of searches for documents conducted by JCU and taking into account the terms of the scope of the application, I am satisfied that JCU has ensured that relevant staff have undertaken comprehensive, appropriately targeted searches of JCU’s relevant document management systems for documents responsive to the applicant’s application and no further documents exist or can be located. Further, the fact that a university in another jurisdiction may have located hundreds of pages in response to an application by the applicant has no relevance to the issue for determination in this review—ie, that of determining whether JCU has taken all reasonable steps to locate documents relevant to the application which are in its possession or under its control. Accordingly, I am satisfied that: JCU has taken all reasonable steps in searching for documents described in the access application; and access to such documents may be refused under section 47(3)(e) of the RTI Act on the basis that they are nonexistent or unlocatable under section 52(1) of the RTI Act. Submissions regarding public interest issues As summarised above at paragraph 48, some of the applicant’s submissions raise issues which relate to whether certain public interest factors favouring disclosure would arise in respect of the documents the applicant is seeking. The conclusion I have reached relates only to the issue of whether the documents described in the access application may be refused on the basis that they are nonexistent or unlocatable. Accordingly, it is unnecessary to consider the applicability of public interest factors. DECISION I vary the decision under review and find that: neither the Agreement nor the Lecture Slides are within the terms of the scope of the access application; and access to further documents is 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. ________________________ Assistant Information Commissioner Corby Date: 15 December 2015APPENDIX Significant procedural steps Date Event 7 October 2014 JCU received the access application. 21 November 2014 JCU issued its purported decision in respect of the access application. JCU had been required to give written notice of the decision to the applicant by 11 November 2014, being the end of the processing period. As this did not occur, JCU was taken to have made a deemed decision refusing access to the requested documents. 7 December 2014 The applicant applied for internal review of the purported initial decision. 4 January 2015 JCU issued its purported internal review decision, which was dated 2 January 2015. OIC received the application for external review of JCU’s decision. 6 January 2015 OIC notified the applicant that the external review application had been received. OIC notified JCU of the external review application and asked JCU to provide procedural documents by 13 January 2015. 12 January 2015 JCU provided the relevant procedural documents. 13 January 2015 OIC received another copy of the application for external review of JCU’s decision. 14 January 2015 OIC provided an update to the applicant. 3 February 2015 An OIC staff member spoke with a JCU officer about the application. 6 February 2015 An OIC staff member spoke with the applicant about the application and the applicant made submissions. 10 February 2015 An OIC staff member spoke with a JCU officer about the application. 11 February 2015 OIC informed the applicant and JCU that the application had been accepted for external review. OIC requested that JCU provide, by 25 February 2015, a copy of the documents located in response to the access application, its search records and a submission. 12 February 2015 The applicant provided a submission. 25 February 2015 JCU requested an extension of time to provide the information requested by OIC. OIC agreed to the requested extension. 27 February 2015 OIC received the requested information from JCU, including a copy of the Agreement, but not a copy of the Lecture Slides. An OIC staff member left a telephone message with a JCU officer, requesting a copy of the Lecture Slides. 10 April 2015 An OIC staff member left a telephone message with a JCU officer, requesting a copy of the Lecture Slides. 13 April 2015 An OIC staff member left a telephone message with a JCU officer, requesting a copy of the Lecture Slides. 16 April 2015 An OIC staff member asked a JCU officer to provide a copy of the Lecture Slides. OIC received a copy of the Lecture Slides from JCU. 20 April 2015 An OIC staff member spoke with the applicant about the application and the applicant made submissions. 9 June 2015 OIC provided an update to the applicant. 23 June 2015 An OIC staff member left a telephone message with a JCU officer, requesting a return call. 1 September 2015 OIC provided an update to the applicant. 16 September 2015 An OIC staff member spoke with the applicant and provided an update. 22 September 2015 OIC conveyed a written preliminary view to JCU and invited it to provide submissions supporting its case by 9 October 2015 if it did not accept the preliminary view. 13 October 2015 An OIC staff member left a telephone message with a JCU officer, following up in relation to this review. 15 October 2015 A JCU officer left a telephone message with an OIC staff member. 16 October 2015 An OIC staff member spoke with a JCU officer, and JCU requested an extension of time to provide submissions. 28 October 2015 An OIC staff member spoke with a JCU officer, and JCU provided submissions. 29 October 2015 An OIC staff member spoke with a JCU officer, and JCU provided submissions. 4 November 2015 An OIC staff member spoke with a JCU officer, and JCU provided submissions. JCU also provided written submissions to OIC. 5 November 2015 OIC conveyed a preliminary view to the applicant by telephone. The applicant did not accept the preliminary view, and requested it in writing. 23 November 2015 OIC conveyed a written preliminary view to the applicant and invited him to provide submissions supporting his case by 7 December 2015 if he did not accept the preliminary view. 6 December 2015 The applicant provided submissions to OIC. [1] As explained to the applicant in a telephone discussion on 6 February 2015.[2] Cannon and Australian Quality Egg Farms Ltd [1994] QICmr 9; (1994) 1 QAR 491 (Cannon) [8]; O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) [33].[3] Fennelly and Redland City Council (Unreported, Queensland Information Commissioner, 21 August 2012) (Fennelly) [15].[4] Cannon [10].[5] Robbins and Brisbane North Regional Health Authority [1994] QICmr 19; (1994) 2 QAR 30 [16].[6] Fennelly [21].[7] As noted at paragraph 5, JCU is taken to have made a deemed decision refusing access to the requested documents. Accordingly, JCU’s initial decision dated 21 November 2014 and internal review decision dated 2 January 2015 (emailed 4 January 2015) were purported decisions. However, for ease of reference in this decision, I have referred to these purported decisions respectively as the initial decision and the internal review decision.[8] On 6 February 2015.[9] Letter dated 11 February 2015.[10] Email on 27 February 2015.[11] Letter dated 22 September 2015.[12] Email on 4 November 2015.[13] Telephone discussion on 5 November 2015, and letter dated 23 November 2015.[14] Telephone discussion on 5 November 2015, and letter dated 6 December 2015.[15] Nine Network Australia Pty Ltd and Queensland Police Service; Third Parties (Unreported, Queensland Information Commissioner, 5 December 2013) [26]-[27].[16] The applicant quoted from a summary located at http://www.rti.qld.gov.au/. [17] Letter dated 23 November 2015.[18] OIC also informed the applicant that JCU Univet Pty Ltd’s objectives ‘include providing facilities for study, research and clinical education in the field of Veterinary Science as well as aiding in the development or promotion of research in that field’, and its ‘purpose and principal activity is the provision of veterinary services and [it] provides clinical education for students of [JCU]’: see pages 14 and 81 of JCU’s 2014 Annual Report, available at https://www.jcu.edu.au/__data/assets/pdf_file/ 0012/121602/jcu_145416.pdf.[19] Telephone discussion on 3 February 2015.[20] Telephone discussion on 6 February 2015.[21] Telephone discussion on 6 February 2015.[22] Telephone discussion on 10 February 2015.[23] Email on 27 February 2015.[24] Email on 4 November 2015.[25] Telephone discussion on 5 November 2015, and letter dated 23 November 2015.[26] Telephone discussion on 5 November 2015, and letter dated 6 December 2015.[27] By which I understand the applicant to be referring to pet food companies.[28] The applicant quoted from a summary located at http://www.rti.qld.gov.au/. [29] Letter dated 6 December 2015. [30] Under section 12 of the RTI Act.[31] Telephone discussion on 5 November 2015, and letter dated 23 November 2015.[32] Section 23(1)(a) of the RTI Act.[33] The grounds on which an agency may refuse access are set out in section 47(3) of the RTI Act. [34] Sections 47(3)(e) and 52(1)(a) of the RTI Act. [35] Sections 47(3)(e) and 52(1)(b) of the RTI Act. [36] Section 52(1)(a) of the RTI Act. [37] Section 52(1)(b) of the RTI Act. [38] PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE) [37]-[38]. The decision in PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld). Section 52 of the RTI Act is drafted in substantially the same terms as the provision considered in PDE and, therefore, the Acting Information Commissioner’s findings in PDE are relevant here.[39] As set out in PDE [49]. See also section 130(2) of the RTI Act. [40] Section 52(1)(b) of the RTI Act. [41] Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) [21]. [42] On 6 February 2015.[43] Email on 12 February 2015.[44] Email on 27 February 2015.[45] Page 8 of JCU’s 2014 Annual Report indicates that the College of Public Health, Medical & Veterinary Sciences falls under the Division of Tropical Health & Medicine. The JCU website indicates that Veterinary Sciences is an area within the College of Public Health, Medical & Veterinary Sciences: https://www.jcu.edu.au/college-of-public-health-medical-and-veterinary-sciences. [46] Page 8 of JCU’s 2014 Annual Report indicates that Research Services falls under the Division of Research & Innovation.[47] Telephone discussion on 5 November 2015, and letter dated 23 November 2015.[48] Letter dated 6 December 2015.[49] Available at the applicant’s website: http://www.rawmeatybones.com/foi.php.[50] Schedule 4, part 2, item 6 of the RTI Act.[51] Sections 102 to 104 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Stewart, Keith and Department of Transport [1995] QICmr 9; (1995) 2 QAR 544 (15 May 1995)

Stewart, Keith and Department of Transport [1995] QICmr 9; (1995) 2 QAR 544 (15 May 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 102 of 1993COMMISSIONER (QLD) ) (Decision No. 95009) Participants: KEITH WILLIAM STEWART Applicant - and - DEPARTMENT OF TRANSPORT Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - application for access - interpretation of the terms of the applicant's FOI access application - applicant challenging sufficiency of search for documents falling within the terms of his FOI access application - whether search efforts of agency reasonable in all the circumstances.FREEDOM OF INFORMATION - refusal of access - matter in issue comprising home address and home telephone number of an officer of the respondent - whether matter in issue exempt from disclosure to the applicant under s.44(1) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.44(1)Shepherd and Department of Housing, Local Government & Planning, Re (Information Commissioner Qld, Decision No. 94007, 18 April 1994, unreported)Smith and Administrative Services Department, Re [1993] QICmr 3; (1993) 1 QAR 22Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227Ronald Keith Stewart and Department of Transport, Re (Information Commissioner Qld, Decision No. 95007, 12 May 1995, unreported) DECISIONThe decision under review (being the internal review decision of Mr W J Rodiger, on behalf of the respondent, dated 24 March 1993) is varied, in that I find that - (a) the address and home telephone number appearing on the file note made by Mr Noel Smith relating to an incident which occurred on 12 June 1992 is exempt matter under s.44(1) of the FOI Act; (b) 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 10 February 1993, to which the applicant has not been given access, except for the letter dated 12 June 1992 from Mr Ronald Stewart to the Minister for Transport referred to in (c) below; and(c) while there are reasonable grounds for believing that the respondent has possession or control of a letter dated 12 June 1992 from Mr Ronald Stewart to the Minister for Transport, I am satisfied that the search efforts made by the respondent, and by members of my staff, to locate that document have been reasonable in all the circumstances of the case, and that the document cannot now be located. Date of Decision: 15 May 1995...........................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) S 102 of 1993COMMISSIONER (QLD) ) (Decision No. 95009) Participants: KEITH WILLIAM STEWART Applicant - and - DEPARTMENT OF TRANSPORT Respondent REASONS FOR DECISIONBackground1. The applicant complains that the respondent has failed to locate and deal with all documents falling within the terms of his initial application for access under the Freedom of Information Act 1992 Qld (the FOI Act). The applicant further seeks review of the respondent's decision to refuse the applicant access to a part of one document which the respondent claims is exempt under s.44(1) of the FOI Act. I note that the applicant is the son of Mr Ronald Keith Stewart who has been a participant in two previous external reviews in which I have published reasons for decision: Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, which I shall refer to in these reasons for decision as Re Stewart; and Re Ronald Keith Stewart and Department of Transport (Information Commissioner Qld, Decision No. 95007, 12 May 1995, unreported), which I shall refer to as Re Ronald Stewart. 2. By letter dated 10 February 1993, Keith Stewart applied for access to documents held by the Department of Transport (the Department) in the following terms: I request all personal documents under the Freedom of Information Act from the Queensland Transport Dept., which concern me personally. The dates are from 31-10-91 to 23-8-92, also from 4-2-91 to 15-7-92. Also any documents to and from Mr David Hamill.3. The initial decision on behalf of the Department was made by Mr P Moar, FOI Co-ordinator, on 8 March 1993 and communicated to Keith Stewart by a letter of that date, signed by Mr B J Butterworth of the Department. That letter informed Keith Stewart that it was Mr Moar's decision "to grant access to the documents which concern you personally", and attached copies of all documents considered to be relevant.4. By a letter dated 10 March 1993, Keith Stewart then applied for internal review of Mr Moar's decision. The internal review was conducted by Mr W J Rodiger of the Department, who communicated his decision to Keith Stewart by letter dated 24 March 1993. Mr Rodiger's letter enclosed copies of further documents which had been located and were identified as falling within the terms of Keith Stewart's FOI access application, and went on to say: As you asked for documents relating only to your personal affairs, that is documents such as medical records, family or domestic relationships, then these were provided under cover of this Department's letter of 8 March 1993. However, other documents are available of a non-personal nature, namely 79 documents, and to obtain access to these under the Freedom of Information Act an application fee of $30.00 is required and in addition photocopying charges of $0.50 per page would apply should you wish copies.5. Keith Stewart applied for review of Mr Rodiger's decision, under Part 5 of the FOI Act, by completing an Application for Review of Decision form which was received by my office on 2 June 1993. That form (which was co-signed by Keith's parents) stated: It is plain to see that it is impossible to obtain these documents because we are unable to get past these same people all the time and it is impossible to pay about $70.00 for them as Keith is under age and we are only on a pension and also we feel that these documents are of a personal nature and that this Department is deliberately covering up to prevent justice being done.Scope of the FOI access application6. At paragraphs 6-10 of my decision in Re Ronald Stewart, I discussed the scope of Ronald Stewart's FOI access application in light of the circumstances involved in an earlier FOI access application by him and his wife, Carolyn Stewart, which resulted in my decision in Re Stewart. In Re Ronald Stewart, I came to the conclusion that, given the wording of Ronald Stewart's FOI access application and the matters which had arisen in the earlier case of Re Stewart, 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. I consider that those same factors are also relevant to the interpretation of Keith Stewart's FOI access application in this case.7. It is clear to me that Keith, who is of school age, has had considerable assistance from his parents in formulating his FOI access application, and correspondence which has flowed from it. I do not suggest that there is anything untoward in Keith being assisted by his parents. He should feel free to seek assistance from any person he chooses in framing an FOI access application and in subsequent correspondence. However, the help given to him by his parents, combined with the similarity between the wording of Keith's FOI access application and that made by his father in Re Ronald Stewart, is enough to satisfy me that in making his FOI access application Keith Stewart was seeking access to documents which concern his "personal affairs", as that term is interpreted for the purposes of the FOI Act. This interpretation is supported by the fact that Keith Stewart has been made aware of the requirement to pay an application fee of $30 when access is sought to documents which do not concern the applicant's personal affairs (see paragraph 4 above), but has not paid an application fee, and has made it clear during the course of the review that he does not believe an application fee is payable in respect of the documents to which he seeks access.8. In considering this external review application, I have therefore interpreted Keith Stewart's FOI access application dated 10 February 1993, as an application for access to documents held by the Department which concern Keith Stewart's personal affairs.Sufficiency of Search9. I have previously considered my jurisdiction, and powers on review, in respect of sufficiency of search issues in my decisions in Re Smith and Administrative Services Department [1993] QICmr 3; (1993) 1 QAR 22 and Re Shepherd and Department of Housing, Local Government & Planning (Information Commissioner Qld, Decision No. 94007, 18 April 1994, unreported). As I said in Re Shepherd, at paragraphs 18-19, there are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined in s.7 of the FOI Act); and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.10. In Re Ronald Stewart, I indicated that a number of external review applications had been made by members of the Stewart family for documents held by the Department and by the Minister for Transport (see paragraph 20 of Re Ronald Stewart). I also noted that numerous searches for documents, which might fall within the terms of any one of the various FOI access applications lodged by members of the Stewart family, had been conducted by my staff and staff of the Department and the Minister. At paragraphs 20-30 of my decision in Re Ronald Stewart, I described the searches that had been undertaken. 11. As a result of those searches, a number of further documents were identified as falling, or arguably falling, within the terms of Keith Stewart's FOI access application, and the Department has agreed to the release of all the documents so identified. 12. In Re Ronald Stewart, I referred to a letter dated 12 June 1992 (a copy of which was provided by Mr Ronald Stewart for my information) from Mr Ronald Stewart to the Minister for Transport. That document also falls within the terms of Keith Stewart's FOI access application. I described the searches undertaken for that document at paragraphs 21-24 of my decision in Re Ronald Stewart. For the reasons set out at paragraph 32 of that decision I find that there are reasonable grounds to believe that the requested document exists and is a document of the agency, but I find that the search efforts made by the agency, and by my staff, to locate the document have been reasonable in all the circumstances, even though ultimately unsuccessful.13. As to Keith Stewart's general claim that there are other documents concerning his personal affairs held by the Department, I find that there are no reasonable grounds to believe that the requested documents exist. Extensive searches carried out by the Department and my staff, and examination of a wide range of documents by my staff, have not given rise to any indication that there are further documents in existence which fall within the terms of Keith Stewart's FOI access application for documents relating to his personal affairs. I cannot identify any further searches which the Department might reasonably be called upon to undertake in a quest for such documents.Part of document not released14. In a letter dated 10 August 1994, I drew Keith Stewart's attention to a document to which he had been granted access subject to the deletion of matter claimed by the Department to be exempt matter under s.44(1) of the FOI Act. By letter dated 25 August 1994, Keith Stewart indicated that he sought access in full to the document referred to in my letter of 10 August 1994.15. That document is a file note made by an officer of the Department, Mr Noel Smith, about an incident involving Keith Stewart which took place on 12 June 1992. Keith Stewart has been given access to a copy of the note with the home address and home telephone number of Mr Smith deleted.16. Section 44(1) of the FOI Act provides as follows: 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.17. I have previously considered the question of whether addresses and telephone numbers can be regarded as information concerning the personal affairs of a person in my decision in Re Stewart. In paragraphs 86-90 of Re Stewart, I said: 86. Despite statements in many earlier tribunal decisions in both the Commonwealth and Victoria (see, for example, Re Properzi and Department of Immigration & Ethnic Affairs (1984) ADMN 92-035; Re Simons and Victorian Egg Marketing Board (No. 1) (1985) 1 VAR 54; Re F and Health Department (1988) 2 VAR 458) that a person's name, address and telephone number constitute part of that person's personal affairs, more recent decisions of senior judges call for a more considered approach to that question of characterisation according to the particular context in which that information appears. I have already referred to Perrin's case where the names alone of police officers performing their police duties were in issue. In Colakovski (at p.119) Lockhart J said: "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." His Honour had no difficulty in holding that the information in issue, viewed in its full context, answered the statutory description of information which relates to the "personal affairs" of a person. 87. In Argent v South Australian Police Department (District Court of South Australia, Roder J, 13 November 1992, Judgment No. D2671), the Court was dealing with an FOI access application for records held by the respondent in relation to a traffic accident in which the appellant sustained personal injury. The names and addresses of persons said to be witnesses to the accident in question were claimed by the respondent to be exempt material on the basis that disclosure would be an unreasonable disclosure of information concerning the personal affairs of a person. Having quoted the passage from Lockhart J's judgment in Colakovski that is set out above, the Court said: "... I have doubt that in the circumstances of this case, the information which has been withheld from the appellant is information ... which does not relate to the personal affairs, within the meaning of the Act, of the bus operator. Each case must be looked at in its own circumstances to determine what might be involved in relation to what are personal affairs. The name and telephone number of the person in Colakovski's case, if alone disclosed, would not have resulted in the disclosure of information relating to personal affairs per se. But, because giving that information and the manner in which it had been obtained would effectively reveal other matters about a person's personal affairs it would in its own context involve the release of information about personal affairs. In the present case, on its own facts and its own circumstances, if the name and home address of the bus operator were to be released all that would be revealed is that the bus operator, a person living at a certain address, was a witness to an accident which had happened on a public thoroughfare, and as a result of which information was provided by him to the police in his capacity as a member of the public. In those circumstances, I cannot see how the release of the information relating to name and home address would result in the release of information relating to the bus operator's personal affairs as that term is used in the legislation. Whilst it may be true that in some circumstances the release of an address might lead inevitably to the release of information relating to a person's personal affairs, there is nothing before me to lead me to the conclusion that that would occur in the present case." 88. While I consider that the result in Argent's case was justified, I have reservations about the analysis which suggests that a person's home address does not fall within the ordinary meaning of information relating to that person's personal affairs. I agree with the New South Wales Court of Appeal in Perrin's case that a name alone does not ordinarily fall within the meaning of the phrase "personal affairs"; see per Mahoney AJ at p.22, who said: "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." I also note that in the passage quoted at paragraph 84 above, Kirby P expressed in passing (and without deciding) a note of reservation about whether private addresses of police officers constitute their personal affairs. However, the appearance of a name in conjunction with a home address would seem to me to fall, in the normal case, on the other side of the line. 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. 89. The disclosure of the name and address of a witness to a motor vehicle accident might well be justified on public interest grounds, i.e. in assisting the parties to civil litigation to have access to all relevant sources of evidence so as to ensure that litigants have at least the opportunity to seek to put all relevant evidence before the court, or to determine their approaches to pre-trial settlement of their dispute in the light of all relevant available evidence. (In substantially similar circumstances Jones J of the Victorian AAT held in Re Phillip Page and Metropolitan Transit Authority (1988) 2 VAR 243 that the names and addresses of witnesses to a road accident constituted the witnesses' personal affairs, but that disclosure to the applicant who was injured in the accident would not be unreasonable.) 90. Many of the earlier tribunal decisions which automatically applied the principle that a person's name, address or telephone number are part of that person's personal affairs might well have been correctly decided if the context in which they appeared was properly evaluated. However, I think that the more recent cases properly call for a more careful evaluation and characterisation of the context in which a person's name, address or telephone number (or any combination thereof) appear, before it is decided that their disclosure would disclose information concerning the personal affairs of a person.18. In the circumstances of this case, I find that the home address and home telephone number of Mr Smith is information concerning his personal affairs, notwithstanding that he has provided them in the course of making a work-related file note. The information is not relevant to the events the note describes, but appears to have been included merely for reference.19. I must therefore consider whether there is any public interest in Keith Stewart having access to that information, which is of sufficient strength to outweigh the prima facie public interest in protecting Mr Smith's personal affairs. In the circumstances of this case, I can see no public interest considerations which might weigh in favour of Keith Stewart having access to this information.20. I therefore find the deleted matter to be exempt matter under s.44(1) of the FOI Act.Conclusion21. As the file note made by Mr Smith was not initially considered by the internal review decision-maker, and further documents were discovered in the course of my review, it is appropriate that I vary the decision under review. I find that -(a) the address and home telephone number appearing on the file note made by Mr Noel Smith relating to an incident which occurred on 12 June 1992 is exempt matter under s.44(1) of the FOI Act; (b) 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 10 February 1993, to which the applicant has not been given access, except for the letter dated 12 June 1992 from Mr Ronald Stewart to the Minister for Transport referred to in (c) below; and(c) while there are reasonable grounds for believing that the respondent has possession or control of a letter dated 12 June 1992 from Mr Ronald Stewart to the Minister for Transport, I am satisfied that the search efforts made by the respondent, and by members of my staff, to locate that document have been reasonable in all the circumstances of the case, and that the document cannot now be located.F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Sharples and Department of Police [2001] QICmr 23 (7 December 2001)

Sharples and Department of Police [2001] QICmr 23 (7 December 2001) Sharples and Queensland Police Service (S 68/01, 7 December 2001, Assistant Information Commissioner Shoyer) (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 removed.] REASONS FOR DECISION Background In May 1999, the applicant, Mr Sharples, gave evidence before the Members Ethics and Parliamentary Privileges Committee (MEPPC) of the Legislative Assembly. He was provided with a copy of the transcript of his evidence for the sole use of himself and his legal advisers. At some point, he provided his only copy to the Queensland Police Service (the QPS). He was denied a request for the return of that document, and made an FOI access application (dated 9 October 2000) to the QPS seeking a copy of that document, and other documents concerning the applicant's complaint to the QPS about Ms Dorothy Pratt MP. The QPS did not deal with the access application within the prescribed time limit (see s.27(4) of the FOI Act) and the applicant applied to the Information Commissioner on 20 March 2001 for review of the QPS's deemed refusal of access to the requested documents: see s.79(1) of the FOI Act. External review process Copies of the documents in issue were obtained from the QPS and, as a result of further consultations, an additional document was disclosed to the applicant. By letter dated 8 June 2001, I informed the applicant of my preliminary view that, of the remaining documents, two were exempt from disclosure to him under s.43(1) (the legal professional privilege exemption) of the FOI Act, and two were exempt under s.50(c)(i) (the parliamentary privilege exemption) of the FOI Act. The applicant has not contested the preliminary view I conveyed with respect to the former two documents. However, in order to avoid any suggestion of a misunderstanding if I were to treat that as a concession on his part, I have made findings below in respect of those two documents. The applicant has contested the exemption claims made under s.50(c)(i) of the FOI Act. In making this decision, I have taken into account the following: the contents of the matter in issue; the initial access application dated 9 October 2000; the application for external review dated 21 March 2001; the applicant's letter dated 21 June 2001, and sections 6-10 of the applicant's submissions dated 29 May 2001, lodged in respect of external review S 41/00. Application of s.43(1) of the FOI Act 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 Commissioner 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 - 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. 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). However, there is no indication in the present case of conduct involving a waiver of privilege, or of any circumstances that might attract the application of any other exception to legal professional privilege. Communications to and from salaried employee legal advisers in government agencies are capable of attracting legal professional privilege (see Re Potter and Brisbane City Council [1994] QICmr 18; (1994) 2 QAR 37 and the cases there cited) and I am satisfied that the communications to and from the Queensland Police Service Solicitor which are now under consideration are likewise capable of attracting legal professional privilege, in accordance with the principles explained in the cases referred to. The documents now under consideration comprise: an internal QPS memorandum dated 1 September 1999 requesting a legal opinion from the Queensland Police Service Solicitor; and a letter dated 16 September 1999 from the Queensland Police Service Solicitor providing the requested legal opinion. It is clear from my examination of the contents of those documents that they comprise confidential communications between lawyer and client made for the dominant purpose of seeking and giving legal advice. I am satisfied that the documents attract legal professional privilege, and I find that they comprise exempt matter under s.43(1) of the FOI Act. Section 50(c)(i) of the FOI Act The documents claimed to be exempt under s.50(c)(i) of the FOI Act are the transcript of the applicant's evidence before the MEPPC dated 5 May 1999, and a letter from the Chairman of the MEPPC to the QPS dated 1 December 1999. Section 50(c)(i) of the FOI Act provides: 50. Matter is exempt matter if its public disclosure would, apart from this Act and any immunity of the Crown ... (c) infringe the privileges of (i) Parliament; ... I note that the Information Commissioner has previously discussed the application of s.50(c)(i) of the FOI Act in Re Ainsworth; Ainsworth Nominees Pty Ltd and Criminal Justice Commission; Others (1999) 5 QAR 284 at paragraphs 54-63. There is no public interest balancing test attached to this exemption. I consider that the transcript of the applicant's appearance before the MEPPC is clearly a proceeding in Parliament: see s.3(2) and s.3(3)(a) of the Parliamentary Papers Act 1992 Qld. Further, I am satisfied that disclosure of the transcript would be contrary to Standing Order 197 of the Legislative Assembly, which provides: The evidence taken by a Committee and documents presented to it which have not been presented or reported to the House, shall not, unless authorised by the House or the Committee, be disclosed to any person other than a Member or officer of the Committee. I am satisfied that the evidence recorded in the transcript has not been presented or reported to the Legislative Assembly, and that its general disclosure has not been authorised by the MEPPC or the Legislative Assembly. However, the applicant contends that the prior disclosure of the transcript to him means that s.50(c)(i) does not preclude disclosure of the transcript to him under the FOI Act. The test for exemption under s.50 is worded in different terms to other exemption provisions. Most exemption provisions use the words "Matter is exempt if its disclosure ...". However, s.50 uses the words "if its public disclosure ...". This imports a different test. In particular, the test imposed by the words "public disclosure" in s.50 appears to negate the possibility of taking into account the effect of a limited waiver of privilege for the benefit of a particular individual, where that individual is the applicant for access to a document under the FOI Act (cf. the position of the applicant for access in Re Hewitt, where waiver of legal professional privilege, rather than parliamentary privilege, was considered). It appears that only an intentional general waiver of parliamentary privilege (most commonly, through tabling, or other authorised publication, of a document) may be taken into account in the application of s.50 of the FOI Act, rather than a limited waiver of parliamentary privilege for the benefit of a particular individual. (Where such an individual is an applicant for access under the FOI Act, the fact that such a limited waiver has occurred may, in my view, be a relevant factor for an agency to take into account in the exercise of the discretion conferred on agencies by s.28(1) of the FOI Act, which enables an agency to choose whether or not to refuse access to matter which qualifies for exemption: see Re Norman and Mulgrave Shire Council [1994] QICmr 13; (1994) 1 QAR 574 at p.577, paragraphs 11-13. However, in a review under Part 5 of the FOI Act, I am not permitted to exercise the discretion possessed by agencies to permit access to exempt matter: see s.88(2) of the FOI Act.) I am satisfied that the previous limited disclosure of the transcript to the applicant does not mean that its public disclosure would not constitute an infringement of the privileges of Parliament. I therefore find that the transcript is exempt matter under s.50(c)(i) of the FOI Act. The other document in issue is a letter dated 1 December 1999 from the Chairman of the MEPPC to a QPS officer. I am satisfied that it is a document prepared under the authority of the MEPPC and therefore a "proceeding in Parliament" within the terms of s.3(3)(g) of the Parliamentary Papers Act. I accept that it is a document that was prepared for the purposes, or incidental to, transacting the business of the MEPPC. I am satisfied that neither the MEPPC nor the Legislative Assembly has authorised its public disclosure. I am satisfied that its public disclosure would infringe the privileges of Parliament, and I find that it is exempt matter under s.50(c)(i) of the FOI Act. In sections 6-10 of his submission dated 29 May 2001 (lodged in respect of application for review no. S 41/00), the applicant has made numerous submissions concerning the Australian Constitution, the validity of the Queensland Parliament, elections to Parliament, and acts of the Parliament. In essence, his argument is that the Queensland Parliament is not lawfully constituted, and hence Parliamentary privilege cannot apply. I am satisfied that there is no substance in the applicant's arguments, some of which have been rejected by the Queensland Court of Appeal: see Sharples v Arnison & Ors [2001] QCA 518. In respect of the applicant's other arguments, I note that s.128 of the Electoral Act 1992 Qld provides: Election may be disputed under this division 128.(1) The election of a person may be disputed under this part by a petition to the Court of Disputed Returns in accordance with this division. (2) The election may not be disputed in any other way. DECISION I set aside the decision under review (being the QPS's deemed refusal of access to requested documents: see paragraph 4 above). In substitution for it, I decide that: (a) the documents identified in paragraph 13 above comprise exempt matter under s.43(1) of the FOI Act; and (b) the documents identified in paragraph 15 above comprise exempt matter under s.50(c)(i) of the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

RFY and Medical Board of Queensland [2008] QICmr 10 (28 April 2008)

RFY and Medical Board of Queensland [2008] QICmr 10 (28 April 2008) Office of the Information Commissioner Decision and Reasons for Decision Application Number: 210139 Applicant: RFY Respondent: Medical Board of Queensland Decision Date: 28 April 2008 Catchwords: FREEDOM OF INFORMATION - section 43(1) of the Freedom of Information Act 1992 (Qld) - legal professional privilege - reference to the existence of legal advice FREEDOM OF INFORMATION - section 45(1)(c) of the Freedom of Information Act 1992 (Qld) - business, professional, commercial or financial affairs - whether disclosure could reasonably be expected to have an adverse effect on those affairs Contents Summary....................................................................................................................... 2 Background ................................................................................................................. 2 Scope of the FOI access application............................................................................ 2 Decision under review................................................................................................... 3 Steps taken in the external review process ................................................................ 3 Matter in issue ............................................................................................................. 4 Findings......................................................................................................................... 4 Section 43(1) of the FOI Act.................................................................................. 4 Section 45(1)(c) of the FOI Act............................................................................. 7 Conclusion.................................................................................................................... 8 Decision ...................................................................................................................... 8 REASONS FOR DECISION Summary 1. I find that the first paragraph in each of the following folios is not exempt from disclosure under section 43(1) or section 45(1)(c) of the Freedom of Information Act 1992 (Qld) (FOI Act): • folio 134 on Registrant File Vol. 2 • folio 277 on HAM File Vol. 4. Background 2. The relevant background to this review is as follows: • on 12 December 2005, the applicant submitted a freedom of information (FOI) application to the Medical Board of Queensland (Board) for access to documents under the FOI Act • in a meeting on 5 January 2006, the applicant and the Board agreed to amend the scope of the FOI access application • by letter sent on 9 January 2006[1], the Board informed the applicant of its understanding of the amended scope of the applicant’s FOI access application • by letter dated 11 January 2006, the applicant confirmed that she agreed with the Board’s understanding of the amended scope of her FOI access application • on 30 October 2006, Mr J Posener, the Board’s Manager, Information Services, issued a decision (Initial Decision) • on 24 November 2006, the applicant applied for internal review of the Initial Decision • on 12 December 2006, Mr J O’Dempsey, Executive Officer of the Board issued an decision affirming the Initial Decision (Internal Review Decision) • on 10 January 2007, the applicant applied to this Office for external review of the Internal Review Decision. Scope of the FOI access application The scope of the applicant’s FOI access application is as follows[2]: • Copies of all documents etc concerning [the applicant] and [her] complaints about a. the Board, Qld Health, Inala Community Health Centre and Dr Jane Smith; b. Dr Wendy Francis and the Royal Australian College of General Practitioners to the Anti-Discrimination Commissioner of Qld (ADCQ) and the hearing in the Anti-Discrimination Tribunal Qld. • This includes documents in the possession of the Board’s lawyers. • This scope excludes any documents or material previously provided to [the applicant] by [the Board] under FOI from 2002 to 2004. At a meeting held between the Board and staff members of this Office on 4 October 2006, it was agreed that all documents in the possession of the Board’s lawyers fell within the scope of external review no. 210177.[3] As those documents are currently being processed as part of external review no. 210177, they have been excluded from the scope of this external review. Decision under review 5. The decision which is the subject of this external review is the Internal Review Decision of Mr O’Dempsey dated 12 December 2006. Steps taken in the external review process 6. Copies of the documents to which the applicant was refused access by the Board under the Initial Decision were obtained from the Board and examined by this Office. 7. By letter dated 14 November 2007, this Office sought further information from the Board in respect of matter that the Board: o claimed was irrelevant to the applicant’s FOI application and could be deleted pursuant to section 27(3) and section 27(4) of the FOI Act o refused to deal with pursuant to section 29B of the FOI Act. 8. By letter dated 14 December 2007, the Board provided this Office with submissions concerning section 27 and section 29B of the FOI Act 9. By letter dated 13 March 2008, I informed the applicant and the Board of the preliminary view that: • the matter in issue in folios 291, 294, 295-298 and 300-303 in HAM File Vol. 4 could be deleted prior to the release of those folios to the applicant pursuant to section 27(3) and section 27(4) of the FOI Act on the basis that it constitutes irrelevant matter • the Board is entitled to refuse to deal with the applicant’s FOI application in respect of folios 20-21 and 24-29 in Registrant File Vol. 2 and folios 292-293 in HAM File Vol. 4 on the basis of section 29B of the FOI Act • the whole of folios 49, 51, 137, 138, 166, 167-171, 172-178 and 179-187 and parts of folios 48, 50 and 134 on Registrant File Vol. 2 are exempt from disclosure under section 43(1) of the FOI Act • the whole of folios 57-58, 63-68, 82-96, 328-329, 330, 331-334 and 351-358 and parts of folios 277, 296 and 313-314 on HAM File Vol. 4 are exempt from disclosure under section 43(1) of the FOI Act. 10. On 28 March 2008, the applicant’s representative informed this Office that the applicant accepts all aspects of the preliminary view. 11. By letter dated 4 April 2008, the Board informed this Office that it accepts the majority of the preliminary view but maintains its contention that the whole of folio 134 on Registrant File Vol. 2 and the whole of folio 277 on HAM File Vol. 4 are exempt from disclosure under section 43(1) and section 45(1)(c) of the FOI Act. The Board provided submissions in support of its exemption claim. 12. In making this decision, I have taken the following into account: • the applicant’s initial FOI access application dated 12 December 2005 • Mr Posner’s Initial Decision dated 30 October 2006 • Mr O’Dempsey’s Internal Review Decision dated 12 December 2006 • the applicant’s external review application dated 10 January 2007 • the documents in issue • correspondence exchanged between this Office, the Board and the applicant during the course of this review • file notes of telephone conversations held between this Office and the Board during the course of this review • the Board’s submissions dated 14 December 2007 and 4 April 2008 • relevant sections of the FOI Act, case law and previous decisions of this Office. Matter in issue 13. In light of the applicant’s acceptance of the preliminary view, the matter remaining in issue in this review is limited to: • the first paragraph in folio 134 on Registrant File Vol. 2 • the first paragraph in folio 277 on HAM File Vol. 4.[4] 14. The documents in which the matter in issue appears are minutes of a meeting held by the Board on 25 January 2005. Findings Section 43(1) of the FOI Act 15. This section 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. Requirements for exemption 16. Following the decision of the High Court of Australia in Esso Australia Resources Ltd v Commission of Taxation,[5] legal professional privilege applies to the following two types of communications: • confidential communication between a client and the client’s legal advisor, when the communication is made for the dominant purpose of obtaining or providing legal advice (‘advice privilege’) • confidential communication between a client or a third party and the client’s legal advisor, when the communication is made for the dominant purpose of use, or obtaining material for use, in litigation that has commenced or is reasonably anticipated at the time of the communication (‘litigation privilege’). 17. The legal professional privilege exemption set out in section 43(1) of the FOI Act reflects the requirements for establishing legal professional privilege at common law. In other words, it protects communications passing between a lawyer and a client where: a) the communication is made in the course of a professional relationship of lawyer and client; and b) the communication is confidential; and c) the communication is: (i) from the client to the lawyer for the dominant purpose of seeking legal advice; or (ii) from the lawyer to the client for the dominant purpose of providing legal advice; or (iii) from a third party at the client’s request for the dominant purpose of use in assisting the lawyer to provide legal advice;[6] or (iv) from the lawyer or the client, or a third party at the request of the lawyer or the client, for the dominant purpose of use in or in relation to existing or anticipated legal proceedings. 18. Paragraphs (c)(i)-(iii) above refer to the ‘advice limb’ of legal professional privilege, while paragraph (c)(iv) describes the ‘litigation limb’ of privilege. Importantly, all communications must be made in the lawyer’s capacity as a lawyer and not in any other capacity. 19. Australian court decisions have established that legal professional privilege may also protect communications between salaried employee legal advisers of a government department or statutory authority and his/her employer as client (including communications through other employees of the same employer) provided there is a professional relationship of solicitor and client, which secures to the advice an independent character notwithstanding the employment.[7] Application to the matter in issue 20. The Board contends that the matter in issue is exempt from disclosure under section 43(1) of the FOI Act. 21. As stated in paragraph 14 of this decision, the matter in issue appears in the first paragraph of a record of minutes of a meeting of the Board held on 25 January 2005 and refers to two pieces of correspondence that were considered by the Board at that meeting. The documents referred to are subject to legal professional privilege but are no longer in issue in this review due to the applicant’s acceptance of the preliminary view with respect to those documents. 22. By letter dated 4 April 2008, the Board made submissions including that: • the matter in issue records confidential communications between the relevant parties during the course of litigation • the matter in issue refers to correspondence which itself is protected by client privilege. 23. In support of its submissions, the Board relies upon the decision in Alexandria Holdings Pty Ltd and the Department of Local Government, Planning, Sport and Recreation[8]. In this decision, the Information Commissioner found that a reference to the existence of legal advice in a Minister’s decision concerning a development application did not constitute waiver of legal professional privilege in respect of the advice. 24. The Board also referred to Bennett v Chief Executive Officer, Australian Customs Service[9]. In that case, Gyles J stated as follows with respect to waiver of legal professional privilege: ... the voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the decision.[10] 25. Similarly, in AWB v Cole (No 5)[11], a case also relied upon by the Board in its submissions, Young J concluded: It is no doubt correct that a mere reference to the existence of legal advice in a disclosed document will not be regarded as waiver of its contents, albeit a different conclusion would follow if the gist, substance or conclusion of the legal advice is voluntarily disclosed.[12] [my emphasis] 26. I have carefully considered the Board’s submissions dated 4 April 2008 and accept that the matter in issue refers to documents which are protected by legal professional privilege. However, I do not consider that matter which merely refers to the existence of privileged documents can itself be afforded the protection of legal professional privilege. 27. Consistent with Young J’s conclusion in AWB v Cole (No. 5) as set out in paragraph 25 of this decision, I do not consider that disclosure of the matter in issue in this review would amount to waiver of legal professional privilege in the documents which were considered by the Board at the meeting. Summary 28. Accordingly, after carefully considering the submissions, the matter in issue and the relevant case law, I am satisfied that the matter in issue: • does not constitute a confidential communication between a lawyer and client • was not prepared for the dominant purpose of seeking or giving legal advice • was not prepared for the dominant purpose of use in current or anticipated legal proceedings • is not exempt from disclosure under section 43(1) of the FOI Act. 29. Given this finding, it is necessary for me to examine the Board’s alternative exemption claim under section 45(1)(c) of the FOI Act. Section 45(1)(c) of the FOI Act 30. This section 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. Requirements for exemption 31. Matter will be exempt under section 45(1)(c) of the FOI Act if it satisfies the following requirements: (a) it concerns the business, professional, commercial or financial affairs of a person, including a company or agency (but not trade secrets or information that has an intrinsic commercial value) (b) disclosure of the information 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 • prejudice to the future supply of such information to government (c) the public interest considerations favouring disclosure of the information outweigh public interest considerations favouring non-disclosure of the matter in issue. Application to the matter in issue 32. The Board claims that the matter in issue is exempt under section 45(1)(c) of the FOI Act. 33. I have carefully considered the Board’s submissions dated 4 April 2008 and am satisfied that the matter in issue: • refers in general terms to two pieces of correspondence that were considered by the Board at its meeting on 25 January 2005 • does not describe the nature or content of those pieces of correspondence • does not disclose any professional or commercial arrangements involving the Board. Summary 34. Accordingly, after carefully considering the submissions, the matter in issue and the relevant case law, I am satisfied that: • the matter in issue does not concern the business, professional, commercial or financial affairs of the Board or another person • disclosure of the matter in issue could not reasonably be expected to have an adverse effect on the business, professional, commercial or financial affairs of the Board or another person. 35. Given my finding that the first and second requirements for exemption under section 45(1)(c) of the FOI Act are not satisfied, it is unnecessary for me to consider the public interest balancing test. 36. Accordingly, I find that the matter in issue is not exempt under section 45(1)(c) of the FOI Act. Conclusion 37. I find that the matter in issue contained in the first paragraph of each of the following folios: • folio 134 on Registrant File Vol. 2 • folio 277 on HAM File Vol. 4 is not exempt from disclosure under either section 43(1) or section 45(1)(c) of the FOI Act. DECISION 38. I vary the decision under review, being the Internal Review Decision of Mr O’Dempsey dated 12 December 2006, and find that the first paragraph in each of the folios listed below is not exempt from disclosure under section 43(1) or section 45(1)(c) of the FOI Act: • folio 134 on Registrant File Vol. 2 • folio 277 on HAM File Vol. 4. 39. I have made this decision as a delegate of the Information Commissioner, under section 90 of the FOI Act. ________________________ Assistant Commissioner Henry Date: 28 April 2008 [1] I note that this letter was incorrectly dated 9 January 2005.[2] As set out in the Board’s letter sent to the applicant on 9 January 2006 and accepted by the applicant by letter dated 11 January 2006.[3] An external review currently before this Office also involving the applicant and the Board.[4] These two folios are duplicates.[5] [1999] HCA 67; (1999) 201 CLR 49. [6] Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357. [7] Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54. [8] Unreported, 2006/F0164, 22 August 2006.[9] [2004] FCAFC 237; (2004) 140 FCR 101.[10] At paragraph 65.[11] [2006] FCA 1234; (2006) 155 FCR 30[12] At paragraph 167.

queensland

court_judgement

Queensland Information Commissioner 1993-

T and Queensland Health [1994] QICmr 4; (1994) 1 QAR 386 (11 March 1994)

T and Queensland Health [1994] QICmr 4; (1994) 1 QAR 386 (11 March 1994) Last Updated: 26 February 2001 OFFICE OF THE INFORMATION ) S 77 of 1993COMMISSIONER (QLD) ) (Decision No. 94004) Participants: "T" Applicant - and - QUEENSLAND HEALTH Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access to documents and parts of documents created by the Drugs of Dependence Unit of Queensland Health - whether exempt matter under s.42(1)(e) of the Freedom of Information Act 1992 Qld - explanation of the requirements of s.42(1)(e) of the Freedom of Information Act 1992 Qld - explanation of the meaning of "lawful method or procedure" and "contravention or possible contravention of the law (including revenue law)".Freedom of Information Act 1992 Qld s. 5(1)(c), s.5(2), s.6, s.42, s.44(1), s.45(1)(c), s.76(1), s.80, s.81, s.87(2)(a)Freedom of Information Act 1982 Cth s.37(2)(b), s.37(3)Freedom of Information Act 1982 Vic s.31(1)(d)Fair Trading Act 1989 Qld s.38, s.39Anti-Discrimination Act 1991 QldHealth Act 1937 Qld s.152Poisons Regulation 1973 Qld s.A2.03(b), s.H5, s.M1, s.N1, s.N2, s.N3, s.Q2.01Anderson and Australian Federal Police, Re (1986) [1986] AATA 79; 4 AAR 414Arnold Bloch Leibler and Co and Australian Taxation Office (No.2), Re (1985) 9 ALD 7"B" and Brisbane North Regional Health Authority, Re (Information Commissioner Qld, Decision No. 94001, 31 January 1994, unreported)Conte and Australian Federal Police, Re (1985) 7 ALN N71Lapidos and Auditor-General of Victoria, Re (1989) 3 VAR 343Lawless and Secretary to Law Department and Ors, Re (1985) 1 VAR 42McEniery and the Medical Board of Queensland, Re (Information Commissioner Qld, Decision No. 940002, 28 February 1994, unreported)Mickelberg and Australian Federal Police, Re (1984) 6 ALN N176Reithmuller and Australian Federal Police, Re (1985) 8 ALN N92Ward and Australian Federal Police, Re (No. V85/414, 20 February 1987, unreported) DECISIONI affirm that part of the internal review decision of Dr D Lange of Queensland Health made on 14 April 1993 by which it was decided that folios 3, 11, 20, 22, 25, 50, 51, 74, 75, 78 and 84, and portions of folios 12, 19, 21, 31 and 73, are exempt from disclosure under s.42 (1)(e) of the Freedom of Information Act 1992 Qld.Date of Decision: 11 March 1994...........................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS Page Background 1The External Review Process 1The Applicable Legislative Provisions 2Analysis of Section 42(1)(e) of the FOI Act 3 Lawful Methods or Procedures 3 Contravention or Possible Contravention of the Law (including revenue law) 4 Disclosure Could Reasonably Be Expected to Prejudice the Effectiveness of the Methods or Procedures 6Application of Section 42(1)(e) of the FOI Act to the Documents in Issue 9The Documents in Issue 9Submissions by Queensland Health 10The Relevant Statutory Provisions 12The Methods and Procedures used by the DDU 15Prejudice to the Effectiveness of the Methods and Procedures used by the DDU 15The applicant's Submissions 15Conclusion 16OFFICE OF THE INFORMATION ) S 77 of 1993COMMISSIONER (QLD) ) (Decision No. 94004) Participants: "T" Applicant - and - QUEENSLAND HEALTH Respondent REASONS FOR DECISIONBackground1. The applicant seeks review of a decision of the respondent, Queensland Health, to refuse him access to certain documents and parts of documents claimed by the respondent to comprise exempt matter under s.42(1)(e) of the Freedom of Information Act 1992 Qld (hereinafter referred to as the FOI Act or the Queensland FOI Act). These documents and portions of documents constitute the matter remaining in issue after the number of documents initially in issue has been gradually whittled down, through concessions made by both participants and two third parties, during an extended mediation process undertaken in accordance with my powers under s.80 of the FOI Act. 2. The applicant's FOI access request was for "all information held by Queensland Health where I am named or referred to, regardless of origin".3. By a decision dated 11 February 1993 of Ms S Harris (Manager, FOI and Administrative Law Section) of Queensland Health, the applicant was granted full access to 64 folios and partial access to 24 folios, and he was refused access to 24 folios in their entirety. In refusing the applicant access to those documents and parts of documents, Ms Harris relied on s.42(1)(b), s.42(1)(e), s.44(1) and s.45(1)(c) of the FOI Act. At the applicant's request, an internal review of Ms Harris' decision was undertaken by Dr D Lange, Executive Director (Public Health Services) and Chief Health Officer, of Queensland Health. By decision dated 14 April 1993, Dr Lange affirmed the initial decision of Ms Harris. On 29 April 1993, the applicant applied to the Information Commissioner for external review of Dr Lange's decision of 11 February 1993.The External Review Process4. Following examination of the documents in issue and a preliminary conference with representatives of Queensland Health, concessions were made by Queensland Health resulting in some additional matter being released to the applicant. Following further consultations with two third parties who were concerned with several of the documents in issue, those third parties advised that they did not object to the release to the applicant of the matter which concerned them, and as a result, Queensland Health agreed to its release to the applicant. These concessions meant that matter originally claimed to be exempt under s.42(1)(b) and s.45(1)(c) of the FOI Act no longer remained in issue.5. I then wrote to the applicant setting out my preliminary views concerning the documents remaining in issue. The applicant was asked to indicate whether he accepted or contested my preliminary views. If the latter, the applicant was afforded the opportunity to provide me with a written submission addressing the issues for determination in the review under Part 5 of the FOI Act.6. In a letter received on 24 November 1993, the applicant advised that he accepted my preliminary view that the matter claimed to be exempt by Queensland Health in reliance on s.44(1) of the FOI Act was exempt matter under that section. The applicant accordingly no longer seeks review under Part 5 of the FOI Act in respect of that part of the internal review decision which held that certain matter was exempt under s.44(1) of the FOI Act. My preliminary views in relation to the documents claimed to be exempt pursuant to s.42(1)(e) of the FOI Act were not accepted by the applicant. The applicant provided a written submission concerning the documents remaining in issue. His submissions may be summarised as follows: ? The applicant was concerned that the matter claimed to be exempt by Queensland Health pursuant to s.42(1)(e) of the FOI Act could contain "errors and distortions" and, accordingly, he wanted the accuracy of the matter contained therein verified. The applicant submitted that the person best able to verify the accuracy of the relevant matter was the applicant himself. Essentially the applicant's submission was that he should be afforded access to the documents to enable him to verify or dispute the accuracy of the matter recorded therein. ? The applicant submitted that the matter contained in the documents in issue may reveal that, in respect of the applicant, there had been a breach of any number of State and Federal laws or international conventions relating to privacy, human rights and civil rights. The applicant did not identify any particular laws or international conventions which he alleged may have been breached.7. Queensland Health was afforded the opportunity to make a submission to me in relation to the issues arising for determination under s.42(1)(e) of the FOI Act. By letter dated 13 January 1994, Dr Lange provided me with a written submission which is discussed further below.The Applicable Legislative Provisions8. Section 42(1)(e) of the FOI Act provides as follows: "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)."9. The other relevant provisions of s.42 are as follows: "(2) Matter is not exempt under subsection (1) if - (a) it consists of - (i) matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law; ... ... and (b) its disclosure would, on balance, be in the public interest. ... (4) A reference in this section to a contravention or possible contravention of the law includes a reference to misconduct or official misconduct, or possible misconduct or official misconduct, within the meaning of the Criminal Justice Act 1989. (5) In this section - "law" includes law of the Commonwealth, another State, a Territory or a foreign country."Analysis of Section 42(1)(e) of the FOI ActLawful Methods or Procedures10. The object of s.42(1)(e) is to provide a ground for refusing access to information, which ground may be invoked in circumstances where disclosure of the information could reasonably be expected to prejudice the effectiveness of methods and procedures adopted by government agencies undertaking law enforcement activities. However, s.42(1)(e) does not provide a blanket protection for every method and procedure adopted by government agencies. The methods and procedures used by an agency must be "lawful" to be afforded protection under this exemption. 11. In considering the meaning of "lawful" for the purposes of s.42(1)(e) of the Queensland FOI Act, it is of assistance to examine the legislative history of the corresponding provision of the Freedom of Information Act 1982 Cth (the Commonwealth FOI Act), s.37(2)(b), which provides as follows: "A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to ... (b) disclose lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures."12. The word "lawful" was not included in the original draft of the Commonwealth Bill but was inserted on the recommendation of the Senate Standing Committee on Constitutional and Legal Affairs. In its 1979 Report on the Draft Commonwealth Freedom of Information Bill, the Committee discussed the issue of disclosure of unlawful law enforcement practices (at p.228; paragraph 20.7): "Most of the evidence submitted to the Committee on clause 27 [s.37] concentrates on the need to ensure the disclosure of documents revealing the use of illegal law enforcement techniques or that an investigation has exceeded the limits imposed by law. The University of Queensland Public Interest Research Group referred to such illegal law enforcement practices as unauthorised 'bugging' (telephone tapping and other electronic surveillance), 'verballing' (fabrication of confessions) and 'entrapment' (solving crime by assisting or encouraging it to take place). These and other unlawful practices are extensively documented in the Australian Law Reform Commission's report Criminal Investigation. Given the growing criticism of police practices in recent years, we would favour any measure which would enable the exposure of unlawfulness and which would, in due course, help to enhance public confidence in law enforcement processes. We therefore propose that paragraph 27(d) be amended to enable disclosure of documents which would reveal unlawfulness in law enforcement procedure. This can best be achieved by inserting the word 'lawful' in paragraph (d) before the words 'methods or procedures'. Unlawful methods and procedures of law enforcement would thereby be excluded from the exemption."13. In Queensland, the Electoral & Administrative Review Commission's Report on Freedom of Information (December 1990, No.90/R6) (the EARC Report) recommended the enactment of its draft Freedom of Information Bill, clause 24(1)(e) of which is identical to s.42(1)(e) of the FOI Act, as ultimately enacted by the Queensland Parliament. Paragraph 7.139 of the EARC Report stated: "The Commission is conscious of the tension between the need to properly protect law enforcement procedures and the public safety on the one hand, and the need to satisfy the public interest in the disclosure of unsatisfactory law enforcement practices. ... The Commission considers that clause 34 of the draft Bill properly gives effect to the tension in relation to this exemption. Clause 34 is consistent with provisions in the FOI legislation of other Australian jurisdictions."14. The presence of the word 'lawful' in s.42(1)(e) produces the effect that matter the disclosure of which could only prejudice the effectiveness of an unlawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law, does not qualify for exemption under s.42(1)(e). This complements the legislature's intention evident in s.42(2)(a)(i) of the FOI Act which provides in effect that matter which might qualify for exemption under any of the exemption categories in s.42(1)(a) to (j) inclusive, is not exempt if it consists of "matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law", provided also that its disclosure would, on balance, be in the public interest (as stipulated by s.42(2)(b)). 15. If an agency asserts that disclosure of particular matter would prejudice the effectiveness of the methods or procedures adopted in an investigation, but it is established that those methods or procedures are unlawful, then the matter cannot be exempt under s.42(1)(e) and it is unnecessary to have recourse to s.42(2)(a)(i) and s.42(2)(b). If, however, the same matter were claimed to be exempt under another exemption category in s.42(1) (e.g. s.42(1)(a) which is not expressly confined to prejudice to a lawful investigation of a contravention or possible contravention of the law), then it would be necessary to consider whether the matter fell within the exception provided by for s.42(2)(a)(i), which must be read cumulatively with s.42(2)(b).Contravention or Possible Contravention of the Law (including revenue law)16. Although the words "contravention of the law" tend immediately to bring to mind the criminal law (including statutory provisions of a regulatory nature which provide for an offence punishable by a fine or imprisonment or both), contraventions or possible contraventions of the law need not be confined to the criminal law. There are clear enough indications to this effect in the words in parentheses in s.42(1)(a), s.42(1)(e) and s.42(2)(a)(iv) of the FOI Act; and see paragraph 43 of my reasons for decision Re McEniery and the Medical Board of Queensland, (Information Commissioner Qld, Decision No. 94002, 28 February 1994, unreported). There is no reason why the words of s.42(1)(e) should not be read as extending to any law which imposes an enforceable legal duty to do or refrain from doing some thing. I note in this regard that s.36 of the Acts Interpretation Act 1954 Qld provides that in an Act: "'contravene' includes: (a) breach; and (b) fail to comply with;"A law may be contravened in circumstances where the breach does not attract a sanction of a penal nature. There are many instances of a statute imposing a legal duty of general or specific application but imposing no criminal penalty for a breach of the duty, usually because enforcement of the duty is intended to be achieved by other means, which are often specifically provided for in the statute itself. This can be illustrated by examples drawn from the Fair Trading Act 1989 Qld and the Anti-Discrimination Act 1991 Qld.17. Sections 38 and 39 of the Fair Trading Act prohibit misleading or deceptive conduct, and unconscionable conduct, respectively, on the part of persons engaged in trade or commerce; but a contravention of those provisions does not constitute a criminal offence (see s.92 of the Fair Trading Act). The Fair Trading Act contemplates that those legal duties may be enforced by a civil action for damages (in the case of s.38) or a civil action for an injunction to restrain the illegal conduct (in the case of both of s.38 and s.39): see s.98 and s.99 of the Fair Trading Act.18. The Anti-Discrimination Act prohibits discrimination on the basis of a number of attributes specified in s.7 of the Act (e.g. sex, marital status, race, religion) in certain designated activities (e.g. work, education, accommodation). The Anti-Discrimination Commission has the power to investigate allegations of discrimination which, if proven, would contravene the provisions of the Anti-Discrimination Act. However, the powers of the Anti-Discrimination Commission in dealing with a contravention or possible contravention of the Act are limited to resolving the complaint by conciliation or by referring the complaint to the Anti-Discrimination Tribunal, which (following a formal hearing) has the power to make orders binding on the parties to the complaint.19. Using these two instances simply by way of illustration, a lawful method or procedure used by officers of the Department of Consumer Affairs for preventing, detecting, investigating or dealing with a contravention or possible contravention of s.38 or s.39 of the Fair Trading Act could fall within the scope of s.42(1)(e) of the FOI Act if its effectiveness could reasonably be expected to be prejudiced by the disclosure of particular information; and likewise for lawful methods or procedures used by the Anti-Discrimination Commission for preventing, detecting, investigating or dealing with a contravention or possible contravention of the Anti-Discrimination Act.20. The word "law" is given an inclusive definition in s.42(5) of the FOI Act, which stipulates that for the purposes of s.42, the "law" includes the law of the Commonwealth, another State, a Territory or a foreign country. The inclusion of a foreign country in the s.42(5) definition avoids the possibility of a result in Queensland similar to that in the decision of the Commonwealth Administrative Appeals Tribunal (AAT) in Re Conte and Australian Federal Police (1985) 7 ALN N71 (Re Conte). In Re Conte, documents concerning the applicant were claimed to be exempt by the Australian Federal Police (the AFP) under s.37(2)(b) of the Commonwealth FOI Act. Section 37(3) of the Commonwealth FOI Act defines the "law" for the purposes of that section to mean the "law of the Commonwealth or of a State or Territory". The documents in issue concerned proceedings brought in the Western Australian Magistrates' Court for the extradition of the applicant to Italy for offences under Italian bankruptcy law. The evidence before the Tribunal was that no allegation had been made against the applicant for the breach of any law other than that of Italy. The Tribunal held that the relevant documents were not exempt pursuant to the provisions of s.37(2)(b) of the Commonwealth FOI Act as there had been no breach or evasion of a Commonwealth or State law pursuant to the definition of "law" in s.37(3) of the Commonwealth FOI Act. Disclosure Could Reasonably Be Expected to Prejudice the Effectiveness of the Methods or Procedures21. The phrase "could reasonably be expected to" in s.42(1) of the FOI Act bears the same meaning as it does in s.46(1)(b) of the FOI Act, which meaning was explained in Re "B" and Brisbane North Regional Health Authority (Information Commissioner Qld, Decision No. 94001, 31 January 1994, unreported) at paragraphs 154-161. In particular, I stated at paragraph 160: "... The words 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."23. There is a diverse group of government agencies in Queensland performing law enforcement functions directed towards preventing, detecting, investigating or dealing with contraventions or possible contraventions of the law. Each agency will have developed (and will probably continue to develop and refine) methods and procedures to assist in the performance of its particular law enforcement responsibilities. Some methods and procedures may depend for their effectiveness on secrecy being preserved as to their existence, or their nature, or the personnel who carry them out, or the results they produce in particular cases. It is not possible to list the types of methods or procedures which may qualify for protection under s.42(1)(e) of the FOI Act. Each case must be judged on its own merits. The question of whether or not the effectiveness of a method or procedure could reasonably be expected to be prejudiced by the disclosure of particular matter sought in an FOI access application, is the crucial judgment to be made in any case in which reliance of s.42(1)(e) is invoked.24. There may be cases where the disclosure of particular matter will so obviously prejudice the effectiveness of law enforcement methods or procedures that the case for exemption is self-evident, but ordinarily in a review under Part 5 of the FOI Act it will be incumbent on an agency to explain the precise nature of the prejudice to the effectiveness of a law enforcement method or procedure that it expects to be occasioned by disclosure, and to satisfy me that the expectation of prejudice is reasonably based. I will ordinarily not be able to refer in my reasons for decision to the precise nature of the prejudice, nor in many cases to the nature of the relevant methods or procedures (where that would subvert the reasons for claiming an exemption in the first place) but I will, in any event, need to be satisfied that the agency has discharged its onus under s.81 of the FOI Act of establishing all requisite elements of the test for exemption under s.42(1)(e) of the FOI Act. 25. For the reason just referred to, the case law from other jurisdictions involving exemption provisions which correspond to s.42(1)(e) of the Queensland FOI Act does not contain much detail as to the kinds of prejudice and the kinds of law enforcement methods and procedures that were involved in cases where the claim for exemption was upheld. Often it is the disclosure of the nature of the methods or procedures themselves which will prejudice their effectiveness. Several ways in which methods and procedures may be disclosed were identified by Deputy President Hall of the Commonwealth AAT in Re Anderson and Australian Federal Police [1986] AATA 79; (1986) 4 AAR 414 (Re Anderson) at p.424: "A document may disclose methods or procedures either by specifically referring to or describing them or by providing information from the nature of which the methods or procedures employed may be capable of being inferred."26. The information "from the nature of which the methods or procedures employed may be capable of being inferred" can include the results produced by the methods or procedures in a particular case, which is the position with respect to the folios claimed to be entirely exempt in the present case.27. Decisions from other Australian jurisdictions with freedom of information legislation have been more forthcoming in identifying when the lawful methods or procedures adopted by law enforcement agencies will not be afforded protection under provisions which correspond to s.42(1)(e) of the Queensland FOI Act. In Re Anderson Deputy President Hall said (at p.425): "Questions of prejudice are, I think, more likely to arise where the disclosure of a document would disclose covert, as opposed to overt or routine methods of procedures."28. In Re Lapidos and Auditor-General of Victoria (1989) 3 VAR 343 (Re Lapidos), the Auditor-General claimed the corresponding exemption under s.31(1)(d) of the Victorian Freedom of Information Act 1982 (the Victorian FOI Act) in relation to one of the documents in issue. Deputy President Galvin of the Victorian AAT held that the document was not exempt under the provisions of s.31(1)(d). At p.352, Deputy President Galvin stated: "Document No. 14 identifies certain methods and procedures but of so patently an ordinary and fundamental kind as to preclude the conclusion that disclosure of them would or would be reasonably likely to prejudice their effectiveness."29. While no details were provided in Re Lapidos of the methods and procedures in issue, an obvious example of such overt, or ordinary and fundamental, methods or procedures was identified in the decision of the Commonwealth AAT in Re Ward and Australian Federal Police (No. V85/414, 20 February 1987, unreported). In that case, one of the documents in issue was claimed to be exempt pursuant to the provisions of s.37(2)(b) of the Commonwealth FOI Act. The Commonwealth AAT found that the exemption had not been made out in the circumstances, as the disclosure of the document could not reasonably be expected to prejudice the effectiveness of the method identified in the document. The nature of the method disclosed by the document was discussed in the Tribunal's decision at paragraph 16 as follows: "Undoubtedly, disclosure of the document would disclose a lawful method for investigating or dealing with matters arising out of breaches or evasions of the law, that is to say information is sought from as many persons as possible who may be able to give relevant information and that information is then evaluated and placed on record. But that is precisely what would be expected."30. Obviously, the method used by law enforcement agencies of gathering information in relation to an investigation from as many sources as possible, the evaluation of that information and the placement of it on the agencies' records is a fundamental and overt method, the disclosure of which would not prejudice its effectiveness in the future.31. In Re Lawless and Secretary to Law Department and Ors (1985) 1 VAR 42, the documents in issue included a tape recording of a conversation between the Victorian Police and a third party, and a signed statement prepared during the course of that conversation. The Victorian AAT found the document not to be exempt pursuant to the provisions of s.31(1)(d) of the Victorian FOI Act. At p.50 of his decision, Rowlands J. (President) of the Victorian AAT, stated as follows: "The methods or procedures employed by the police in regard to this matter amounted to an interview by police officers which involved taping of proceedings and taking of a statement which was reduced to type. These practices are widespread and evidence of them is given daily in the courts."32. Disclosure of methods and procedures adopted by law enforcement agencies which are obvious and well known to the community (e.g. interviewing and taking statements from witnesses to a crime) is not likely to prejudice their effectiveness, for the purposes of s.42(1)(e) of the Queensland FOI Act. In respect, however, of methods and procedures that are neither obvious nor a matter of public notoriety, the mere fact that evidence of a particular method or procedure has been given in a proceeding before the courts would not preclude an agency from asserting, in the appropriate case, that disclosure under the FOI Act could reasonably be expected to prejudice the effectiveness of that method or procedure in the future. The courts may compel the disclosure of a particular law enforcement method or procedure where the interests of justice require it in a particular case, but s.42(1)(e) affords a self-contained ground of exemption, which is not subject to a countervailing public interest test of the kind to be found in s.44(1), s.46(1)(b) and several other exemption provisions. (Section 42(1)(e) is of course subject to the exceptions provided for in s.42(2) as noted earlier.) If, however, the revelation of a law enforcement method or procedure in open court in a particular case has been so widely reported as to become a matter of public notoriety, there may be a real question as to whether its disclosure under the FOI Act could be capable of prejudicing its effectiveness.33. In respect of methods and procedures that are not obvious and widely known, but which might be reasonably suspected, tribunals in other jurisdictions have adopted a cautious approach. In Re Mickelberg and Australian Federal Police (1984) 6 ALN N176, the Commonwealth AAT said: "... it is one thing for observers to deduce, with varying success from everyday experience media reports and other informal sources, what appear to be the methods and procedures employed by such agencies to achieve their objects, but it is quite another thing to have spelt out publicly from the agncies' own documents or in the proceedings of a Tribunal such as this what those methods and procedures are. The risk that they may be less effective would seem to be increased if a person endeavouring to combat or evade them has authoritative knowledge of them."34. To like effect is the Commonwealth AAT's decision in Re Arnold Bloch Leibler and Co and Australian Taxation Office (No. 2) (1985) 9 ALD 7 where the issue considered was whether or not a document of the Australian Taxation Office (the ATO), being its Investigation Training and Reference Text (the Text), was exempt under s.37(2)(b) of the Commonwealth FOI Act. The Text contained information relating to the methods and procedures adopted by the ATO in conducting investigations and contained information concerning methods, procedures, techniques and guidelines to be employed by officers of the ATO in the performance of their duties. It also contained material relating to the methods and procedures adopted by individuals to avoid income tax or to prevent detection of breaches of taxation law, and material relating to sources of information which could assist in detecting evasions or breaches of the law. There were restrictions on the availability of the Text within the ATO. Officers to whom copies of the Text were issued were responsible for its safe custody and they were not permitted to remove their copy from the office without express approval of the Director. On leaving the service of the ATO an officer's copy of the Text was to be returned to his or her supervisor. In its decision, the Commonwealth AAT stated as follows (at p.13): "As counsel for the respondent observed, much of what is in the Text is probably known to, or is suspected by, many persons, who might be familiar with the techniques that are elaborated in the documents. But it is not to be assumed that every person who might be minded to offend against the taxation laws is so sophisticated. To the extent that persons are not aware of the techniques used, then investigations will be that much more effective and the rearrangement of affairs, or the reshaping in advance of answers to questions that may be asked, that much less effective." 35. As is suggested by the foregoing passage, the test of whether prejudice to the effectiveness of lawful methods or procedures could reasonably be expected, is generally to be approached without regard to the identity of the particular applicant for access under the FOI Act, nor to that applicant's motive for seeking the information. There is an exception to this general principle when s.6 of the FOI Act applies, since it expressly requires that the fact that a document contains matter relating to the personal affairs of the applicant for access is an element to be taken into account in deciding the effect that the disclosure of the matter might have.36. The test of a reasonable expectation of prejudice has to be applied according to an evaluation of the relevant circumstances prevailing at the time when a decision whether or not to claim the exemption is required to be given. There may well be cases where the giving of access to information at a particular stage in the process of using a law enforcement method or procedure will prejudice its effectiveness, but with the passage of time the threat of prejudice is removed.37. As already noted s.42(1)(e) of the FOI Act, in common with the other exemption categories in s.42(1), does not contain a countervailing public interest test requiring consideration of whether or not the disclosure of the matter in issue would, on balance, be in the public interest. Application of Section 42(1)(e) of the FOI Act to the Documents in IssueThe Documents in Issue38. The documents remaining in issue are: ? folios 3, 11, 20, 22, 25, 50, 51, 74, 75, 78 and 84, which are claimed by Queensland Health to be entirely exempt under s.42(1)(e) of the FOI Act; and ? folios 12, 19, 21, 31 and 73, from which certain matter has been deleted by Queensland Health on the basis that it is exempt matter under s.42(1)(e) of the FOI Act.39. The documents in issue were created between October 1990 and August 1992 and concern the applicant's receipt of methadone by way of prescription from his treating psychiatrist. The documents in issue form part of a number of documents held by Queensland Health relating to the monitoring by the Drugs of Dependence Unit (the DDU) of Queensland Health of the applicant's receipt of methadone by prescription.40. The folios claimed by Queensland Health to be entirely exempt are all of the same nature and contain a similar type of information, with each of those documents having been created on a different date. Further, the matter deleted from folio 21 consists of a partial copy of the matter recorded on folio 22.41. Folio 31 consists of a typed copy of a handwritten file note, being folio 12, which makes reference to the type of information and the nature of the documents which have been claimed to be entirely exempt. The matter deleted from folios 19 and 73 consists of references of the same type as in folios 12 and 31.Submissions by Queensland Health42. In her decision of 14 April 1993, Dr Lange stated as follows: "The original decision-maker also considered the following facts in exempting 18 documents and deleting matter from 8 pages. 1. The documents contain a variety of methods and procedures used to ensure the effective administration of the Poisons Regulation 1973. 2. Disclosure of these methods would prejudice the effectiveness of lawful methods or procedures used to detect, investigate or deal with contravention or possible contravention of the law. In considering the above facts in relation to section 42(1), the decision-maker decided that the matter was exempt under section 42(1)(e). The decision was made on the grounds that release of the documents would reasonably be expected to prejudice the effectiveness of current methods and procedures used in the administration of the Poisons Regulation 1973. I have examined the documents in question. I have decided to uphold the original decision to exempt documents and delete matter under section 42(1)(e) of the Freedom of Information Act. I am of the opinion that current methods and procedures for information gathering and investigation of offences and possible breaches of the Poisons Regulation must be protected if they are to remain effective. Sources of information and the methods of collation of relevant data are of prime importance in ensuring the efficient and effective administration of this law and should therefore remain exempt. ..."43. Queensland Health's written submission dated 13 January 1994 addressed more expansively the methods and procedures adopted by Queensland Health to prevent, detect, investigate and deal with contraventions or possible contraventions of the law, as well as the relevant law in issue and the prejudicial effect disclosure of the documents in issue would have on the methods and procedures identified. I am constrained from reproducing much of Queensland Health's written submission by s.87(2)(a) of the FOI Act, as the very matter claimed to be exempt would thereby be revealed. 44. Queensland Health's submission in relation to the relevant "law" (for the purposes of s.42(1)(e)) in this case was as follows: "The law which is relevant to the documents to which section 42(1)(e) has been applied is the Health Act 1937, and under section 152 of that Act, the Poisons Regulation 1973. The Poisons Regulation contains a number of provisions relating to the prescription, dispensing, sale, supply, manufacture and possession of drugs of dependence. Drugs of dependence are those listed in schedule 8 of the Standard for the Uniform Scheduling of Drugs and Poisons referred to in the Regulation. These drugs are dangerous drugs for the purpose of the Regulation. Particularly, the Poisons Regulation may be contravened by persons forging and altering prescriptions (section N1), making false representations to obtain drugs of dependence (section N2) and failing to disclose to medical practitioners and dentists details of drugs obtained in the previous two months (section N3). [The applicant] would have been monitored by the Drugs of Dependence Unit (DDU) (which was established to enforce the Act and the Regulation) in respect of these particular provisions."45. Reference was made by Queensland Health to two sections of the Poisons Regulation 1973 by virtue of which information is collected by the DDU as part of its system of enforcing the Poisons Regulation. Those sections provide as follows: "H5. Endorsing and Disposal of Prescriptions H5.01. (a) A person who dispenses a dangerous drug or a restricted drug upon a prescription shall, on the day he dispenses such dangerous drug or restricted drug, endorse in ink on the face of such prescription - (i) in his own handwriting, the date of such dispensing; (ii) his usual signature; (iii) the name and address of the dispensary; (iv) the repeat number, if it is a repeat dispensing; and (v) the word "cancelled": Provided that in the case of a prescription bearing a valid direction to repeat, the provisions of subclause (v) shall apply only to the last occasion of dispensing upon such prescription as determined by the prescriber's direction thereon. (b) A person who dispenses a dangerous drug or a substance to which the provisions of subregulations A6.01, A6.03 or A6.04 apply upon a prescription shall, within fourteen days of such dispensing, forward such prescription to the Director-General: Provided that in the case of a prescription bearing a valid direction to repeat, the provisions of this clause (b) shall apply only to the last occasion of dispensing upon such prescription as determined by the prescriber's direction thereon. (c) In respect of a prescription prescribing a dangerous drug or a substance to which the provisions of subregulations A6.01, A6.03 or A6.04 apply issued under the National Health Act 1953-1972 of the Commonwealth of Australia or the Repatriation Act 1920-1973 of the Commonwealth of Australia the duplicate of such prescription shall be and be deemed to be a prescription for the purposes of this subregulation only: Provided that it shall not be necessary to endorse on such duplicate the word 'cancelled'." "M1. Director-General to be Notified of Lengthy Treatment M1.01. A medical practitioner who, in the course of his medical practice, supplies, dispenses, prescribes or administers a dangerous drug in the treatment of a patient for a period which will extend or which has extended for a period greater than two calendar months, shall forthwith report the circumstances of the case in writing to the Director-General. Such report shall contain the name and address of the patient, the name of the dangerous drug involved and the medical condition for which he considers the use of such dangerous drug necessary, together with all such other particulars as the Director-General may from time to time require."46. It would not be appropriate to reproduce all of Queensland Health's submission in relation to what prejudicial effect the disclosure of the matter in issue would have, but the following passages indicate the general nature of the concerns held by Queensland Health: "It must be recognised that some of the DDU's clients are often quite ingenious in developing strategies to avoid detection in their pursuit of drugs of dependence. A number of individuals are also quite volatile and at times even dangerous. If the methodology were to become accessible to the public, drug dependent persons would be able to assess the efficacy of their own methods for obtaining dangerous drugs without being detected ... . Many persons who are addicted to dangerous drugs have criminal tendencies, are on probation or in the corrective services system. If the methods are rendered ineffective by wide public knowledge, then it is reasonable to assume that easier access may be gained by such persons to dangerous drugs. This consequence, and the fact that such persons would not fear detection, could ultimately have a deleterious effect on the safety of the public."The Relevant Statutory Provisions47. Section 152 of the Health Act 1937 Qld gives the Director-General of Queensland Health the power to make regulations in respect of the matters enumerated therein. Section 152(1)(xvii) is relevant for present purposes and provides as follows: "152. Regulations. (1) The Director-General may from time to time make regulations with respect to all or any of the following matters, namely:- ... (xvii) Regulating and controlling and, as deemed necessary, prohibiting or restricting the ownership, possession, manufacture, cultivation, sale, distribution, supply, use, lending, dispensing, prescribing, or giving away of, or forging and uttering of prescriptions for or any other dealings with poisons, restricted drugs, dangerous dugs, biological preparations or goods for therapeutic use under and within the meaning of the Therapeutic Goods Act 1966 of the Commonwealth or any Act amending the same or in substitution therefor; ... regulating the supply of drugs to drug dependent persons ... ."48. The Poisons Regulation, made pursuant to s.152 of the Health Act, regulates the manufacture, packaging and labelling, storage, possession, sale, prescription and use of poisons, restricted drugs and dangerous drugs.49. Pursuant to sub-section A2.03(b), "dangerous drugs" are taken to be those substances listed in Schedule 8 of the Standard for the Uniform Scheduling of Drugs and Poisons (the Standard). Methadone is a substance listed in Schedule 8 of the Standard and is, accordingly, a "dangerous drug" for the purposes of the Poisons Regulation. Those drugs listed in Schedule 8 of the Standard are commonly accepted as falling within the category of "drugs of dependence".50. Part N of the Poisons Regulation contains specific offences in respect of matters relating to dangerous drugs. In its written submission, Queensland Health made specific reference to the offences contained in sections N1, N2 and N3 of Part N, which provide as follows: "N1. Forging and Uttering Prescriptions N1.01. A person shall not utter or attempt to utter a prescription prescribing a dangerous drug or a restricted drug if the prescription - (a) has been written by a person not authorised so to do under these regulations; or (b) falsely states the name or current residential address of the person for whom the drug has been prescribed. N1.02. A person, other than the person who wrote a prescription, shall not alter nor obliterate nor make an endorsement on such prescription. N1.03. A person shall not utter nor attempt to utter a prescription prescribing a dangerous drug or a restricted drug if such prescription has thereto, therein or thereon an alteration, obliteration or endorsement made by a person other than the person who wrote such prescription. N1.04. The provisions of this Regulation shall not relate nor be deemed to relate to an endorsement made as prescribed by these Regulations by an authorised person. N2. False Representations N2.01. A person shall not, by a false representation, obtain nor attempt to obtain - (a) a dangerous drug or a restricted drug from a person authorised by these Regulations to sell, supply, dispense or administer a dangerous drug or a restricted drug; or (b) a prescription for a dangerous drug or a restricted drug from a person authorised by these Regulations to prescribe a dangerous drug or a restricted drug. N2.02. A person shall not make a false representation whatsoever concerning an order or prescription for a dangerous drug or a restricted drug given by a person authorised by these Regulations to give such order or prescription. N2.03. A person shall not falsely state his name or current residential address to a person authorised by these regulations to sell, supply, dispense, prescribe or administer a dangerous drug or a restricted drug or to an employee or agent of such authorised person acting within the course of his employment or agency. N3. Failure to Disclose Information to Practitioners N3.01. A person shall not by representation made to a medical practitioner or a dentist obtain or attempt to obtain - (a) a dangerous drug; or (b) a restricted drug; or (c) a prescription for a dangerous drug; or (d) a prescription for a restricted drug, without first informing such medical practitioner or dentist of the details, including the quantity, of all dangerous drugs and restricted drugs or prescriptions in relation thereto which he has obtained from another medical practitioner or dentist within the period of two months prior to such representation."51. Penalties for the offences contained in Part N of the Poisons Regulation are provided for in Part Q - Offences and Penalties. Sub-section Q2.01 provides as follows: "Q2.01. A person who is guilty of an offence against any of the provisions of Regulation D1 or of Part N so far as such Regulations or Part relate to any of the matters prescribed pursuant to the provisions of sub-paragraphs (a), (b), (c), (d). or (e) of paragraph (xxviii) of subsection (1) of Section 152 of the Act shall be liable for a first offence to a penalty not exceeding one thousand dollars ($1000) and for a second or subsequent offence, whether or not of the same nature or against the same provision, to a penalty not exceeding two thousand dollars ($2000)."The Methods and Procedures used by the DDU52. It is the function of the DDU to enforce, inter alia, the provisions of the Health Act and the Poisons Regulation which are referred to above. In doing so, the DDU has developed a system of monitoring the prescribing of dangerous drugs to assist it in preventing, detecting and investigating contraventions or possible contraventions of Part N of the Poisons Regulation. 53. The written submission of Queensland Health addressed a number of methods and procedures adopted by the DDU in the performance of its functions under the Poisons Regulation. As a result of the implementation of a number of the methods and procedures used by the DDU in preventing or detecting a contravention or possible contravention of the provisions contained in Part N of the Poisons Regulation, folios 3, 11, 20, 22, 25, 50, 51, 74, 75, 78 and 84 were created. The information collated in those documents assists the DDU in detecting whether or not there has been a contravention of the provisions of Part N of the Poisons Regulation.54. Disclosure of folios 3, 11, 20, 22, 25, 50, 51, 74, 75, 78 and 84, together with the matter deleted from folio 21, would disclose methods and procedures adopted by the DDU in detecting a contravention or possible contravention of the Poisons Regulation. Disclosure of the matter deleted from folios 12, 19, 31 and 73 would reveal information by means of which the methods and procedures used by the DDU could be identified. Those methods and procedures involve the collation of data lawfully obtained by the DDU in performance of its functions under the provisions of the Poisons Regulation.55. I find that the methods and procedures adopted by the DDU are lawful within the meaning of s.42(1)(e) of the FOI Act. I also find that s.42(2) can have no application in this case, since none of the matter remaining in issue falls within any of the categories specified in s.42(2)(a) of the FOI Act.Prejudice to the Effectiveness of the Methods and Procedures used by the DDU56. The written submission of Queensland Health addressed the issue of what prejudice could reasonably be expected to be caused to the effectiveness of the methods and procedures used by the DDU in disclosing matter of the kind recorded on folios 3, 11, 20, 22, 25, 50, 51, 74, 75, 78 and 84. I am satisfied from my examination of all the folios in issue that the expectation of prejudice identified by Queensland Health is reasonably based in view of the nature of the information involved and the prospects for its use in evading the provisions of Part N of the Poisons Regulation. In accordance with s.6 of the FOI Act, I have taken into account the fact that the matter in issue relates to the personal affairs of the applicant, and the applicant's concern to ensure that the information is accurate (see paragraph 6 above), but I am nevertheless satisfied that disclosure of the matter in issue could reasonably be expected to have a prejudicial effect which would satisfy the test for exemption under s.42(1)(e) of the FOI Act.57. I find that disclosure of the folios claimed to be entirely exempt, together with the matter deleted from folios 12, 19, 21, 31 and 73, could reasonably be expected to prejudice the effectiveness of the lawful methods and procedures (for preventing, detecting, investigating or dealing with a contravention or possible contravention of the statutory provisions referred to above) by which those folios were produced or to which reference is made therein.The Applicant's Submissions58. The written submissions made by the applicant in the present external review are summarised above at paragraph 6.59. His first submission was to the effect that he should be afforded access to the documents in issue to enable him to verify or dispute the accuracy of the matter recorded therein. The applicant's stated aim is consistent with one of the objects of the FOI Act specifically recognised in s.5(1)(c). However, s.5(2) of the FOI Act also recognises that where disclosure of information would have a prejudicial effect on essential public interests, there should be a capability to refuse access to that information. Section 42(1)(e) embodies one such essential public interest. The accuracy of matter recorded in a document in issue is not a relevant element in establishing the test for exemption provided by s.42(1)(e) of the FOI Act. Accordingly, whether the matter contained in the documents in issue is correct or incorrect, or contains what the applicant refers to as "distortions", has no bearing on whether the test for exemption (which has to do with prejudicing the effectiveness of law enforcement methods or procedures) is made out, except so far as s.6 of the FOI Act requires it to be taken into account on the basis that the matter in issue relates to the applicant's personal affairs. I have already found (at paragraph 56 above) that the application of s.6 to the matter in issue in this case still results in the test for exemption under s.42(1)(e) being satisfied.60. The applicant's second concern was that the matter recorded in the documents in issue may reveal that Queensland Health breached any number of State or Federal laws or International Conventions relating to privacy, human rights and civil rights. However, as discussed above at paragraphs 52 to 55 , I have found that the matter recorded in the documents in issue concerns methods and procedures adopted by the DDU in the performance of its function of administering and enforcing the provisions of the Health Act and the Poisons Regulation, and that the methods and procedures adopted by the DDU were lawful.Conclusion61. As explained at paragraph 4 above, Queensland Health agreed during the course of the review process to give the applicant access to a number of folios which had initially been claimed to be exempt, and I have previously authorised Queensland Health to give the applicant access to those folios. The folios remaining in issue were identified at paragraph 38 above. For the foregoing reasons, I find that the matter remaining in issue is exempt matter under s.42(1)(e) of the FOI Act. Accordingly, I affirm that part of the decision under review which held that the folios and parts of folios identified at paragraph 38 comprise exempt matter under s.42(1)(e) of the FOI Act.............................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Antony and Griffith University [2001] QICmr 3 (30 March 2001)

Antony and Griffith University [2001] QICmr 3 (30 March 2001) Last Updated: 18 January 2006 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 03/2001 Application S 180/00 Participants: GEORGE ANTONY Applicant GRIFFITH UNIVERSITY Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - curriculum vitae and supporting documents submitted by the successful candidate for an academic appointment - whether disclosure would found an action for breach of confidence - application of s.46(1)(a) of the Freedom of Information Act 1992 Qld. FREEDOM OF INFORMATION - refusal of access - whether disclosure could reasonably be expected to have a substantial adverse effect on the management or assessment by the University of its personnel - application of s.40(c) of the Freedom of Information Act 1992 Qld. Freedom of Information Act 1992 Qld s.30(3)(c), s.40(c), s.41(1), s.44(1), s.46(1)(a), s.46(1)(b), s.78, s.81 Freedom of Information Act 1982 Vic s.33(1), s.35(1) "B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279 Baldwin and Department of Education, Re [1996] QICmr 8; (1996) 3 QAR 251 Cairns Port Authority and Department of Lands, Re [1994] QICmr 17; (1994) 1 QAR 663 Dyki and Federal Commission of Taxation, Re (1990) 22 ALD 124 Hawck and Department of Training and Industrial Relations, Re (Information Commissioner Qld, S 150/96, 31 January 1997, unreported) Love and the University of Melbourne, Re (2000) 16 VAR 251 McCann and Queensland Police Service, Re [1997] QICmr 10; (1997) 4 QAR 30 Murphy and Queensland Treasury & Ors, Re [1995] QICmr 23; (1995) 2 QAR 744 Pemberton and The University of Queensland, Re (1994) 2 QAR 293 Shaw and The University of Queensland, Re [1995] QICmr 32; (1995) 3 QAR 107 DECISION I decide to vary the decision under review (which is identified in paragraph 3 of my accompanying reasons for decision) by finding that the matter remaining in issue (which is identified in paragraph 8 of my accompanying reasons for decision) is not exempt matter under s.46(1) or s.40(c) of the Freedom of Information Act 1992 Qld, and the applicant is entitled to obtain access to it under the Freedom of Information Act 1992 Qld. Date of decision: 30 March 2001 ......................................................... F N ALBIETZ INFORMATION COMMISSIONER OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 03/2001 Application S 180/00 Participants: GEORGE ANTONY Applicant GRIFFITH UNIVERSITY Respondent REASONS FOR DECISION Background 1. The applicant seeks review of the respondent's decision refusing him access, under the Freedom of Information Act 1992 Qld (the FOI Act), to certain documents relating to a selection process for an academic appointment. The applicant was an unsuccessful candidate for a position as Lecturer in Environmental Economics in the School of Environmental Studies at Griffith University (the University). By letter dated 30 March 2000, the applicant sought access, under the FOI Act, to "a copy of the application material of the successful candidate, as well as those of documents generated by the selection committee, including but not limited to criteria of assessment and scoring sheets, ...". 2. By letter dated 18 April 2000, the University informed the applicant that it had identified three documents (comprising 17 pages in total) as being responsive to the applicant's FOI access application, but that it had decided to refuse access to the documents under s.41(1) and s.46(1)(a) of the FOI Act. 3. By letter dated 12 May 2000, the applicant sought internal review. The University's internal review decision, dated 9 June 2000, was made by the Deputy Vice-Chancellor, Professor W J Lovegrove, who affirmed the initial decision. 4. By letter dated 8 August 2000, the applicant applied to me for review, under Part 5 of the FOI Act, of Deputy Vice-Chancellor Lovegrove's decision. External review process 2 5. During this review, the applicant contended that the University had failed to locate all documents responsive to the terms of his FOI access application. The Deputy Information Commissioner caused inquiries to be made of the University in that regard. As a result, a number of statutory declarations were provided by the University confirming that no further responsive documents existed. On being provided with copies of the statutory declarations, the applicant was prepared to accept that the University held no other documents responsive to the terms of his FOI access application. 6. Copies of the documents to which the applicant had been refused access were obtained and examined. They comprised: · Appointment Recommendation/Approval Form · referee reports (2) · the application submitted by the successful candidate for the advertised position. 7. During the course of this review, the applicant advised that he no longer sought access to the two referee reports, and hence they are no longer in issue in this review. In a letter to the University's solicitors dated 28 November 2000, the Deputy Information Commissioner conveyed his preliminary view that the Appointment Recommendation/Approval Form did not qualify for exemption under s.41(1) of the FOI Act. The Deputy Information Commissioner did, however, express a preliminary view that parts of the document qualified for exemption under s.44(1) of the FOI Act. The University accepted the Deputy Information Commissioner's preliminary view (as did the applicant in respect of the parts qualifying for exemption under s.44(1) of the FOI Act). Accordingly, the applicant has obtained partial access to the Appointment Recommendation/Approval Form, and that document is no longer in issue in this review. 8. Thus, the documents remaining in issue in this review are the application (comprising a curriculum vitae, statement addressing the selection criteria, and covering letter) submitted by the successful candidate for the position referred to in paragraph 1 above (the subject position). The applicant has also indicated that he does not wish to contest the University's claims for exemption in respect of the following personal affairs information contained in the documents in issue: the successful candidate's residential address, telephone and facsimile numbers, and e-mail address; his marital status, nationality, age, and date and place of birth; and the names, position held, telephone and facsimile numbers, and e-mail addresses of nominated referees. Accordingly, the matter remaining in issue in this review comprises the documents identified in the first sentence of this paragraph, minus the information identified in the second sentence of this paragraph. 9. In a letter to the University dated 17 August 2000, the Deputy Information Commissioner discussed the requirements to establish exemption under s.46(1)(a) of the FOI Act and advised that, on the material before him, he was not satisfied of the existence of a binding obligation of confidence requiring the University to refrain from disclosing to the applicant the matter which remains in issue in this review. The Deputy Information Commissioner referred the University to my decisions in Re Baldwin and Department of Education [1996] QICmr 8; (1996) 3 QAR 251 and Re Hawck and Department of Training and Industrial Relations (Information Commissioner Qld, S 150/96, 31 January 1997, unreported), and said that he could see no reason for there to be a departure from the approach in those decisions. 3 10. The University responded to the Deputy Information Commissioner's letter dated 17 August 2000 through a letter from its solicitors dated 15 September 2000. The University maintained its position that the matter in issue qualified for exemption under s.46(1)(a), and also s.40(c), of the FOI Act, and set out written arguments in support of its case. The applicant was provided with a copy of the University's response and attachments, and invited to lodge a written submission in reply, which he did by letter dated 3 October 2000. However, the comments made by the applicant in that letter are not relevant to the issues which remain for determination. 11. By letter dated 23 August 2000, the Deputy Information Commissioner wrote to the successful candidate for the subject position. The Deputy Information Commissioner explained why, on the material before him, he could find nothing to support the University's reliance upon s.46(1)(a) of the FOI Act as a ground for not disclosing the matter in issue to the applicant. The Deputy Information Commissioner also explained that information concerning the personal affairs of the successful candidate, that qualified for exemption under s.44(1) of the FOI Act, would not be disclosed to the applicant. (The Deputy Information Commissioner had forwarded a copy of the matter in issue, on which he had highlighted the information that, in his preliminary view, qualified for exemption under s.44(1) of the FOI Act.) The successful candidate was invited to respond to the letter, and to apply to be a participant in this review (in accordance with s.78 of the FOI Act), if he so wished. 12. The successful candidate did not respond to the Deputy Information Commissioner's letter, or return the telephone messages left on his voicemail by a member of my staff. 13. In making my decision, I have taken into account the following: · the contents of the matter in issue; · the initial decision on behalf of the University dated 18 April 2000; · the application for internal review dated 12 May 2000; · the internal review decision dated 9 June 2000; · the application for external review dated 8 August 2000; and · the University's submissions dated 15 September 2000. Application of s.46(1)(a) of the FOI Act 14. Section 46(1)(a) of the FOI Act provides: 46.(1) Matter is exempt if-- (a) its disclosure would found an action for breach of confidence; ... 15. I discussed the requirements to establish exemption under s.46(1)(a) in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279. The test for exemption is to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, possessed of appropriate standing to bring a suit to enforce an obligation of confidence said to be owed to that plaintiff, in respect of information in the possession or control of the agency faced with an application, under s.25 of the FOI Act, for access to the information in issue. I am satisfied that 4 the successful candidate for the subject position would have the requisite standing in respect of the matter remaining in issue. 16. In Re "B" , I indicated that there are five cumulative criteria that must be satisfied in order to establish a case for protection in equity of allegedly confidential information: (a) it must be possible to specifically identify the information in issue, in order to establish that it is secret, rather than generally available information (see Re "B" at pp.303-304, paragraphs 60-63); (b) the information in issue must possess "the necessary quality of confidence"; i.e., the information must not be trivial or useless information, and it must possess a degree of secrecy sufficient for it to be the subject of an obligation of conscience, arising from the circumstances in or through which the information was communicated or obtained (see Re "B" at pp.304-310, paragraphs 64-75); (c) the information in issue must have been communicated in such circumstances as to fix the recipient with an equitable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it (see Re "B" at pp.311-322, paragraphs 76-102); (d) it must be established that disclosure to the applicant for access under the FOI Act would constitute a misuse, or unauthorised use, of the confidential information in issue (see Re "B" at pp.322-324, paragraphs 103-106); and (e) it must be established that detriment is likely to be occasioned to the original confider of the confidential information in issue if that information were to be disclosed (see Re "B" at pp.325-330, paragraphs 107-118). 17. In his letter to the University dated 17 August 2000, the Deputy Information Commissioner noted that the University had not sought to address the above five criteria in either its initial or internal review decisions. While the University had stated, in its decision dated 18 April 2000, that: "The documents were prepared and provided to the University in confidence and on the basis that the documents would not be released to any other person", the Deputy Information Commissioner informed the University that, having viewed the matter in issue, he could find nothing on the documents to support this contention. Neither the curriculum vitae (CV) and response to the selection criteria submitted by the successful candidate, nor his covering letter submitting his application, contained any reference to the documents being provided in confidence. The Deputy Information Commissioner stated that he had also viewed the material to which potential job applicants to the University are referred on the University's website. In addition to the advertisement for the relevant position, applicants for employment are referred to the Position Classification Standard, the Summary Conditions of Employment, and Faculty/Office Information. The Deputy Information Commissioner could find no statement in the website material that job applications would be treated in confidence by the University. 18. Accordingly, on the material available to him, the Deputy Information Commissioner expressed the preliminary view that he was not satisfied of the existence of a binding obligation of confidence which required the University to refrain from disclosing the job application of the successful candidate to an applicant for access under the FOI Act. The Deputy Information Commissioner 5 invited the University to lodge evidence and/or written submissions in support of a case for exemption. 19. The University responded by lodging written submissions (made through its solicitors) dated 15 September 2000. The written submission had three attachments, apparently intended as evidentiary material - a Draft Recruitment and Selection Policy dated 24 March 2000, a Draft Recruitment and Selection Policy dated 16 November 1999, and an undated document titled "Confidentiality and Proceedings of Selection Committees". However, it was established in the course of resolving the 'sufficiency of search' issues referred to in paragraph 5 above that the Draft Recruitment and Selection Policies had not been approved at the time of the relevant selection process for the subject position. The highest that their relevance could be put (see per letter from the University's solicitors dated 8 November 2000) was that: "The Draft Policy incorporates most of the practices previously applied in recruitment and selection. These practices had not been documented before." Nevertheless, it is necessary for me to address the case put forward by the University for the application of s.46(1)(a). 20. Criterion (a) set out in paragraph 16 above is satisfied, since the information in issue can be specifically identified. As to criterion (b), however, I am not satisfied that all of it is information of a confidential nature. In order to qualify for protection in an action for breach of confidence, the information in issue must be objectively confidential in character, and not merely treated as such by the supplier and recipient of the information. I am not satisfied that information about the successful candidate's past employment and involvement in running a business operation, nor the list of his publications, comprise information that has the necessary quality of confidence. 21. As to criterion (c), I agree with what was said by the Deputy Information Commissioner on p.2 of his letter to the University dated 17 August 2000 (see paragraph 17 above). There is no evidence that an express assurance was sought by, or given to, the successful candidate for the subject position that the documents remaining in issue would be treated in confidence by the University. However, as was correctly pointed out in the written submissions lodged on behalf of the University, that is not necessarily an end of the matter. It is not necessary for there to have been an express undertaking not to disclose information. Such an obligation can be inferred from an examination of the whole of the relevant circumstances attending the communication of the alleged confidential information: see Re "B" at p.318, paragraphs 89-90 and the cases there cited. 22. Given the onus which it carries under s.81 of the FOI Act, it is incumbent on the University to satisfy me of the existence of material facts and circumstances that would support a finding that, upon the communication to it of the matter in issue, the University became fixed with an equitable obligation of conscience, binding it to treat those documents in confidence, which obligation still subsists. However, the University has not provided any evidence that the successful candidate understood or expected that the documents in issue would be treated in confidence. It has provided some evidence to the effect that it was the University's practice to treat documents of this kind in confidence, but no evidence that the University's practice in that regard was conveyed to, or was otherwise understood and relied upon by, the successful candidate. By letter dated 23 August 2000, the successful candidate was informed of this review, alerted to this issue, and invited to participate in the review, but did not respond. 23. In the absence of relevant evidence in this regard, the University has submitted that "... given the restricted basis upon which the application was made (i.e., for the purposes of a job application), 6 and the knowledge of this by the University, a clearly enforceable obligation of conscience on the University arises not to use the confidential information in a way that is not authorised by the successful applicant." This appears to be an attempt to rely on the 'limited purpose' test referred to in Re "B" at pp.312-316, paragraphs 80-83; and p.317, paragraph 87. I am not satisfied that this is a sufficient basis to support a finding that the University was fixed with an equitable obligation of confidence in respect of the matter in issue, given the absence of any evidence of the kind referred to in paragraph 22 above, and particularly given the obligations of the University as a public authority with respect to accountability for adherence to merit and equity principles in recruitment and selection procedures. 24. I note that in Re Love and the University of Melbourne (2000) 16 VAR 251, the respondent University voluntarily disclosed to an unsuccessful candidate for academic positions the CV's of the successful candidates (see at p.254, paragraph 11). The respondent University succeeded in an argument that the CV's of unsuccessful candidates qualified for exemption under both confidentiality and privacy exemptions (s.35(1) and s.33(1), respectively, of the Freedom of Information Act 1982 Vic), although the confidentiality exemption provision relied upon there did not turn on the same test contained in s.46(1)(a) of the Queensland FOI Act, i.e., whether disclosure would found an action for breach of confidence. 25. I have consistently held that CV's and related material lodged by unsuccessful applicants for public sector employment ordinarily qualify for exemption under s.44(1) of the FOI Act: see Re Baldwin; Re Hawck. There are sound reasons why privacy considerations should attach to information of that kind, and why there is ordinarily an expectation that the identity of an applicant for employment would not be disclosed unless and until he or she was appointed to the advertised vacancy, for example: · unsuccessful applicants would frequently not want their current employers, or even other prospective employers, to know that they had applied for other positions, nor indeed that they had applied unsuccessfully; and · the prospect of disclosure in such circumstances may inhibit people from applying, and hence reduce the calibre of the field available for selection. 26. However, these considerations cease to be relevant to the successful applicant, once his/her appointment becomes information that is effectively in the public domain. Thus, Deputy President Gerber of the Commonwealth Administrative Appeals Tribunal held, in Re Dyki and Federal Commission of Taxation (1990) 22 ALD 124 (at pp.134-135): ...The two successful candidates have since been appointed to the advertised positions and their new status has entered the public domain.I am satisfied that it is both in the public interest and reasonable that promotions must not only be just, but seen to be just. It follows that those applications, having achieved their aim, are opened up to public scrutiny and their authors' claim to promotion is henceforth in the public domain.It follows that the applicants' claim to privacy must be deemed to have been abandoned, if only because it is public knowledge that they applied for promotions and were successful. Thus, the job applications for the two successful candidates have lost whatever entitlement to anonymity they had (subject to deletion of matters adjudged to be purely personal). ... 7 27. It is arguable that the common expectation of confidential treatment of the identities of unsuccessful applicants for public sector employment might form a basis for establishing exemption under s.46(1)(a) or s.46(1)(b), at least in respect of information which, if disclosed, would enable identification of the unsuccessful applicant. However, in Re Baldwin at p.262 (paragraph 32), I expressed some reservations as to the applicability of s.46(1), having regard to the respondent agency's obligations with respect to accountability: 32. Moreover, I note from p.4 of Mr Parsons' reasons for decision that applicants for the position of Director - Finance were instructed to forward their applications marked "Private and Confidential", which I interpret as an explicit indication by the Department that it would honour the understanding which ordinarily attends such selection processes, i.e., that the Department would ensure that there was no unnecessary disclosure of the identities of the applicants for employment.(I should state that I do not regard that as involving a legally binding promise to treat every part of a job application in confidence. Any information which ought to be disclosed in the interests of accountability (for example, explaining to an applicant who was not shortlisted why the shortlisted candidates were considered more suitable in terms of the selection criteria) should, in my opinion, be available for disclosure, provided the anonymity of the unsuccessful candidates is not compromised without their consent or without other good cause). 28. In respect of the application of s.46(1)(a) to the CV and other supporting material submitted by the successful candidate for a public sector position, I made the following observations in Re Hawck: 31. In any event, I do not consider that any understanding of confidentiality which would be likely to be implied in such circumstances would extend beyond the time that the successful applicant was appointed to the position. In determining whether the Department would be bound by an obligation of confidence not to disclose a job application, it will be necessary to consider all relevant factors, one of which will be the uses to which the Department, in the exercise of its functions, must be expected to put the information. 32. Until such time as a decision on appointment is made (and even after that time for unsuccessful applicants) the uses to which an application are likely to be put are generally limited to the selection process. However, once an appointment is made, the application of the successful applicant will form part of the ongoing personnel records of the agency and must be available for the agency to perform its functions, including its accountability functions in relation to the appointment of the successful applicant. In such circumstances it seems likely that if equity were to impose an obligation of confidence on the Department prior to an appointment being made, that obligation would only extend, in the case of the successful applicant for the position, until such time as he or she was appointed to the position. 8 29. The written submissions and other material put forward on behalf of the University have not persuaded me that there is any warrant to depart from the principles I have applied in prior cases, as indicated above. 30. I note that the Draft Recruitment and Selection Policies provided to me by the University, which (although not in force at the material time) apparently reflect the practices applied in recruitment and selection at the time of the selection process for the subject position, contain key principles which emphasise equity and merit-based selection, and clearly state that recruitment and selection processes will "balance the needs for confidentiality and privacy with the need for transparency of processes". 31. I also note that Attachment 3 to the University's written submission dated 15 September 2000, contemplates that unsuccessful candidates should, on request, be given feedback that reflects the decisions of the Selection Committee. It adds the rider that feedback must not include details of other applications. If that rider was intended to ensure that the identities of other unsuccessful candidates are not disclosed, it is quite appropriate. While it may bepossible to give feedback without comparing the basis of rating of an unsuccessful candidate against the selection criteria, with the basis of rating of the successful candidate, I consider that such a restriction would impair the effectiveness of the exercise in many instances. In my experience, shortlisted candidates frequently satisfy all relevant selection criteria, but one candidate is ultimately assessed as satisfying one or more key selection criteria to a higher degree than other candidates. For my part, I would have thought that for feedback to unsuccessful candidates to be meaningful and effective, it would frequently necessitate comparison of the areas in which, and the basis upon which, the successful candidate was assessed as being superior to the unsuccessful candidate. 32. I consider that, if an obligation of confidence were to be fixed upon the University by reference to the common understanding that identifying information in respect of applicants would be treated in confidence, the obligation would be subject to implicit conditions or exceptions to the effect that, if an applicant is successful and accepts appointment to a position, the material which he or she submitted in support of his/her application may be disclosed to the extent necessary to ensure transparency of the selection decision, effective and meaningful post-selection feedback to unsuccessful applicants, and accountability generally for adherence to merit and equity principles in job selection processes. I consider that disclosure of information recording the educational qualifications, training, and employment or business experience of successful candidates (plus relevant job-specific information, e.g., details of research and publications for an academic appointment), and their statements addressing the selection criteria, would be in keeping with the implicit conditions/exceptions I have explained above. 33. (I note that in previous cases involving documents of this kind submitted by successful applicants for public sector employment, the authors have asserted copyright in their documents. This is not a ground for exemption under the FOI Act, but, if the Department accepts that the author has copyright in the documents, it may permit access under the FOI Act by way of inspection only: see s.30(3)(c) of the FOI Act.) 34. I am not satisfied that the matter remaining in issue was communicated in such circumstances as to fix the University with an equitable obligation of confidence in respect of it, and I find that the matter remaining in issue does not qualify for exemption under s.46(1)(a) of the FOI Act. 9 Application of s.40(c) of the FOI Act 35. Section 40(c) of the FOI Act provides: 40. Matter is exempt matter if its disclosure could reasonably be expected to-- ... (c) have a substantial adverse effect on the management or assessment by an agency of the agency's personnel; ... unless its disclosure would, on balance, be in the public interest. 36. 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) 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. If I am satisfied thatany adverse effects could reasonably be expected to follow from disclosure of the matter in issue, I must then determine whether those adverse effects, either individually or in aggregate, constitute a substantial adverse effect on the management or assessment by the 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. 37. 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. 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 Rev. ed 1988); "Regard as ... likely to happen; ... Believe that it will prove to be the case that ..." (The New Shorter Oxford English Dictionary, 1993). 38. If I find that disclosure of the whole or any part of the matter in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by the agency of its personnel, I must then consider whether disclosure of that matter would nevertheless, on balance, be in the public interest. 10 39. The written submissions on behalf of the University argue that disclosure of the matter in issue would have a substantial adverse effect on the management or assessment of personnel for the following reasons: i) the morale of participants would be damaged; ii) criticism or adverse comments, while constructive when used within the system, could undermine the position of academics in their relationship with students and other academics; iii) candour and frankness of referees and advisory selection panels could be inhibited; iv) an unwillingness on the part of other academics to provide referee reports and to serve on selection panels could result; v) undue stress on participants could ensue; and vi) it would promote plagiarism and dissatisfaction with the selection process. 40. The University's submissions assert that "(t)he uncontrolled publication of successful job applicants' applications could have most disruptive consequences. Such consequences would be likely to lead to a breakdown in the recruitment process thereby adversely affecting to a serious degree the capacity of the University to ensure that the most appropriate person is appointed." 41. Points (ii), (iii) and (iv) set out in paragraph 39 above, have no substance (or indeed relevance) when applied to the actual matter remaining in issue (identified in paragraph 8 above). They appear to relate to referee reports and comments by selection panels, which is not the kind of information that remains in issue. 42. To my mind, there is an issue as to whether the words of s.40(c) are capable of extending to documents concerning a recruitment process, insofar as the documents relate to, or affect, only applicants for employment from outside the relevant agency. The scope of s.40(c) may well be confined to the management or assessment of existing personnel of the agency, rather than potential personnel. The words of s.40(c) are capable of extending to selection processes involving promotion or transfer of existing personnel, but probably not to the management of a recruitment process involving (nor to the assessment of) candidates for employment who are not already part of the agency's personnel. 43. I need not express a concluded view on that issue in this case, since there are indications in the matter in issue that the successful candidate was a part-time or casual employee of the University, and because I am not satisfied, in any event, that disclosure of the matter in issue could reasonably be expected to have a substantial adverse effect. 44. In relation to points (i) and (v) from paragraph 39 above, I am not satisfied that there is a reasonable basis for expecting that disclosure of the matter in issue could damage the morale of participants or cause them undue stress. I have explained that identifying information in respect of unsuccessful applicants for employment will qualify for exemption from disclosure under the FOI Act. I do not accept that the prospect that a successful applicant for employment might have his/her qualifications, experience, and case for satisfaction of the key selection criteria, made available for scrutiny on request, could reasonably be expected to damage the morale of participants or cause them undue stress, let alone to a level that would qualify as a substantial adverse effect. 11 45. Similarly, I am not satisfied that disclosure of the matter in issue could reasonably be expected to promote plagiarism and dissatisfaction with the selection process. It is possible (even if access is to be made available by way of inspection only - cf. paragraph 33 above) that some people could seek to adapt the style, or level of detail, of applications submitted by successful candidates, but it would make no sense to plagiarize the details of another person's educational qualifications, employment experience, research achievement or learned publications, nor indeed another person's precise claims as to how he/she satisfies key selection criteria. 46. I am not satisfied that disclosure of the matter remaining in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by the University of its personnel. 47. In view of that finding, it is not necessary to consider the application of the public interest balancing test incorporated in s.40(c). However, I note that there are public interest considerations which favour disclosure of the matter in issue to enhance the accountability of the University for adherence to merit and equity principles in job selection processes.I also note that, in cases involving selection for promotion from a pool of existing agency personnel, disclosure which permits unsuccessful candidates to assess (by comparison with successful candidates) how their educational qualifications, work experience and work performance need to improve to be successful in obtaining future promotions, would arguably benefit the management by an agency of its personnel, or would (on balance) be in the public interest having regard to considerations of the kind addressed in Re Pemberton at pp.379-380, paragraphs 197-198. 48. I find that the matter in issue does not qualify for exemption from disclosure under s.40(c) of the FOI Act. Conclusion 49. For the reasons set out above, I decide to vary the decision under review (being the decision made on behalf of the University by Deputy Vice-Chancellor W J Lovegrove dated 9 June 2000) by finding that the matter remaining in issue is not exempt matter under s.46(1) or s.40(c) of the FOI Act, and the applicant is entitled to obtain access to it under the FOI Act. .............................................................. F N ALBIETZ INFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Hawck and Department of Training and Industrial Relations [1997] QICmr 22 (31 January 1997)

Hawck and Department of Training and Industrial Relations [1997] QICmr 22 (31 January 1997) Hawck and Department of Training and Industrial Relations (S 150/96, 31 January 1997, Information Commissioner Albietz) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1. - 4. [These paragraphs removed.] REASONS FOR DECISION Background By letter dated 20 June 1996, [the access applicant] made application to the Department of Training and Industrial Relations ("the Department") for access under the FOI Act to the following: (a) all documentation relating to [the access applicant's] unsuccessful applications for a number of jobs advertised by the Department; and (b) the content of claims made by the successful applicants for those jobs, including the addressing of selection criteria and interview questions and answers. On 31 July 1996, the Department, under s.51 of the FOI Act, consulted Mr Hawck, who was the successful applicant for the position of Claims Supervisor - Division of Workers' Compensation, Ipswich, as to whether he objected to the release of nine pages relating to his application for that position. Mr Hawck objected "most strongly", stating that his application contained information which he believed to be personal and confidential, and that its release would cause him stress and concern. Mr Hawck stated that he may be willing to allow the access applicant to view the material (on the condition that Mr Hawck be present at any viewing), but under no circumstances would he consent to copies being released to any party. On 23 August 1996, Mr R P Camm, the Department's FOI decision-maker, advised Mr Hawck that his decision was to grant access to Mr Hawck's job application material, subject to the deletion of matter concerning Mr Hawck's personal affairs, which was exempt under s.44(1) of the FOI Act. Mr Camm decided that references in the material to Mr Hawck's home telephone number, residential address and his signature, comprised information concerning Mr Hawck's personal affairs and should be exempt from disclosure to the applicant for access. On 27 August 1996, Mr Hawck applied to the Department for internal review of Mr Camm's decision. Ms Anne Quinnell conducted the internal review and, by letter dated 3 September 1996, she affirmed Mr Camm's decision. On 19 September 1996, Mr Hawck applied to me for external review, under Part 5 of the FOI Act, of Ms Quinnell's decision. He advised that he did not wish to take any active part in the review, but simply asked that I examine the documents and issue a determination. He stated that he wished to be advised of the outcome of my review, and whether or not a copy of his application was to be released, or permitted to be viewed only. The matter in issue The documents to which [the access applicant] seeks access are nine pages relating to Mr Hawck's successful application for the position of Claims Supervisor, Division of Workers' Compensation, Ipswich. They are the application form which Mr Hawck completed (page 1) and his statement addressing the selection criteria for the position (pages 2-9). As I mentioned, the Department decided that Mr Hawck's telephone number, residential address, and signature, were exempt matter under s.44(1) of the FOI Act. This part of the Department's decision was not challenged by [the access applicant]. This means that the information which the Department found to be exempt under s.44(1) of the FOI Act is not in issue in this external review, and will not be disclosed to [the access applicant]. My review relates to the remainder of pages 1-9 (which I will refer to as the matter in issue). The external review process On 18 October 1996, the Assistant Information Commissioner wrote to [the access applicant], asking that he confirm that he wished to pursue access to the matter in issue. On 31 October 1996, [the access applicant] confirmed that he did. On 13 November 1996, the Deputy Information Commissioner wrote to Mr Hawck to convey his preliminary view that the Department's decision was correct, and to explain his reasons for forming that view. The Deputy Information Commissioner invited Mr Hawck to either confirm his acceptance of that preliminary view, or, if he still wished to contend that the matter in issue was exempt, to provide a written submission and/or evidence in support of his contentions. Mr Hawck did not respond. Exemption provisions In her decision, Ms Quinnell considered the application to the matter in issue of three exemption provisions: s.44(1), s.46(1)(a) and s.46(1)(b). Mr Hawck has not suggested or argued that any other exemption provision in the FOI Act may be applicable to the matter in issue. Application of s.44(1) - Matter affecting personal affairs 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 Re Stewart and Department of Transport [1994] QICmr 4; (1994) 1 QAR 386 (a copy of which was provided to Mr Hawck), I stated that the phrase "personal affairs" 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. In Re Stewart, at pages 261-264, I went on to say that employment-related matters fall within the grey area, rather than within the core meaning of the phrase "personal affairs of a person". However, three cases decided by judges of the Federal Court of Australia have established that, ordinarily, information which concerns a person's work performance or capacity is not information which concerns that person's personal affairs, subject to the qualification that an assessment of work performance or capacity, or suitability for appointment or promotion, might contain some information which concerns a person's personal affairs, such as information falling within the core meaning described in paragraph 16 above. In Re Williams and Registrar of the Federal Court of Australia [1985] AATA 226; (1985) 8 ALD 219, the Commonwealth Administrative Appeals Tribunal (AAT) examined the equivalent exemption provision in the Commonwealth FOI Act, which provided as follows: A document is an exempt document if its disclosure under the Act would involve unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person). The relevant passage from the Commonwealth AAT's decision in Re Williams states as follows: Document 16 is in a different category from all the other documents referred to in Mr Howard's affidavit. It is a document relating to the successful applicant, Mr Curtis. He has since been appointed to the position and the fact of his application must now be taken as public knowledge. This cannot be said of the remainder of the applications. For Mr Curtis, the entitlement to anonymity has passed. It is now known that he applied, that he must previously have intended to leave his former position, and that he intended to pursue a career in circumstances different from his previous employment. In Re Dyki and Federal Commissioner of Taxation (1990) 22 ALD 124, the Commonwealth AAT held: The two successful candidates have since been appointed to the advertised positions and their new status has entered the public domain. I am satisfied that it is both in the public interest and reasonable that promotions must not only be just, but seen to be just. It follows that those applications, having achieved their aim, are opened up to public scrutiny and their authors' claim to promotion is henceforth in the public domain. It follows that the applicants' claim to privacy must be deemed to have been abandoned, if only because it is public knowledge that they applied for promotions and were successful. Thus, the job applications for the two successful candidates have lost whatever entitlement to anonymity that they had (subject to deletion of matters adjudged to be purely personal)... With respect to the two successful candidates, I am satisfied that the information concerning personal affairs can be excised and the applications made available... The statement in support of application is purely and simply an individual's own assessment of work capacity and performance...This document does not concern the personal affairs of an aspirant for promotion. It is to be noted from the above case extracts, as well from my decision in Re Baldwin and Department of Education and Others (Information Commissioner Qld, Decision 96008, 10 May 1996, unreported), a copy of which the Deputy Information Commissioner forwarded to Mr Hawck, that a distinction is drawn according to whether or not a job applicant has been successful. If the person was unsuccessful, the fact that he or she has applied for a position of employment is information which concerns the person's personal affairs, within the meaning of s.44(1). If the applicant is successful, however, that person's employment in the new position will become, in effect, a matter in the public domain (and in the case of an appointment to a government agency, a matter of public record) and the fact that the person applied for the position can no longer be regarded as information about a private aspect of the person's life. The basis for this distinction can be most easily explained by recognising that s.44(1) relates to two types of information. The first type is information which concerns the personal affairs of a person. The second type is information which does not, of itself, concern the personal affairs of a person but the disclosure of which may, because of its context, reveal some information about a person's personal affairs. A statement addressing selection criteria will not ordinarily fall within the first type of information because it relates to employment matters rather than being about the personal aspects of a person's life (see the second last sentence of the passage from Re Dyki quoted at paragraph 20 above). However, if the fact that a person has applied for a position has not been made known, the disclosure of parts of his or her statement addressing the selection criteria which identify the applicant, would disclose information about the personal affairs of the applicant, i.e., that he or she has applied for the position. A statement addressing selection criteria by an unsuccessful applicant for a position will therefore be prima facie exempt, notwithstanding that, on its face, it does not contain information concerning the personal affairs of the applicant. However, once the fact of a person having applied for a job is made public by his or her appointment to the position, disclosure of his or her statement addressing the selection criteria will not reveal anything about the personal affairs of the appointee, and so there will no longer be a basis on which a claim for exemption under s.44(1) can be mounted. I have examined the matter in issue and can find nothing which, on its face, could be regarded as information concerning Mr Hawck's personal affairs. The Department has deleted from the documents in issue a small amount of matter which concerns Mr Hawck's personal affairs, and which is not in issue in this external review. I am satisfied that the remainder of the matter does not concern Mr Hawck's personal affairs and is not exempt from disclosure under s.44(1). I note Mr Hawck's submission that information contained in his application for a position should not be made available to a member of the public, but, as should be apparent from the cases which I have referred to above, there has been a significant amount of deliberation on this point and a definite distinction has been drawn between personal affairs and employment-related matters. Application of s.46(1) - Matter communicated in confidence 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. (a) Application of s.46(1)(a) I note from Ms Quinnell's decision that she discussed the five criteria which must be satisfied for protection in equity of allegedly confidential information. I formulated these criteria in my decision in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (a copy of which has previously been forwarded to Mr Hawck). I have reviewed Ms Quinnell's reasons for rejecting the application of s.46(1)(a), as well as Mr Hawck's submissions in support of the application of that provision. There is no evidence before me of any explicit undertaking by the Department that it would keep the matter in issue confidential. However, an obligation to keep matter confidential may, in an appropriate case, be implied from the circumstances in which the information was supplied. In the case of a job application made by a person outside the Department, there might well be reasons why an applicant might wish to provide his or her application on a confidential basis, e.g. the applicant might wish to conceal the fact of the application from his or her current employer. However, this would not appear to apply in Mr Hawck's case, because he was already an employee of the Department, seeking a permanent position. In any event, I do not consider that any understanding of confidentiality which would be likely to be implied in such circumstances would extend beyond the time that the successful applicant was appointed to the position. In determining whether the Department would be bound by an obligation of confidence not to disclose a job application, it will be necessary to consider all relevant factors, one of which will be the uses to which the Department, in the exercise of its functions, must be expected to put the information. Until such time as a decision on appointment is made (and even after that time for unsuccessful applicants) the uses to which an application are likely to be put are generally limited to the selection process. However, once an appointment is made, the application of the successful applicant will form part of the ongoing personnel records of the agency and must be available for the agency to perform its functions, including its accountability functions in relation to the appointment of the successful applicant. In such circumstances it seems likely that if equity were to impose an obligation of confidence on the Department prior to an appointment being made, that obligation would only extend, in the case of the successful applicant for the position, until such time as he or she was appointed to the position. On the material before me, I am satisfied that equity would not now impose an obligation on the Department to refrain from disclosing Mr Hawck's successful job application to an applicant under the FOI Act. (b) Application of s.46(1)(b) The three cumulative requirements which must be satisfied to find that matter is prima facie exempt under this provision are as follows: (1) the matter must consist of information of a confidential nature; (2) the matter was communicated in confidence; and (3) disclosure of the matter could reasonably be expected to prejudice the future supply of such information. If these requirements are satisfied, it is then necessary to consider whether disclosure of the documents in issue would, on balance, be in the public interest. As to point (2), for the reasons discussed above in relation to s.46(1)(a), I am satisfied that any understanding of confidence would not have extended beyond the time at which Mr Hawck was appointed to the position. As to point (3), I do not consider that, even if requirements (1) and (2) were satisfied, the disclosure of the matter in issue could reasonably be expected to prejudice the future supply of such information to the Department. I do not accept that someone who is genuinely interested in an advertised position, who believes that he or she has the skills and experience appropriate for the position, and who truthfully and accurately details those skills and experience in applying for the job, would in any way be deterred from applying for the job simply because his or her application may be open to public scrutiny, after appointment to the position. In my opinion, that would only deter applicants from overstating their abilities or being less than truthful about their skills, which is a positive rather than negative outcome. It is therefore my view that neither requirement (2) nor requirement (3) is satisfied in the case of the matter in issue, and that it is therefore not exempt matter under s.46(1)(b). As to the public interest test contained in this section, I agree with the Department's position that the public interest is promoted by ensuring that members of the public can verify that appointments to the public service are made equitably, and based upon the respective merits of the applicants. Copyright As to the last point raised in Mr Hawck's application for review - that the access applicant be permitted only to view the matter in issue - I observe that if any of the matter in issue is a document in respect of which Mr Hawck is entitled to assert copyright, he may be entitled to insist that the Department give access under the FOI Act in a manner that does not infringe his copyright. An assertion that a person owns copyright in a particular document held by a government agency cannot, however, defeat the general right of access (conferred by s.21 of the FOI Act) to any information contained in a particular document which is not exempt matter under the FOI Act. In a review under Part 5 of the FOI Act, it is my function to determine whether or not the matter in issue is exempt matter under the FOI Act. Any issue relating to copyright and the form of access which an agency can or should permit in respect of non-exempt matter, is an issue which must be taken up directly with the relevant agency. DECISION For the reasons set out above, I affirm the decision under review, being the decision of Ms Anne Quinnell dated 3 September 1996, by which it was found that the matter in issue was not exempt matter under the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Ryder and Department of Employment, Vocational Education, Training & Industrial Relations [1994] QICmr 23; (1994) 2 QAR 150 (9 September 1994)

Ryder and Department of Employment, Vocational Education, Training & Industrial Relations [1994] QICmr 23; (1994) 2 QAR 150 (9 September 1994) Last Updated: 28 February 2001 OFFICE OF THE INFORMATION ) S 26 of 1994COMMISSIONER (QLD) ) (Decision No. 94023) Participants: FRANK RYDER Applicant - and - DEPARTMENT OF EMPLOYMENT, VOCATIONAL EDUCATION, TRAINING & INDUSTRIAL RELATIONS Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - application for review of decisions requiring payment of a $30 application fee for access to documents - documents comprising general information and questions used in interviewing applicants for two senior positions in TAFE colleges - whether the requested documents concern the applicant's personal affairs within the meaning of s.29(2) of the Freedom of Information Act Qld 1992 and s.6 of the Freedom of Information Regulation 1992 Qld.Freedom of Information Act Qld 1992 s.29(2)Freedom of Information Regulation 1992 Qld s.6, s.6(1)Simonsen and Edith Cowan University, Re (Information Commissioner WA, Decision Ref. D01094, 13 July 1994, unreported)Stewart and Department of Transport, Re (Information Commissioner Qld, Decision No. 93006, 9 December 1993, unreported) DECISIONThe decisions under review (being the decisions of Mr A S Raineri dated 22 December 1993 that a $30 application fee is payable by Mr Ryder in respect of each of his FOI access applications to the respondent dated 27 October 1993) are affirmed.Date of Decision: 9 September 1994...........................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) S 26 of 1994COMMISSIONER (QLD) ) (Decision No. 94023) Participants: FRANK RYDER Applicant - and - DEPARTMENT OF EMPLOYMENT, VOCATIONAL EDUCATION, TRAINING & INDUSTRIAL RELATIONS Respondent REASONS FOR DECISIONBackground1. The applicant seeks review of two decisions of the respondent to the effect that the applicant was obliged to pay a $30 application fee in respect of each of two applications for access to documents under the Freedom of Information Act 1992 Qld (the FOI Act). In each instance, the respondent decided that the applicant had applied for access to one or more documents which did not concern the applicant's personal affairs.2. By two letters, each dated 27 October 1993, Mr Ryder applied to the Department of Employment, Vocational Education, Training & Industrial Relations (the Department) for access to documents relating to job applications he had made. The first letter (which will be referred to in these reasons for decision as "the Yeronga application") reads: Recently I was a candidate for the position of Associate Director, Yeronga College of TAFE. Could you please supply me with all information pertinent to the selection exercise, particularly the list of interview questions, marking grids, panel member notes concerning my written application and interview.3. The second letter (which will be referred to in these reasons for decision as "the Ipswich application") was in identical terms except that it related to the position of Associate Director (HRM), Ipswich College of TAFE.4. By letters dated 30 November 1993, Mr G D Cumberland, who was then the Acting FOI Co-ordinator for the Department, gave his decisions in relation to the applications. In each letter, Mr Cumberland indicated that the Department was prepared to give access to a number of documents, subject to the deletion of matter relating to the personal affairs of other applicants for the relevant positions, and went on to state that an application fee of $30 was payable. The relevant part of Mr Cumberland's decision in relation to the Yeronga application is in the following terms: Section 29(2) of the Freedom of Information Act 1992 provides for the payment of an application fee in respect of applications which do not concern the applicant's personal affairs. Section 6 of the Freedom of Information Regulation prescribes that fee to be $30.00. The term "personal affairs" has been judicially considered in other jurisdictions to mean those matters which are of private concern to the individual and includes such things as a person's state of health, the nature or condition of any marital or other relationship, domestic responsibility, financial obligations, and examination or test scores. Whilst I consider the scoring grids, applicant assessment forms and parts of the selection report contain your personal affairs, I do not consider the questions for interview to contain your personal affairs. The Information Commissioner in the Ritchie case has found that: "given the terms in which s.29(2) of the FOI Act, and s.6 of the FOI Regulation, are framed, an application for access to documents need seek only one document which does not relate to the personal affairs of the applicant to attract the imposition of the $30.00 application fee." In terms of that decision an application fee of $30.00 would therefore be considered payable.5. Mr Cumberland's decision in relation to the Ipswich application was in similar terms, but referred to the existence of an additional document described as "the interpretation of the criteria", which Mr Cumberland considered did not concern Mr Ryder's personal affairs.6. On 10 December 1993, Mr Ryder applied for internal review of Mr Cumberland's decisions, on the basis that he had been refused access to documents and that he had been charged application fees which he felt were not due.7. Mr Cumberland then contacted Mr Ryder and explained to him that the Department did not object to release of the documents (subject to deletion of the personal affairs matter relating to other applicants) if the fees were paid. Mr Ryder then paid the application fees and lodged an application for internal review, dated 16 December 1993, which was confined to the issue of whether the $30 application fees had been properly required. Mr Ryder obtained access to the documents he had been seeking (subject to some deletions) and the internal reviews proceeded on the basis that the sole question remaining for determination was whether the $30 application fees had been properly required.8. By decisions dated 22 December 1993 Mr Aldo Raineri, who undertook the internal reviews on behalf of the Department, affirmed the initial decisions by Mr Cumberland that application fees were payable. 9. On 9 February 1994, the applicant applied for external review of Mr Raineri's decisions, in accordance with Part 5 of the FOI Act. The material parts of Mr Ryder's review application are: I maintain that any assessment instrument and a candidate's results, based on the use of that instrument, are integral, not separate. To separate them, as this decision does, is illogical. The results are devoid of meaning if they are divorced from the assessment instrument, i.e. the questions. ... 1. Both the initial and subsequent review officers indicate that the precedent on which they based their decision is restrictive and narrow. This would appear to be contradictory to the intent of the Act and its basic principles. 2. Both officers work in the same section of the same Department. I believe a more obvious degree of independence would have been appropriate. 3. The material sought was (and is) freely available through the more bureaucratically cumbersome and costly PSMC appeals process. The External Review Process10. On 15 February 1994, the Deputy Information Commissioner wrote to the applicant in the following terms: I enclose for your reference a copy of the Information Commissioner's reasons for decision in Re R K & C D Stewart and Department of Transport (Information Commissioner Qld, Decision No. 93006, 9 December 1993, unreported). You will see that the question of whether a $30 application fee is payable in respect of an FOI access request depends on whether access is sought to even one document, the contents of which cannot properly be characterised as information concerning the personal affairs of the applicant for access. In this case, it is my preliminary assessment that you will have great difficulty in persuading the Information Commissioner that a document comprising a list of questions asked of applicants at interview for the position of Associate Director (HRM), Ipswich College of TAFE, can properly be characterised as information concerning your personal affairs. If, having read the reasons for decision in Re Stewart, you agree with that preliminary assessment, would you please forward a brief letter stating that you wish to withdraw your application for review. If, on the other hand, you wish to press your application for review, I now extend to you the opportunity to forward a written submission setting out the material facts and circumstances, and any legal arguments, on which you rely to contest that a $30 application fee is payable in respect of your FOI access application. 11. Mr Ryder responded by letter dated 25 February 1994 in the following terms: I wish to proceed with an external review of the matter raised in my original submission. I have read the material "Re Stewart and the Department of Transport" and I believe that it is largely irrelevant. The question I wish to have answered is not whether the material in contention is or is not related to my personal affairs. This has been the approach taken by previous reviewers. The question is whether an assessment instrument (in this case a list of interview questions) and the results of the use of that instrument (in this case the interviewer notes, completed marking grids, etc) are integral. If they are integral, then both components should be available under the same regime (either both charged for, or both free of charge). I come from an educational, not legal, background and I believe that most educators would argue, as I do, that assessment results of any individual or group are rather meaningless if considered in isolation from the assessment instrument and assessment methodology. The fact that the instrument is common and the results of its use are personal is irrelevant to the argument that complete separation of one from the other is illogical. The decisions given to me so far have been based on the premise that instrument and results are not integrated. Instead of providing reasons for this particular premise, the reviewers have relied on an irrelevant argument about "personal affairs".12. Evidence in relation to the Yeronga application was obtained in the form of a statutory declaration executed on 24 March 1994 by Mr B R G Hutchison, who chaired the selection panel for the Yeronga position. Evidence in relation to the Ipswich application was obtained by way of statutory declarations executed on 31 March 1994 and 12 May 1994 by Mr C V Robertson, who was a member of the selection panel for the Ipswich position, and a statutory declaration executed on 24 March 1994 by Ms L C Black, another member of the selection panel.13. The applicant was given the opportunity to make submissions in support of his application and to comment on the evidence of the selection panel members referred to in the preceding paragraph. In letters of 28 April and 3 June 1994, the applicant made a number of further comments in relation to the Ipswich application. The gist of Mr Ryder's complaint is that, in respect of the Ipswich position, he was not assessed in relation to a selection criterion on which other interviewees for the position were assessed. He asserts that a decision must have been made prior to interview not to assess him in relation to that criterion and that the questions asked of interviewees must have differed.14. The question of whether or not Mr Ryder was treated fairly by the selection panel does not come within my jurisdiction as Information Commissioner. My role in this external review application is to decide whether an application fee was payable in each case. A substantial part of Mr Ryder's submissions was not relevant to the issues for my determination. However, Mr Ryder has raised the possibility that the list provided to him was personalised and that another, more complete list of questions may have been used in relation to the other interviewees. If that is the case, it is open to Mr Ryder to argue that a list of questions produced personally for him does concern his personal affairs. I have therefore considered his claims of anomalies in the interview process for the Ipswich position, in this context.Applicable Legislative Provisions15. Section 29(2) of the FOI Act provides as follows: 29.(2) An applicant applying for access to a document that does not concern the applicant's personal affairs may be required, by regulation, to pay an application fee at the time the application is made.16. Section 6 of the Freedom of Information Regulation 1992 (the FOI Regulation) provides as follows: 6.(1) An applicant who applies for access to a document that does not concern the applicant's personal affairs must pay an application fee of $30 at the time the application is made. (2) An application fee is not payable for access to a document that concerns the applicant's personal affairs.17. In my reasons for decision in Re Stewart and Department of Transport (Information Commissioner Qld, Decision No. 93006, 9 December 1993, unreported), 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 the relevant variations thereof) as it appears in the FOI Act (see paragraphs 79-114 of Re Stewart). In particular, I said that information concerns the "personal affairs of a person" if it 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; 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.18. Further, at paragraphs 120-121 of Re Stewart, I confirmed that an applicant need only seek access to one document which does not concern his or her personal affairs to attract the imposition of the application fee.19. In this case, I have examined only the documents which the Department has identified as the documents which, it submits, do not concern the applicant's personal affairs, and which therefore attract a $30 application fee. It is possible that other documents requested by the applicant contain matter which does not concern the applicant's personal affairs, because it relates to the assessment of the applicant's performance of his employment duties. I have not examined those documents or considered that issue, which is capable of giving rise to difficult questions of characterisation (see paragraphs 83-85, and 91-97 of Re Stewart). It is possible that the other documents contain matter which concerns the applicant's personal affairs and matter which does not concern the applicant's personal affairs. If a document contains matter which concerns the applicant's personal affairs, then in my opinion s.6(1) of the FOI Regulation does not apply so as to require the payment of a $30 application fee in respect of it. It is only when a document, on its proper characterisation, does not concern the applicant's personal affairs, that a $30 application fee is payable by virtue of s.6(1) of the FOI Regulation.The Yeronga Application20. In relation to the Yeronga application, the Department claims that one document which falls within the terms of Mr Ryder's FOI access application does not concern his personal affairs. It is an eight page document entitled "Information for Applicants and Interview Questions". The evidence of Mr Hutchison is that it was not created specifically for Mr Ryder's interview. Each of the interviewees, including Mr Ryder, was asked the questions set out in the document. Mr Ryder has not suggested that the document was created separately for him.21. I can find no basis in the document, or in the evidence, to justify a conclusion that the document concerns the personal affairs of Mr Ryder. Mr Ryder has argued that an assessment instrument and the results of the use of that instrument are integral. I cannot accept that the relationship between them means that the assessment instrument concerns Mr Ryder's personal affairs. Mr Ryder has not argued that this is the case and indeed has suggested that argument about whether the document concerns his personal affairs is irrelevant. The latter comment is clearly incorrect, since the sole criterion stipulated in the relevant legislative provisions for determining whether or not a $30 application fee is payable is whether or not a requested document concerns the applicant's personal affairs.22. The particular application of a general document to the circumstances of an individual may well give rise to the creation of a document which concerns the individual's personal affairs. For example, a person may follow general guidelines developed by a Department in order to complete a form or make an application of some type. A student may be given an examination question paper to which he or she is expected to respond in a separate answer booklet. In each case, the result may be a form, application or answer booklet which concerns the personal affairs of the individual. However, this is not sufficient in my view to transform the general document from being one which, until the individual created the new document, did not concern that individual's personal affairs, to one which, thereafter, does concern that individual's personal affairs.23. I do not dispute that it may well make more sense for an interviewee to consider his or her results in the context of the particular questions asked. However, in cases where guidelines or questions are developed for general use, the fact that an individual responds to them in another document does not, in my opinion, mean that the guidelines or questions can properly be characterised as information concerning the personal affairs of that individual. A similar approach was recently adopted in relation to student examination question sheets by the Western Australian Information Commissioner in Re Simonsen and Edith Cowan University (Information Commissioner WA, Decision Ref. D01094, 13 July 1994, unreported) (see especially at paragraphs 44-47).24. In the present case, there is no evidence that the document was created with Mr Ryder in mind. To the contrary, the evidence of Mr Hutchison was that it was created for the purposes of interview of all interviewees for the position. Therefore, in relation to the Yeronga application, I find that the Department was entitled to require the payment of a $30 application fee.The Ipswich Application25. The agency has claimed that two documents which fall within the terms of Mr Ryder's FOI access application do not concern his personal affairs.26. The first document is entitled "Interpretation of Criteria for Position of Associate Director - Studies (Human Resources)". The evidence of Mr Robertson is that it was created by the members of the selection panel prior to the shortlisting of candidates. The document is a two page list of typed notes setting out points which panel members considered relevant to selection. The points are numbered from 2.1 to 2.5 (representing the key selection criteria) and from 3.1 to 3.3 (representing the other selection criteria). The document contains some handwritten notes which, according to evidence given by Ms Black, were created before the selection process started.27. The second document is entitled "Questions for Interview". Mr Robertson has given evidence that this document was developed in consultation with panel members. The document appears to have been developed from the basis of the first document and follows its numbering scheme with respect to numbers 2.1 to 2.5, 3.1 and 3.3. There is, however, no question or set of questions for criterion 3.2. The document also contains a number of handwritten notes which Mr Robertson states were made by him. The omission of questions for criterion 3.2 and the failure of the committee to assess Mr Ryder in relation to criterion 3.2 has caused Mr Ryder considerable concern.28. Mr Robertson has given evidence that both the typed document and the handwritten notes were created before the interview process began. He has further stated that both the first and second document were used in relation to all interviewees and that no part of those documents was created specifically for Mr Ryder.29. Mr Ryder has pressed his claim that he was not asked a question in respect of criterion 3.2, but that other interviewees were assessed in relation to that question. He considers that this shows he has been treated unfairly in the selection process. As noted above, he has suggested that, as a question in respect of criterion 3.2 does not appear in the second document, there may have been two "Questions for Interview" sheets created; one especially for him, which did not contain a question in respect of criterion 3.2, and one for the other interviewees, which did. He submits that the sheet created for him would contain information concerning his personal affairs.30. In response to the claim that there was a special document created for Mr Ryder, Mr Robertson's further statutory declaration of 12 May 1994 states: 1. The document headed "Questions for Interview" was the only such document created for the interviews for the selection process and that all three interviewed applicants were asked the same questions from that document. There was no other document which contained a question relating to Other Selection Criterion 3.2. 2. The scores given to the other interviewed applicants for the abovementioned criterion were taken from the information provided in their respective applications. It is accepted practice to use the Key Selection Criteria as the primary source of data for deciding merit for a position and to use the Other Selection Criteria to discriminate between two or more applicants whose scores are very close. In the case in question Mr Ryder was significantly behind the other two after the scores for the Key Criteria were assessed, so the inclusion of scores from the Other Selection Criteria was restricted to the other two applicants for the final comparison.31. In his letter of 3 June 1994, Mr Ryder claims that Mr Robertson's statement that there was only one list of questions used for all candidates cannot be reconciled with the selection panel's marking of interviewees as evidenced by comparative score tables completed by the panel. I cannot agree with Mr Ryder on this point. Mr Robertson explains that there was no question in relation to criterion 3.2 because that criterion was assessed not on the basis of the interview, but rather on the written job applications received from applicants. The evidence before me does not suggest that there was another document created for the other interviewees or that the second document was created especially for Mr Ryder.32. It is clear to me that the "Interpretation of Criteria" document does not concern Mr Ryder's personal affairs for the reasons explained at paragraphs 21-23 above. The existence of one document which does not concern Mr Ryder's personal affairs is enough to dispose of the matter, but I also find that the "Questions for Interview" document does not concern Mr Ryder's personal affairs.Conclusion33. Accordingly, I find that the Department was entitled to require the payment of a $30 application fee, pursuant to the provisions of s.29(2) of the FOI Act and s.6 of the FOI Regulation, in respect of each of Mr Ryder's FOI access applications dated 27 October 1993, and I affirm the decisions under review.............................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Raby Bay Ratepayers Association and Redland Shire Council [1995] QICmr 30; (1995) 3 QAR 85 (1 December 1995)

Raby Bay Ratepayers Association and Redland Shire Council [1995] QICmr 30; (1995) 3 QAR 85 (1 December 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) L 11 of 1995COMMISSIONER (QLD) ) (Decision No. 95030) Participants: RABY BAY RATEPAYERS ASSOCIATION INCORPORATED Applicant - and - REDLAND SHIRE COUNCIL Respondent - and - CIVIC PROJECTS (RABY BAY) PTY LTD Third Party DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - 'reverse FOI' application - documents in issue comprising correspondence between applicant and respondent on matters pertaining to local civic affairs - whether documents in issue are subject to legal professional privilege and hence exempt under s.43(1) of the Freedom of Information Act 1992 Qld - whether disclosure of the documents in issue would found an action for breach of confidence - consideration of s.46(1)(a) of the Freedom of Information Act 1992 Qld - whether the second and third elements for exemption under s.46(1)(b) of the Freedom of Information Act 1992 Qld are satisfied.Freedom of Information Act 1992 Qld s.43(1), s.46(1)(a), s.46(1)(b), s.51(1)"B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279Clarkson and Attorney-General's Department, Re (1990) 4 VAR 197 Smith and Administrative Services Department, Re [1993] QICmr 3; (1993) 1 QAR 22 Smith Kline and French Laboratories (Aust) Limited & Ors v Secretary, Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291 DECISIONI affirm the decision under review (being the internal review decision made on behalf of the respondent by Mr Ken Jones on 18 May 1995).Date of Decision: 1 December 1995...........................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) L 11 of 1995COMMISSIONER (QLD) ) (Decision No. 95030) Participants: RABY BAY RATEPAYERS ASSOCIATION INCORPORATED Applicant - and - REDLAND SHIRE COUNCIL Respondent - and - CIVIC PROJECTS (RABY BAY) PTY LTD Third Party REASONS FOR DECISIONBackground1. This is a 'reverse FOI' application. The applicant seeks review of the respondent's decision to give the third party (a developer of land at Raby Bay) access under the Freedom of Information Act 1992 Qld (the FOI Act) to a number of documents held by the respondent, being either letters from the applicant to the respondent or from the respondent to the applicant. The applicant contends that this correspondence is exempt matter under s.43(1) and s.46(1) of the FOI Act. 2. On 6 February 1995, the third party applied to the Redland Shire Council (the Council) seeking access under the FOI Act to "all correspondence from the Raby Bay Ratepayers Association to the Redland Shire Council, and all responses from the Council to the Association". The Council contacted the Raby Bay Ratepayers Association Incorporated (the Association) by letter dated 7 March 1995, in accordance with the Council's obligation under s.51(1) of the FOI Act to consult when it considers that disclosure of any matter may reasonably be expected to be of substantial concern to a person. The Council's letter referred to only one item of correspondence from the Association, a letter dated 15 November 1994 which had been marked "confidential". The Association indicated that there might be other documents it would object to having released. The Council thereupon provided a list of all documents which it considered fell within the terms of the third party's FOI access application. The Association, through its solicitor, then objected to the release of a number of documents, but did not provide any indication of the basis for that objection. 3. By letter dated 7 April 1995, Mr B Callow, on behalf of the Council, determined that the documents in issue were not exempt documents, and that access should be given to the third party. The Association lodged an application dated 4 May 1995 for internal review of Mr Callow's decision, stating "the documents are exempt documents which were prepared or delivered in confidence and the subject of legal professional privilege". The Council's internal review decision was made by Mr Ken Jones, Director Corporate Services, on 18 May 1995. Mr Jones listed 12 items of correspondence as falling within the terms of the third party's FOI access application, and considered the possible application of s.43(1) and s.46(1) of the FOI Act to those documents. Mr Jones determined that none of the documents in issue contained exempt matter, and that they should be released to the third party.4. By letter dated 16 June 1995, the Association (through its solicitors, McIntyre Cantwell) applied for review by the Information Commissioner, under Part 5 of the FOI Act, of Mr Jones' decision.The external review process5. In accordance with s.74(1) of the FOI Act, I wrote to the third party inviting it to apply to become a participant in the external review, which it did. I subsequently granted the third party's application to be a participant in this review.6. Copies of the documents in issue have been obtained from the Council and examined. Ten of the 12 documents in issue are letters from the Association to the Council, two of which include attachments. The other two documents are letters from the Council to the Association. The letters are dated between 20 April 1994 and 15 November 1994. The letters deal with a variety of issues of concern to the Association, setting out the Association's view in relation to those issues and in some instances, the Council's response. Some of the letters are quite brief, e.g. simply requesting a meeting with Council representatives, or requesting that a Council representative attend a meeting of ratepayers. One merely encloses a copy of a letter which has been published in the Bayside Bulletin. As I noted above, one of the letters, dated 15 November 1994, is marked with the heading "confidential", but the other documents bear no express indication that they were intended to be communicated in confidence.7. By letter dated 7 July 1995, I conveyed to the Association my preliminary view that the documents in issue were not exempt under s.43(1) or s.46(1) of the FOI Act, and invited the Association, if it did not agree with that preliminary view, to provide evidence and written submissions in support of its case, by 18 August 1995. In doing so, I made the following comments about the question of the onus of proof in a 'reverse FOI' case: Section 81 of the FOI Act provides that in a review under Part 5 of the Act, the agency which made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant. While the formal onus in this case therefor remains on the Redland Shire Council to justify its decision that the documents in issue are not exempt documents under the FOI Act, it can discharge this onus by demonstrating that any one of the necessary elements which must be established, to attract the application of each of the exemption provisions, cannot be made out. Consequently, your client must fail if I am satisfied that any element necessary to found the application of each exemption provision which it relies upon cannot be established. An applicant (such as your client) in a "reverse-FOI case", while carrying no formal legal onus, must nevertheless, in practical terms, be careful to ensure that there is material before me sufficient to enable me to be satisfied that all elements of the exemption provisions relied upon are established.8. I received no reply from the Association by 18 August 1995. When contacted by telephone, the solicitor for the Association stated to a member of my staff that the Association did not intend to put any further material before me in support of its case. Section 43(1) of the FOI Act9. Although the Association did not specifically refer to s.43(1) of the FOI Act, its application for internal review did claim that the documents in issue were subject to legal professional privilege. Section 43(1) provides: 43.(1) Matter is exempt matter if it would be privileged from production in a legal proceeding on the ground of legal professional privilege.10. I considered the principles involved in the application of s.43(1) at some length in Re Smith and Administrative Services Department [1993] QICmr 3; (1993) 1 QAR 22 (at pp.49-58; paragraphs 82-103). At paragraph 82 (p.52) of Re Smith, I listed a number of principles relating to legal professional privilege, identified by the Victorian Administrative Appeals Tribunal in Re Clarkson and Attorney-General's Department (1990) 4 VAR 197 at p.199. The first two principles were: 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 and giving of advice. Use in legal proceedings includes anticipated or pending litigation.11. In my letter dated 7 July 1995, I expressed my preliminary view to the solicitor for the Association in the following terms: You are no doubt familiar with the concept of legal professional privilege. I can see no basis on which any claim can be made that any part of the documents would be privileged from production in a legal proceeding on the ground of legal professional privilege. The documents are not confidential communications between lawyer and client, nor have they been made for the sole purpose of use in existing or anticipated litigation. It is therefore my preliminary view that no part of the documents in issue is exempt under s.43(1) of the FOI Act.12. The Association has not responded to my preliminary view. I cannot see any basis for a claim that any of the documents in issue contain exempt matter under s.43(1) of the FOI Act. None of them can be classed as confidential communications between a client and legal adviser, nor is there any indication that they were prepared for the sole purpose of use in anticipated litigation. They are, in my opinion, to be properly characterised as representations from a civic interest group to a local government authority on issues concerning local civic affairs. I should add that there is no possible basis for a suggestion that the two letters from the Council to the Association are subject to legal professional privilege.13. I find that no part of the documents in issue is exempt matter under s.43(1) of the FOI Act.Section 46(1)(a) of the FOI Act14. Section 46(1)(a) provides: 46.(1) Matter is exempt if - (a) its disclosure would found an action for breach of confidence; ...15. In Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279, I considered in detail the elements which must be established in order for matter to qualify for exemption under s.46(1)(a) of the FOI Act. The test for exemption is to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, possessed of appropriate standing to bring a suit to enforce an obligation of confidence said to be owed to the plaintiff, in respect of information in the possession or control of the agency or Minister faced with an application, under s.25 of the FOI Act, for access to the information in issue (see Re "B" at pp.296-7; paragraph 44). I am prepared to assume that, in the circumstances of this case, there are identifiable plaintiffs (either the Association or the authors, on behalf of the Association, of individual letters) who would have standing to bring an action for breach of confidence.16. I can see no basis, in the present case, for a suggestion of the existence of a contractual obligation of confidence arising in the circumstances of the communication of the information in issue from the Association to the Council. 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 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).17. It is not necessary for me to address each of these criteria, because I am satisfied (for the reasons which follow) that the third criterion cannot be established in respect of the documents in issue, and that the Association's claim for exemption under s.46(1)(a) must fail. In Re "B" at p.316 (paragraph 84), I stated that the third criterion set out above 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 Smith Kline and French Laboratories (Aust) Limited & Ors v Secretary, Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291 at pp. 302-3 (the relevant passage is reproduced in Re "B" at pp.314-316, paragraph 82). In evaluating the relevant circumstances surrounding the communication of each document in issue, I have had regard to the internal review decision of Mr Jones, the contents of the documents themselves, the general nature of the relationship between a civic interest group and a local government authority, and the information which I have before me regarding the circumstances surrounding the imparting of the information in issue, and the purpose for which that information was given. 18. While there is no evidence of an express assurance of confidentiality having been given by the Council, and the evidence is that the only indication that confidentiality was sought by the Association is the placing of the word "confidential" at the head of one of the documents in issue, this does not necessarily rule out the existence of an equitable obligation of confidence. I note in this regard what I said at paragraphs 89-90 of Re "B": 89. The Federal Court in Smith Kline & French accepted that equity may impose an obligation of confidence upon a defendant having regard not only to what the defendant actually knew, but to what the defendant ought to have known in all the relevant circumstances. In cases decided under s.45(1) of the Commonwealth FOI Act (prior to its 1991 amendment) the Federal Court had consistently held that the determination of whether information was provided in circumstances importing an obligation of confidence is essentially a question of fact, which depends upon an analysis of all the relevant circumstances, and it is not necessary for there to have been an express undertaking not to disclose information; such an obligation can be inferred from the circumstances: see Department of Health v Jephcott [1985] FCA 370; (1985) 9 ALD 35; 62 ALR 421 at 425; Wiseman v Commonwealth of Australia (Unreported decision, Sheppard, Beaumont and Pincus JJ, No. G167 of 1989, 24 October 1989); Joint Coal Board v Cameron [1989] FCA 437; (1989) 19 ALD 329, at p.339. 90. 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.19. As I pointed out at paragraphs 92 and 93 of my decision in Re "B" (p.319), a relevant consideration in determining whether the circumstances relating to the communication of confidential information to a government agency are such as to impose an equitable obligation of confidence on the recipient, is the use to which the government agency must reasonably be expected to put the information in the discharge of its functions. 20. Although I have considered each document individually, I can best explain my reasons for decision by dividing the documents into three groups: the first being the letter dated 15 November 1994, the second being the other letters from the Association to the Council, and the third being the two letters from the Council to the Association.Letter dated 15 November 199421. This letter differs from the other correspondence in that it is marked with the word "confidential" at its head. The letter deals with a particular issue of concern to the Association and is clearly a call for the Council to take action of some sort in relation to the issue, and to advise the Association of the action that the Council proposes to take. It would appear from the terms of the letter that the Association's concern to maintain confidentiality is, at least in part, derived from a desire to avoid publicity relating to the issue, which it is suggested might have an adverse effect on ratepayers and the Council.22. In his internal review decision, Mr Jones stated: With regards the documents numbered 1-11 above, there is no evidence to suggest that the documents were exchanged in circumstances which suggest a confidential relationship. It is acknowledged that the [letter dated 15 November 1994] is marked "confidential". However, for a confidential relationship to be established it must be understood on both sides that the information is being supplied on the basis that it will be kept secret and the officer must receive it on that basis. It is not sufficient for the supplier of the information to merely request that the information be treated as confidential. 23. It is clear from this passage that Mr Jones determined that Council officers did not consider that they received any of the correspondence from the Association on a confidential basis, and the Association has submitted no evidence to the contrary. This is not necessarily an end of the matter because, as I noted at paragraph 90 of Re "B" (see paragraph 18 above), there may be circumstances where an agency is bound by an equitable obligation of confidence even if the officers who received the information honestly believed that no confidence was intended. 24. In the case of the document dated 15 November 1994, it is relevant to consider the functions of the Council and the purposes to which it must reasonably have been expected that the Council was likely to put the information, in order to discharge its functions (see paragraph 19 above). If one accepts the position taken by the Association in the letter, the matter raised is a significant one which would be of concern to ratepayers and other members of the public. It is certainly one about which the Association considered that the Council should take immediate and substantial action. If there were substance in the issue raised by the Association, there would be a significant public interest in the Council taking steps to resolve the matter.25. The matter relates to works which have been carried out by, or at the direction of, the third party developer. If, after initial assessment of the concerns raised, the Council considered it was necessary that action be taken, I consider it highly likely that the Council, in the proper exercise of its functions, would have found it both necessary and appropriate to raise the matters set out in the letter with the third party, in order to obtain its views as to the seriousness of the matter and its attitude towards resolution of the problem. If action was to be taken on the matter (which the Association clearly desired), then it is my view that the Association must have expected that the information contained in the letter was likely to be disclosed to the third party. In all the circumstances, I consider that a court would not regard disclosure by the Council to the third party of the information in question as an unconscionable use of that information. Hence disclosure to the third party would not found an action in equity for breach of confidence. 26. I therefore find that the third requirement (set out in paragraph 16 above) is not satisfied, and that no part of the letter dated 15 November 1994 is exempt matter under s.46(1)(a) of the FOI Act.Other letters from the Association27. There is nothing in this correspondence which would lead me to find that the authors intended that it be communicated in confidence. As noted above, some of the letters merely request a meeting with an officer of the Council, or request a representative of the Council to attend a meeting of ratepayers. Others are requests for information, while one simply encloses a copy of a letter which had already been put in the public domain by its publication in the Bayside Bulletin. As to those which do contain substantive complaints or submissions, there is nothing in the nature of those complaints or submissions that would lead me to find that either the sender or the recipient intended or ought to have understood that the matters should be kept confidential. While there may be matters which a ratepayers association would wish to keep confidential because of their possible effect on land values in a particular area, there is nothing in the nature of these documents that would lead me to find that the Council is bound by an equitable obligation of confidence not to disclose them to the third party.28. I therefore find that the third requirement (set out in paragraph 16 above) is not satisfied, and that no part of these documents contains exempt matter under s.46(1)(a) of the FOI Act.Letters from the Council to the Association29. The Association has given no indication as to the basis for its claim that these documents are exempt under s.46(1)(a) of the FOI Act, in the face of the Council's disclaimer, in the decision under review, of any understanding of confidentiality. I can only assume that it is suggested that they repeat information which was communicated by the Association in confidence. While small parts of the letters repeat information communicated by the Association, the letters consist, for the most part, of information provided by the Council to the Association, and the Association cannot maintain a claim that disclosure of that matter would disclose information communicated by it in confidence. As to those parts of the letters which repeat or refer to information provided by the Association in the letters discussed above, I conclude, for the reasons set out above, that disclosure of that information would not found an action in equity for breach of confidence.30. I therefore find that these letters do not contain matter which is exempt under s.46(1)(a) of the FOI Act.Section 46(1)(b) of the FOI Act31. 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.32. In Re "B" at p.337 (paragraph 146), I indicated, that, in order to establish the prima facie ground of exemption under s.46(1)(b) of the FOI Act, three cumulative requirements must be satisfied:(a) the matter in issue must consist of information of a confidential nature;(b) that was communicated in confidence;(c) the disclosure of which could reasonably be expected to prejudice the future supply of such information.If the prima facie ground of exemption is established, it must then be determined whether the prima facie ground is displaced by the weight of identifiable public interest considerations which favour the disclosure of the particular information in issue.33. In relation to requirement (b) above, I discussed the meaning of the phrase "communicated in confidence" at paragraph 152 of my decision in Re "B" (pp.338-9) as follows: 152. I consider that the phrase "communicated in confidence" is used in this context to convey a requirement that there be mutual expectations that the information is to be treated in confidence. One is looking then for evidence of any express consensus between the confider and confidant as to preserving the confidentiality of the information imparted; or alternatively for evidence to be found in an analysis of all the relevant circumstances that would justify a finding that there was a common implicit understanding as to preserving the confidentiality of the information imparted.34. There is no evidence of a mutual understanding between the authors (on behalf of the Association) and officers of the Council, that any of the documents in issue were communicated in confidence. In relation to all of the documents in issue apart from the letter dated 15 November 1994, there is no evidence that either the authors or the Council intended that the information supplied be held in confidence. In relation to the letter of 15 November 1994, there is an indication that its author had such a desire, but as I have found above, its recipient had no expectation or understanding of confidence. Thus, the second requirement for exemption under s.46(1)(b) has not been established, and I find that no part of the documents in issue is exempt under s.46(1)(b) of the FOI Act.35. I note also that there is nothing before me which would support a contention that disclosure of the documents in issue could reasonably be expected to prejudice the future supply of like information to the Council. A ratepayers association provides a vehicle for raising the concerns of its members with the relevant local authority. A significant part of its functions is directed towards raising issues of common concern. I do not accept that ratepayers associations would in future be discouraged from performing this function because of the disclosure of the documents in issue in this case. It may be that, in particular circumstances, an association could lay a clear evidentiary basis for a claim that disclosure of a particular document would prejudice the future supply of like information. However, having examined the documents in issue in this case, and not having had the benefit of any evidence or explanation as to the nature of, or the basis for, an expected prejudicial effect of the kind required by the third element of s.46(1)(b), I find that the third element of s.46(1)(b) has not been satisfied. This affords an additional basis for my conclusion that no part of the documents in issue is exempt under s.46(1)(b) of the FOI Act.Conclusion36. For the foregoing reasons, I affirm the decision of Mr Jones, dated 18 May 1995, that the documents in issue in this external review do not contain exempt matter.................................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

H36 and Office of the Director of Public Prosecutions [2023] QICmr 25 (6 June 2023)

H36 and Office of the Director of Public Prosecutions [2023] QICmr 25 (6 June 2023) Last Updated: 21 September 2023 Decision and Reasons for Decision Citation: H36 and Office of the Director of Public Prosecutions [2023] QICmr 25 (6 June 2023) Application Number: 316880 Applicant: H36 Respondent: Office of the Director of Public Prosecutions Decision Date: 6 June 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION – request for applicant’s brief of evidence - personal information and privacy - whether disclosure would, on balance, be contrary to the public interest - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - DOCUMENTS NONEXISTENT OR UNLOCATABLE – request for applicant’s brief of evidence - whether agency has conducted reasonable searches - whether access to further documents may be refused on the basis they are nonexistent or unlocatable - section 67(1) of the Information Privacy Act 2009 (Qld) - 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 Office of the Director of Public Prosecutions (ODPP) under the Information Privacy Act 2009 (Qld) (IP Act) for access to the full brief of evidence in relation to an offence that he was convicted of in 2017. The ODPP located 144 pages of information responsive to the access application and decided[2] to grant full access to 69 pages and refuse access to parts of 66 pages[3] and eight full pages.[4] One page was excluded from consideration as ODPP decided it contained information irrelevant to the application. The applicant then applied[5] to the Office of the Information Commissioner (OIC) for review of the ODPP’s decision. The applicant seeks access to the refused information and contends that further documents in the ODPP’s possession that are relevant to the access application should exist. For the reasons set out below: I affirm ODPP’s decision to refuse access to the information in issue on the ground that disclosure would be contrary to the public interest;[6] and I am satisfied that ODPP has undertaken all reasonable searches to locate documents responsive to the access application. Accordingly, access may be refused to any further information on the ground that it is nonexistent or unlocatable.[7] Background The applicant was convicted of an offence and sentenced in 2017. The applicant states that he is seeking a full copy of the brief of evidence provided to the Court, as he is considering appealing his conviction. Reviewable decision The decision under review is ODPP’s decision dated 1 August 2022. Evidence considered Significant procedural steps relating to the external review are set out in the Appendix to this decision. The evidence, submissions, legislation, and other material I have considered in reaching this decision are 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.[8] I consider that a decision-maker will, when observing and applying the IP Act and RTI Acts, be ‘respecting and acting compatibly with’ these rights and others prescribed in the HR Act.[9] I further consider that, having done so when reaching my decision, I have acted compatibly with and given proper consideration to relevant human rights, as required under section 58(1) of the HR Act.[10] The applicant submits that refusal of access to the refused information prejudices his human right to have his conviction and sentence reviewed by a higher court in accordance with the law.[11] Section 32(4) of the HR Act, provides that a person convicted of a criminal offence ‘has the right to have the conviction and any sentence imposed in relation to it reviewed by a higher court in accordance with the law’. The applicant is seeking access to the refused matter to obtain advice on the prospects of successfully appealing his conviction and submits that any advice will be significantly impeded without the information.[12] While the applicant’s representative may be of the view that they are not able to fully advise the applicant on his prospects of success without all of the information, that does not prevent the applicant from commencing an appeal and obtaining a full copy of the information through the appeal process. Accordingly, I do not agree that refusal of access to the remaining information prejudices the applicant’s human rights in the way suggested by the applicant. Information in issue ODPP refused access to four pages on the ground that other access to the documents is available.[13] During the review, we conveyed our preliminary view to the applicant that ODPP was entitled to refuse access to those documents on that basis.[14] The applicant did not seek to contest our view and accordingly, those four pages are not considered as part of this decision. The information remaining in issue comprises four full pages and parts of 66 pages (Information in Issue) which broadly contain: the names (in some instances, only middle names), initials and other personal details (such as contact details, date of birth, age and signatures) of individuals other than the applicant (including the victim/complainant and witnesses); and the statement made to Queensland Police Service (QPS) by the victim/complainant, which was recorded in a formal witness statement and a police diary. Issues for determination The issues for determination in this review are: whether ODPP was entitled to refuse access to the Information in Issue on the ground that disclosure would, on balance, be contrary to the public interest; and whether ODPP has undertaken all reasonable searches to locate documents responsive to the access application. Contrary to the public interest information Relevant law Under the IP Act, an individual has a right to be given access to documents to the extent they contain the individual’s personal information.[15] However, this right is subject to the provisions of the IP Act and the RTI Act.[16] Relevantly, an agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[17] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision-maker must:[18] identify and disregard any irrelevant factors identify factors in favour of disclosure identify factors in favour of nondisclosure; and decide whether, on balance, disclosure of the information would be contrary to the public interest. Schedule 4 of the RTI Act contains a non-exhaustive list of factors that may be relevant in determining where the balance of the public interest lies in a particular case. I have had regard to these factors,[19] and to the applicant’s submissions, in reaching my decision. I have also applied the IP Act’s pro-disclosure bias[20] and considered Parliament’s intention that grounds for refusing access to information are to be interpreted narrowly.[21] Findings In deciding whether disclosure of the Information in Issue would, on balance, be contrary to the public interest, I have taken no irrelevant factors into account in making my decision. Public interest factors favouring disclosure The RTI Act recognises that public interest factors favoring disclosure will arise where disclosing the information could reasonably be expected to: enhance the Government’s accountability and transparency;[22] and reveal the reason for a government decision and any background or contextual information that informed that decision.[23] Disclosing the Information in Issue would give the applicant a more complete picture of the information in the possession of ODPP at the time he was prosecuted. However, ODPP has disclosed a significant amount of information to the applicant and this disclosure has substantially advanced ODPP’s accountability and transparency. Taking into account the nature of the Information in Issue, which generally comprises third-party personal information, and the information which has been disclosed to the applicant, I am not satisfied that disclosure of the Information in Issue would, to any significant extent, further advance ODPP’s accountability and transparency. In these circumstances, I attribute low to no weight to these factors. There is a public interest in individuals being able to obtain access to their own personal information held by government. Having reviewed the Information in Issue, I am satisfied that to the extent that it relates to the applicant, it is the applicant’s personal information. Accordingly, this disclosure factor applies to the applicant’s personal information within the Information in Issue and I afford it significant weight. However, the information relating to the applicant is intertwined with the personal information of other individuals to such an extent that it cannot be disclosed without also disclosing the personal information of those other individuals (giving rise to the nondisclosure factors discussed below). The applicant submits that:[24] he is currently incarcerated and is considering a possible appeal of his conviction he requires the Information in Issue for this purpose, as he does not hold any of the documents from when he was tried and sentenced; and the redacted documents present access to justice issues for him. In this respect the applicant’s submissions include that the witness statements that have been disclosed suggest the presence of another individual at the incident location and that this information could be material to an appeal against conviction. Given the applicant’s submissions, I have considered whether disclosure of the Information in Issue could reasonably be expected to: advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies[25] contribute to the administration of justice generally, including procedural fairness;[26] and contribute to the administration of justice for a person.[27] During the external review, I conveyed a preliminary view to the applicant,[28] that in view of the information that has been disclosed to the applicant by ODPP in response to his access application and the information that would have been made available to the applicant during the court process, I considered the fair treatment and administration of justice factors are not deserving of any significant weight.[29] The applicant objects to the weight that I consider applies to the factors favouring disclosure of the Information in Issue. In particular the applicant submits that:[30] refusing access to witness names (including the identity of other persons at the location where the incident occurred) is preventing the applicant from receiving advice about his prospects of successfully appealing his conviction; and while the applicant’s lawyer would have had access to the Information in Issue during the court process, the applicant does not have any of those documents in his possession. The fundamental requirements of procedural fairness[31] - that is, an unbiased decision-maker and a fair hearing - should be afforded to a person who is the subject of an investigation or decision.[32] There is no information before me to suggest that the applicant was not afforded an opportunity to respond to the charges against him during the criminal proceedings which are now finalised. To that extent, I understand that the applicant pleaded guilty to the charge against him. However, as noted above, the applicant submits that the information in the witness statements that have already been disclosed to him, suggests the presence of another individual at the incident location and that information could be material to an appeal against conviction. I understand the applicant’s submission to be, in essence, that if there was another individual at the location at the time of the incident, that person may have been a potential witness and as a result of that person not providing evidence during the criminal proceedings, that a miscarriage of justice has occurred. I acknowledge the applicant’s submission in this respect, however even if it is the case that disclosure of the Information in Issue would reveal that there was another individual present at the incident location, that in itself, does not equate to a finding that a miscarriage of justice has occurred. On this basis, while these factors may apply,[33] I afford them only moderate weight. The applicant’s submission that refusal of witness names is preventing the applicant from receiving advice about his prospects of successfully appealing his conviction, also raises the administration of justice for a person factor favouring disclosure.[34] For this to apply, it must be established that the applicant has suffered some kind of wrong in respect of which a remedy is, or may be available under the law, that there is a reasonable basis for seeking to pursue any such remedy and that disclosure of the information held by the agency would assist the applicant to pursue the remedy, or to evaluate whether a remedy is available or worth pursuing.[35] Following the decision of Bruce Dulley Family Lawyers and WorkCover Queensland,[36] I am not satisfied that the applicant’s consideration of appealing his conviction is the type of wrong contemplated by this factor favouring disclosure and accordingly I afford this factor no weight. In addition, in support of disclosure of the Information in Issue, the applicant submits that there are strict rules of disclosure that apply to criminal proceedings and, on that basis public interest factors weigh in favour of him receiving a further copy of the material.[37] The rules of disclosure referred to by the applicant are in relation to the procedure to be followed in bringing an accused person to trial. Given that the applicant has been tried, convicted and is serving a prison sentence, I do not consider that the rules of disclosure referred to by the applicant are relevant to my consideration of the disclosure of the Information in Issue under the IP Act. Further, there is no information before me to suggest that the strict rules of disclosure were not followed during the proceedings and the applicant’s sentencing. I also consider the Information Commissioner’s comments in Phyland and Department of Police are particularly relevant to the applicant’s submissions:[38] The RTI Act was not ... designed to serve as an adjunct to court processes, but to comprise a stand-alone mechanism for enabling public access to government-held information. Obviously, the applicant is entitled to elect to pursue access under the right of access conferred by the RTI Act. In doing so, however, she must accept the qualifications upon and limitations to that right imposed by the Act itself: including refusal of access where ... disclosure would disclose personal information or infringe upon an individual’s right to privacy. I have carefully considered all factors listed in schedule 4, part 2 of the RTI Act and the applicant’s submissions. Having done so, I can identify no other public interest considerations favouring disclosure of the Information in Issue. Public interest factors favouring nondisclosure The Information in Issue broadly comprises information which identifies or is about individuals other than the applicant and information that was provided to QPS by other individuals, including the victim/complainant. I am satisfied that it comprises the personal information of these other individuals. Most of the Information in Issue is of a highly sensitive and highly personal nature,[39] and as noted above, some of it is intertwined with the applicant’s personal information. The RTI Act recognises that there is a public interest harm[40] in disclosing the personal information of a person, whether living or dead, and that disclosing information which could reasonably be expected to prejudice the protection of an individual’s right to privacy gives rise to a public interest factor favouring nondisclosure.[41] The applicant submits that:[42] the documents sought by the applicant would have been made available in their entirety and without redactions to the applicant for the purposes of his criminal proceedings. In the ordinary course, he would have been shown and taken through each document at the relevant time the refusal of access to the victim/complainant’s name is illogical in circumstances where the applicant was charged, prosecuted and pleaded guilty to the offence. Any suggestion of prejudice to the protection of her identity could not sensibly be maintained witness names have been redacted, despite their witness statements (which identified them) having been provided voluntarily and in the knowledge that they would be given to the applicant. There can be no suggestion of prejudice to the witnesses by disclosure of the information; and the ODPP decision acknowledges that some of the refused information may already be known to the applicant, but reliance is placed on the concern that ‘... once the information is disclosed in this way, its dissemination cannot be controlled’. The concern about control and dissemination of information is unjustified. I do not accept the applicant’ s submission that because the documents he seeks access to would have been made available in their entirety and without redactions to the applicant for the purposes of his criminal proceedings, that provides the applicant with an unfettered and automatic right of access under the IP Act. The right of access under the IP Act is subject to the other provisions of the IP Act, including grounds upon which access may be refused.[43] The applicant is submitting that because he has been charged, prosecuted and convicted of the offence, any right to the protection of privacy for the victim/complainant and witnesses has been waived in relation to any information that was provided to QPS or disclosed as part of the criminal proceedings. Further, the applicant submits that the right to confidentiality is waived by individuals who make criminal complaints.[44] I do not accept the applicant’s submissions. In Marshall and Department of Police,[45] the RTI Commissioner recognised that in appropriate cases, information supplied to QPS will need to be further disseminated or published (so as, for example, to enable further investigation, or for prosecutorial purposes, often in open court) which may reduce the privacy interest attaching to relevant information.[46] I accept that this may be the case in relation to the Information in Issue in this review and that this reduces the weight of the privacy interest to some degree in this case. However, in that decision the RTI Commissioner also considered that members of the community assisting police with inquiries have a legitimate expectation that in doing so, their privacy will be maintained and respected as far as is possible.[47] Further the applicant submits that as he has been prosecuted and convicted, this means that the Information in Issue is already in the ‘public domain’.[48] In the decision of Queensland Newspapers Pty Ltd and Department of Justice and Attorney-General,[49] the Right to Information Commissioner recognised that while the right to privacy may be diminished in respect of information that is in the public domain, it is not destroyed and a residual right to privacy remains. The trial in that matter received intense public interest and wide media coverage. The Right to Information Commissioner took account of the sensitivity of the information and the fact that the matter had been finalised and was out of the public eye and determined that:[50] ... the public interest in protecting the right to privacy of the persons involved, and referred to, in the recordings, even in respect of the information that was disclosed at trial, remains significant. While I acknowledge that some of the information may be known to the applicant as it comprises evidence that was provided to the applicant’s lawyers at the time of the proceedings or presented to the court, given the nature of the Information in Issue and the very sensitive context in which it appears, I consider that the third-party individuals retain a right to the protection of their privacy. Accordingly, I consider that disclosure of the Information in Issue would be a significant intrusion into the privacy of those individuals. I accept that the weight of the privacy factor is reduced to some degree, however given the sensitivity of the information, I still consider that this factor warrants significant weight. In my view, the extent of the harm in disclosing the personal information comprised in the Information in Issue is substantial due to the nature of the information and the impact this would have on those individuals’ privacy.[51] For these reasons, I afford the public interest harm factor significant weight. The applicant submits that no legal limits are placed on the use or dissemination of material provided in the course of criminal proceedings and that no information beyond what was disclosed in the criminal proceedings is being sought. Accordingly, it is unjustified for ODPP or OIC[52] to place any reliance on the fact that once the information is disclosed under the IP Act ‘its dissemination cannot be controlled’, as this ignores and is at odds with the principles underpinning disclosure in the criminal justice system.[53] In this respect, the applicant is attempting to correlate the disclosure of information during criminal proceedings, with the disclosure of information under the IP Act. These are very different processes. As noted in Z59 and Queensland Police Service[54] the access schemes established under the RTI Act and IP Act, require a decision-maker ‘to balance competing public interest factors and ... take into account the effect of disclosure on the protection of a person’s right to privacy’.[55] As noted above, disclosing the Information in Issue under the IP Act, including to the applicant, would in my view be a significant intrusion into the third parties’ privacy and could reasonably be expected to cause a public interest harm. During the external review, I also conveyed a view to the applicant that release of the Information in Issue could reasonably be expected to prejudice the future flow of information from the community to QPS.[56] The applicant does not accept my view in this respect and has made similar submissions to those in relation to the factors favouring nondisclosure of third-party information, namely:[57] by making a criminal complaint, the complainant voluntarily revealed her identity and waived any right to privacy or confidentiality the complainant agreed to give evidence on behalf of the prosecution and had the matter proceeded to trial, her evidence may have been heard in open court; and all information concerning the complaint, the complainant, and the witnesses, was previously shared with and released to the relevant law enforcement agencies and to the applicant (through his legal representatives). I do not accept the applicant’s submissions in this respect and reiterate the view of the Right to Information Commissioner in Marshall.[58] I acknowledge that a person making a criminal complaint to QPS will have a reasonable expectation that the information they provide, may have to be disseminated for the purposes of further investigation or for criminal proceedings, however I do not consider that expectation extends to disclosure of the information under the RTI Act or IP Act, some years after any criminal proceedings have been finalised. Further, while I acknowledge that QPS possesses certain coercive powers when investigating complaints, I nevertheless consider that efficient and effective use of QPS resources is facilitated by it being able to seek and obtain information from various members of the community, including complainants and bystanders with as much cooperation as possible. Routine disclosure of third-party personal information under the RTI Act or IP Act, could reasonably be expected to discourage the public from providing information to QPS. This in turn, could reasonably be expected to negatively impact on QPS’s ability to obtain information required to perform its investigative functions. In the circumstances of this matter, I afford moderate weight to these factors favouring nondisclosure. Balancing the public interest I have taken into account the pro-disclosure bias in deciding access to the Information in Issue under the IP Act.[59] I have afforded significant weight to the factor favouring disclosure of the applicant’s personal information within the Information in Issue, however that personal information of the applicant is inextricably intertwined with the personal information of other individuals. In addition, and for the reasons outlined above, I have found that the factors relating to ODPP’s transparency and accountability are deserving of low to no weight, taking into account the nature of the Information in Issue and the information which has been disclosed to the applicant and that the factors in relation to the fair treatment of individuals and administration of justice generally, are deserving of moderate weight. On the other hand, I have found that the nondisclosure factors which relate to protecting the personal information and right to privacy of other individuals, in a highly sensitive context, are deserving of significant weight. In addition, the nondisclosure factors which relate to protecting the flow of information to QPS, are deserving of moderate weight. On balance, I am satisfied that the public interest factors favouring nondisclosure of the Information in Issue outweigh the factors favouring disclosure. Accordingly, I find that disclosure of the Information in Issue would, on balance, be contrary to the public interest and access may be refused on that ground.[60] Sufficiency of the ODPP’s searches Relevant law As noted at paragraph 14, under section 40 of the IP Act, an individual has a right to be given access to documents of an agency to the extent they contain the individual’s personal information.[61] However, this right is subject to limitations, including grounds for refusal of access.[62] The Information Commissioner’s external review functions include investigating and reviewing whether agencies have taken reasonable steps to identify and locate documents applied for by applicants.[63] However, access may be refused where a document is nonexistent or unlocatable.[64] To be satisfied that a document is nonexistent, an agency must rely on their particular knowledge and experience and have regard to a number of key factors which include:[65] the administrative arrangements of government the agency’s structure the agency’s functions and responsibilities[66] the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested document/s and the nature of the government activity to which the request relates. When proper consideration is given to relevant factors, it may not be necessary for searches to be conducted. However, if searches are relied on to justify a decision that the documents do not exist, all reasonable steps must be taken to locate the documents. What constitutes reasonable steps will vary from case to case as the search and enquiry process an agency will be required to undertake will depend on which of the key factors are most relevant in the particular circumstances. To determine whether a document exists, but is unlocatable, the RTI Act requires consideration of whether there are reasonable grounds for the agency to be satisfied that the requested document has been or should be in the agency’s possession; and whether the agency has taken all reasonable steps to find the document. In answering these questions, regard should again be had to the circumstances of the case and the relevant key factors.[67] 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.[68] However, where an external review involves the issue of missing documents, the applicant has a practical onus to establish reasonable grounds to believe that the agency has not discharged its obligation to locate all relevant documents. Suspicion and mere assertion will not satisfy this onus.[69] Applicant’s submissions The applicant submits that ODPP has failed to locate the following:[70] hospital and health service records scene of crime photographs referred to in a witness statement audio and visual recordings referred to in witness statements an index to the brief of evidence; and DNA evidence. Further, the applicant’s representative submits that in relation to a different IP Act application, it has been advised by QPS that the ‘common practice is for the original brief to be retained by ODPP, as part of the Department of Justice and Attorney-General’.[71] Findings The Information Commissioner is dependent on the agency’s officers to search for relevant documents.[72] In response to OIC’s request that ODPP conduct further searches, ODPP submits that following finalisation of the applicant’s criminal matter:[73] the police brief of evidence was returned to QPS on 23 November 2017. ODPP has provided OIC with a copy of its letter to QPS in this regard further material was returned to QPS on 6 August 2019 (including, recordings of body worn camera footage, photographs and a recording of a DNA sample) ODPP has provided OIC with a copy of its letter to QPS in this regard ODPP did not retain any index to the brief of evidence; and a further search of ODPP’s files did not locate any additional, relevant documents. The question for me to consider is whether ODPP has taken ‘reasonable steps’ to locate the documents that the applicant considers to be missing. I have considered the submissions from the applicant, noting their contrary claims as to the return of documents to QPS, however mere assertion will not satisfy the onus. While I acknowledge the advice that QPS provided to the applicant’s representative, I note that the advice appears to be of a general nature and is not in relation to the brief of evidence in this matter, whereas ODPP has provided OIC with copies of its letters to QPS returning the information. Taking the above into consideration, I am satisfied that ODPP has conducted all reasonable searches of locations where it is reasonable to expect the documents to be and has also provided a reasonable explanation and evidence as to why it has not been able to locate further documents requested by the applicant. On that basis, I consider that access may be refused to any further documents on the ground they are unlocatable.DECISION For the reasons set out below: I affirm ODPP’s decision to refuse access to the Information in Issue on the ground that disclosure would be contrary to the public interest;[74] and I am satisfied that ODPP has undertaken all reasonable searches to locate documents responsive to the access application. Accordingly, access may be refused to any further information on the ground that it is nonexistent or unlocatable.[75] I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.S MartinAssistant Information Commissioner Date: 6 June 2023 APPENDIX Significant procedural steps Date Event 29 August 2022 OIC received the application for external review. OIC requested preliminary documents from ODPP. 30 August 2022 OIC received the preliminary documents from ODPP. 8 September 2022 OIC received submissions from the applicant. 20 September 2022 OIC advised the applicant and ODPP that the application for external review had been accepted. OIC conveyed a preliminary view to the applicant in relation to access to court transcripts and requested that ODPP undertake further searches for documents responsive to the applicant’s access application. 4 October 2022 ODPP requested an extension of time to respond to OIC’s letter dated 20 September 2022, which OIC granted. 11 October 2022 ODPP provided OIC with the Information in Issue. 21 October 2022 OIC followed up ODPP and requested submissions and search records. 7 November 2022 OIC received submissions and search records from ODPP in response to OIC’s preliminary view. 16 December 2022 OIC conveyed a preliminary view to the applicant addressing sufficiency of search concerns. 13 January 2023 The applicant responded to OIC’s preliminary view. 17 January 2023 OIC conveyed a further preliminary view to the applicant. 24 January 2023 The applicant responded to OIC’s preliminary view. 31 January 2023 The applicant provided submissions contesting OIC’s preliminary view. 24 February 2023 OIC conveyed a final preliminary view to the applicant. 28 February 2023 The applicant confirmed they did not accept OIC’s preliminary view and requested a formal decision. 2 March 2023 and 3 March 2023 OIC contacted the applicant in response to the applicant’s email of 28 February 2023. 31 March 2023 The applicant requested an extension of time to provide further submissions, which OIC granted. 6 April 2023 OIC received further submissions from the applicant. [1] Access application dated 8 July 2022. The access application was made to the Department of Justice and Attorney-General (DJAG) and was then transferred to the ODPP. DJAG has delegated power to deal with applications made under the IP Act for access to documents in the ODPP’s possession or control.[2] Decision dated 1 August 2022.[3] Pursuant to section 67(1) of the IP Act and schedule 4, part 3 of the Right to Information Act 2009 (Qld) (RTI Act). Section 67(1) of the IP Act provides 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 were the document to be subject to an access application under that Act.[4] Four pages pursuant to schedule 4, part 3, section 3 of the RTI Act and four pages pursuant to section 53(a) of the RTI Act.[5] External review application dated 29 August 2022.[6] Section 47(3)(b) of the RTI Act.[7] Section 47(3)(e) of the RTI Act.[8] Section 21 of the HR Act.[9] See XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; and Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[10] 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).[11] Section 32(4) of the HR Act. Letter to OIC dated 8 September 2022.[12] Letter to OIC dated 8 September 2022.[13] In this case in the form of court transcripts.[14] Pursuant to sections 47(3)(f) and 53 of the RTI Act.[15] Section 40 of the IP Act.[16] As noted above, section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent it could refuse access to the document under section 47 of the RTI Act were the document to be the subject of an access application under that Act.[17] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act.[18] Section 49(3) of the RTI Act.[19] I have considered each of the public interest factors outlined in schedule 4 of the RTI Act, and any relevant factors are discussed below. [20] Section 64 of the IP Act.[21] Section 67(2) of the IP Act and section 47(2) of the RTI Act. [22] Schedule 4, part 2, item 1 of the RTI Act. [23] Schedule 4, part 2, item 11 of the RTI Act.[24] Letter to OIC dated 8 September 2022 and email to OIC dated 31 January 2023.[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] Email to the applicant dated 17 January 2023 and letter to the applicant dated 24 February 2023.[29] Email to the applicant dated 17 January 2023 and letter dated 24 February 2023.[30] Email to OIC dated 31 January 2023.[31] Schedule 4, part 2, item 16 of the RTI Act[32] The fair hearing aspect of procedural fairness requires that, before a decision that will deprive a person of some right, interest or legitimate expectation is made, the person is entitled to know the case against them and to be given the opportunity of replying to it (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at [584] per Mason J).[33] Schedule 4, part 2, items 10 and 16 of the RTI Act.[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]; confirmed in 1OS3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011) at [16]). [36] (Unreported, Queensland Information Commissioner, 26 July 2012) at [31]. While I acknowledge that the findings in that matter related to a civil matter, I consider that the findings apply equally to a criminal matter.[37] Letter to OIC dated 6 April 2023. The applicant’s references include sections 590AH and 590AJ of the Criminal Code Act 1899 (Qld), section 29 of the Director of Public Prosecutions Guidelines, rule 29.5 of the Australian Solicitor’s Conduct Rules and section 23(2)(a) of the HR Act.[38] (Unreported, Queensland Information Commissioner, 31 August 2011) at [24], cited in Sedlar and Logan City Council [2017] QICmr 52 (7 November 2017) at [59]. While I acknowledge that this case was in relation to an access application made under the RTI Act, I consider that the comment applies equally to an access application made under the IP Act.[39] Such as the information (including observations and opinions) other individuals provided to QPS.[40] Schedule 4, part 4, section 6 of the RTI Act.[41] Schedule 4, part 3, item 3 of the RTI Act. [42] Letter to OIC dated 8 September 2022.[43] As provided in the RTI Act.[44] Letter to OIC dated 6 April 2023.[45] (Unreported, Queensland Information Commissioner, 25 February 2011) (Marshall).[46] At [28].[47] At [28].[48] Letter to OIC dated 6 April 2023. The applicant refers to the case of Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63 at 69.[49] [2018] QICmr 52 (18 December 2018).[50] At [31].[51] Schedule 4, part 4, section 6 of the RTI Act. The concept of ‘privacy’ is not defined in either the IP Act or RTI Act. It can, however, essentially be viewed as the right of an individual to preserve their ‘personal sphere’ free from interference from others (paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 12 August 2008, at paragraph 1.56).[52] Letter to OIC dated 6 April 2023.[53] Letters to OIC dated 8 September 2022 and 6 April 2023.[54] [2023] QICmr 15 (28 March 2023).[55] At [34].[56] Schedule 4, part 3, items 13 and 16 and schedule 4, part 4, section 8 of the RTI Act.[57] Letter to OIC dated 6 April 2023.[58] As referred to at paragraph 36.[59] Section 64 of the IP Act.[60] Under section 47(3)(b) of the RTI Act.[61] ‘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’. [62] Section 67(1) of the IP Act sets out that an agency may refuse access to information in the same way and to the same extent that the agency could refuse access to the document under section 47 of the RTI Act were the document the subject of an access application under the RTI Act. [63] Section 137(2) of the IP Act. The Information Commissioner also has power under section 115 of the IP Act to require additional searches to be conducted during an external review. The Queensland Civil and Administrative Tribunal confirmed in Webb v Information Commissioner [2021] QCATA 116 (Webb) 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.[64] Sections 47(3)(e) and 52(1) of the RTI Act. A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist—section 52(1)(a) of the RTI Act. A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find the document but it cannot be found—section 52(1)(b) of the RTI Act.[65] These factors are identified in Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) (Pryor) at [19], which adopted the Information Commissioner’s comments in PDE and the University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at [37]-[38]. These factors were more recently considered in Van Veenendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017) and P17 and Queensland Corrective Services [2020] QICmr 68 (17 November 2020). [66] Particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it. [67] Pryor at [21]. [68] Section 100(1) of the IP Act. [69] 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].[70] Letter to OIC dated 8 September 2022.[71] Email to OIC dated 24 January 2023.[72] Webb at [6].[73] Email to OIC dated 7 November 2022.[74] Section 47(3)(b) of the RTI Act.[75] Section 47(3)(e) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Cowen and Queensland Building and Construction Commission [2016] QICmr 43 (14 October 2016)

Cowen and Queensland Building and Construction Commission [2016] QICmr 43 (14 October 2016) Last Updated: 6 February 2017 Decision and Reasons for Decision Citation: Cowen and Queensland Building and Construction Commission [2016] QICmr 43 (14 October 2016) Application Number: 312749 Applicant: Cowen Respondent: Queensland Building and Construction Commission Decision Date: 14 October 2016 Catchwords: ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT - AMENDMENT APPLICATIONS - application to amend information relating to inspection of the applicant’s residential property - statements about building defects attributed to the applicant in a report - whether applicant has obtained access to the information sought to be amended - whether information is the personal information of the applicant - whether information is inaccurate, incomplete or misleading - discretion to refuse amendment - section 72 of the Information Privacy Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Queensland Building and Construction Commission (QBCC) to amend information relating to his residential property. The property was the subject of a QBCC inspection in August 2015, arising out of concerns the applicant raised with QBCC about building work performed on the property. The primary document which the applicant sought to have amended was a report prepared by the QBCC following inspection of the applicant’s property (Inspection Report). The applicant also requested amendment of what he understood to be ‘QBCC’s advice to the Minister for Housing and Public Works that both my wife and I had refused to attend a mediation meeting’.[1] QBCC decided to refuse amendment of any information under section 72 of the Information Privacy Act 2009 (Qld) (IP Act). QBCC was not satisfied that the information in the Inspection Report was inaccurate, incomplete, out of date or misleading.[2] QBCC was also unable to identify the specific personal information of concern to the applicant in any advice it had given to the Minister pertaining to the applicant’s property issues, and therefore, refused to amend it on that basis.[3] Despite its decision, QBCC advised that it would place a copy of the applicant’s amendment application on the relevant files, to serve as a notation of his concerns. The applicant applied to the Office of the Information Commissioner (OIC) for an external review of QBCC’s decision to refuse his amendment application. On review, the applicant maintained that QBCC gave ‘false advice’ to the Office of the Minister for Housing and emphasised that there was ‘no evidence of any kind to support the accuracy of the claimed statements’ in the Inspection Report.[4] The applicant provided OIC with extensive submissions during the external review process, including copies of independent consultant reports and photographs, which he submitted overwhelmingly refuted the contents of the Inspection Report. The applicant has strenuously contested the QBCC inspector’s version of events and believes that the Inspection Report includes numerous misleading and ‘fictitious statements’. In the circumstances of this case, I am satisfied that the information which the applicant seeks to amend in the Inspection Report represents the inspector’s understanding of and opinions on building defects and related matters discussed during the inspection and that these opinions were actually held and accurately recorded in an official public record. For the reasons set out below, I have decided to vary QBCC’s decision as I have found that Part 1 of the application is invalid to the extent that it seeks to amend information to which the applicant has not obtained access.[5] I do however, agree with QBCC’s decision to refuse any amendment of the Inspection Report[6] under section 72 of the IP Act, as I am not satisfied that the information is inaccurate, incomplete or misleading. Background Significant procedural steps relating to the application and external review process are set out in the Appendix. Reviewable decision The decision under review is QBCC’s decision dated 15 January 2016 refusing amendment of documents, under section 72 of the IP Act. 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). Issue for determination In this review, the primary issue for determination is whether the requested amendments, as set out in the amendment application, may be refused under section 72 of the IP Act. In examining this issue, the following questions arise for consideration: Is the applicant entitled to apply for amendment? Is the applicant seeking to amend his personal information? Is the information sought to be amended inaccurate, incomplete, out of date or misleading? The applicant provided detailed written submissions[7] to OIC including photographs, several independent building and engineering reports,[8] copies of complaints made to QBCC and correspondence between the applicant and his neighbour.[9] QBCC also provided OIC with a copy of the Inspection Report and a copy of the inspector’s notes taken during the inspection.[10] I have carefully considered all of this information to the extent it is relevant to the issues for determination in this review. The applicant submitted that OIC should obtain a further engineering report and additional photographs from QBCC as he considered they would support his submission that the information he seeks to amend is false, and would demonstrate that the inspector’s notes do not match the photographs taken during the inspection. While I note the applicant’s concerns, in the circumstances of this case, I have not found it necessary to obtain any additional material.[11] During the review, the applicant also raised a number of issues that are beyond OIC’s external review jurisdiction under the IP Act.[12] Importantly, OIC does not have any power to investigate the QBCC inspector’s qualifications, his authority to conduct property inspections, his conduct and performance of his role as a building inspector with QBCC generally, or the specific actions taken by the inspector in relation to the applicant’s property inspection. As these matters fall outside OIC’s external review jurisdiction, they are not addressed in these reasons for decision. The applicant also notified OIC that, during the review, he had become aware that QBCC had distributed a copy of the Inspection Report without attaching a copy of his amendment application.[13] OIC initially advised the applicant that this matter was beyond OIC’s external review jurisdiction, noting that the applicant had not formally applied to QBCC to add a notation under section 76 of the IP Act. Notwithstanding those circumstances, OIC made enquiries with QBCC in an effort to assist the applicant. In response, QBCC advised that it would endeavour to include comments in its records management database to ensure that, in the future, the Inspection Report would be read in conjunction with the amendment application.[14] OIC conveyed this to the applicant and therefore, this issue is not considered any further in these reasons. Relevant law The cumulative effect of sections 41 and 44(1) of the IP Act is to confer on an individual a right to apply for amendment of documents of an agency, or Minister, containing the individual’s personal information, where the following requirements are satisfied: (i) the applicant has previously obtained access to the documents said to contain the applicant’s personal information (ii) the information which the applicant seeks to amend is the applicant’s personal information; and (iii) the personal information is inaccurate, incomplete, out of date or misleading. [emphasis added] To satisfy element (i), an applicant does not need to have accessed the document under the IP Act or Right to Information Act 2009 (Qld) (RTI Act). The relevant OIC Guideline provides that access may be established if the applicant has: viewed the document on a computer screen read it but not been given a copy of it seen an extract from it; or had it read to them over the phone.[15] In respect of element (ii), ‘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. 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.[16] The term ‘misleading’ is not defined in the IP Act. The ordinary dictionary definition[17] 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[18] 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. It is concerned that the third persons reading the personal information do not get the wrong impression... If a decision-maker is satisfied that requirements (ii) and (iii) above are not met, amendment may be refused under section 72 of the IP Act. A decision-maker is not however, limited solely to the grounds in that section, thereby, conferring a discretion on a decision-maker to refuse amendment on other grounds.[19] In 3DT2GH, the Information Commissioner explained the operation of the discretion as follows: To replace words actually used by the authoring officer with the text sought by the applicant would result in a contrived document containing invented contents, essentially putting words into the mouth of the author in a manner that would distort the official historical record. This alone would, in my view, justify an exercise of the discretion to refuse to amend the [document] in terms as requested by the applicant. In deciding whether to exercise the discretion to amend information, a decision-maker may take various factors into account, including: (a) the character of the record, in particular whether it purports to be an objective recording of purely factual material or whether it merely purports to be the record of an opinion/report of one person; (b) whether the record serves a continuing purpose; (c) whether retention of the record in unamended form may serve a historic purpose; (d) whether the record is dated; (e) whether amendment is being sought as a de facto means of reviewing another administrative decision; (f) the extent to which access to the record is restricted; (g) whether creation of the record or any of its contents was induced by malice; (h) whether the record is part of a group of records and, if so, whether the other records modify the impact of the record in dispute.[20] A decision-maker may also take into account the fact that it is not the purpose of the amendment provisions to: re-write history,[21] as this destroys the integrity[22] 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[23] re-write a document in words other than the author’s[24] review the merits or validity of official action;[25] or correct any perceived deficiencies in the work undertaken by agencies or re-investigate matters.[26] In summary, the amendment provisions in the IP Act are limited in their scope and effect and are not intended to serve as a mechanism to re-investigate issues which an applicant considers have not been properly dealt with by the relevant agency. In most instances, there will be other avenues and processes for making such complaints. Importantly, the provisions are concerned with ensuring the accuracy of official public records, not with the merits or legality of the official action that has been recorded in them.[27] Similarly, the amendment provisions should not be used as a tool to question or discredit a public officer’s qualifications or skills. Findings (a) Is the applicant entitled to apply for amendment? Yes, but only in relation to the Inspection Report. The issue of access to the Inspection Report is undisputed. However, I am not satisfied that the applicant has had access to the information he seeks to have amended in ‘QBCC’s advice to the Minister’[28] and therefore, I find that this part of the application is invalid, for the reasons set out below. The applicant requested that QBCC amend the advice which it allegedly provided to the Minister for Housing and Public Works that the applicant and his wife ‘refused to attend a mediation meeting...’.[29] The applicant contends that neither he nor his wife were invited to any mediation meeting (or any other type of meeting) with the builder.[30] The applicant claims that this statement was read out over the phone to an ex-member of Parliament who then relayed the statement back to the applicant.[31] The applicant is of the view that he obtained access to the document ‘as the contents were relayed back to [him] verbatim from a very trusted and normally very honest source’[32] but accepts that he has not had ‘any physical possession or physical access’[33] to the information. QBCC was unable to locate ‘any written information or reference’ to the subject statement in its records and therefore, decided that there was no personal information of the applicant which he could apply to have amended.[34] As set out in paragraph 15 above, the applicant must have obtained access to the document said to contain the applicant’s personal information before an amendment request may proceed. I acknowledge the applicant’s submission that certain information was relayed to him by what he considers to be a trustworthy source. However, I have also had regard to the guidance in the relevant OIC guideline as to what may constitute access, and QBCC’s decision that it could not locate any record of having communicated the subject statement to the Minister. Based on the available evidence, I am not satisfied that the applicant has established a sufficient nexus with the subject statement to establish that he has ‘obtained access’ for the purpose of requirement (i) above. For the above reasons, I find that the applicant has obtained access to the Inspection Report but not to any other document which he seeks to have amended. In view of my finding on this issue, the remainder of these reasons only concern the amendments sought by the applicant in relation to the Inspection Report, ie. Part 2 of the application.(b) Is the applicant seeking to amend his personal information? Yes, for the reasons set out below. In determining whether information is a particular individual’s personal information for the purposes of the IP Act, it is relevant to firstly consider whether the individual can reasonably be identified from the information and if so, whether the information is about the individual.[35] The information which the applicant is seeking to amend appears throughout the Inspection Report prepared by the QBCC following a site inspection of the applicant’s property. The Information Commissioner has previously found that ‘information of significance to land owned by an individual’ does not necessarily constitute their personal information.[36] For the following reasons, I am satisfied that there is a sufficient connection between the applicant and the information which he is seeking to amend, as set out in Appendix 2, to make the information the applicant’s personal information. In most instances, the applicant is directly named as the person who has made the statements which he seeks to have amended, eg. ‘Mr Cowen said...’.[37] The applicant is named as the only attendee at the inspection (in addition to the inspector) and the Inspection Report describes building defects discussed between the applicant and the inspector during the inspection. To this end, I consider the applicant’s identity is reasonably ascertainable as he, the owner of the property and the individual alleging building defects, is the person who would have described the defects to the inspector, even if the complaints are not specifically attributed to him by name. Based on the above, I am satisfied that the information which the applicant seeks to amend in the Inspection Report: represents statements made, views expressed or opinions held by the applicant is about the applicant; and therefore, comprises his personal information. (c) Is the information inaccurate, incomplete, out of date or misleading? No, for the reasons set out below.[38] The requirements of section 44 of the IP Act[39] are such that in an external review of a decision refusing amendment, a practical onus shifts to an applicant[40] to provide evidence to support their case in favour of amendment.[41] The applicant makes 15 separate amendment requests in relation to the Inspection Report and seeks to have the ‘false claims withdrawn’.[42] Broadly speaking, the applicant seeks to amend the descriptions of some of the building defects and the notes recorded by the inspector in relation to each complaint. The applicant wholly denies making some of the statements[43] and in some instances, contends that the words used do not accurately or sufficiently convey the statements he made or views he expressed to the inspector about the building defects. Throughout his submissions, the applicant emphasises that the Inspection Report is not supported by the content of the inspector’s notes or photographs of the property. The applicant is very concerned about perceived inconsistencies between photographs and the content of the Inspection Report. On its face, the Inspection Report sets out the defects as notified by the applicant at the inspection, summarises the inspector’s observations made during the inspection and sets out the inspector’s conclusions on the alleged building defects and complaints, as raised by the applicant. The Inspection Report also includes photographs corresponding to certain defects, and includes comments later obtained from the original builder. I am satisfied that the Inspection Report represents a historical record which forms part of the chronology of the applicant’s building dispute in relation to his residential property.[44] The inspector was nominated by QBCC to undertake the task of conducting the site inspection and has summarised his recollection of events in a particular manner. The inspector has confirmed to QBCC that the Inspection Report accurately reflects his recollection of matters discussed at the inspection.[45] Understandably, the applicant, as a home owner seeking to rectify building work at his property which he considers to be defective, feels strongly that the Inspection Report must accurately reflect the matters discussed at the inspection. I acknowledge that the applicant considers the Inspection Report should therefore, be modified to include content that is preferable to him. First and foremost however, the Inspection Report is a public record[46] which has been authored by an officer employed by a public authority, QBCC. In this regard, the integrity of public records must be upheld by ensuring information that was accurately recorded at the time of the record’s creation is retained, particularly, for future use by the agency. I have carefully considered the information which the applicant considers is inaccurate.[47] I have also taken into account the content of the inspector’s contemporaneous notes[48] pertaining to this information. I consider that, while brief, the inspector’s notes contain statements which reflect the way the defects are described in the Inspection Report. On this basis, I am satisfied that the inspector actually held and accurately entered his recollection of events into the Inspection Report at the time of its creation. While the applicant has a different recollection of what he said at the inspection and has put forward extensive submissions as to why he believes the information inaccurately represents the underlying issues, the inspector’s notes tend to corroborate the content of the Inspection Report. I acknowledge the applicant relies heavily on the content of independent building and engineering reports to support his requests. However, as the authors of those reports were not present at the QBCC inspection, I consider the reports to be of limited evidentiary value in disproving that the inspector actually held and accurately entered his recollection of events into the Inspection Report.[49] Accordingly, notwithstanding the applicant’s submissions, I am unable to find that any of the information in the Inspection Report is inaccurate. In considering the information which the applicant says is misleading,[50] I am not persuaded that the statements would lead a third party to the wrong impression nor cause any material detriment to the applicant. I have taken into account the alternative wording proposed by the applicant and do not consider the difference between what was recorded in the Inspection Report, and what the applicant believes should be said, are so materially different so as to result in a reader being misled. In my view, the statements the applicant is seeking to amend can justifiably be described as the incidental details, or minutiae, of the descriptions given to the building defects. Therefore, notwithstanding the applicant’s submissions, I am satisfied that the information could not reasonably be expected to ‘unfairly harm or misrepresent personal facts about the applicant’[51] and is therefore, not misleading. With respect to the requests alleging incomplete information,[52] the applicant does not contest the factual content of the statements but seeks to have additional information included to supplement the statements and convey his concerns in a much more comprehensive and detailed way. The fact that a statement is not as fulsome as an applicant would like does not of itself, result in the statement being incomplete.[53] Public officers have a duty to be concise in their reporting and the amendment provisions are not intended to be used as a means of placing words into the mouth of the author. Accordingly, and notwithstanding the applicant’s submissions, I am satisfied that, when objectively assessed, the relevant statements describe the concerns raised by the applicant during the inspection and summarise the inspector’s independent assessment of the building defects. Therefore, I find that the statements are not incomplete. Even if the applicant could demonstrate that the information was inaccurate, misleading or incomplete in any instance, I am satisfied that the discretion to refuse amendment could be exercised on the basis that to do so would essentially re-write history and destroy the integrity of a public record. The Inspection Report is dated and reflects the inspector’s observations and conclusions at that point in time. I acknowledge that, following a complaint process, questions may arise about the direction taken, the evidence relied on, and conclusions expressed in a final report. However, such concerns are generally more appropriately addressed by way of a notation[54] or cross-referencing another document, as an alternative to amending or removing the original words used by the public officer. As I have explained earlier in these reasons, the purpose of amendment provisions is not to determine disputed questions of opinion or to re-investigate issues of concern to an applicant. On this basis and taking into account the regulatory function of the QBCC and the role of inspection reports in the process of investigating and resolving building disputes, I consider amending the Inspection Report in the manner sought by the applicant would damage the integrity of the original record and create an artificial document divorced from the original.[55] This is not, in my view, an outcome which the amendment provisions in the IP Act were intended to permit. Accordingly, I am satisfied that amendment of the Inspection Report may be refused. DECISION For the reasons explained above, I vary the decision of QBCC and find that: Part 1 of the amendment application is invalid as it seeks to amend information to which the applicant has not had access; and Part 2 of the amendment application may be refused under section 72(1)(a) of the IP Act as I am not satisfied the information is inaccurate, incomplete or misleading. I have made this decision as a delegate of the Information Commissioner, under section 139 of the Information Privacy Act 2009 (Qld). ________________________ Katie Shepherd Assistant Information Commissioner Date: 14 October 2016 APPENDIX 1 Significant procedural steps Date Event 23 November 2015 QBCC received the amendment application. 15 January 2016 QBCC issued a decision refusing the applicant’s requests for amendment. 12 February 2016 OIC received the external review application. 12 February 2016 OIC asked QBCC to provide relevant procedural documents. 16 February 2016 QBCC provided OIC with relevant procedural documents. 24 February 2016 OIC notified the applicant and QBCC that the external review application had been accepted. OIC conveyed a preliminary view to the applicant and invited him to provide submissions in response. 10 March 2016 The applicant provided submissions to OIC in response to the preliminary view.OIC requested information from QBCC and QBCC provided the information on this date. 22 March 2016 The applicant provided further submissions to OIC. 27 April 2016 QBCC provided OIC with additional information. 17 May 2016 OIC sought additional submissions from the applicant. 18 May 2016 The applicant provided further submissions and supporting information to OIC. 14 June 2016 OIC conveyed a further preliminary view to the applicant and invited him to provide final submissions in response. 15 June 2016 The applicant provided submissions to OIC in response to the preliminary view. 16 June 2016 OIC responded to the applicant’s submissions and provided clarification about the extent of OIC’s external review jurisdiction. 30 June 2016 The applicant provided final submissions to OIC. 8 July 2016 OIC sent the applicant and QBCC a written update on the status of the review. 29 August 2016 OIC sent the applicant and QBCC a written update on the status of the review. 31 August 2016 The applicant contacted OIC raising concerns about the distribution of the Inspection Report by QBCC without his amendment application attached as a notation. OIC conveyed the applicant’s concerns to QBCC by phone. 2 September 2016 OIC spoke to the applicant and QBCC about the applicant’s notation concerns. QBCC advised that the applicant could formally apply under section 76 of the IP Act to have a notation added to his personal information. 4 October 2016 OIC provided the applicant with a written update on the status of the review. APPENDIX 2Amendment Application - Part 2 No. Subject information Section of Inspection Report Basis for request 2a ‘Mr Cowen is concerned with the inspections.’ Cover page under ‘General’ heading Misleading 2b ‘Mr Cowen advised the slab leaks during rain...’ Complaint No. 1 under ‘Notes’ Misleading 2c ‘The original storm water pipe on the footpath was damaged by the builder storing material over it.’ Complaint No. 2 under ‘Description of Defect as per site discussion’ Inaccurate 2d ‘Mr Cowen said the nib wall is not supposed to be there...’ Complaint No. 3 under ‘Notes’ Incomplete 2e ‘Mr Cowen said he had advised the builder he wanted to put a car hoist on the slab.’ Complaint No. 5 under ‘Description of Defect as per site discussion’ Inaccurate 2f ‘Mr Cowen had a photo showing most of the starter bars had been originally installed...’ Complaint No. 5 under ‘Notes’ Inaccurate 2g ‘Mr Cowen had a photo that showed a small section of under the slab did not have the vapour barrier visible.’ Complaint No.5 under ‘Notes’ Inaccurate 2h ‘Mr Cowen said... the [hydraulic] drawings were wrong...’ Complaint No. 7 under ‘Notes’ Incomplete 2i ‘Mr Cowen said he has not paid for the timber and his solicitor had told him not to interfere with anything.’ Complaint No. 8 under ‘Notes’ Inaccurate 2j ‘The owner had to brace them up...’ Complaint No. 9 under ‘Description of Defect as per site discussion’ Inaccurate 2k ‘...the owner wanted galvanized posts...’ Complaint No. 9 under ‘Description of Defect as per site discussion’ Misleading 2l ‘Mr Cowen advised that all of the windows, doors and fixed glass in the area of new work on the eastern side of the house were covered over by the builder.’ Complaint No. 10 under ‘Notes’ Inaccurate 2m ‘Mr Cowen said Urban Utilities had inspected the pipe and could find nothing wrong with it.’ Complaint No. 11 under ‘Notes’ Inaccurate 2n ‘Mr Cowen was concerned about paying for the driveway, plumbing and ground work.’ Complaint No. 12 under ‘Notes’ Misleading 2o ‘Mr Cowen said his signature had been falsified...’ Complaint No. 13 under ‘Notes’ Inaccurate [1] Amendment application dated 26 November 2015. The applicant separated his application into two discrete parts. In these reasons for decision, I have referred to Part 1 and Part 2 of the amendment application, as necessary.[2] Section 72(1)(a)(i) of the IP Act.[3] Section 72(1)(a)(ii) of the IP Act. [4] Submission to OIC dated 10 March 2016. [5] Section 44(1) of the IP Act. See the discussion below at paragraphs 25 to 29 of this decision.[6] Part 2 of the amendment application. [7] Submissions to OIC dated 10 March, 22 March, 18 May, 15 June and 30 June 2016. [8] Report on Building Defects dated 24 May 2015, Engineering Report dated 25 May 2015 and Supplementary Engineering Report dated 3 September 2015 prepared by Morse Building Consultancy. [9] Dated 10 September and 16 October 2015. [10] Dated 17 August 2015. [11] Refer paragraph 42 and footnote 49 below. [12] Application for external review dated 12 February 2016 and submissions to OIC dated 10 March, 22 March, 18 May, 15 June and 30 June 2016. [13] As set out in paragraph 3 above, QBCC had indicated in its decision that it would attach a copy of the amendment application to the ‘relevant files’ to outline the applicant’s concerns.[14] QBCC advised that this was the first amendment application of its kind which QBCC had received and therefore, QBCC had no established procedure in place for recording this type of notation. [15] Processing amendment applications available at www.oic.qld.gov.au (accessed 5 October 2016).[16] A4STL6K and Queensland Health (Unreported, Queensland Information Commissioner, 6 September 2013) (A4STL6K) at [27]. [17] Online Macquarie Dictionary: www.macquariedictionary.com.au (accessed 12 October 2016).[18] 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. [19] 3DT2GH at [11].[20] As set out in Shaw and Medical Board of Queensland (Unreported, Queensland Information Commissioner, 3 July 2008) (Shaw) at [41] quoting with approval the decision of Deputy President Todd of the Administrative Appeals Tribunal in Cox and Department of Defence (1990) 20 ALD 499 at [6]. [21] DenHollander and Department of Defence [2002] AATA 866 at [96]. [22] Not in terms of the contents of the document, but in a recordkeeping sense – to ensure that the document is preserved without any alteration, as a public record. [23] Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 (Crewdson) at [34]. [24] Re Traynor and Melbourne and Metropolitan Board of Works (1987) 2 VAR 186 (Traynor) at 190, cited in 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. [25] Crewdson at [24]. [26] Shaw at [57]. [27] Crewdson at [24]. [28] In his submission to OIC dated 10 March 2016, the applicant explained that ‘we understand [the information] was orally read out over the phone to an ex-Member of Parliament without our express or even implied permission or authority’.[29] Amendment application, Part 1.[30] Amendment application and submissions to OIC dated 30 June 2016.[31] Submissions to OIC dated 10 March and 30 June 2016. [32] Submissions to OIC dated 30 June 2016. [33] Submissions to OIC dated 30 June 2016[34] Decision dated 15 January 2016.[35] Mahoney and Ipswich City Council (Unreported, Queensland Information Commissioner, 17 June 2011) (Mahoney) at [19].[36] Mahoney at [35].[37] See Appendix 2.[38] In reaching this conclusion, I have carefully considered all of the relevant evidence available to OIC, including the documents referred to in paragraph 11 above. [39] Section 44(4) of the IP Act requires an applicant to, among other things, state both the way in which the applicant claims the information is inaccurate, incomplete, out of date or misleading and the amendments the applicant claims are necessary for the information to be accurate or not misleading. In his amendment application and various submissions to OIC, the applicant explained, at length, the basis for his requests and his preferred alterations to the Inspection Report content. In making this decision, I have carefully considered all of those submissions, however, I have not found it necessary to set out the applicant’s submissions in detail in these reasons. [40] Generally, on external review, the agency bears the onus to justify its decision (section 100(1) of the IP Act).[41] Doelle and Legal Aid Office (Qld) [1993] QICmr 5; (1993) 1 QAR 207 at [18] in the context of equivalent provisions of the repealed Freedom of Information Act 1992 (Qld). [42] Amendment application. Appendix 2 describes the amendment requests which comprise Part 2 of the application, together with the applicant’s basis for the request, ie. that the information is inaccurate, incomplete or misleading. The applicant does not allege any information is ‘out of date’ and therefore, that element of requirement (iii) is not considered in these reasons. [43] For example, requests (c) and (e), as set out in Appendix 2.[44] I am also satisfied that the Inspection Report is a functional record (under section 72(2) of the IP Act) due to its ongoing role in managing the applicant’s building dispute and therefore, amendment could not be refused under section 72(1)(b) of the IP Act.[45] QBCC decision dated 15 January 2016. [46] Section 6(1)(a) of the Public Records Act 2002 (Qld). [47] See requests (c), (e), (f), (g), (i), (j), (l), (m) and (o) in Appendix 2.[48] Dated 17 August 2015.[49] I have also not relied on the content of any photographs other than those which appear within the Inspection Report. The photographs within the Inspection Report are connected with its content, to the extent that the inspector considered the photographs represented the status of the building defects/complaints at the time of the inspection. None of the other photographs are date or time stamped and therefore, as their relevance cannot be accurately determined, I find they are of limited evidentiary value. To the extent the applicant is seeking to establish that certain photographs conflict with the content of the Inspection Report, I am satisfied that this is an attempt to reinvestigate the issues which were discussed at the inspection and later reported on. As explained earlier in these reasons, this is not the purpose of the amendment provisions. [50] See requests (a), (b), (k), (n) in Appendix 2.[51] See paragraph 20 and footnote 18 above.[52] See requests (d) and (h) in Appendix 2.[53] 3DT2GH at [33]. [54] Preferably using the formal application process in section 76 of the IP Act.[55] A4STL6K at [32].

queensland

court_judgement

Queensland Information Commissioner 1993-

Malfliet and Department of Justice and Attorney-General [2015] QICmr 5 (19 March 2015)

Malfliet and Department of Justice and Attorney-General [2015] QICmr 5 (19 March 2015) Last Updated: 22 June 2015 Decision and Reasons for Decision Citation: Malfliet and Department of Justice and Attorney-General [2015] QICmr 5 (19 March 2015) Application Number: 312013 Applicant: Malfliet Respondent: Department of Justice and Attorney-General Decision Date: 19 March 2015 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – CONTRARY TO PUBLIC INTEREST INFORMATION – concerns raised by other individuals about the conduct of an employee of another agency – information about another agency’s show cause and disciplinary process – 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 – EXEMPT INFORMATION – LEGAL PROFESSIONAL PRIVILEGE – information subject to legal professional privilege – whether the information would be privileged from production in a legal proceeding – sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – EXEMPT INFORMATION – INVESTIGATION BY PRESCRIBED CRIME BODY – 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 – sections 47(3)(a) and 48 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 the workplace health and safety investigation file into the death of her partner, Mr Gavin Woods. The Department located 754 pages and decided to grant full access to 442 pages, part access to 72 pages and refuse access to 240 pages. Access to this information was refused on the basis that it comprised exempt information or its disclosure would, on balance, be contrary to the public interest. The applicant applied to the Office of the Information Commissioner (OIC) for external review of 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 or it comprises exempt information. Background 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 1 April 2014. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and appendix). Issue for determination The Department agreed to release some additional information to the applicant during the external review. The applicant also agreed to exclude certain information from consideration. The issue for determination is whether access to the remaining information can be refused on the basis that: its disclosure would, on balance, be contrary to the public interest it comprises exempt information because it is subject to legal professional privilege; and it comprises exempt information because it is information obtained, used or prepared for an investigation by a prescribed crime body, or another agency, in the performance of the prescribed functions of the prescribed crime body. Contrary to public interest information 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.[1] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[2] and explains the steps that a decision-maker must take[3] 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 The applicant’s partner, Mr Woods, passed away in 2011. At the time of his death, Mr Woods was an employee of the Department of Education, Training and Employment (DETE).[4] His death and a number of related issues were the subject of an investigation by various entities including DETE’s Ethical Standards Unit, Workplace Health and Safety Queensland (WHSQ), the Crime and Corruption Commission (CCC)[5] and the Queensland Coroner. The contrary to public interest information relates to other individuals who raised concerns with the relevant agencies and information about DETE’s show cause and disciplinary process. No irrelevant factors arise in the circumstances of this case. I will now address the relevant factors favouring disclosure and nondisclosure of this information. Accountability and transparency The applicant relevantly submits that:[6] Releasing these documents could reasonably be expected to enhance the Government's accountability, specifically for the proper conduct of its complaint management processes and in investigating workplace complaints. I hope that through the release of the documents that public confidence in the administration of the Education and Workplace Health and Safety system is maintained and that the secrecy that perpetuates workplace bullying is exposed so that all employees can stand up to the perpetrators without fear. 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[7] contribute to positive and informed debate on important issues or matters of serious interest[8] inform the community of the Government’s operations, including the policies, guidelines and codes of conduct followed by the Government in its dealings with members of the community;[9] and reveal the reason for a government decision and any background or contextual information that informed the decision.[10] The information is generally relevant to the WHSQ investigation into the management and actions of employees of DETE. I acknowledge that disclosing this information would provide the applicant with a more comprehensive overview of the type of information before WHSQ as part of the investigation process. However, this information does not, on its own, reveal the reasons for WHSQ’s decision or indicate how the investigation was handled. The issues canvassed by the WHSQ investigation have been investigated by a number of entities. The applicant has received a very significant amount of information about the investigations resulting from Mr Woods’ death as a result of her involvement in the coronial process, investigations by other agencies and RTI processes, including this external review. For example, the coronial brief of evidence, which the applicant received during the coronial process, included: coronial documents and documents from DETE, WHSQ and WorkCover Queensland transcripts of interviews with numerous people who provided evidence as part of the investigations by DETE and WHSQ; and a redacted version of DETE’s Ethical Standards Unit investigation report. The disclosure of this information to the applicant significantly advances these factors. The information which remains in issue in this review is limited and I consider its disclosure would not advance these factors. As a result, I afford these factors limited weight. Personal information of the applicant and Mr Woods Factors favouring disclosure will arise where the relevant information comprises: the applicant’s personal information;[11] or the personal information of a deceased person and the applicant is an eligible family member of the deceased.[12] 20. None of the remaining information comprises the applicant’s personal information. However, a small part of it relates to Mr Wood and comprises his personal information. I am satisfied that the applicant is an ‘eligible family member’ of Mr Woods and, accordingly, I have considered the factor at schedule 4, part 2, item 9 of the RTI Act. I afford this factor significant weight in relation to that small amount of information. 21. Because of the way in which this information is presented, the personal information of the deceased is intertwined with the personal information of other individuals and it cannot be separated from the documents. I note the applicant’s submission that she will accept a version of the documents with the names of individuals deleted to protect their identity. However, having carefully reviewed the way in which the information is presented, it is not possible to de-identify this information by deleting the names of the relevant individuals. Personal information and privacy of other individuals The RTI Act also 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;[13] 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.[14] The information was provided to the Department by other individuals raising concerns with the relevant agencies and making allegations about the conduct of a DETE employee. It includes people’s accounts of their feelings, opinions and reactions to workplace events. In most cases, the information is highly personal and sensitive. This information comprises the personal information of other individuals. I consider its disclosure under the RTI Act would be a significant intrusion into the privacy of the complainants. I am satisfied that the extent of the public interest harm that could be anticipated from disclosure is significant. I afford these factors favouring nondisclosure significant weight. Prejudice the flow of information I have also considered whether disclosing this information could reasonably be expected to: prejudice an agency’s ability to obtain confidential information[15] prejudice the management function of an agency;[16] 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.[17] I consider disclosing confidential information provided by individuals who participated in a workplace investigation to a third party under the RTI Act, where there can be no restriction on its use, dissemination or republication, could reasonably be expected to erode confidence in the investigation process and prejudice the flow of information from individuals who would otherwise provide relevant information.[18] This, in turn, could reasonably be expected to adversely impact the agency’s ability to conduct workplace investigations and manage staff. For these reasons, 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.[19] I have taken into account the pro-disclosure bias in balancing the relevant factors. Disclosing this information would not advance the Government’s accountability or transparency and I afford limited weight to the four related factors identified above. To the extent the information is the deceased’s personal information, this gives rise to a public interest factor favouring disclosure to which I afford significant weight. However, this information is also the personal information of other individuals and its disclosure could reasonably be expected to prejudice the protection of their right to privacy and cause a public interest harm. I am also satisfied that disclosing this information could reasonably be expected to prejudice DETE’s management function and prejudice the flow of information to relevant agencies including DETE and WHSQ. Given the sensitive nature of this information, and the context in which it appears, I consider these factors warrant significant weight. For these reasons, disclosing this information would, on balance, be contrary to the public interest. Accordingly, I find that the Department was entitled to refuse access to this information under sections 47(3)(b) and 49 of the RTI Act. Legal professional privilege Relevant law An agency may refuse access to documents to the extent they comprise exempt information.[20] Schedule 3 of the RTI Act sets out categories of information the disclosure of which Parliament has deemed to be contrary to the public interest, and therefore exempt from disclosure.[21] 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.[22] The general principles of legal professional privilege were summarised by the High Court of Australia in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission[23] as follows: It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings... Findings The relevant information comprises emails, reports and file notes recording communications between WHSQ legal officers and its investigators for the purpose of seeking and providing legal advice on the WHSQ investigation and coronial inquest. I am satisfied that this information was created for the dominant purpose of obtaining or providing legal advice. The communications were made in the course of a lawyer-client relationship and I am satisfied that the communications are confidential. The applicant submits that legal professional privilege does not apply to this information because the Attorney-General agreed to waive legal professional privilege in relation to a report relating to the DETE investigation.[24] The report to which the applicant refers does not form part of the information in issue in this review. Any decision to waive privilege in relation to that report has no bearing on the question of whether access can be granted to the information in this review. There is no evidence that privilege has been waived in relation to the information which is the subject of this review. The applicant submits that legal professional privilege does not apply to this information because the purpose of the WHSQ investigation was primarily administrative and legal professional privilege was incorrectly cited to deliberately withhold access to the report.[25] The applicant’s submission that the purpose of the investigation was, in her view, administrative is not relevant to the operation of this provision. It is the purpose of the communication, rather than the purpose of the investigation, which I must consider in determining whether legal professional privilege applies. In this case, I am satisfied that the dominant purpose of the relevant communications was to seek or provide legal advice, or for use in existing or reasonably anticipated legal proceedings. The applicant also submits that it is in the public interest for this information to be disclosed as it would enhance accountability and transparency.[26] However, Parliament has decided that disclosing the types of information identified in schedule 3 of the RTI Act would, on balance, be contrary to the public interest.[27] As I am satisfied that this is exempt information, the applicant’s submissions on public interest factors in relation to this information are not relevant and I have not taken them into account. For the reasons set out above, I find that the Department was entitled to refuse access to this information on the basis that it is exempt because it is subject to legal professional privilege.[28] Information obtained used or prepared for an investigation by a prescribed crime body, or another agency, in the performance of the prescribed functions of the prescribed crime body Relevant law Schedule 3, section 10(4) of the RTI Act provides that information is exempt if it consists of information obtained, used or prepared for an investigation by a prescribed crime body, or another agency, in performing the prescribed functions of the prescribed crime body. The exemption will not apply, however, where the information consists of information about the applicant and the investigation has been finalised.[29] Findings A number of allegations were referred to the CCC by DETE and WHSQ. The CCC determined that the allegations would, if proven, amount to what is now known as corrupt conduct.[30] The CCC referred the matters to DETE and WHSQ to deal with, subject to the CCC’s monitoring role. The relevant information to which access is refused comprises a two page letter from the CCC to the Coroner which conveys information about these investigations.[31] Based on my review of the letter, I am satisfied that the information was obtained, used or prepared for the purpose of these investigations. However, I must also be satisfied that the relevant investigations were conducted by these agencies in performing the prescribed functions of a prescribed crime body. The CCC is a prescribed crime body under the RTI Act.[32] The CCC’s prescribed functions include its corruption function as defined in section 33 of the CC Act.[33] The CCC’s corruption function includes dealing with complaints about corrupt conduct by itself or in cooperation with a unit of public administration.[34] In conducting these investigations, DETE and WHSQ were performing the CCC’s corruption function by ensuring the complaints were dealt with in accordance with the requirements of the CC Act, with oversight by the CCC. I am satisfied that DETE and WHSQ were therefore performing the prescribed functions of a prescribed crime body within the meaning of this provision. Therefore, the information meets the requirements of schedule 3, section 10(4) of the RTI Act. The exception to this exemption which appears in schedule 3, section 10(6) of the RTI Act will apply only if the investigation is finalised and the relevant information is about the applicant. At the time of the Department’s decision, the relevant investigation had not been finalised. However, even if the investigation has now been finalised, this information must also be about the applicant. The applicant submits that ‘I instigated the investigations, the subsequent inquest, represented [the deceased’s] position to the best of my ability ... I submit that the Commissioner finds that the information is about me and as such is not exempt. Stopping workplace bullying is everyone’s business’.[35] In G8KPL2 and Department of Health,[36] the Right to Information Commissioner considered the meaning of ‘about’ in schedule 3, section 10(6) of the RTI Act and found that the investigation report in that case, while created as a result of the applicant's complaint, was not about the applicant but was about the persons who were the subject of the allegations and related investigation. On this basis, the Right to Information Commissioner concluded that the exception in schedule 3, section 10(6) of the RTI Act did not apply. While I acknowledge in this case that the applicant has a personal interest in the CCC’s investigation, I note that the letter does not refer to the applicant in any way and the applicant was not the subject of the allegations or investigation. Therefore, in accordance with the reasoning in G8KPL2, I find that this information is not about the applicant and the exception does not apply to this information. For the reasons set out above, I am satisfied that the Department was entitled to refuse access to this information on the basis that it comprises exempt information under schedule 3, section 10(4) of the RTI Act. DECISION I affirm the Department’s decision and find that access to the relevant information can be refused under sections 47(3)(a) and 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. ________________________ Tara Mainwaring A/Assistant Information Commissioner Date: 19 March 2015 APPENDIX Significant procedural steps Date Event 6 January 2014 The Department received the access application under the RTI Act. 1 April 2014 The Department issued its decision to the applicant. 29 April 2014 The applicant applied to OIC for external review of the Department’s decision. 1 May 2014 OIC requested various procedural documents from the Department. 15 May 2014 OIC received the requested documents from the Department. 16 May 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 30 May 2014. 30 May 2014 OIC received the documents in issue from the Department. 27 November 2014 OIC conveyed its 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 12 December 2014. 11 December 2014 The Department accepted OIC’s preliminary view and agreed to release the additional information to the applicant. OIC contacted the Office of the State Coroner and requested a copy of the list of Coronial exhibits which identified the information released to the applicant during the Coronial inquest. 12 December 2014 OIC received the requested information from the Office of the State Coroner. 17 December 2014 OIC conveyed its preliminary view to the applicant by phone. The applicant accepted the preliminary view on some but not all issues and requested the preliminary view in writing. OIC asked the Department to release the relevant information to the applicant by 24 December 2014. 5 January 2015 OIC confirmed the preliminary view in writing and invited the applicant to provide submissions supporting her case by 19 January 2015 if she did not accept the preliminary view. 9 January 2015 The applicant notified OIC she did not accept the preliminary view and provided submissions supporting her case. [1] 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. [2] 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. [3] Section 49(3) of the RTI Act.[4] Now known as the Department of Education and Training. [5] The CCC was previously known as the Crime and Misconduct Commission. [6] Applicant’s submissions received by OIC on 29 April 2014 and 9 January 2015. [7] Schedule 4, part 2, item 1 of the RTI Act.[8] Schedule 4, part 2, item 2 of the RTI Act. [9] Schedule 4, part 2, item 3 of the RTI Act. [10] Schedule 4, part 2, item 11 of the RTI Act.[11] 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’.[12] Schedule 4, part 2, item 9 of the RTI Act. An eligible family member of a deceased person includes a spouse of the deceased person: schedule 6 of the RTI Act. [13] Schedule 4, part 3, item 3 of the RTI Act.[14] Schedule 4, part 4, item 6(1) of the RTI Act. [15] Schedule 4, part 3, item 16 of the RTI Act.[16] Schedule 4, part 3, item 19 of the RTI Act.[17] Schedule 4, part 4, item 3(c) of the RTI Act. [18] Malfliet and Department of Education, Training and Employment [2014] QICmr 31 (17 July 2014) at paragraph 50. [19] Section 44 of the RTI Act. [20] Section 47(3)(a) of the RTI Act. [21] Section 48(2) of the RTI Act. [22] Hewitt and Queensland Law Society Inc [1998] QICmr 23; (1998) 4 QAR 328 at paragraph 11 and Ozcare and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 13 May 2011) at paragraph 12.[23] [2002] HCA 49; (2002) 213 CLR 543 at paragraph 9.[24] Applicant’s submissions received by OIC on 29 April 2014 and 9 January 2015. [25] Applicant’s submissions received by OIC on 29 April 2014 and 9 January 2015. [26] Applicant’s submissions received by OIC on 29 April 2014 and 9 January 2015.[27] Section 48(2) of the RTI Act.[28] Sections 47(3)(a), 48 and schedule 3, section 7 of the RTI Act. [29] Schedule 3, section 10(6) of the RTI Act. [30] As a consequence of amendments to the Crime and Corruption Act 2001 (Qld) (CC Act) effected by the Crime and Misconduct and Other Legislation Amendment Act 2014 (Qld), the concept of ‘corrupt conduct’ has replaced what was previously referred to as ‘official misconduct’: see section 400(c) of the CC Act. Dealing with corrupt conduct comprises an aspect of the CCC’s corruption function: schedule 2 and section 15 of the CC Act. Corruption is a ‘prescribed function’ of the CCC for the purpose of schedule 3, section 10(4) of the RTI Act.[31] It is relevant to note that the Department consulted with the CCC under section 37 of the RTI Act when processing the applicant’s request and the CCC objected to disclosing the information relying on the exemption under schedule 3, section 10(4) of the RTI Act.[32] Schedule 3, section 10(9) of the RTI Act. [33] Schedule 3, section 10(9) of the RTI Act. [34] Sections 35(1)(e) of the CC Act. [35] Applicant’s submissions received by OIC on 29 April 2014 and 9 January 2015. [36] (Unreported, Queensland Information Commissioner, 31 January 2011) (G8KPL2). In considering the appeal of G8KPL2, the Queensland Civil and Administrative Tribunal did not disagree with the Information Commissioner’s interpretation of ‘about’ in schedule 3, section 10(6) of the RTI Act. See Minogue v Office of the Information Commissioner Queensland and Anor [2012] QCATA 191. See also Cameron and Queensland Police Service (Unreported, Queensland Information Commissioner, 7 August 2012) and Dickinson and Queensland Police Service [2014] QICmr 30 (20 June 2014).

queensland

court_judgement

Queensland Information Commissioner 1993-

N31ZEO and Department of Justice and Attorney-General; Queensland Newspapers Pty Ltd (Third Party) [2013] QICmr 36 (8 November 2013)

N31ZEO and Department of Justice and Attorney-General; Queensland Newspapers Pty Ltd (Third Party) [2013] QICmr 36 (8 November 2013) Last Updated: 7 August 2014 Decision and Reasons for Decision Application Number: 100101 Applicant: N31ZEO Respondent: Department of Justice and Attorney-General Third Party: Queensland Newspapers Pty Ltd Decision Date: 8 November 2013 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – CONTRARY TO PUBLIC INTEREST – correspondence between the Office of Liquor and Gaming Regulation and Queensland Police Service about liquor-related incidents at licensed venues – objections to disclosure raised by owner of a venue – accountability of regulatory and law enforcement agencies in relation to licensed venues and public safety – impact of disclosure on the venue’s business affairs – disclosure is prohibited by an Act – whether disclosure would, on balance, be contrary to the public interest – whether access to information may be refused under sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION – DISCLOSURE DECISION – ONUS ON EXTERNAL REVIEW – whether objecting participant has established that decision not to disclose information is justified or that the Information Commissioner should give a decision adverse to the access applicant – section 87(2) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary Queensland Newspapers Pty Ltd (Third Party) applied to the Department of Justice and Attorney-General (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to correspondence between the Office of Liquor and Gaming Regulation (OLGR)[1] and the Liquor Enforcement and Proactive Strategy (LEAPS) Coordinator at the Queensland Police Service (QPS) in relation to a number of named licensed venues. The Department contacted owners of the relevant venues, including the external review applicant (Applicant), to seek their views on disclosure of the information it had located in response to the access application. The Applicant objected to information about its venue being disclosed. The Department decided to grant access to the information on the basis that it was not exempt or contrary to the public interest to disclose under the RTI Act.[2] The Applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision to disclose information about the Applicant’s venue. On external review, the Applicant submitted that disclosure of the information would, on balance, be contrary to the public interest. OIC decided[3] to affirm the Department’s decision on the grounds that disclosure of the information would not, on balance, be contrary to the public interest. The Applicant appealed OIC’s decision to the Queensland Civil and Administrative Tribunal (QCAT). By decision dated 4 June 2013,[4] QCAT ordered that OIC’s decision be set aside and the matter be remitted to OIC to be dealt with by another Commissioner in accordance with the terms of the judgment. OIC reopened the external review and the matter was considered afresh in accordance with QCAT’s decision. I acknowledge that disclosure of the information is prohibited by another Act and its disclosure may also prejudice the Applicant’s business affairs. However, for the reasons set out below, I am satisfied that these factors favouring nondisclosure are outweighed by the significant public interest factors favouring disclosure, particularly with respect to the transparency and accountability of OLGR and QPS in relation to the serious issue of alcohol-related violence at licensed venues. Therefore, the Department’s decision to disclose information about the Applicant’s venue is affirmed, on the basis that its disclosure would not, on balance, be contrary to the public interest under the RTI Act. Background Significant procedural steps relating to the application and external review process are set out in the appendix to this decision. Reviewable decision The decision under review is the Department’s internal review decision dated 21 December 2011 granting access to information under the RTI Act. 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 LEAPS is a program which involves QPS working with OLGR with a view to ensuring compliance with legislation and regulations concerning licensed venues. QPS officers who attend or become aware of liquor-related incidents involving licensed venues create a report and forward this to the QPS LEAPS Coordinator. The LEAPS Coordinator then sends the information to OLGR which assesses the information in the context of its regulatory activities.[5] The information in issue in this review (Information in Issue) comprises information contained in two spreadsheets prepared by the QPS LEAPS Coordinator and sent to OLGR. The spreadsheets contain: the date, time and location of incidents recorded by QPS officers as having occurred at, or in the vicinity of, the Applicant’s venue a summary of the facts relating to the incidents, including the nature of any offence(s), any resulting arrests and/or description of any injuries sustained an indication as to any substance(s) the individuals involved were observed as having been affected by, and the level of intoxication (where applicable); and QPS’ reference number. The Information in Issue does not include the names of any individuals involved in the incidents. Issues for determination As the Department decided to disclose the Information in Issue to the Third Party under the RTI Act, the Applicant has the onus of establishing that a decision not to disclose the document or information is justified or that the Commissioner should give a decision adverse to the person who wishes to be given access to the document.[6] The Applicant submits that: the RTI Act does not apply to the Information in Issue; and access should be refused to the Information in Issue as its disclosure would, on balance, be contrary to the public interest. Accordingly, these are the issues for determination in this review.[7] The Applicant made extensive submissions to OIC to support its view that the Information in Issue should not be disclosed.[8] In making my decision in this review, I have carefully considered all of the submissions. However, in these reasons for decision, I have not referred to any submissions which are unrelated to the issues for determination. Findings Does the RTI Act apply to the Information in Issue? Yes, for the reasons that follow. The Applicant submits[9] that: the Information in Issue is not genuinely of a kind which is within the scope of the preamble of the RTI Act as it is of a private nature and concerns a single business operation, rather than government processes generally; and only the factual matter in the Information in Issue comprises ‘information’ and, accordingly, the balance of the document is beyond the scope of the RTI Act. Section 23 of the RTI Act creates a right for any person to access documents of an agency. The term document is defined expansively in the Acts Interpretation Act 1954 (Qld)[10] to include ‘any paper or other material on which there is writing’ and ‘any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced ...’. I am satisfied the Information in Issue comprises a document within this definition. Section 12 of the RTI Act relevantly defines document of an agency as follows: In this Act, document, of an agency, means a document, other than a document to which this Act does not apply, in the possession, or under the control, of the agency whether brought into existence or received in the agency... I am satisfied the Information in Issue is in the physical possession of the Department, which is an agency for the purposes of the RTI Act.[11] I am also satisfied that the Information in Issue is not a document to which the RTI Act does not apply.[12] Accordingly, the Information in Issue comprises a document of an agency and is therefore subject to the operation of the RTI Act. Would disclosure of the Information in Issue be, on balance, contrary to the public interest? No, for the reasons that follow. Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[13] Access should be given to a document unless disclosure would, on balance, be contrary to the public interest.[14] The right of access is subject to some limitations, including grounds on which access to information may be refused.[15] One ground for refusal of access is where 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[17] and explains the steps that a decision-maker must take[18] 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. OLGR and the LEAPS program In considering the application of the public interest test to the Information in Issue, it is necessary to understand the context in which the Information in Issue was gathered. OLGR is responsible for the regulation and development of Queensland’s liquor industry in a way that is compatible with minimising harm caused by alcohol abuse.[19] The Commissioner’s Circular notes that:[20] ... past occurrences have shown that a succession of minor 'one-off' incidents may be regarded as precursors to significant incidents such as brawls and other behaviour resulting in injury to members of the public and officers. The Commissioner’s Circular outlines the process whereby QPS officers must report incidents involving alcohol-related violence to the QPS LEAPS Coordinator, who in turn conveys details of the incident to OLGR. The Commissioner’s Circular states:[21] The purpose of recording these incidents is to enable the OLGR to identify any trends at licensed premises that may require proactive negotiations with the licensee of the premises aimed at curtailing potential significant incidents. Irrelevant factors The Applicant submits[22] that: taken out of context, the Information in Issue may lead to a person assuming that its venue has not complied with liquor laws release of the Information in Issue in its current form could be misinterpreted and undermine OLGR’s and the Applicant’s objectives and functions; and the Information in Issue is ‘sensational in some respects’ and, as the Third Party is a media organisation, it is reasonable to expect it will publish the Information in Issue. Under section 49(3)(d) of the RTI Act, I must disregard whether disclosing information could reasonably be expected to result in the access applicant misunderstanding or misinterpreting the document as the RTI Act states that this is an irrelevant factor.[23] An access applicant is not required to provide reasons for requesting information under the RTI Act nor to indicate what they intend to do with the information.[24] The RTI Act also provides that it is irrelevant to consider whether disclosing the information could reasonably be expected to result in mischievous conduct by the access applicant.[25] To the extent any of the Applicant’s submissions relate to these issues, they are not relevant to my findings in this matter. However, when considering the possible harm or prejudice that may result from disclosing the Information in Issue, I have assessed it as though the Information in Issue would be made publicly available. Factors favouring disclosure Promote open discussion of public affairs and enhance government’s accountability If disclosing information could reasonably be expected to[26] promote open discussion of public affairs and enhance the Government’s accountability, a factor favouring disclosure will arise for consideration.[27] Venues selling liquor in Queensland must have a liquor licence[28] and must comply with the conditions, responsibilities and obligations of their licences.[29] This includes an obligation on licensees to provide and maintain a safe environment in and around the premises.[30] OLGR is responsible for ensuring licensees comply with relevant licence conditions. The Information in Issue comprises information that was before OLGR about alcohol-related incidents, as reported by QPS. I consider disclosing the Information in Issue would enhance QPS’ and OLGR’s accountability by providing information about how the two agencies work together in relation to alcohol-related violence at licensed premises. The public interest in enhancing government’s accountability through disclosure of this information is considerable, as government has indicated that the reporting process is a mechanism designed to curb more serious incidents of alcohol-related violence at licensed premises. The Applicant submits that the Information in Issue is too specific to its venue to significantly advance the public interest in enhancing agencies’ accountability.[31] I have previously found that disclosing information about a single business provides the public with a ‘snapshot’ of how an agency performs its regulatory functions and accordingly, can reasonably be expected to enhance the agency’s accountability and promote open discussion of how the agency discharges its functions.[32] In any event, I note that the scope of the access application was not limited to the Applicant’s venue, but rather related to a range of venues. For these reasons, I am satisfied that disclosing the Information in Issue would enhance QPS’ and OLGR’s accountability and promote public discussion about how OLGR performs its functions in concert with QPS. I consider this factor favouring disclosure warrants significant weight. Contribute to positive and informed debate on important issues or matters of serious interest The significant impact of alcohol-related violence on society is well documented.[33] I consider the prevalence of alcohol-related violence, and the response of government agencies to such incidents, are matters of serious interest. Disclosing the Information in Issue could reasonably be expected to contribute to positive and informed debate on these issues[34] by enabling the public to examine the nature and frequency of the incidents reported by QPS LEAPS officers to OLGR. I consider this public interest factor favouring disclosure warrants significant weight. Revealing environmental or health risks or measures relating to public safety A factor favouring disclosure will also arise if disclosing information could reasonably be expected to reveal environmental or health risks or measures relating to public health and safety.[35] I am satisfied that the process whereby QPS officers disclose information about alcohol-related violence to OLGR is a measure designed to improve public safety at licensed venues by enabling OLGR to identify trends and take proactive action to prevent more serious incidents. Given the significant effects of alcohol-related violence on the community, revealing government agency measures which go to curbing this problem is a matter of considerable public interest and accordingly, I afford this factor significant weight. Safe, informed and competitive markets I have previously found a public interest in having safe, informed and competitive markets.[36] As I have noted at paragraph 32, licensed venues must comply with the conditions, responsibilities and obligations of their respective licences, including the obligation to maintain a safe environment in and around the premises. The Information in Issue was created by QPS officers who responded to incidents of violence which they believed involved persons under the influence of alcohol or other substances. I consider disclosing this information will enable patrons to make a more informed decision about their choice of venue by providing some information about the safety of particular venues. Accordingly, I consider this factor favouring disclosure is relevant. I acknowledge, however, that the safety of a venue is only one of many factors that a person is likely to consider in determining which venue to attend. For this reason, I afford this factor only moderate weight. Other considerations The Applicant submits that the public interest in disclosing the Information in Issue is reduced as the information is incorrect and unsubstantiated.[37] However, the Applicant has not provided any evidence to support its claim that the information is incorrect, despite being invited to provide submissions to OIC.[38] The Department’s initial decision to the Third Party[39] stated that QPS had requested the following caveat accompany the Information in Issue: The information contained within the Liquor Incident Table is released on the basis that it may record only the complainant’s version of events prior to the conduct of any investigation. I acknowledge the Information in Issue represents QPS’ initial account of the incidents prior to the matter being investigated—in some cases this account may be based primarily on a complainant’s version of events. Other parties may therefore provide different accounts of the events. This has been made clear to the Third Party. However, I consider the public interest in disclosing the Information in Issue arises not from the information comprising a comprehensive or final account of alcohol-related incidents at the Applicant’s venue but rather, by demonstrating the nature and frequency of QPS’ reporting of such incidents to OLGR. I have also considered whether the age of the Information in Issue reduces the weight to be afforded to these public interest factors. The Information in Issue dates from October 2009 to May 2011. I am satisfied that there remains a public interest in disclosing information from this time period as it will enable the public to consider OLGR’s response to the incidents and examine the effectiveness of OLGR’s actions, for example, by comparing the information against more recent data. The Applicant submits[40] that the public interest factors above are not advanced by disclosing information which identifies the Applicant’s venue. I have considered whether it is possible to de-identify the Information in Issue, by releasing information about the incidents of alcohol-related violence without disclosing the Applicant’s name. The Third Party applied for access to information about 16 named venues, one of which was the Applicant’s venue. As a decision has been made to release information about the other venues,[41] I do not consider it is possible to now de-identify the Information in Issue as the Third Party could identify the Applicant by a process of elimination. In any event, as I have noted at paragraphs 40 to 42 above, I consider there is a public interest in disclosing the name of the venue. Disclosing the Information in Issue without the venue name would prevent the public from using the information to make informed choices about the safety of particular venues. Factors favouring nondisclosure Disclosure is prohibited by an Act A factor favouring nondisclosure will arise where an Act prohibits disclosure of the information.[42] Section 48 of the Liquor Act provides: 48 Preservation of confidentiality (1) Subject to subsection (2), a person who is engaged, or has been engaged, in giving effect to this Act must not make a record of, or directly or indirectly disclose, information about the affairs of another person gathered in the course of administration of this Act. Maximum penalty—35 penalty units. (2) Subsection (1) does not apply to— (a) disclosing information in compliance with lawful process requiring production of documents or giving of evidence before a court or tribunal; or (b) disclosing information in the register; or (c) disclosing information about the status of an application required to be advertised under section 118(1); or (d) disclosing information about the status of an application to the tribunal for a review and the names of the parties to the review; or (e) doing anything for the purposes of this Act. I consider this provision would generally prohibit disclosure of the Information in Issue and accordingly, I am satisfied this factor favouring nondisclosure arises for consideration. It is then necessary to consider the weight to be afforded to this public interest factor. Persons administering the Liquor Act have access to a wide range of information, some of which is particularly sensitive—for example, individuals’ criminal history checks. Section 48 of the Liquor Act is, in my view, a standard confidentiality provision included in legislation to prevent the indiscriminate disclosure of information which an agency officer may have access to in the course of their duties. It is not, however, a blanket prohibition on disclosure—the confidentiality provision does not apply to disclosure of information in a range of specific circumstances including, for example, doing anything for the purposes of the Liquor Act or producing documents in compliance with a lawful process.[43] This provision must be balanced against the express intention of the RTI Act—a later Act—to override provisions in other Acts prohibiting the disclosure of information.[44] I note that Parliament did not include information gathered under the Liquor Act in schedule 3, section 12 of the RTI Act, which specifically exempts information the disclosure of which is prohibited under several listed Acts. Accordingly, while I consider this factor is relevant, it warrants only moderate weight. Prejudice the business affairs of entities The RTI Act provides that a factor favouring nondisclosure will arise if disclosing information could reasonably be expected to prejudice the private, business, professional, commercial or financial affairs of an entity.[45] In most instances, the question of whether disclosure of information could reasonably be expected to prejudice[46] business affairs will turn on whether the information is capable of causing competitive harm to an entity.[47] The Information in Issue comprises relatively detailed accounts[48] by QPS officers of alleged incidents of violence at the Applicant’s premises. I accept that disclosing the Information in Issue could reasonably be expected to prejudice the Applicant’s business affairs by damaging its reputation and deterring some existing or potential patrons from visiting its venue. The Applicant submits[49] that the prejudice to its business affairs would be serious as people reviewing the information may form the view that the Applicant’s venue has not complied with liquor laws. The Applicant states that it disputes some of the incidents and notes it has put forward exculpatory material in relation to some of the incidents.[50] I acknowledge that some of these incidents may have formed part of the material relied on for regulatory action against the Applicant. However, the Information in Issue does not disclose this—it merely comprises a record of QPS’ attendance at the incidents. Having reviewed the Information in Issue, I do not consider its disclosure alone necessarily reflects adversely on security, procedures or staff of the Applicant’s venue. Many of the incidents described are relatively minor and reflect the types of situations which one may expect to occur in a busy public venue where alcohol is served. Moreover, I consider that members of the public are generally aware that liquor-related incidents occur in many licensed venues and still choose to attend the venues. As I have noted at paragraph 42, the history of alcohol-related incidents of violence is only one factor of many considered by potential patrons in selecting a venue to attend. Having taken into account the above considerations, I consider this factor warrants moderate weight. Prejudice to regulatory action arising from the incidents In July 2012, the Applicant submitted that some of the incidents outlined in the Information in Issue were the subject of proposed disciplinary action by OLGR, and that disclosure may prejudice that action.[51] I have therefore considered whether disclosing the Information in Issue could reasonably be expected to prejudice these proceedings or have an adverse impact on the administration of justice, either generally, or for the Applicant.[52] OLGR submits[53] that: some of the incidents referred to in the Information in Issue resulted in it taking regulatory action against the Applicant this regulatory action was the subject of proceedings before QCAT; and the QCAT proceedings were finalised as a result of consent orders in September 2013. As the proceedings involving the Applicant have now been finalised, I consider the factors noted at paragraph 59 above are not relevant in the circumstances. In any event, even if the QCAT proceedings remained on foot, matters on review or appeal to QCAT are determined by QCAT members. The Information in Issue does not purport to comprise a detailed or final account of the incidents in question. I do not consider it reasonable to expect that QCAT members would be swayed by reading QPS officers’ accounts of incidents that are currently the subject of appeal or review before QCAT. For these reasons, I am satisfied that it is not reasonable to expect that disclosure would impede the administration of justice, either generally or specifically for the Applicant, nor do I consider it reasonable to expect that disclosure could prejudice the regulatory action taken by OLGR, and considered on appeal to QCAT. Prejudice a deliberative process of government The RTI Act recognises that: disclosing information could reasonably be expected to cause a public interest harm through disclosure of: an opinion, advice or recommendation that has been obtained, prepared or recorded; or a consultation or deliberation that has taken placein the course of, or for, the deliberative processes involved in the functions of government (Harm Factor);[54] and a factor favouring nondisclosure will arise where disclosing information could reasonably be expected to prejudice a deliberative process of government (Prejudice Factor).[55] As the Information in Issue does not comprise: an opinion, advice or recommendation; or a consultation or deliberation that has taken place, I am satisfied the Harm Factor is not relevant. The Applicant submits that disclosure would prejudice a deliberative process of government, namely ‘the current proposed disciplinary action being imposed by’ OLGR.[56] However, as I have noted at paragraph 60, OLGR submits that its regulatory action in relation to the incidents referred to in the Information in Issue is now complete, as are the related QCAT proceedings. Even if this were not the case, I do not consider QCAT proceedings constitute a deliberative process of government. Nor do I consider it is reasonable to expect that either QCAT members or regulatory officers such as those at OLGR would be influenced in relation to any current action against the Applicant by the disclosure of the Information in Issue through the right to information process. The Applicant further submits[57] that disclosure would cause: disruption to OLGR’s objectives and functions as contained in the Liquor Act; and ‘premature and unnecessary debate, concern and confusion in the community to an extent that would be contrary to the public interest’. The Applicant has not provided any evidence to support these claims. It is not enough for the Applicant to simply assert that disclosure will result in some kind of adverse consequence—the Prejudice Factor requires a reasonable expectation of prejudice to the relevant deliberative process.[58] There is no evidence before me to suggest that disclosing the Information in Issue could reasonably be expected to disrupt OLGR’s functions or objectives. OLGR has not submitted that disclosure would have such an impact. There is also no evidence before me to suggest that disclosing the Information in Issue could reasonably be expected to cause premature and unnecessary debate. Accordingly, I find that the Prejudice Factor is also not relevant for consideration in this review. Prejudice the fair treatment of individuals The RTI Act provides that a factor favouring nondisclosure will arise 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.[59] The Applicant submits that the Information in Issue consists of unsubstantiated allegations of ‘liquor incidents suggestively caused by non compliance misconduct and unlawful, negligent or improper conduct’ and that its publication is likely to ‘negatively affect the attitude of numerous persons including other regulatory authorities in their dealings with [the Applicant’s venue] and its staff’.[60] The Applicant further contends that if its venue is ‘unfairly and inaccurately’ portrayed as habitually non-compliant with liquor laws, compliance officers from various agencies may attend the Applicant’s premises more frequently in the future, resulting in ‘overzealousness in compliance activity’.[61] I accept that the Information in Issue contains allegations in relation to unlawful conduct by patrons (such as assault). There is no evidence before me to suggest that all of the allegations have been the subject of court proceedings. On that basis, I consider the allegations may remain unsubstantiated. However, in order for this factor favouring nondisclosure to arise, I must also be satisfied that disclosure could reasonably be expected to prejudice the fair treatment of individuals. The Applicant submits that the prejudice would arise through the impact of increased regulatory or compliance activity on the Applicant’s staff.[62] The Applicant, as a licensed venue, is required to maintain a safe environment for patrons and staff, and it is legitimate for the Applicant’s venue to be subject to oversight by OLGR and other regulatory agencies. Increased regulatory or compliance activity by government agencies, acting within the law, cannot be said to prejudice the fair treatment of individuals. The Applicant makes reference to the Law, Justice and Safety Committee’s inquiry into alcohol-related violence,[63] which the Applicant submits followed The Courier Mail’s Punch Drunk series of articles.[64] I do not consider a government inquiry into an issue of serious public interest, such as alcohol-related violence, can be said to prejudice an individual’s fair treatment. Moreover, I consider this demonstrates that disclosing this type of information can advance the public interest by promoting positive and informed debate about such issues. Accordingly, I am satisfied this factor favouring nondisclosure is not relevant in the circumstances of this review. Prejudice security, law enforcement or public safety The RTI Act provides that a factor favouring nondisclosure will arise if disclosing information could reasonably be expected to prejudice security, law enforcement or public safety.[65] The Applicant submits that disclosure could reasonably be expected to prejudice security, law enforcement or public safety by creating the perception that the Applicant’s premises has poor security, thereby attracting patrons who may seek to take advantage of this situation and ‘misbehave’.[66] I consider a risk to public safety could only arise through disclosure if the security arrangements at the Applicant’s venue were in fact inadequate—there is no evidence before me to suggest that is the case. In any event, the Information in Issue does not include details of the security arrangements in place at the venue. Accordingly, I do not consider it reasonable to expect that disclosure of this information would enable patrons to prejudice security or public safety in the way the Applicant has described. As this factor favouring nondisclosure must arise as a direct result of disclosing the relevant information, I am satisfied it is not relevant in the circumstances of this review. Balancing the relevant public interest factors There are clear public interest factors in favour of disclosing the Information in Issue. Alcohol-related violence in and around licensed venues is a serious issue of significant public interest. I consider disclosing the Information in Issue could reasonably be expected to enhance QPS’ and OLGR’s accountability by enabling the public to scrutinise the manner in which these agencies deal with such incidents. I also consider it would enable the public to consider one of the measures in place to curb alcohol-related violence, and contribute to positive and informed debate about these issues. I consider these factors favouring disclosure warrant significant weight. I am also satisfied that the public interest in enabling patrons to make more informed decisions about the safety of particular venues warrants moderate weight. These factors must be weighed against the potential prejudice to the Applicant’s business affairs and the fact that disclosure of the Information in Issue is prohibited by the Liquor Act. However, for the reasons outlined above, I consider these factors warrant only moderate weight and, in the circumstances of this review, are outweighed by the significant public interest favouring disclosure. Accordingly, I find that disclosing the Information in Issue would not, on balance, be contrary to the public interest. DECISION Having considered the matter afresh and for the reasons set out above, I affirm the Department’s decision to grant access to the Information in Issue on the basis that disclosure would not, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ J S Mead Right to Information Commissioner Date: 8 November 2013APPENDIX Significant procedural steps Date Event 8 August 2011 The Department received the access application. 27 September 2011 The Department consulted with the Applicant under section 37 of the RTI Act about disclosure of information relating to its venue and invited the Applicant to identify any objections to disclosure. 10 October 2011 The Applicant notified the Department that it objected to disclosure of the relevant information and provided submissions supporting its case. 31 October 2011 The Department issued its initial decision to the Applicant, deciding to disclose information relating to the Applicant’s venue. 28 November 2011 The Applicant applied to the Department for internal review. 21 December 2011 The Department again decided to disclose information about the Applicant’s venue. 5 January 2012 OIC received the external review application. OIC asked the Department for a number of procedural documents relevant to the review. 13 January 2012 The Department provided the procedural documents to OIC. 25 January 2012 OIC notified the Department and the Applicant that the external review application had been accepted and asked the Department to provide a copy of the Information in Issue. 27 January 2012 The Department provided OIC with a copy of the Information in Issue. 9 February 2012 OIC received a submission from the Applicant. 30 April 2012 - 22 May 2012 OIC sought clarification from the Department in relation to the Information in Issue. 18 June 2012 OIC provided the Applicant with an update on the status of the external review. 22 June 2012 OIC conveyed to the Applicant the preliminary view that there was no basis for the Information Commissioner to set aside the Department’s decision to grant access to the Information in Issue. OIC invited the Applicant to provide submissions supporting its case if it did not accept the preliminary view. 9 July 2012 The Applicant advised OIC it did not accept the preliminary view and lodged submissions in support of its case. 31 July 2012 OLGR provided OIC with information on issues relevant to the review. 27 August 2012 OIC provided the Applicant with an update on the status of the external review. 21 September 2012 OIC provided the Department with an update on the status of the external review and asked the Department to convey the status of the review to the Third Party. 28 September 2012 OIC provided the Applicant with a further update on the status of the external review. 29 October 2012 OIC made a written decision affirming the Department’s decision and gave a copy of the decision to the Department and the Applicant. 23 November 2012 OIC received a copy of an application to QCAT made by the Applicant. 26 November 2012 OIC notified the Department that OIC had received notice that the Applicant had appealed OIC’s decision. 3 December 2012 OIC received a sealed copy of the Applicant’s application to QCAT. 31 January 2013 OIC received a copy of the Applicant’s submissions to QCAT in the appeal. 7 June 2013 OIC received a copy of QCAT’s decision in the appeal. 14 June 2013 OIC received a copy of QCAT’s amended decision in the appeal. 19 June 2013 OIC contacted the Third Party and asked if they wished to pursue access to the Information in Issue. The Third Party advised that they continued to seek access to the Information in Issue. 1 July 2013 OIC notified the Department, the Applicant and the Third Party that OIC had reopened the external review. OIC invited the Department to make any further submissions on the issues in the external review by 15 July 2012. OIC invited the Third Party to participate in the external review. OIC invited the Applicant to make any further submissions on the issues in the external review and told the Applicant that unless OIC heard from the Applicant by 15 July 2013, OIC would assume the Applicant did not wish to make any further submissions and wished for OIC to take into account its external review application of 5 January 2012 and its previous submissions of 9 February 2012 and 9 July 2012. The Department advised OIC that it did not wish to make any further submissions. 17 July 2013 The Third Party confirmed that it wished to participate in the external review but did not wish to make any submissions. 18 July 2013 OIC made enquiries with the Department and OLGR about issues relevant to the external review. 22 July 2013 OLGR provided the requested information to OIC. 29 July 2013 OLGR provided OIC with further information on issues relevant to the external review. 26 August 2013 OLGR provided OIC with further information on issues relevant to the external review. 29 August 2013 OIC provided the Applicant with an update on the status of the external review. 30 August 2013 OIC conveyed to the Applicant a preliminary view on the issues in the external review and invited the Applicant to lodge any final submissions by 13 September 2013. OIC advised the Applicant that if OIC did not hear from the Applicant by 13 September 2013, OIC would proceed to issue a formal decision to finalise the external review. OIC provided the Department with an update on the status of the external review. 12 September 2013 OIC provided the Third Party with an update on the status of the external review. 8 October 2013 OLGR provided OIC with information on issues relevant to the external review. [1] As OLGR is part of the portfolio of the Attorney-General and Minister for Justice, the Department is, for the purposes of the RTI Act, the agency which deals with requests for information held by OLGR.[2] The Department also sought QPS’ views on disclosure. The Department has confirmed to OIC that QPS initially objected to disclosure of information and sought internal review of the Department’s decision to disclose information. QPS did not however, apply to OIC for external review and therefore, QPS was not involved in the external review process. [3] By decision dated 29 October 2012.[4] ASD v Office of the Information Commissioner; Chief Executive, Office of Liquor and Gaming Regulation [2013] QCATA (ASD) per Justice Cullinane, as amended on 11 June 2013.[5] See Commissioner’s Circular 27/2010 – Drink Safe Precincts and Banning Orders, 2 December 2010 available at http://www.police.qld.gov.au/Resources/Internet/rti/policies/documents/Circular%2027-2010.pdf (Commissioner’s Circular) at pages 2 to 3.[6] Section 87(2) of the RTI Act.[7] The Applicant did not submit on external review that access should be refused on the basis that the Information in Issue is exempt under sections 47(3)(a) and 48 and schedule 3 of the RTI Act and therefore, I have not considered that basis for refusal in these reasons for decision. There is no evidence before me to suggest that the Information in Issue is exempt.[8] On reopening the external review, OIC invited the Applicant to make any further submissions on the issues in the external review and told the Applicant that unless OIC heard from the Applicant by 15 July 2013, OIC would assume the Applicant did not wish to make any further submissions and wished for OIC to take into account its external review application of 5 January 2012 and its previous submissions of 9 February 2012 and 9 July 2012. As the Applicant did not respond, I have taken these submissions and the external review application into account. I have also considered the Applicant’s submissions dated 7 October 2011 and 28 November 2011 made to the Department in response to the consultation process and in the internal review application. The Applicant was invited to make submissions in response to OIC’s preliminary view dated 30 August 2013 but did not do so. [9] Submission dated 9 July 2012.[10] Section 36 and schedule 1 of the Acts Interpretation Act 1954 (Qld).[11] Section 14 of the RTI Act.[12] As it is not a document mentioned in schedule 1 of the RTI Act: see section 11 of the RTI Act.[13] Section 23(1) of the RTI Act. [14] Section 44(1) of the RTI Act. This is referred to as the pro-disclosure bias in deciding access to documents. [15] The grounds for refusal of access are listed in section 47(3) of the RTI Act. Section 47(2)(a) of the RTI Act provides that these grounds are to be interpreted narrowly. [16] 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. [17] 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. [18] Section 49(3) of the RTI Act.[19] http://www.olgr.qld.gov.au/aboutus/index.shtml. [20] Commissioner’s Circular at page 2.[21] Commissioner’s Circular at page 2.[22] Submissions dated 9 February 2012 and 9 July 2012.[23] Schedule 4, part 1, item 2 of the RTI Act. [24] CH32GI and Department of Justice and Attorney-General; Third Parties (Unreported, Queensland Information Commissioner, 22 November 2012) at [44].[25] Schedule 4, part 1, item 3 of the RTI Act.[26] The term could reasonably be expected to requires that the expectation is reasonably based, that it is neither irrational, absurd or ridiculous, nor merely a possibility. Whether the expected consequence is reasonable requires an objective examination of the relevant evidence. It is not necessary for a decision-maker to be satisfied upon a balance of probabilities that disclosing the document will produce the anticipated prejudice. The expectation must arise as a result of disclosure, rather than from other circumstances: see Nine Network Australia Pty Ltd and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 14 February 2012) at [31] citing Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97 at 106; Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744 at [45]- [47], [54]; Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009).[27] Schedule 4, part 2, item 1 of the RTI Act. [28] http://www.olgr.qld.gov.au/liquor/licensing/index.shtml. [29] http://www.olgr.qld.gov.au/liquor/compliance/index.shtml. [30] Section 148A(4) of the Liquor Act 1992 (Qld) (Liquor Act). [31] Submission dated 9 February 2012.[32] Seven Network (Operations) Limited and Redland City Council; A third party (Unreported, Queensland Information Commissioner, 30 June 2011) (Seven Network) at [23]. [33] See the Law, Justice and Safety Committee, ‘Inquiry into Alcohol-Related Violence – Final Report’, Report No 74, March 2010 (available at http://www.parliament.qld.gov.au/ documents/TableOffice/TabledPapers/ 2010/5310T1903.pdf) as well as, for example, ‘Qld emergency departments treat more binge drinkers’ ABC News, available at http://www.abc.net.au/news/2013-07-18/big-spike-in-qld-binge-drinkers-at-risk/4827710.[34] Giving rise to the public interest factor favouring disclosure in schedule 4, part 2, item 2 of the RTI Act. [35] Schedule 4, part 2, item 14 of the RTI Act.[36] Seven Network at [33]-[45].[37] Submission dated 9 July 2012.[38] Including in response to OIC’s preliminary view dated 30 August 2013.[39] Dated 25 October 2011.[40] In its submissions to QCAT dated 31 January 2013 in ASD. [41] Either by the Department, or by OIC on external review. [42] Schedule 4, part 3, item 22 of the RTI Act.[43] Section 48(2) of the Liquor Act. [44] Section 6 of the RTI Act. [45] Schedule 4, part 3, item 2 of the RTI Act. [46] Adopting the ordinary meaning of the term prejudice: see Daw and Queensland Rail (Unreported, Queensland Information Commissioner, 24 November 2010) at [16].[47] Kalinga Wooloowin Residents Association Inc and Brisbane City Council; City North Infrastructure Pty Ltd; Treasury Department (Unreported, Queensland Information Commissioner, 9 May 2012) at [89]. [48] The Applicant submits, in submissions dated 9 February 2012 and 9 July 2012, that the information lacks specificity and detail. However, having carefully reviewed the Information in Issue, I do not consider this to be the case—QPS’ account of the events are, in my view, relatively detailed. [49] Submissions dated 9 February 2012 and 9 July 2012.[50] Submission dated 9 July 2012.[51] Submission dated 9 July 2012. [52] Potentially giving rise to the factors favouring nondisclosure in schedule 4, part 3, items 8 and 9 of the RTI Act. [53] In telephone conversations with OIC staff on 22 and 29 July 2013 and 8 October 2013.[54] Schedule 4, part 4, section 4(1) of the RTI Act. [55] Schedule 4, part 3, item 20 of the RTI Act. [56] Submission dated 9 February 2012.[57] Submission dated 9 July 2012.[58] Abbot and The University of Queensland (Unreported, Queensland Information Commissioner, 16 October 2012) at [24].[59] Schedule 4, part 3, item 6 of the RTI Act.[60] Submission dated 9 July 2012.[61] Submission dated 9 July 2012.[62] Submission dated 9 July 2012[63] http://www.parliament.qld.gov.au/documents/TableOffice/TabledPapers/2010/5310T1903.pdf. [64] Submission dated 9 July 2012.[65] Schedule 4, part 3, item 7 of the RTI Act. [66] Submission dated 9 July 2012.

queensland

court_judgement

Queensland Information Commissioner 1993-

Bayliss and Medical Board of Queensland [1997] QICmr 6; (1997) 3 QAR 489 (28 April 1997)

Bayliss and Medical Board of Queensland [1997] QICmr 6; (1997) 3 QAR 489 (28 April 1997) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 97006Application S 114/95 Participants: PETER JOHN BAYLISS Applicant MEDICAL BOARD OF QUEENSLAND Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - jurisdiction of Information Commissioner - whether the respondent is excluded from the application of the Freedom of Information Act 1992 Qld, in respect of documents obtained for the purposes of an investigation under the Medical Act 1939 Qld, by the application of s.11(1)(i) of the Freedom of Information Act 1992 Qld, read in conjunction with s.13(1) of the Medical Act 1939 Qld.Freedom of Information Act 1992 Qld s.4, s.7, s.8, s.8(1), s.9(1)(a)(i), s.11(1)(h), s.11(1)(i), s.25, s.27(2), s.52, s.71(1)(b), s.73, s.73(3)Acts Interpretation Act 1954 Qld s.14AArchitects Act 1985 Qld s.43Beach Protection Act 1968 Qld s.34(2)Casino Control Act 1982 Qld s.91(2)Chiropractors and Osteopaths Act 1979 Qld s.25(2)Commissions of Inquiry Act 1950 Qld s.3, s.4, s.20Corrective Services Act 1988 Qld s.159Dental Act 1971 Qld s.26(4)Education (Teacher Registration) Act 1988 Qld s.44(1)Gaming Machine Act 1991 Qld s.183(2)Medical Act 1939 Qld s.8, s.10, s.13, s.13(1), s.13(2), s.37(3A), s.37(3A)(c)Medical Act Amendment Act 1987 Qld s.8Occupational Therapists Act 1979 Qld s.25(2)Optometrists Act 1974 Qld s.24(5)Parliamentary Commissioner Act 1974 Qld s.19Pharmacy Act 1976 Qld s.25(5)Physiotherapists Act 1964 Qld s.21(5A)Podiatrists Act 1969 Qld s.22(2)Psychologists Act 1977 Qld s.24(2) (i) Speech Pathologists Act 1979 Qld s.25(2)Tow Truck Act 1973 Qld s.29(1)Veterinary Surgeons Act 1936 Qld s.29Christie and Queensland Industry Development Corporation, Re [1993] QICmr 1; (1993) 1 QAR 1Council of the Shire of Redland v Stradbroke Rutile Pty Ltd [1974] HCA 4; (1974) 133 CLR 641East End Dwellings Co Ltd v Finsbury Borough Council [1952] AC 109Hunter Douglas Australia Pty Ltd v Perma Blinds [1970] HCA 63; (1970) 122 CLR 49Muller v Dalgety & Co Ltd [1909] HCA 67; (1909) 9 CLR 693News Corporation Ltd and Ors, Re (1987) 70 ALR 419Polydor Ltd and RSO Records Inc v Harlequin Record Shops Ltd and Simons Records Ltd [1980] 1 CMLR 669Queensland Law Society Inc v F N Albietz and Ors [1996] 2 Qd R 580R v County Council of Norfolk (1891) 60 LJQB 379Searle Australia Pty Ltd v Public Interest Advocacy Centre and Anor [1992] FCA 241; (1992) 36 FCR 111Victorian Public Service Board v Wright [1986] HCA 16; (1986) 160 CLR 145Wainer v Rippon [1980] VicRp 15; (1979) 29 ALR 643Woodlock & Ors v Commissioner of Land Tax (NSW) (1974) 5 ATR 57 DECISION I find that the respondent is not a commission of inquiry issued by the Governor in Council, within the terms of s.11(1)(i) of the Freedom of Information Act 1992 Qld, and that neither the respondent, nor the documents of the respondent to which the applicant seeks access, are excluded from the application of the Freedom of Information Act 1992 Qld, by s.11(1)(i) of the Freedom of Information Act 1992 Qld.Date of decision: 28 April 1997............................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS Page Background 1Relevant statutory provisions 3The respondent's submission 5Application of s.11(1)(i) of the FOI Act to the respondent 6 Other difficulties with the respondent's submission 9Conclusion 14 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 97006Application S 114/95 Participants: PETER JOHN BAYLISS Applicant MEDICAL BOARD OF QUEENSLAND Respondent REASONS FOR DECISION Background1. By letter dated 27 June 1995, the applicant applied to me for review, under Part 5 of the Freedom of Information Act 1992 Qld (the FOI Act), of the respondent's decision to refuse him access to a large number of documents which concern complaints to the respondent about the applicant. The respondent had refused access on the basis that the documents comprised exempt matter under the provisions of the FOI Act. My review commenced in July 1995, without objection by the respondent. The mediation phase of my review had resulted in significant concessions by both the applicant (in abandoning pursuit of certain documents) and the respondent (in agreeing to give the applicant access to certain documents and parts of documents), which had reduced the number of documents in issue. In December 1996, the respondent had agreed to release to the applicant further documents and parts of documents, and I had authorised it to do so. Before this could occur, however, I received a letter dated 3 January 1997 from Dr L A Toft, the then Deputy President (now President) of the Medical Board of Queensland, which relevantly stated:...The Medical Board desires at this late stage (for which any inconvenience is sincerely regretted) to lodge with you an objection to a continuation of the external review proceedings.The Board lodges the objection at this late stage in proceedings simply because the legal advice on which the objection is based was only obtained by the Board prior to the Christmas-New Year break.Proceeding on the legal advice obtained, the Medical Board objects to your exercising jurisdiction to accept and deal with the external review application. With the benefit of hindsight, the Board also now contends that the original application for access made to the Board was itself misconceived and ought to have been refused.The Medical Board submits that when s.11(1)(i) [the exclusion provision] of the Freedom of Information Act 1992 [FOI Act] is read (as it must be) with both s.13 of the Medical Act 1939 and the definition of "commission" in s.3 of the Commissions of Inquiry Act 1950, the Board is to be taken to be another commission of inquiry as referred to in the exclusion provision.It follows in the Medical Board's submission that the provisions of the FOI Act do not apply to the Board with respect to access to documents which relate to its investigations or inquiries respectively conducted or held, or for that matter which relate to the hearing of any application made to the Board, under or in pursuance of the provisions of the Medical Act 1939.The Board submits that it is solely a matter for the Queensland Parliament to revoke by Act of Parliament the immunity which has been conferred on it by the exclusion provision and that the immunity so conferred has not abated or been lost by reason of not hitherto having been asserted.2. This decision deals solely with the jurisdictional objection raised by the respondent. In Re Christie and Queensland Industry Development Corporation [1993] QICmr 1; (1993) 1 QAR 1, at pp.4-7 (paragraphs 5-16), I discussed my role and powers with respect to determining my jurisdiction as Information Commissioner. For the reasons there stated, I consider that I have the power, and a duty, to embark upon a consideration of issues relating to the limits of my jurisdiction, when they are raised as an issue in an application for review lodged with me. The respondent has taken the same objection to jurisdiction in respect of two other applications for review lodged by the applicant against decisions of the respondent (my reference numbers: S 146/95 and S 16/97). I intend my findings in the present case to apply to other cases in which the same objection to jurisdiction is raised.3. By letter dated 22 January 1997, I responded to Dr Toft's letter, conveying my preliminary view that s.11(1)(i) of the FOI Act does not apply in the manner suggested in Dr Toft's letter.I invited the respondent, should it wish to proceed with its objection to jurisdiction, to lodge a written submission and/or evidence in support of its case. The respondent provided a written submission dated 10 February 1997, a copy of which was provided to the applicant for response. The applicant lodged a written submission dated 25 February 1997. It was provided to the respondent, which lodged a reply dated 12 March 1997. There appear to be no factual issues in dispute, with the jurisdictional issue turning on the correct interpretation of the relevant statutory provisions.Relevant statutory provisions4. I set out below the statutory provisions on which reliance has been placed by the respective participants.5. Section 11(1) of the FOI Act provides (so far as relevant for present purposes): 11.(1) This Act does not apply to-- ... (h) the Fitzgerald commission of inquiry, that is, the commission of inquiry that is "the Commission" within the meaning of the Commission of Inquiry Continuation Act 1989; or (i) another commission of inquiry issued by the Governor in Council; ...6. Section 13 of the Medical Act 1939 Qld provides:13.(1) For the purpose of hearing any application or making any investigation or holding any inquiry into any matter under this Act, the board shall be deemed to be a commission of inquiry within the meaning of the Commissions of Inquiry Act 1950 and the provisions of that Act, other than sections 4, 4A, 10(3) and 13, shall apply accordingly.(2) For the purpose of applying the provisions of the Commissions of Inquiry Act 1950, each member of the board shall be deemed to be a commissioner, and the president shall be deemed to be the chairperson, within the meaning of that Act.7. Section 37(3A) of the Medical Act 1939 Qld provides:(3A) Where the board appoints a complaints investigation committee and refers a complaint to it under subsection (3)(c), the following provisions shall apply--(a) the Board may give such directions from time to time to the complaints investigation committee as it thinks fit concerning the exercise by the committee of its powers and the committee shall comply with the directions;(b) the complaints investigation committee shall have the same powers as the board has to investigate the complaint as provided for in subsection (3)(a) and (b), and sections 12, 13(1), 13B, 13C, 37B and 40 shall apply as if references therein to the board were references to the complaints investigation committee;(c) for the purposes of applying the provisions of the Commissions of Inquiry Act 1950, each member of the complaints investigation committee shall be deemed to be a commissioner, and the chairperson of the complaints investigation committee shall be deemed to be the chairperson, within the meaning of that Act;(d) without limiting the effect of paragraph (a), the complaints investigation committee shall investigate the complaint and shall deliver its findings and recommendations to the board, which may act on the findings as if they were its own; and(e) the board may continue to exercise all of its powers in the investigation of the complaint notwithstanding the reference, and it shall not be bound by the findings and recommendations of the complaints investigation committee.8. The definition of "commission" in s.3 of the Commissions of Inquiry Act 1950 Qld, is:"commission" means any commission of inquiry issued by the Governor, by and with the advice of the Executive Council of this State, under the Governor's hand and the public seal of the State, and includes the members of the commission, or a quorum thereof, or the sole commissioner in cases where the commission is constituted of a sole commissioner, sitting for the purposes of the inquiry and, where by an instrument other than a commission of inquiry as aforesaid the Governor in Council appoints a person or persons to make an inquiry into or with respect to any matter or matters and declares in that instrument of appointment or in a separate instrument that this Act or specified provisions of this Act shall be applicable for the purposes of that inquiry, then for the purposes of so applying this Act or, as the case may be, the provisions of this Act specified as aforesaid, includes that instrument of appointment and the person, or persons, or a quorum of the persons thereby appointed sitting for the purposes of the inquiry thereunder.9. Section 4 of the Commissions of Inquiry Act 1950 Qld provides: 4.(1) Wherever a commission of inquiry is issued by the Governor, by and with the advice of the Executive Council of this State, under the Governor's hand and the public seal of the State, the provisions of this Act shall apply to and with respect to the inquiry. (2) Wherever this Act or specified provisions of this Act are declared by the Governor in Council to be applicable for the purposes of an inquiry under a commission, other than a commission of inquiry as referred to in subsection (1), then the provisions of this Act or, according as declared by the Governor in Council, those specified provisions of this Act shall apply to and with respect to the inquiry.The respondent's submission10. The substance of the respondent's case is contained in the following extracts from its written submission dated 10 February 1997, and its reply dated 12 March 1997:From the words of sections 13 and 37(3A)(c) of the Medical Act and the definition of "commission" in the [Commissions of Inquiry Act], when the Board [i.e., the respondent] is investigating any matter under the former Act, it is deemed to be, within the meaning of the latter Act, "a commission of inquiry issued by the Governor by or with the advice of the Executive Council of this State, under the Governor's hand and the public seal of the State".There are two possible views open on the question of which commissions of inquiry are exempt from the FOI Act. The words "issued by the Governor in Council" in s.11(1)(i) may exclude from the FOI Act only those commissions actually issued by an Order in Council. The better view, in our submission, is that a body corporate, such as the Board, which is deemed to be a "commission of inquiry" within the meaning of the [Commissions of Inquiry Act] is also deemed to have been issued by the Governor in Council by reason of the definition of 'commission' in that Act. The Board thus falls squarely within the exclusion....Support can also be found in the careful definition of "commission" in the [Commissions of Inquiry Act], s.3. That definition contemplates the appointment, by the Governor in Council, of "a person or persons to make an inquiry into or with respect to any matter or thing" by "an instrument other than a commission of inquiry". It is submitted that the Medical Act, s.13 is such an instrument by which the Governor in Council appoints the Board to carry out the functions specified therein. If s.13 had the narrow effect of merely granting the powers of a commission with nothing more, s.37(3A)(c) would be rendered otiose....Furthermore, it must be presumed that, in enacting the FOI Act, Parliament knew the terms of s.13 of the Medical Act. Therefore, if Parliament had intended that the Board should have only the powers of a commission of inquiry with none of the privileges or immunities, it would have been simple and easy to amend s.13 to expressly grant such powers and avoid the much broader legislative act of deeming unqualified equality between the Board and a "commission of inquiry issued by the Governor by or with the advice of the Executive Council of this State, under the Governor's hand and the public seal of the State"....... the deeming by s.13 is a direction to conclude that the Board is a commission of inquiry within the meaning of the [Commissions of Inquiry Act] when it carries out certain functions. ... the deeming provision here mandates a conclusion which would be impossible but for the provision. ...In our submission, the sense of the usage here is governed by the following:"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it." [per Lord Asquith in East End Dwellings Co Ltd v Finsbury Borough Council [1952] AC 109 at p.132]...There is no statutory prohibition of the conclusion that, despite the absence of an instrument of commission issued by the Governor in Council other than s.13 itself, it is submitted that the combined effect of the provisions of the [Medical Act and the Commissions of Inquiry Act] discussed above is to mandate the conclusion that when performing the functions of hearing an application or making an inquiry or investigation, the Board is for all purposes at law a commission of inquiry. (from the respondent's submission dated 10 February 1997) ... the purpose of deeming the Board to be a commission of inquiry is to grant to the Board the various rights and privileges which are given to commissions which fall within the definition of the term "commission" in the [Commissions of Inquiry Act]. Significantly, Dr Bayliss makes no submission as to what should be found to be the purpose of the deeming or the scope of the Board's rights and privileges.The Board submits that, in the absence of statutory prohibition, one of those privileges is to refuse to disclose documents held by it during the conduct of a hearing, investigation or inquiry.ConclusionWhile the Board is hearing any application or making any investigation or holding any inquiry into any matter under the Medical Act, the FOI Act does not apply to the Board. (from the respondent's submission in reply dated 12 March 1997) Application of s.11(1)(i) of the FOI Act to the respondent11. The respondent was established by an enactment (the Medical Act 1939 Qld) for the public purpose of regulating the medical profession in Queensland (cf. Queensland Law Society Inc v F N Albietz and Ors [1996] 2 Qd R 580). The respondent clearly falls within the definition of"public authority" in s.9(1)(a)(i) of the FOI Act, and hence is a body subject to the application of the FOI Act, unless excluded by an applicable statutory provision.12. Section 13(1) of the Medical Act provides that, for the purposes described in the opening words of that provision (which is reproduced at paragraph 6 above), the respondent shall be deemed to be a commission of inquiry within the meaning of the Commissions of Inquiry Act 1950, and the provisions of that Act, other than s.4, s.4A, s.10(3) and s.13, shall apply accordingly.13. In my opinion, this provision was intended simply as a convenient drafting device to incorporate by reference a set of powers and immunities, which the legislature had already specified in another statute as powers and immunities appropriate for a body intended to conduct hearings, investigations or inquiries, and which the legislature considered were appropriate powers and immunities to confer on the respondent for the purpose of conducting hearings, investigations or inquiries under the Medical Act.14. At the time of enactment of s.13(1) of the Medical Act in its present form (by s.8 of the Medical Act Amendment Act 1987 Qld), exclusion of the respondent from the application of the FOI Act was clearly not an immunity which the legislature had in its contemplation as necessary or appropriate, since the FOI Act was not enacted until 1992.15. When the legislature, in enacting the FOI Act in 1992, turned its attention to the bodies which ought to be excluded from the application of the FOI Act, it provided, in s.11 of the FOI Act, for some bodies to be excluded entirely from the application of the FOI Act, and for some bodies to be excluded in respect of documents relating to particular functions or activities.The legislature did not specify the respondent as a body to be excluded from the application of the FOI Act, either wholly, or in respect of documents relating to particular functions or activities of the respondent. 16. The legislature did specify that the FOI Act does not apply to another [i.e., other than the Fitzgerald commission of inquiry, dealt with in s.11(1)(h) of the FOI Act] commission of inquiry issued by the Governor in Council. The words "issued by the Governor in Council" must, in my opinion, have been employed by the legislature to delimit the kinds of commission of inquiry that it intended should be excluded from the application of the FOI Act. (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 DC Pearce and RS Geddes, Statutory Interpretation in Australia, 3rd ed, 1988, at p.18, paragraph 2.7, and the cases there cited.) In my opinion, the short answer to the respondent's submission is that the respondent is not a commission of inquiry issued by the Governor in Council. The respondent is a body corporate established by statute (see s.8 and s.10 of the Medical Act), and does not, in my opinion, fall within the ordinary and natural meaning of the words used by the legislature in s.11(1)(i) of the FOI Act.17. In the second paragraph which I have quoted (at paragraph 10 above) from its submission, the respondent acknowledges that, even if one accepts its initial premise (as to which, see my comments at paragraphs 24-25 below), there are two possible views open on the question of which commissions of inquiry are excluded from the application of the FOI Act by s.11(1)(i) of the FOI Act. In my opinion, there is no ambiguity in the words of s.11(1)(i) of the FOI Act, and they exclude from the application of the FOI Act only commissions of inquiry actuallyissued by the Governor in Council. However, if one accepts the respondent's initial premise, and its acknowledgement that this leaves open two possible views as to the correct interpretation of s.11(1)(i) of the FOI Act, then, in my opinion, relevant legal principles require that the ambiguity be resolved by preferring a construction which is opposite to that contended for by the respondent.18. Section 14A of the Acts Interpretation Act 1954 Qld relevantly provides:14A (1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. ... (3) To remove any doubt, it is declared that this section applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation.19. Section 4 of the FOI Act states: 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. The word "government" is defined in s.7 of the FOI Act to include "an agency and a Minister". The respondent is a "public authority" within the meaning of s.9(1)(a)(i) of the FOI Act (see paragraph 11 above) and hence also an agency as defined by s.8(1) of the FOI Act. The respondent is a statutory body corporate with perpetual succession (see s.10 of the Medical Act) which routinely carries on a significant public regulatory function in the interests of the wider Queensland public. I do not think there is any doubt that preferring an interpretation of s.11(1)(i) of the FOI Act which preserves the application of the FOI Act to a public authority like the respondent would best achieve the object stated in s.4 of the FOI Act. (By way of contrast, commissions of inquiry issued by the Governor in Council occur infrequently, are usually set up to deal with a crisis of public confidence in a matter of substantial public importance, and usually conduct part of their proceedings in public and furnish a report of their findings which is available to the public. One can see logic in the legislature choosing to relieve commissions of inquiry issued by the Governor in Council of the burdens of compliance with the FOI Act, given the urgency and public importance of the issues they are usually established to deal with, and given that there is ordinarily sufficient accountability to the general public inherent in their usual methods of operation.)20. In addition, 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.115.21. Thus, even if one accepts the initial premise of the respondent's submission, it at best raises an ambiguity which ought properly to be resolved by finding that s.11(1)(i) of the FOI Act does not apply to the respondent.22. For the foregoing reasons, I find that the respondent is not a commission of inquiry issued by the Governor in Council, within the terms of s.11(1)(i) of the FOI Act, and that neither the respondent, nor the documents of the respondent to which the applicant seeks access, are excluded from the application of the FOI Act, by s.11(1)(i) of the FOI Act.Other difficulties with the respondent's submission23. I consider that there are a number of further difficulties with the respondent's submission, which I will note for the sake of completeness.24. The respondent's primary argument (as set out in the first two paragraphs quoted from its written submission at paragraph 10 above) depends on the proposition that the words "... the board shall be deemed to be a commission of inquiry within the meaning of the Commission of Inquiry Act 1950 ...", in s.13(1) of the Medical Act, are to be read as though they provided that the respondent shall be deemed to be a "commission", as defined in s.3 of the Commissions of Inquiry Act. That definition is reproduced at paragraph 8 above. In essence, it provides that the word "commission" in the Commissions of Inquiry Act -(a) means any commission of inquiry issued by the Governor, by and with the advice of the Executive Council of the State, under the Governor's hand and the public seal of the State; and(b) includes - (i) the members of the commission (referred to in (a) above), or a quorum thereof, or the sole commissioner in cases where the commission is constituted of a sole commissioner; and (ii) an instrument, other than a commission of inquiry as defined in (a) above, by which the Governor in Council appoints a person or persons to make an inquiry into or with respect to any matter or matters, if the Governor in Council also declares in that instrument of appointment, or in a separate instrument, that the Commissions of Inquiry Act, or specified provisions of it, shall be applicable for the purposes of the inquiry; and (iii) the person, or persons, or a quorum of the persons appointed as per (ii) above, sitting for the purposes of the inquiry under the instrument of appointment referred to in (ii) above.25. The respondent asserts (see the second paragraph of the extract from its submission quoted at paragraph 10 above) that not only is it deemed to be a commission of inquiry within the meaning of the Commissions of Inquiry Act, but it is also deemed to have been issued by the Governor in Council by reason of the definition of "commission" in that Act. However, in my opinion, the definition of "commission" in s.3 of the Commissions of Inquiry Act has no relevance to the position of the respondent. To achieve its purpose in enacting s.13 of the Medical Act (being, in my opinion, the purpose which I have identified in paragraph 13 above), the legislature did not need to, and did not (in the words it actually employed), deem the respondent to be any particular kind of commission within the definition of "commission" in s.3 of the Commissions of Inquiry Act. It was sufficient for its purposes for the legislaturesimply to deem the respondent to be a commission of inquiry within the meaning of the Commissions of Inquiry Act, and to go on to provide that the provisions of that Act (with specified exceptions) were to apply to it accordingly. The respondent is deemed to be a commission of inquiry (for certain purposes), and conferred with powers and immunities accordingly, by provision made in the terms of s.13 of the Medical Act itself, not because of, or by reference to, anything in the definition of "commission" in the Commissions of Inquiry Act.26. In the third paragraph of the extract from its submission quoted at paragraph 10 above, the respondent argues that s.13 of the Medical Act is an instrument by which the Governor in Council appoints the respondent to carry out the functions specified therein, and also declares that certain provisions of the Commissions of Inquiry Act will apply to the respondent, and hence that the respondent falls within parts (b)(ii) and (iii) of my paraphrasing (see paragraph 24 above) of the definition of "commission" in s.3 of the Commissions of Inquiry Act.27. However, s.13 of the Medical Act is a provision of an Act of Parliament, not an instrument by which the Governor in Council has appointed any persons to make an inquiry, or declared anything about the application to an inquiry of the provisions of the Commissions of Inquiry Act. The only involvement of the Governor, in s.13 of the Medical Act becoming an operative law enacted by the Queensland Parliament, would have been in attending to technical matters relating to the royal assent and promulgation of the Medical Act Amendment Act 1987. The respondent itself is constituted by an Act of Parliament, and the functions and duties which it is obliged to undertake are specified by that Act of Parliament. The respondent was not appointed by the Governor in Council to investigate the particular cases which resulted in the respondent obtaining possession or control of the documents to which the applicant seeks access under the FOI Act. I consider that there is no substance in this submission by the respondent.28. The respondent also argues that if the provisions are not interpreted in the way it suggests, s.37(3A)(c) of the Medical Act would be rendered otiose. The applicant made the following point in response to this submission:... with respect, subparagraph (c) of s.37(3A) must be read in conjunction with subparagraph (b). The latter states that the complaints investigation committee shall have the same powers as the Board as provided for in, inter alia, s.13(1). The purpose of subparagraph (b) is to construe the members of the complaints investigation committee as being in the same position as members of the Board in relation to the conduct of an inquiry.29. I agree with the applicant's contention. Section 37(3A) of the Medical Act refers to the appointment by the respondent of a complaints investigation committee, and clarifies that, for the purposes of its investigations, the complaints investigation committee will also be deemed to be a commission of inquiry. Section 37(3A)(c) serves the same purpose as s.13(2) - it deems each member of the complaints investigation committee to be a commissioner et cetera, for the purposes of applying the provisions of the Commissions of Inquiry Act. Section 13 deals with the respondent. Section 37(3A) deals with a complaints investigation committee appointed by the respondent. I do not consider that s.37(3A) of the Medical Act affords any support for the respondent's case.30. As to the argument made in the fourth paragraph of the extract from the respondent's submission quoted at paragraph 10 above, I consider that it contains two false premises.I have already explained (see paragraphs 24-25 above) why I consider that s.13(1) of the Medical Act does not deem the respondent to be a commission of inquiry issued by the Governor in Council, or any particular kind of "commission" within the definition of that word in s.3 of the Commissions of Inquiry Act. Moreover, it is not the case that, in enacting s.13 of the Medical Act, Parliament intended the respondent to have only the powers of a commission of inquiry with none of the privileges or immunities. Clearly, Parliament intended that (for the purposes delimited by the opening words of s.13(1) of the Medical Act) the respondent should have the powers, privileges and immunities (as to the latter, see s.20 of the Commissions of Inquiry Act) of a commission of inquiry that are provided for in the Commissions of Inquiry Act, except for sections 4A, 10(3) and 13 of that Act. It is equally clear, however (as explained in paragraph 14 above), that in enacting s.13(1) of the Medical Act, Parliament had no occasion to consider conferring an exclusion from the application of the FOI Act. It may be presumed that, in enacting the FOI Act, Parliament knew the terms of s.13 of the Medical Act; but I am satisfied (for the reasons explained at paragraphs 16-21 above) that in enacting s.11(1)(i) of the FOI Act, Parliament employed language that, according to its ordinary and natural meaning, was not intended to apply to a body established for a public purpose by a statute, merely because the statute also deems the body, for certain specified purposes, to be a commission of inquiry.31. I consider that the purpose of enacting s.13(1) of the Medical Act was that which I have identified in paragraph 13 above. This is a drafting device which has been used in Queensland legislation as a shorthand method for conferring powers and immunities on a body which is given a function of conducting investigations, inquiries or hearings. Two forms of a clause intended to procure the same result are evident in Queensland legislation. The first, of which s.13(1) of the Medical Act is an example, deems a body to be a commission of inquiry within the meaning of the Commissions of Inquiry Act, for the purpose of providing that the provisions of that Act (often with specified exceptions) are to apply to the relevant body, when it is performing specified functions. The purpose of the deeming is limited and context-specific. In my opinion, the intended operation of this clause would be correctly paraphrased in these terms: for certain nominated purposes, the provisions of the Commissions of Inquiry Act (subject to any nominated exceptions) are to apply to body x, as if body x were a commission of inquiry subject to the application of the Commissions of Inquiry Act. Clauses of this kind also apply, for example, to a corrections board under s.159 of the Corrective Services Act 1988 Qld, to the relevant Board under s.44(1) of the Education (Teacher Registration) Act 1988 Qld, to the relevant tribunal under s.29 of the Veterinary Surgeons Act 1936 Qld, and to the relevant appeal tribunal under s.29(1) of the Tow Truck Act 1973 Qld.32. The second, and more common type of clause, is drafted in a slightly different form, providing that the relevant body shall have, and may exercise, the powers, privileges and protection et cetera of a commission of inquiry under the Commissions of Inquiry Act. Examples include s.43 of the Architects Act 1985 Qld, s.34(2) of the Beach Protection Act 1968 Qld, s.91(2) of the Casino Control Act 1982 Qld, s.25(2) of the Chiropractors and Osteopaths Act 1979 Qld, s.26(4) of the Dental Act 1971 Qld, s.183(2) of the Gaming Machine Act 1991 Qld, s.25(2) of the Occupational Therapists Act 1979 Qld, s.24(5) of the Optometrists Act 1974 Qld, s.19 of the Parliamentary Commissioner Act 1974 Qld, s.25(5) of the Pharmacy Act 1976 Qld, s.21(5A) of the Physiotherapists Act 1964, Qld, s.22(2) of the Podiatrists Act 1969 Qld,s.24(2) of the Psychologists Act 1977 Qld and s.25(2) of the Speech Pathologists Act 1979 Qld.33. I consider that no materially different result was intended to be procured by the different wording employed in the two clauses. The respondent submits that it must be presumed that, in enacting the FOI Act, Parliament knew the terms of s.13 of the Medical Act. It must equally be presumed that Parliament knew the terms of the other statutory provisions referred to above. To accept the respondent's submissions would require an acceptance that, in enacting s.11(1)(i) of the FOI Act, Parliament contemplated and intended that documents relating to disciplinary investigations in respect of medical practitioners and veterinary surgeons should be excluded from the application of the FOI Act because the relevant investigating bodies are deemed to be commissions of inquiry for the purpose of facilitating the conduct of their investigations, while documents relating to disciplinary investigations in respect of architects, dentists, occupational therapists, optometrists, pharmacists, physiotherapists, psychologists and et cetera should be subject to the FOI Act because the relevant investigating bodies are merely conferred with the powers and immunities of a commission of inquiry under the Commissions of Inquiry Act. I do not accept that Parliament contemplated or intended such an illogical and inequitable (as between bodies performing comparable functions) result. Rather, a consideration of the consequences of accepting the respondent's submissions reinforces my view that, in enacting s.11(1)(i) of the FOI Act, Parliament intended that only commissions of inquiry actually issued by the Governor in Council were to be excluded from the application of the FOI Act.34. As to the respondent's arguments on the consequences of the use of the word "deemed" in s.13(1) of the Medical Act, I agree with those parts of its submission which are reproduced in the fifth, sixth and eighth (but not the seventh, ninth and tenth) paragraphs of the extract at paragraph 10 above. The word "deemed" may be used in legislation in a number of different senses, and its intended use in any particular instance must be determined from the particular statutory context: see, generally, Muller v Dalgety & Co Ltd [1909] HCA 67; (1909) 9 CLR 693 at p.696 (per Griffith CJ); Hunter Douglas Australia Pty Ltd v Perma Blinds [1970] HCA 63; (1970) 122 CLR 49 at pp.65-67 (per Windeyer J); Council of the Shire of Redland v Stradbroke Rutile Pty Ltd [1974] HCA 4; (1974) 133 CLR 641 at p.655 (per Gibbs J); Woodlock & Ors v Commissioner of Land Tax (NSW) (1974) 5 ATR 57 at p.59 (per Samuels J); Wainer v Rippon [1980] VicRp 15; (1979) 29 ALR 643 at p.650 (per O'Bryan J), and Re The News Corporation Ltd and Ors (1987) 70 ALR 419 at pp.431-432 (per Bowen CJ). I do not think there is any doubt (and the respondent has conceded) that the word "deemed" is used in s.13(1) of the Medical Act in a sense which requires the respondent to be treated, for certain purposes, as though it were something that it plainly is not. This was the meaning of "deemed" referred to by Cave J in R v County Council of Norfolk (1891) 60 LJQB 379 at p.380 (quoted with approval by Barton J in Muller v Dalgety & Co Ltd at p.705) where he said:Generally speaking, when you talk of a thing being deemed to be something, you do not mean to say that it is that which it is deemed to be. It is rather an admission that it is not what it is to be deemed to be, and that, notwithstanding it is not that particular thing, nevertheless, for the purposes of the Act, it is to be deemed to be that thing.35. I accept the correctness of the statement, quoted in the respondent's submission (see paragraph 10 above), from Lord Asquith's judgment in East End Dwellings Co Ltd v Finsbury Borough Council, provided it is understood in the context of the equally valid (and not inconsistent) statements which I have quoted at paragraphs 37 and 38 below. I do not accept, however, that exclusion of the respondent from the application of the FOI Act is a consequence or incident that must inevitably have flowed from, or accompanied, the deeming provision in s.13(1) of the Medical Act.36. The purpose of s.13 of the Medical Act is to facilitate the respondent's conduct of hearings, investigations or inquiries under the Medical Act by giving it certain powers and immunities which are conveniently codified in the Commissions of Inquiry Act. I do not accept the respondent's contention that s.13 of the Medical Act has the effect of deeming unqualified equality between the Board and a "commission of inquiry issued by the Governor ...". The purpose of deeming the respondent a commission of inquiry was to facilitate the conduct of its hearings, investigations or inquiries under the Medical Act, and nothing more. Hence the use of the words "For the purposes of ..." to introduce s.13 of the Medical Act. It is only for those purposes that the respondent is deemed to be a commission of inquiry, and not for the purpose of dealing with an access application made to it as a body falling within the definition of "agency" in s.8 of the FOI Act.37. The following comments by the learned authors of Pearce and Geddes, Statutory Interpretation in Australia, 3rd ed, 1988 (at pp.85-86), are apposite in this context:This use of the expression "deemed" was described by Griffith CJ in Muller v Dalgety & Co Ltd (1909) 9 CLR 639 at p.696 as a 'statutory fiction'; a device for extending the meaning of a term to a subject matter which it does not properly designate. When 'deemed' is used in this way, Griffith CJ pointed out that it is important to consider the purpose for which the fiction has been introduced. Care must be taken to observe that the extended meaning of the word is applied, but equally the reader must be aware that it is a fictitious use of the word and is only applicable in its particular context. (my underlining)38. To like effect is the statement by Megarry V-C in Polydor Ltd and RSO Records Inc v Harlequin Record Shops Ltd and Simons Records Ltd [1980] 1 CMLR 669 at p.673, who described a deeming provision as a "hypothetical" and said: The hypothetical must not be allowed to oust the real further than obedience to the statute compels. The intention of a deeming provision, in laying down a hypothesis, is that the hypothesis shall be carried as far as necessary to achieve the legislative purpose, but no further (see F Bennion, Statutory Interpretation, 2nd ed, Butterworths, 1992 at p.664).39. The consequences and incidents which flow from deeming the respondent to be a commission of inquiry for the purposes set out in s.13 of the Medical Act are that the respondent possesses the powers and immunities codified in the Commissions of Inquiry Act to facilitate its conduct of hearings, investigations or inquiries under the Medical Act. It is not a natural or inevitable consequence or incident of that deeming that the respondent should be excluded from the application of a beneficial/remedial statute intended to promote greater scrutiny and accountability of the performance of agencies of government in Queensland, and intended to apply generally to agencies, as defined in s.8 of the FOI Act, unless a particular agency is specifically excluded. Nor, for reasons explained above, do I accept that s.11(1)(i) of the FOIAct, even when read in conjunction with s.13 of the Medical Act, has the effect of excluding the respondent from the application of the FOI Act.40. The respondent's initial submission contained a detailed analysis of the words "hearing", "application", "investigation" and "inquiry" as used in s.13 of the Medical Act. That analysis may have been relevant to determining the scope or extent of the respondent's exclusion from the FOI Act, in the event that its primary submission was successful. Given the decisionI have reached, however, it is not necessary for me to deal with that issue.Conclusion41. I find that the respondent is not a commission of inquiry issued by the Governor in Council, within the terms of s.11(1)(i) of the FOI Act, and that neither the respondent, nor the documents of the respondent to which the applicant seeks access, are excluded from the application of the FOI Act, by s.11(1)(i) of the FOI Act.............................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Murphy Schmidt Solicitors and Department of Justice and Attorney-General [2006] QICmr 15 (30 March 2007)

Murphy Schmidt Solicitors and Department of Justice and Attorney-General [2006] QICmr 15 (30 March 2007) Decision and Reasons for Decision Application Number: 210083 Applicant: Murphy Schmidt Solicitors Respondent: Department of Justice and Attorney-General Decision Date: 30 March 2007 Catchwords: FREEDOM OF INFORMATION – Section 44(1) and 44(2) of the Freedom of Information Act 1992 (Qld) – Video and inextricably interwoven personal affairs – public interest to pursue legal remedy – Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 – Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 Contents Background ................................................................................................................. 2 Steps taken in the external review process ................................................................ 3 Matter in issue ............................................................................................................. 4 Findings......................................................................................................................... 4 Decision ...................................................................................................................... 10 Reasons for Decision Background 1. The applicant seeks review of the internal review decision of Ms Kaye McKemmish of the Department of Justice and Attorney-General (JAG), dated 16 October 2006, to not release the hotel security video (Video) to the applicant as it qualifies for exemption from disclosure under section 44(1) of the Freedom of Information Act 1992 (Qld) (FOI Act). 2. On 16 December 2005 the applicant made a freedom of information application to JAG requesting a copy of all documents held by the Department of Public Prosecutions (DPP) regarding the assault the applicant’s client at the Manly Hotel on 2 October 2004, including the Video (FOI Application). 3. It is my understanding that: • an offender was subsequently convicted and sentenced to a term of imprisonment in relation to the assault captured on the Video; and • the applicant seeks access to the Video in order to assess whether its client is able to commence civil proceedings in relation to the assault. 4. JAG sought the views of third parties to whom disclosure of the relevant information may be a substantial concern in accordance with section 51 of the FOI Act. This involved contacting the offender and the Manly Hotel (Hotel). 5. The Hotel advised JAG on 30 June 2006 that it had no objection to release of the Video to the applicant. 6. The offender’s mother advised JAG on 10 July 2006 that the offender objected to release of the Video. 7. On 25 July 2006 JAG made an initial decision in relation to the applicant’s FOI Application to release the Video to the applicant. In summary, the initial decision concluded that: • the Video was prima facie exempt from disclosure under section 44(1) of the FOI Act because it contains personal affairs information of persons other than the applicant’s client; • the issue is whether there are any public interest considerations which would outweigh the prima facie non-disclosure of the Video; and • there was a public interest consideration that on balance favoured disclosure of the Video to the applicant, namely the applicant’s right to pursue a legal remedy or to evaluate whether a legal remedy is available or worth pursuing. 8. The offender applied for internal review of the initial decision on 21 August 2006 and reasserted his objection to the release of the Video to the applicant. 9. Ms McKemmish of JAG carried out an internal review of the initial decision and informed the offender of her decision by letter dated 16 October 2006. Ms McKemmish overturned the original decision and decided that the Video was exempt from disclosure under section 44(1) of the FOI Act on the basis that: • the Video contains personal affairs information which renders it prima facie exempt from disclosure under section 44(1) of the FOI Act, unless it is in the public interest to disclose the Video; • images of general Hotel staff in the context of the assault, concern their personal affairs (more specifically, some staff are identifiable and some appear to be young people in their late teens); • the personal affairs of the applicant’s client and other people on the Video are inextricably interwoven and it is not practicable to sever all other personal affairs information from the Video; • release under FOI is in effect release to the world; • JAG have not had the opportunity to consult with patrons and Hotel staff in relation to the release of the Video to the applicant; and • the public interest in protecting the privacy of Hotel staff and/or patrons outweighs the public interest in disclosing the Video to assist the applicant pursue a legal remedy, or evaluate whether a legal remedy is available or worth pursuing. 10. By letter dated 24 October 2006, the applicant applied to this Office for external review of Ms McKemmish’s decision under Part 5 of the FOI Act. Steps taken in the external review process 11. The applicant’s external review application was received by this Office on 26 October 2006. 12. On 1 November 2006, this Office asked JAG to provide it with copies of the FOI Application and the application for internal review. JAG was also provided with a copy of the applicant’s external review application at this time. 13. On 7 November 2006, JAG provided this office with the requested documentation and a copy of the Video. 14. A staff member of this Office and I carefully considered the documentation and Video provided. 15. Third parties who were likely to be concerned by release of the Video and who it was reasonably practicable to contact to obtain their views were identified. These were the Hotel, the offender and the security company engaged by the Hotel at the time of the assault (Third Parties). 16. By separate letters dated 14 February 2007, I advised JAG and the Third Parties that: • it was my preliminary view that the Video was not exempt from disclosure under section 44(1) of the FOI Act on the basis that the public interest considerations favouring disclosure outweigh the public interest considerations favouring non-disclosure; • if they did not accept my preliminary view, each party had until 28 February 2007 to lodge written submissions and/or evidence in support of their case; and • if I did not hear from them by 28 February 2007 I would assume that they accepted my preliminary view. 17. I also invited each of the Third Parties to become participants in the external review under section 78 of the FOI Act if they so wished by advising me in this regard by 28 February 2007. I indicated that if I did not hear from them by 28 February 2007 I would assume that they did not wish to participate in the external review. 18. On 21 February 2007, a partner of the Hotel, advised a staff member of this Office that the Hotel: • consents to the release of the Video to the applicant; and • does not wish to become a participant in the external review. 19. I had no response to my letters dated 14 February 2007 from either the offender or the security company. 20. On 27 February 2007 I received a letter from JAG advising that it did not agree with my preliminary view but that it did not intend to make further submissions in relation to the external review. 21. In making my decision in this matter, I have taken the following into account: • the matter in issue; • the applicant’s FOI Application; • the applicant’s external review application dated 24 October 2006, including reports from a doctor and occupational therapist in relation to the injuries arising from the assault; • the offender’s application for internal review dated 21 August 2006; • Section 51 consultation notices to the Hotel and the offender from JAG dated 27 June 2006; • the Hotel’s response to JAG’s section 51 consultation notice dated 30 June 2006; • the intitial decision dated 25 July 2006 and Ms McKemmish’s internal review decision dated 16 October 2006; • file notes of telephone conversations between staff of this Office and: o the Department; o the applicant; and o Third Parties; and • relevant case law and legislative provisions. Matter in issue 22. The matter in issue in this review is the Video. Findings Relevant sections of the FOI Act 23. Section 21 of the FOI Act sets out: 21 Right of access Subject to this Act, a person has a legally enforceable right to be given access under this Act to— (a) documents of an agency; and (b) official documents of a Minister. 24. Section 44 (1) and (2) of the FOI Act are as follows: 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. (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. Section 44(1) of the FOI Act 25. The Information Commissioner considered the application of section 44(1) of the FOI Act in the decision of Williamson and Queensland Police Service; ‘A’ (Third Party) (2005) 7 QAR 51 (Williamson) at paragraph 15: In applying s.44(1) of the FOI Act, the first question to ask is whether disclosure of the matter in issue would disclose information concerning the personal affairs of a person other than the applicant for access. If that is the case a public interest consideration favouring non-disclosure is established, and the matter in issue will be exempt, unless there are public interest considerations favouring disclosure which outweigh all public interest considerations favouring non-disclosure. 26. The case of Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 (Stewart) provides a detailed discussion of what constitutes personal affairs for the purposes of the FOI Act (see paragraphs 79 to 114). 27. In particular, the Information Commissioner indicates at paragraphs 79 and 80 of Stewart that: 79. What I described in paragraph 18 above as the core meaning of the term "personal affairs", which is agreed upon by all external review authorities, would comprise the elements referred to with approval by Full Courts of the Federal Court in News Corporation Ltd v NCSC and in Department of Society Security v Dyrenfurth, namely – 1. affairs relating to family and marital relationships; 2. health or ill-health; 3. relationships with and emotional ties with other real people; 4. domestic responsibilities or financial obligations. 80. Some further examples of matters which have been held in decided cases to fall within the meaning of the phrase "personal affairs of a person", and which I consider to have been correctly decided for the reasons given by the relevant tribunal in each case are as follows (the list is meant to be illustrative, rather than exhaustive, of matters which I consider clearly fall within the meaning of the phrase "personal affairs" in the Queensland FOI Act): • a person's signature (as distinct from a person's name) • the mention of a person's name in police records (or in agency records of a comparable nature) in association with some possible wrongdoing... • a person's income...and personal financial position...(It has been held, however, that there is a general public interest in seeing how the taxpayers' money is spent which is sufficient to justify the disclosure of the gross income payable from the public purse to the holder of a public office....) • information supplied by a prospective tenant for the purpose of obtaining a residential lease of premises... 28. The Information Commissioner also sets out matters that clearly fall outside the meaning of ‘personal affairs of a person’ at paragraphs 81 to 85. In particular the Information Commissioner refers to Anderson and Australian Federal Police [1986] AATA 79; (1986) 4 AAR 414 at p.433 to 444 where Deputy President Hall states: In my view, the fact that a document may refer to a person by name does not necessarily mean that the document relates to that person's 'personal affairs...In my view, acts, matters or things done by a person in a representative capacity on behalf of another person, body or organisation, would not normally be said to relate to that person's 'personal affairs'. In such cases, the document does not relate to the person's personal affairs because there is no relevance between the information contained in the document and any matter personal to the applicant... 29. The general position in Stewart about what constitutes personal affairs in the employment context is that: • there are some matters which are incidental to the relationship of employee and employer which may concern the employee’s personal affairs (paragraph 92); • there is a distinction to be drawn between matters that relate to an employee as an individual such as an employee’s personnel records relating to sick leave or annual leave which may constitute personal affairs versus matters that involve an employee as an agent or representative of the employer which do not constitute personal affairs (paragraph 92 and 93); and • the usual principle is that information as to work capacity and performance of a person is not personal affairs, subject to a limited number of exceptions (paragraphs 101 to 102). Relevant matter – the Video 30. After carefully considering the information available to me, including the Video I find that the Video: • contains information concerning the applicant’s client and the offender; • does not identify the vast majority of patrons, Hotel staff and security staff that can be seen on the Video; • potentially identifies some Hotel and/or security staff and two ambulance paramedics; and • potentially identifies one patron who is clearly over the age of 18 and is best described as a bystander merely observing the aftermath of events. Disclosure of Personal Affairs 31. The next issue for determination is whether disclosure of the above information within the Video would disclose personal affairs information in accordance with section 44 of the FOI Act. In determining what constitutes personal affairs in the Video I have carefully considered the reasoning in Stewart as set out above. The applicant’s client and the offender 32. Given the nature of the footage involving criminal conduct by the offender, against the applicant’s client, I find that disclosure of this part of the Video would disclose information concerning the personal affairs of the applicant’s client and the offender. Unidentifiable patrons and Hotel and security staff 33. I find that disclosure of footage of unidentifiable patrons and hotel and security staff would not disclose information concerning personal affairs as these parties are unidentifiable. Potentially identifiable Hotel, security staff and/or ambulance paramedics 34. I find that disclosure of footage of Hotel staff, security staff and ambulance paramedics who are potentially identifiable would not disclose personal affairs information. This is consistent with the approach adopted by the Information Commissioner in Stewart, at paragraph 83 and 84, that information involving the identity of officers and employees of an agency performing their employment duties was not information concerning their personal affairs. Potentially identifiable patron 35. I find that disclosure of footage of a potentially identifiable patron: • may disclose information concerning the personal affairs of that person for the purposes of the FOI Act; and • it is not reasonably practicable to consult with this patron about the disclosure of the Video to the applicant. Personal affairs information 36. On the basis of the above, I find that: • the only personal affairs information that may be disclosed if the Video is disclosed is that concerning: o The applicant’s client and the offender; and o the potentially identifiable patron (Personal Affairs Information); and • this Personal Affairs Information is prima facie exempt matter under section 44(1) of the FOI Act. Section 44(2) of the FOI Act 37. As set out above, matter will not be exempt under section 44(1) of the FOI Act if the matter 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. 38. The Information Commissioner established in ‘B’ and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at paragraph 176 that: Where...the segment of matter in issue is comprised of information concerning the personal affairs of the applicant which is inextricably interwoven with information concerning the personal affairs of another person, then: (a) severance in accordance with s.32 is not practicable; (b) the s.44(2) exception does not apply; and (c) the matter in issue is prima facie exempt from disclosure to the applicant according to the terms of s.44(1), subject to the application of the countervailing public interest test contained within s.44(1). 39. On this basis I find that: • the Personal Affairs Information is shared personal affairs information and is inextricably interwoven; and • the section 44(2) exception does not apply. Public Interest 40. In accordance with section 44(1) of the FOI Act, the prima facie exempt Personal Affairs Information may only be disclosed to the applicant if its disclosure would, on balance, be in the public interest. 41. It is therefore necessary to consider whether disclosure to the applicant of the Personal Affairs Information is on balance in the public interest. 42. As set out above, the Williamson decision is authority for the proposition that the presence of personal affairs information means that there is a public interest consideration favouring non-disclosure. 43. Accordingly, the Personal Affairs Information may only be disclosed to the applicant if the public interest considerations favouring disclosure outweigh the public interest considerations favouring non-disclosure. 44. In the present case, the public interest consideration favouring disclosure is the pursuit of a legal remedy. In the decision of Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 (Willsford), the Information Commissioner found at paragraph 17 that: The mere assertion by an applicant that information is required to enable pursuit of a legal remedy will not be sufficient to give rise to a public interest consideration that ought to be taken into account in the application of a public interest balancing test incorporated into an exemption provision in the FOI Act. On the other hand, it should not be necessary for an applicant to prove the likelihood of a successful pursuit of a legal remedy in the event of obtaining access to information in issue. It should be sufficient to found the existence of a public interest consideration favouring disclosure of information held by an agency if an applicant can demonstrate that - (a) loss or damage or some kind of wrong has been suffered, in respect of which a remedy is, or may be, available under the law; (b) the applicant has a reasonable basis for seeking to pursue the remedy; and (c) disclosure of the information held by the agency would assist the applicant to pursue the remedy, or to evaluate whether a remedy is available, or worth pursuing. 45. The Information Commissioner goes on to state in Willsford at paragraph 18 that: The existence of a public interest consideration of this kind would not necessarily be determinative - it would represent one consideration to be taken into account in the weighing process along with any other relevant public interest considerations (whether weighing for or against disclosure) which are identifiable in a particular case. On the other hand, it would ordinarily be true to say (to the extent that a decision-maker under the FOI Act is able to make an objective assessment of these matters from the material put forward by an applicant to establish (a), (b) and (c) above) that the greater the magnitude of the loss, damage or wrong, and/or the stronger the prospects of successfully pursuing an available remedy in respect of the loss, damage or wrong, then the stronger would be the weight of the public interest consideration favouring disclosure which is to be taken into account in the application of a public interest balancing test incorporated in an exemption provision of the FOI Act. 46. On the information available to me, I find that: • The applicant’s client was assaulted on 2 October 2004 at the Hotel; • The applicant’s client suffered loss and/or damage arising out of the assault (as set out in the medical reports provided to this Office), in respect of which a remedy is, or may be, available under the law; • The applicant’s client has a reasonable basis for seeking to pursue the remedy; and • disclosure of the Video would assist the applicant’s client to pursue the remedy, or to evaluate whether a remedy is available, or worth pursuing. 47. As set out above, I note that the pursuit of a legal remedy is only one consideration to be taken into account in considering a public interest balancing test. This public interest consideration must be weighed against the public interest consideration which seeks to protect the disclosure of information involving the personal affairs of other persons. 48. I have carefully considered the following public interest considerations: • the applicant’s pursuit, or evaluation of the prospects, of civil proceedings arising out of the relevent assault; and • the protection of information concerning the personal affairs of the offender and the potentially identifiable patron. 49. In relation to the balancing of public interest considerations I find that the public interest consideration favouring non-disclosure of the Personal Affairs Information relating to the offender and the potentially identifiable patron, does not outweigh the public interest consideration favouring disclosure of that information to enable the applicant to evaluate and possibly pursue a legal remedy in relation to the assault. 50. I say this on the basis that the Personal Affairs Information relating to: • the offender involves criminal activity which has resulted in loss and/or damage being suffered by the applicant’s client; and • the potentially identifiable patron involves conduct best described as that of a bystander merely observing the aftermath of relevant events, which are public interest considerations which do not outweigh the public interest consideration favouring release of the Video to the applicant to enable it to pursue, or determine whether it wishes to pursue, a civil legal remedy. Conclusion 51. In conclusion I find that: • the Video contains some Personal Affairs Information; • this information is prima facie exempt under section 44(1); • this information is shared personal affairs information and is inextricably interwoven, therefore the section 44(2) exception does not apply; and • public interest considerations favouring non-disclosure of the Personal Affairs Information relating to the offender and the potentially identifiable patron, do not outweigh the public interest consideration favouring disclosure of that information to enable the applicant to evaluate and possibly pursue a legal remedy in relation to the assault. Decision 52. I set aside the decision of Ms McKemmish made on 16 October 2006. In substitution, I find that the Video is not exempt under section 44(1) of the FOI Act and should be released to the applicant by the respondent. 53. 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: 30 March 2007

queensland

court_judgement

Queensland Information Commissioner 1993-

Veenstra and Department of Public Works and Housing [1998] QICmr 30 (14 December 1998)

Veenstra and Department of Public Works and Housing [1998] QICmr 30 (14 December 1998) Veenstra and Department of Public Works & Housing (S 163/96, 14 December 1998, Information Commissioner) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.-4. These paragraphs deleted. REASONS FOR DECISION Background By application form received on 7 August 1996, the applicant sought access under the FOI Act to documents of the Department of Public Works and Housing (the Department) containing personal information about the applicant since he commenced work in October 1982. By letter dated 23 September 1996, Mr Lynch of the Department informed the applicant that he had located 273 folios falling within the terms of the applicant's FOI access application. Mr Lynch decided to give the applicant access in full to 266 of the folios. However, Mr Lynch decided that parts of 2 of the folios (1 and 96) were exempt under s.44(1) of the FOI Act, and that the remaining five folios (12-16) were wholly exempt under s.44(1) and s.46(1)(b) of the FOI Act. The applicant sought internal review of Mr Lynch's decision, which was conducted by Mr Grierson of the Department. In his decision dated 16 October 1996, Mr Grierson affirmed Mr Lynch's decision to refuse access to the matter identified above, but decided that folios 12-16 were exempt under s.41(1) and s.44(1) of the FOI Act. By letter dated 16 October 1996, the applicant applied to the Information Commissioner for review under Part 5 of the FOI Act, of Mr Grierson's decision. External review process Copies of the documents containing or comprising the matter in issue were obtained and examined. The documents relate to an investigation of complaints by the applicant that he was being discriminated against by staff of the Department, the discrimination having manifested itself in comments made about the applicant's Dutch ancestry. The documents are: Folio Description 1 Notes made in preparation for a feedback session with the applicant and another person. The deleted matter consists of notes relating to the feedback session with the other person. The deleted matter does not refer in any way to the applicant. 12-16 Handwritten notes by an investigator (Mr D Peries), recording interviews with various staff members in the course of investigation of the complaint. 96 Handwritten notes headed "Situation So Far". The deleted matter is the name of a person who was involved in a matter unrelated to the applicant's complaints. The applicant has already been granted access to a report prepared by Mr Peries on the investigation (the Grievance Report). Comparison of folios 12-16 with the Grievance Report shows that the information recorded in a number of passages in folios 12-16 has already been disclosed to the applicant by disclosure to him of the Grievance Report. That matter (which does not disclose the identities of the staff members interviewed) is described in the following table: Matter in Issue Matter in Grievance Report Folio 12:-lines 9-10 Folio 060:-sentence after the words 'Stage Four' Folio 12:-lines 11-16 Folio 058:-second paragraph Folio 12:-lines 19-20 Folio 061:-first sentence after the words 'Stage Three' Folio 13:-lines 18-20 Folio 059:-last paragraph, second last sentence Folio 15:-lines 1-4 & 7-8 Folio 062:-second paragraph Folio 16:-lines 4-5 Folio 089:-third last paragraph, second sentence Folio 16:-lines 12-15 Folio 062:-second paragraph, last two sentences The Department has confirmed that it does not object to disclosure of the matter listed above from folios 12-16, and I have authorised its disclosure to the applicant. That matter is therefore no longer in issue in this external review. After obtaining further information from the Department, I formed the view that, in addition to the exemption provisions discussed above, s.40(c) of the FOI Act may also be relevant to folios 12-16. In due course, I informed the applicant of my preliminary view that the matter in issue qualified for exemption under s.40(c) and/or s.44(1) of the FOI Act. It is clear from the responses of the applicant that he did not accept my preliminary views. In making my decision, I have had regard to: the documents in issue; the correspondence between the Department and the applicant concerning his initial and internal review applications; the applicant's application for external review dated 16 October 1996 and his letters dated 18 December 1997 and 5 October 1998; a letter from the Department dated 9 January 1997; a statutory declaration of Darryl Peries dated 27 May 1997; and the Grievance Report. Application of s.40(c) of the FOI Act Section 40(c) of the FOI Act provides: 40. Matter is exempt matter if its disclosure could reasonably be expected to — ... (c) have a substantial adverse effect on the management or assessment by an agency of the agency's personnel; ... ... unless its disclosure would, on balance, be in the public interest. I have considered the application of s.40(c) of the FOI Act in Re Pemberton and The University of Queensland (1994) 2 QAR 293, Re Murphy and Queensland Treasury & Ors [1995] QICmr 23; (1995) 2 QAR 744, Re Shaw and The University of Queensland [1995] QICmr 32; (1995) 3 QAR 107, and Re McCann and Queensland Police Service (Information Commissioner Qld, Decision No. 97010, 10 July 1997, unreported). The focus of this exemption provision is on the management or assessment by an agency of the agency's personnel. The exemption will be made out if it is established that disclosure of the matter in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by an agency of its personnel, unless disclosure of the matter in issue would, on balance, be in the public interest. I analysed the meaning of the phrase "could reasonably be expected to", by reference to relevant Federal Court decisions interpreting the identical phrase as used in exemption provisions of the Freedom of Information Act 1982 Cth, in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at pp.339-341, paragraphs 154-160. In particular, I said in Re "B" (at pp.340-341, paragraph 160): The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist. The ordinary meaning of the word "expect" which is appropriate to its context in the phrase "could reasonably be expected to" accords with these dictionary meanings: "to regard as probable or likely" (Collins English Dictionary, Third Aust. ed); "regard as likely to happen; anticipate the occurrence ... of" (Macquarie Dictionary, 2nd ed); "Regard as ... likely to happen; ... Believe that it will prove to be the case that ..." (The New Shorter Oxford English Dictionary, 1993). If I am satisfied that any adverse effects could reasonably be expected to follow from disclosure of the matter in issue, I must then determine whether those adverse effects, either individually or in aggregate, constitute a substantial adverse effect on the management or assessment by the Department of its personnel. For reasons explained in Re Cairns Port Authority and Department of Lands [1994] QICmr 17; (1994) 1 QAR 663 (at pp.724-725, paragraphs 148-150), I consider that, where the Queensland Parliament has employed the phrase "substantial adverse effect" in s.40(c) of the FOI Act, it must have intended the adjective "substantial" to be used in the sense of grave, weighty, significant or serious. If I find that disclosure of the whole or any part of the matter in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by the Department of its personnel, I must then consider whether disclosure of that matter would nevertheless, on balance, be in the public interest. Submissions and evidence of the participants Folios 12-16 are handwritten notes made by Mr Peries in the course of his investigation of the applicant's grievances. Each folio represents a record of an interview that Mr Peries had with a staff member of the Department other than the applicant. In his statutory declaration, Mr Peries described the circumstances of those interviews in the following terms: Folios 016-012 are my notes of interview with staff members made during the course of the grievance investigation. I advised each of those staff members that their comments would remain confidential. It is my usual practice to give an express undertaking that information provided during the course of grievance investigations will remain confidential. Where appropriate, interviewees are advised that the requirements of procedural fairness may require all or part of an interview to be disclosed to a given person. As it was not considered necessary, no such advice was given to the various staff members interviewed in regard to Mr Veenstra's allegations. These interview notes were used to formulate my investigation report. Given my express undertaking to the various interviewees that confidence would be maintained I strongly object to the release of the subject documents to Mr Veenstra. In my view, departmental employees would be less likely to fully co-operate with grievance investigators if it was likely that express undertakings of confidentiality would be overridden (except where procedural fairness requirements demand it) and if confidential matter could be made public and potentially be used by a party to an action in a court of law or in the Anti-Discrimination Tribunal. The applicant's submissions did not address the elements of s.40(c) of the FOI Act. Essentially, the arguments of the applicant were that: his name and character had been slurred and slandered and it was only fair that he see his entire file in order to find out the extent of the slanderous comments; he should have the chance to respond to any allegations made against him; and the information might well directly affect his racial discrimination case. Before proceeding to consider the elements of s.40(c), I should point out that folios 12-16 do not contain any slur on the name or character of the applicant. They do not contain any allegation of wrongdoing against the applicant. They are responses by staff members to the allegations made by the applicant. I also note that the applicant's racial discrimination case has now been finalised. Substantial adverse effect The uncontradicted evidence before me is that each of the persons interviewed was given an undertaking by Mr Peries that information provided to Mr Peries would be kept confidential. In many cases, particularly in cases involving proposed disciplinary action against a person, any understanding of confidentiality of information provided by staff would be conditional on its possible use for the purposes of further investigation, or the requirements of procedural fairness (for a discussion of conditional understandings of confidentiality see paragraphs 47-51 of Re McCann). In some cases it may well be unreasonable for a staff member who provides information to believe that any of the information he or she has provided could be kept confidential, if the functions of the agency are to be performed in an appropriate manner. Indeed, within the Queensland public service, s.15 and s.16 of the Public Service Regulation 1997 Qld already place significant limitations on any potential understanding of confidentiality in respect of information provided about the performance of a fellow public servant (see paragraphs 51-54 of Re Holt; Reeves and Education Queensland; Others (Information Commissioner Qld, Decision No. 98004, 20 April 1998, unreported)). (In this case, the applicant cannot avail himself of s.16(2) of the Public Service Regulation as he is no longer a public service employee.) However, where undertakings of confidentiality have been given and accepted in good faith, for the purpose of securing co-operation with an investigation, it is important that they be honoured so far as possible, though they may be overridden by the legal requirements of procedural fairness in certain circumstances. I am prepared to accept that any unwarranted breach of an undertaking of confidence given and accepted in good faith could reasonably be expected to have a substantial adverse effect on the management or assessment by the Department of its personnel, through the apparent breach of trust involved, and perhaps also by making it difficult to obtain full co-operation in similar investigations in the future. In many cases where grievance investigators require the full co-operation of third party employees to fairly and effectively resolve and/or investigate complaints arising in the workplace, the efficacy of the grievance resolution and investigation process could be impaired, if information is disclosed in breach of undertakings of confidence given to the information-providers. Public interest balancing test Once a finding is made that disclosure of the matter in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by the Department of its personnel, the matter in issue is prima facie exempt, unless public interest considerations favouring disclosure are sufficient to outweigh public interest considerations favouring non-disclosure. The applicant's arguments favouring disclosure of the documents in issue are summarised at paragraph 20 above. I have already indicated that the matter in folios 12-16 does not in any way represent a slurring or slandering of the applicant's name or character. Nor does it raise allegations against the applicant. The applicant has indicated that his racial discrimination case has been finalised. I recognise that there is a public interest in disclosure of matter which will show how the Department deals with grievances of staff members. I also recognise that there may be a public interest in an applicant having access to information which affects or concerns the applicant to such a degree as to give rise to a justifiable "need to know" which is more compelling than for other members of the public (see Re Pemberton and The University of Queensland (1994) 2 QAR 293 at pp. 368-377, paragraphs 164-193). However, in this case, the applicant has already been given access to the Grievance Report of the investigator into his complaints. The investigator has included information in the Grievance Report which is also recorded in folios 12-16, where he considered that necessary for the purposes of making his report. (That information is the information identified at paragraph 9 which has already been disclosed to the applicant). The applicant has therefore been given access to a considerable amount of information concerning the investigation. In those circumstances, I do not consider that there are public interest considerations favouring disclosure of folios 12-16 which are sufficiently strong to outweigh the public interest favouring non-disclosure which is inherent in the satisfaction of the test for prima facie exemption under s.40(c) of the FOI Act. I therefore find that folios 12-16 (apart from the matter in them which has already been disclosed to the applicant) comprise exempt matter under s.40(c) of the FOI Act. Application of s.44(1) Of the FOI Act Section 44(1) of the FOI Act provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. In applying s.44(1) of the FOI Act, 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 (a copy of which is enclosed for your consideration), 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 with and emotional ties to other people; and domestic responsibilities or financial obligations. Whether or not information concerns 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 deleted from folio 1 refers specifically to an individual's recovery from ill health. It does not refer to the applicant in any way. Likewise, the matter deleted from folio 96 is the name of another person, who has been mentioned merely incidentally, but in such a context that the mention conveys information that the person was subjected to an assessment of fitness to return to work. I consider that this matter concerns the personal affairs of the persons named. It is therefore prima facie exempt from disclosure to the applicant. The matter does not mention the applicant, and I can see no public interest considerations of significant weight favouring disclosure of the matter to the applicant. I therefore find that the matter deleted from folios 1 and 96 is exempt matter under s.44(1) of the FOI Act. DECISION My decision is similar to Mr Grierson's internal review decision in that I have found the matter in issue to be exempt. However, as the basis for my decision is different from Mr Grierson's decision, I will vary the decision under review (being the decision made by Mr Grierson on behalf of the Department dated 1 October 1996) by finding that: folios 12-16 (except for the matter in those folios which is described in paragraph 9 above) comprise exempt matter under s.40(c) of the FOI Act; and the matter deleted from folios 1 and 96 is exempt matter under s.44(1) of the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Frecklington, MP and Department of Transport and Main Roads [2020] QICmr 54 (22 September 2020)

Frecklington, MP and Department of Transport and Main Roads [2020] QICmr 54 (22 September 2020) Last Updated: 19 January 2021 Decision and Reasons for Decision Citation: Frecklington, MP and Department of Transport and Main Roads [2020] QICmr 54 (22 September 2020) Application Number: 315312 Applicant: Mrs Deborah Frecklington MP, Leader of the Opposition Respondent: Department of Transport and Main Roads Decision Date: 22 September 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST - consultant’s advice - deliberative process information - accountability and transparency - whether disclosure would prejudice deliberative process of government - whether disclosure would on balance be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Department of Transport and Main Roads (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to ‘[t]he commercial advice from Ernst and Young in relation to the Mooloolaba Spit Development Opportunity.’ The Department decided[2] to refuse access to the requested document (the ‘Advice’), on the grounds disclosure would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act. The applicant applied[3] to the Office of the Information Commissioner (OIC) for external review of the Department’s decision. Having reviewed the Department’s decision, the Advice, and participant submissions, I am satisfied disclosure of the Advice would, on balance, be contrary to the public interest. I affirm the Department’s decision. Background Significant procedural steps in the review are set out in the Appendix. Reviewable decision The decision under review is the Department’s internal review decision dated 6 April 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), 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 is the 202-page Advice. Issue for determination The issue for determination is whether disclosure of the Advice would, on balance, be contrary to the public interest. Relevant law The RTI Act gives people a right to access documents of government agencies such as the Department.[6] This right is subject to other provisions of the RTI Act, including grounds on which access may be refused.[7] One of these grounds is where disclosure of information would, on balance, be contrary to the public interest.[8] The RTI Act requires a decision-maker to take the following steps in deciding the public interest:[9] 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. 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,[10] and disregarded irrelevant factors stated in schedule 4, part 1 of the RTI Act. I have also kept in mind the RTI Act’s pro-disclosure bias,[11] and Parliament’s intention that grounds for refusing access to information be interpreted narrowly.[12] Findings Factors favouring disclosure The Department identified two factors favouring disclosure, ie, that disclosure of the Advice could reasonably be expected to:[13] promote open discussion of public affairs and enhance the Government’s accountability;[14] and reveal the reason for a government decision and any background or contextual information that informed the decision.[15] The Department also recognised the RTI Act’s pro-disclosure bias. I agree that the first factor listed above applies, and I recognise the general public interest in promoting access to government-held information as reflected, for example, in the RTI Act’s pro-disclosure bias. I am not, however, persuaded that the factor listed at the second dot point of paragraph 14 applies in this case. This is because no decision has, as I understand, been made in relation to the final form of any Mooloolaba Spit development, and disclosure of the Advice could not therefore reasonably be expected to reveal the reason for that decision. On the other hand, I consider that disclosure of the Advice, concerning as it does possible development of public lands, could reasonably be expected to contribute to positive and informed debate on important issues or matters of serious interest, enlivening the pro-disclosure factor stated in schedule 4, part 2, item 2 of the RTI Act. I have taken this latter factor into account in balancing the public interest. Factors favouring nondisclosure The Department decided that disclosure of the Advice: could reasonably be expected to prejudice a deliberative process of government (DP Prejudice Factor);[16] and would give rise to a public interest harm, by disclosing 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). [17] While making no submissions on external review,[18] the applicant did contest the application of the DP Prejudice Factor in submissions accompanying the applicant’s application for internal review:[19] I note your decision states: “The department is currently considering potential redevelopment of the site, and if it decides to progress it will be through an open market tender process and be based on commercial principles and negotiation. This will ensure the state receives a 'value-for-money' outcome.” This is consistent with other government proposals and appears to be in-keeping with existing Queensland Government policy. However, given the policy already exists, and this report is the information to allow a decision about whether to proceed for one specific proposal pursuant to existing policy, I submit that there is no deliberative process as yet that could be prejudiced by the release of the document. This submission, particularly the statement that the Advice is ‘...information to allow a decision about whether to proceed,’ appears to implicitly acknowledge that a current deliberative process exists, which may stand to be prejudiced by disclosure of the Advice. Putting oneself into a position to allow a ‘decision about whether to proceed’ to be made is the very essence of a deliberative process. In any event, OIC obtained submissions[20] from the Department on the point, to the effect that: the Advice provides independent advice regarding the commercial viability of a redevelopment of public lands at Mooloolaba Spit a determination on the direction for this project is still to be made the Department plans to undertake community consultation in due course, and the outcome of the consultation process will determine the recommendations for the next stage in any development process the Advice contains commercially sensitive information which the Department will use to guide its decision making and evaluation of any future private sector redevelopment proposals, if the Government chooses to progress with a redevelopment opportunity releasing the Advice would compromise any future competitive tender process, as it would provide the industry (developers) with information regarding the Department’s expectations; and disclosure of the Advice would compromise the State’s ability to negotiate the best commercial outcome in a competitive environment, as developers would have access to information the State may use to frame any future negotiations. The applicant has not contested the Department’s submissions,[21] which I both accept, and consider provide information sufficient to establish each of the DP Prejudice and DP Harm Factors. I accept that there is a ‘live’ or continuing deliberative process in train relevant to future development of public lands at the Mooloolaba Spit,[22] rendering the process one ‘involved in the functions of government’.[23] A key element or component of that overarching process may well comprise structuring, conducting and evaluating the outcomes of the competitive tender exercise mooted in the Department’s submissions, and making a final decision at the conclusion of that process.[24] I am also satisfied that: the Advice comprises an opinion, advice or recommendation obtained, prepared or recorded in the course of, or for, the relevant deliberative process, such that its disclosure would give rise to a public interest harm in accordance with the DP Harm Factor;[25] and/or disclosure of advice, modelling and recommendation of the kind contained in the Advice would arm prospective tenderers with insight into the Department’s minimum acceptable development parameters, weakening the latter’s position in any future negotiations and potentially constraining the options open to it. Disclosure in these latter circumstances could, therefore, reasonably be expected to prejudice the deliberative process involved in determining any final form of development.[26] Balancing the public interest Considerations favouring disclosure as set out in paragraphs 16 and 18 are undoubtedly important and deserving of substantial weight. There is a general public interest in promoting access to government-held information, and a strong public interest in both enhancing government accountability and transparency, and in making available to the public information allowing the community to participate fully in discussion and debate concerning potential development of the kind addressed in the Advice. These considerations are, however, in my view displaced by the clear public interest in ensuring that the Department can freely contemplate advice concerning options for the future of public lands, in circumstances where premature disclosure of that advice could reasonably be expected to circumscribe the Department’s capacity to properly explore and pursue at least one of those options, ie a competitive tender process, for the purposes of potential redevelopment. I afford the factors favouring nondisclosure identified in paragraphs 23 and 24 significant weight, and prefer them to those favouring disclosure. Weighing competing public interests against one another, I am satisfied that disclosure of the Advice would, on balance, be contrary to the public interest. Access may therefore be refused.DECISION I affirm the Department’s decision to refuse access to the Advice, on the ground disclosure of the Advice would, on balance, be contrary to the public interest under section 47(3)(b) 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: 22 September 2020 APPENDIX Significant procedural steps Date Event 6 April 2020 OIC received the external review application. 9 April 2020 OIC notified the applicant and the Department that the external review application had been received, and requested procedural documents from the Department. 16 April 2020 The Department provided OIC with procedural documents. 15 May 2020 OIC notified the applicant and the Department that the external review application had been accepted, and requested the information in issue from the Department, with accompanying submissions. 29 May 2020 The Department provided submissions to OIC. 5 June 2020 The Department provided the Advice in issue to OIC. 6 August 2020 OIC conveyed a written preliminary view to the applicant and invited submissions in reply. The applicant requested a decision. 20 August 2020 OIC invited submissions from the applicant. 22 September 2020 The Department confirmed the deliberative process relevant to the Advice was ongoing. [1] Application dated 6 February 2020.[2] Internal review decision dated 6 April 2020.[3] By application dated 6 April 2020, under section 85 of the RTI Act.[4] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ), at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012), at [111]. [5] XYZ, at [573].[6] Section 23 of the RTI Act.[7] Section 47 of the RTI Act.[8] Sections 47(3)(b) and 49 of the RTI Act. The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the 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)[2006] AIAdminLawF 2; 48 AIAL Forum 12, 14.[9] Section 49 of the RTI Act.[10] Ie, considerations not expressly prescribed in the lists stated in Schedule 4 of the RTI Act.[11] Section 44 of the RTI Act.[12] Section 47(2)(a) of the RTI Act.[13] The phrase ‘could reasonably be expected to’ calls for a decision-maker to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (eg merely speculative/conjectural ‘expectations’) and expectations which are reasonably based, ie, expectations for the occurrence of which real and substantial grounds exist: B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at [155] to [160]. A reasonable expectation is one that is reasonably based, and not irrational, absurd or ridiculous: Sheridan and South Burnett Regional Council and Others (Unreported, Queensland Information Commissioner, 9 April 2009) at [189]-[193], referring to Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97.[14] Schedule 4, part 2, item 1 of the RTI Act.[15] Schedule 4, part 2, item 11 of the RTI Act.[16] Schedule 4, part 3, item 20 of the RTI Act.[17] Schedule 4, part 4, section 4 of the RTI Act. ‘...[T]he deliberative processes involved in the functions of government are its thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action’: Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 (Eccleston).[18] The applicant was twice invited by OIC to make submissions: see letter dated 6 August 2020 and email dated 20 August 2020. Apart from requesting a decision (email dated 6 August 2020), no submissions were received.[19] Dated 10 March 2020.[20] Dated 29 May 2020.[21] Which were conveyed to the applicant by letter from OIC dated 6 August 2020.[22] A matter confirmed by the Department in advice to OIC on 22 September 2020.[23] And/or ‘of government’, in the words of the DP Prejudice Factor.[24] Should it eventuate.[25] Which may apply, irrespective of whether there is a current deliberative process or not. Schedule 4, part 4, section 4(3)(b) of the RTI Act does exclude ‘factual or statistical information’ from the ambit of the DP Harm Factor. However, to the extent any information contained in the Advice may be regarded as factual or statistical, it comprises, in my view, an integral part of the deliberative content and purpose of the Advice, such that it consists of deliberative process information: Dreyfus and Secretary Attorney-General’s Department (Freedom of Information) [2015] AATA 962 [18]. See also Eccleston, at [30]. [26] Which, as noted, gives rise to the separate DP Prejudice Factor and which factor is not qualified in the same manner as the DP Harm Factor, and may therefore apply to any information, including factual or statistical information.

queensland

court_judgement

Queensland Information Commissioner 1993-

Young and Workers' Compensation Board of Queensland [1994] QICmr 11; (1994) 1 QAR 543 (24 June 1994)

Young and Workers' Compensation Board of Queensland [1994] QICmr 11; (1994) 1 QAR 543 (24 June 1994) Last Updated: 26 February 2001 OFFICE OF THE INFORMATION ) S 163 of 1993COMMISSIONER (QLD) ) (Decision No. 94011) Participants: QUINTON NIVEN YOUNG Applicant - and - WORKERS' COMPENSATION BOARD OF QUEENSLAND Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access to one document on the applicant's workers' compensation claim file - application for review lodged outside the time limit stipulated in s.73(1)(d)(i) of the Freedom of Information Act 1992 Qld - considerations relevant to the exercise of the discretion conferred by s.73(1)(d) of the Freedom of Information Act 1992 Qld to allow a longer period for the making of an application for review - consideration of the merits of the substantive application for review - document in issue clearly exempt under s.42(1)(b) of the Freedom of Information Act 1992 Qld - extension of time refused.Freedom of Information Act 1992 Qld s.34(2)(i), s.42(1)(b), s.52, s.73(1)(d), s.73(1)(d)(i), s.81Freedom of Information Act 1982 Cth s.37(1)(b)Administrative Appeals Tribunal Act 1975 Cth s.29(7)Administrative Appeals Tribunal Act 1984 Vic s.31(2)Administrative Decisions (Judicial Review) Act 1977 Cth s.11, s.11(1)(c)Judicial Review Act 1991 Qld s.26(1)Workers' Compensation Act 1990 QldBell and Australian Telecommunications Commission, Re (1983) 5 ALN N186Bonavia and Secretary, Department of Social Security, Re (1985) 9 ALD 97CSIRO and Barbara, Re (1987) 11 ALD 447, 6 AAR 300Hickey v Australia Telecommunications Commission [1984] FCA 176; (1983) 47 ALR 517Hoffman v Queensland Local Government Superannuation Board QLR, 26 February 1994Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344Johnson and the Commonwealth, Re (Commonwealth AAT, 5 January 1990, unreported)Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663Lucic v Nolan and Others (1982) 45 ALR 411McEniery and the Medical Board of Queensland, Re (Information Commissioner Qld, Decision No. 94002, 28 February 1994, unreported)Pell and Raffles and Bingo Permits Board, Re (1989) 3 VAR 164Vella and Crimes Compensation Tribunal, Re (1985) 1 VAR 65Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528 DECISIONI decline to exercise the discretion conferred by s.73(1)(d) of the Freedom of Information Act 1992 Qld to allow a longer period of time for the applicant to make an application for review of the decision made on 2 February 1993 by Mr Peter Roche, on behalf of the respondent, refusing access to folio 67 of the applicant's workers' compensation claim file.Date of Decision: 24 June 1994...........................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS PageBackground 1 Considerations Relevant to the Grant of an Extension of Time 4 Should an Extension of Time be Granted in the Present Case? 10 Conclusion 12OFFICE OF THE INFORMATION ) S 163 of 1993COMMISSIONER (QLD) ) (Decision No. 94011) Participants: QUINTON NIVEN YOUNG Applicant - and - WORKERS' COMPENSATION BOARD OF QUEENSLAND Respondent REASONS FOR DECISIONBackground1. The applicant, through his lawyers (the firm of Gilshenan and Luton), seeks review of the respondent's decision to refuse him access to one document on the workers' compensation claim file held by the respondent in respect of the applicant. The document in issue is claimed by the respondent to be an exempt document under s.42(1)(b) of the Freedom of Information Act 1992 Qld (referred to in these reasons for decision as the FOI Act or the Queensland FOI Act). As the application for review has been made well outside the 60 day time limit stipulated in s.73(1)(d)(i) of the FOI Act, it is necessary that I consider the exercise of the discretion conferred on me by s.73(1)(d) of the FOI Act to allow a longer period for making an application for review. 2. The applicant's lawyers first wrote to the respondent on 29 December 1992 in the following terms: We act on behalf of Quinton Niven Young and have instructions to obtain from the Board copies of all documentation in connection with Mr Young's application for Workers' Compensation ... . Accordingly we request that you provide to us all relevant documentation, including the documentation referred to in the General Medical Assessment Tribunal's determination of 24 November 1992. To the extent that copies of the documents can be provided without resort to the Freedom of Information Act we so request (see Section 14 of the Freedom of Information Act). To the extent that the documents cannot be so provided Mr Young hereby applies for the balance of the documents pursuant to Section 25 of the said Act.3. The respondent allowed the applicant access to his workers' compensation claim file, apart from one folio (folio 67) which was claimed to be exempt under s.42(1)(b) of the FOI Act on the basis that its release 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.4. By letter dated 29 January 1993, the applicant's lawyers applied, on the applicant's behalf, for internal review under s.52 of the FOI Act of the decision to refuse access to folio 67. The decision on internal review was made on 2 February 1993 by Mr Peter Roche, who affirmed the respondent's initial decision.5. The respondent's letter of 13 January 1993 to the applicant's lawyers, notifying the respondent's initial decision, also contained information as to the rights of review conferred by the FOI Act, and the time limits for exercising them (as required by s.34(2)(i) of the FOI Act). However, it was not until 20 August 1993, some 61/2 months after the respondent's internal review decision was given, that the applicant's lawyers despatched a letter applying under s.73(1) of the FOI Act for an external review of the respondent's decision to refuse access to folio 67. That letter was in fact despatched to the Director of the Freedom of Information Division of the Department of Justice & Attorney-General, rather than to my office, but it was promptly forwarded on to me.6. Receipt of the application for review was acknowledged in a letter dated 27 August 1993 from my office to the applicant's lawyers which was in the following terms: I acknowledge receipt of your application, dated 20 August 1993, for review of the above decision. The decision of which your client seeks review was contained in a letter from the decision-maker dated 2 February 1993 which was received by your firm on your client's behalf on 4 February 1993. The application for review has therefore been lodged more than four months outside the time limit stipulated for an application of this nature by s.73(1)(d)(i) of the Freedom of Information Act 1992 (Qld) (the FOI Act). It will be necessary therefore, for your client to apply for an extension of time in which to make the application for review, providing any explanation or excuse for the failure to meet the statutory time limit. The Information Commissioner is generally disinclined to exercise the discretion to grant an extension of time under s.73(1) of the FOI Act where an application for review is without merit (in the sense that it lacks any grounds of substance for challenging the decision under review) or where the respondent or third parties would suffer substantial prejudice by permitting a late application to proceed. Your application for an extension of time should therefore address these issues to the extent that you are able (not having access to the exempt matter which is in dispute). Please note that the respondent has provided me with a copy of the document to which your client has been refused access. My preliminary assessment is that it clearly comprises matter which, if disclosed, 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 Workers' Compensation Act 1990 Qld to be ascertained. Please forward your client's application for extension of time, and supporting submission, within 28 days of the date of this letter.7. The applicant's lawyers responded by letter dated 2 September 1993, which relevantly stated: At the time notice of the decision maker's review was received by our firm, the facts and circumstances available to our firm led us to believe that the document in question was not required for the successful prosecution of our client's case. Since then, certain matters have come to our attention which have caused us to review our position in relation to this document. We have commenced proceedings against our client's employer and we understand that defence of the action is being conducted by the Workers' Compensation Board. There is no suggestion, in any material before us, that the Defendant could claim privilege in relation to the document in question should we make an application for discovery. That being the case, it would seem more appropriate to allow access to the document at this stage, and with minimal cost, rather than require our client to obtain access to the document through the more formal, and expensive, channels of discovery and inspection. Without seeing the document in question, we are unable to conceive of any disadvantage which the Workers' Compensation Board may suffer as a result of this document's disclosure.8. On 9 September 1993, I wrote back to the applicant's lawyers in the following terms: I acknowledge receipt of your letter dated 2 September 1993. That letter does not amount to an application for an extension of time under s.73 of the Freedom of Information Act 1992 (Qld) (the FOI Act) so much as a suggestion that it will be more expedient for the Workers' Compensation Board (the Board) to release a copy of the document to you rather than deal with an application for discovery in court proceedings. Although there may be some overlap between the grounds of privilege from discovery in court proceedings, and some of the grounds for exemption in Part 3, Division 2 of the FOI Act, the question of whether or not a document would be discoverable in court proceedings is irrelevant to the issue which I would have to determine in an application to review the above decision under Part 5 of the FOI Act. I should draw to your attention the fact that while an agency may have a discretion under s.28(1) or s.14 of the FOI Act to release a document that is technically an exempt document, s.88(2) of the FOI Act makes it quite clear that the Information Commissioner possesses no such discretion in a review under Part 5 of the FOI Act. I am prepared to pass on to the Board your letter of 2 September 1993 in case it may influence the Board to exercise the discretions which it possesses under s.28(1) and s.14 of the FOI Act. In the event that the Board is not willing to release a copy of the document to you, however, the position is that you have put nothing to me in your letter of 2 September 1993 that would affect my preliminary assessment (conveyed to you in my letter of 27 August 1993) that the document in issue is exempt under s.42(1)(b) of the FOI Act. If the Board declines to exercise its discretion to release a copy of the document to you, you may wish to consider whether the more sensible course of action would be to withdraw your application for review by the Information Commissioner and pursue an application for discovery in court proceedings. If you wish to put anything further to me on the issue of why I should grant your client an extension of time, please do so by Friday, 17 September 1993.Nothing further was put to me by the applicant's lawyers in response to the invitation contained in the last sentence of the letter just quoted.9. I also wrote to the respondent enclosing for its reference a copy of the letter dated 2 September 1993 from the applicant's lawyers, and my response dated 9 September 1993. I asked the respondent to advise me whether or not the matters raised in the letter of 2 September 1993 from the applicant's lawyers persuaded it to release to the applicant a copy of the document in issue. On 20 September 1993, I received a response from Mr P Roche, on behalf of the respondent, in the following terms: The matters raised by the applicant's solicitors, Gilshenan & Luton, in their letter of 2 September 1993 do not persuade me to release a copy of the exempted document. I confirm my opinion that the release of the document 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.Considerations Relevant to the Grant of an Extension of Time10. Section 73(1)(d) of the FOI Act relevantly provides that: 73.(1) An application for review must - ... (d) be made - (i) within 60 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).11. The words employed to confer the discretion to extend time for lodging an application for review under Part 5 of the FOI Act are very similar to those used in comparable statutory provisions to confer on a review authority a discretion to extend a stipulated statutory time limit for seeking review; for example: (a) section 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 Cth (the ADJR Act) relevantly provides as follows: 11.(1) An application to the Court for an order of review - ... (c) shall be lodged with a Registry of the Court and ... shall be so lodged within the prescribed period or within such further time as the Court (whether before or after the expiration of the prescribed period) allows.(b) section 26(1) of the Judicial Review Act 1991 Qld relevantly provides as follows: 26.(1) An application to the Court for a statutory order of review ... must be made within - (a) the period required by subsection (2); or (b) such further time as the Court (whether before or after the end of that required period) allows.(c) section 29(7) of the Administrative Appeals Tribunal Act 1975 Cth (the Commonwealth AAT Act) provides as follows: (7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section).(d) section 31(2) of the Administrative Appeals Tribunal Act 1984 Vic (The Victorian AAT Act) provides as follows: (2) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision, whether or not that time has expired.The characteristic which is common to each of the five statutory provisions set out above is that the legislature has not prescribed any criteria which are to govern the exercise of the discretion conferred.12. A substantial number of decisions of the Federal Court of Australia, the Commonwealth Administrative Appeals Tribunal (the Commonwealth AAT), and the Victorian Administrative Appeals Tribunal (the Victorian AAT) have discussed the proper approach to the exercise of a discretion to extend the time for making an application for review of an administrative decision. A general consensus seems to have emerged as to appropriate principles which should guide the exercise of a discretion of this kind. Both the Commonwealth AAT and the Victorian AAT, and more recently the Queensland Supreme Court, have followed the principles endorsed by judges of the Federal Court of Australia (in particular those summarised in the case of Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 which is discussed at paragraph 16 below) as being appropriate to guide the exercise of the discretion conferred by s.11(1)(c) of the ADJR Act. I consider it appropriate that I should also be guided by those principles when exercising the discretion conferred on me by s.73(1)(d) of the FOI Act to extend the time for making an application for review under Part 5 of the FOI Act. I do not propose to exhaustively review the decided cases from other jurisdictions, but I do propose to refer to some passages from them which highlight principles deserving of emphasis.13. In Lucic v Nolan and Others (1982) 45 ALR 411, Fitzgerald J, sitting as a judge of the Federal Court of Australia, dealt with an application for extension of time under s.11 of the ADJR Act. Fitzgerald J said (at p.416-7): I do not think that the court, in exercising its power to make exceptions [to the statutory time limit] in appropriate cases should confine its attention to the consequences to the applicant of a refusal to extend time. Justice, as the ultimate object to be obtained by the exercise of the discretion, seems to me to require that regard be had to broader considerations than merely the interests of the applicant. Further, whilst there will be some matters which are relevant to the question whether time should be extended (in ordinary litigation inter partes) which are also relevant in this context, it seems to me likely that the overlap is only partial and that different emphasis is appropriate to some of the common factors. It may be that exceptional circumstances need not always be shown before time can be extended. However, I consider that an applicant for an extension of time maintains throughout the burden of showing why, in all the circumstances, the extension of time should be granted. I do not think that, given proof of certain matters by an applicant, e.g. an explanation for his delay in making application, an evidentiary onus shifts to the respondents to establish that prejudice will result if the extension is granted; nor, in my opinion, if the delay is explained and there will be no personal prejudice to the named respondents, should an extension always be granted. All else aside, there will often be no question of prejudice to a respondent decision-maker. It is neither necessary nor desirable, if indeed it would be possible, to enumerate the great variety of possible material circumstances to be considered on an application for an extension of time. Nor, in my opinion, is it possible to identify particular circumstances or classes of circumstances which must automatically be excluded from consideration. Each individual case should be dealt with individually, giving due weight to prior decisions and what they reveal of judicial attitudes ... Whilst there are obvious reasons why there should be no attempt at a full investigation of the merits of the application for review on an application for an extension of time, I would not exclude from consideration in an appropriate case some obvious strength or weakness in an applicant's case ... .In refusing the requested extension of time in that case, Fitzgerald J appears to have been most influenced by the failure of the applicant to offer any explanation for the "inordinate and inexcusable delay" which occurred in commencing proceedings.14. The remarks of Fitzgerald J in Lucic's case were endorsed by Lockhart J in Hickey v Australian Telecommunications Commission [1984] FCA 176; (1983) 47 ALR 517 at p.523 where Lockhart J added the following observations: Although s.11 does not in terms place an onus on an applicant seeking an allowance for further time within which to lodge an application for an order of review, it is nevertheless incumbent upon him to satisfy the court that the extension of time should be granted. It is not for the decision maker to establish that the applicant does not have a case for an extension of time. The applicant seeks an indulgence. It is for him to prove that he is entitled to it. But the court should not surround the exercise of its discretion with unnecessary constraints such as a requirement that there be special circumstances or considerations of that kind. The statute does not require them. Nor should the courts. It is best left to the good sense of the judge hearing each case to determine whether, on the evidence before him, the court's discretion should be exercised in favour of granting an enlargement of time to bring an application for an order of review.In that case, Lockhart J refused the application for extension of time, and the factors which carried most weight in influencing that exercise of discretion were the failure of the applicants to explain their delay satisfactorily or at all, and the respondent's evidence which established a real possibility of prejudice to the respondent if the application for an extension of time were to succeed.15. In Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528, Sheppard J made the following observations (at p.531) on the scope of the discretion to extend time conferred by s.11 of the ADJR Act: ... there will be some cases which may be decided upon considerations which affect only the immediate parties. It will be appropriate to consider whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to an applicant by the refusal of an application, the prejudice which may be suffered by the government or a particular department if the application is granted and, generally, what the justice of the case requires. In other cases wider considerations will be involved. In this respect I refer to what was said by Fitzgerald J in Lucic v Nolan, at [45 ALR] p.416. The discretion is vested in the court in completely unrestricted terms and no indication is given of the matter which the court is to consider. The discretion is therefore a very wide one and I would not wish to say more in case my doing so may have the effect of circumscribing in another case what the facts of that case require.16. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, Wilcox J reviewed prior decisions of the Federal Court where the discretion under s.11 of the ADJR Act had been exercised, and distilled the principles set out in the following passage. Those principles have proved highly influential in subsequent cases, not only in the Federal Court but also in the Supreme Court of Queensland, in the Commonwealth AAT and the Victorian AAT, and in other jurisdictions where the exercise of a comparable discretion was in issue. Wilcox J said (at p.348-349): Section 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) does not set out any criteria by reference to which the court's decision to extend time for an application for review under s.5 is to be exercised. Already there have been a number of decisions of judges of this Court, all sitting at first instance, dealing with the approach proper to be taken. They differ a little, both in language and in emphasis, but I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the court's discretion: 1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of twenty-eight days is not to be ignored (Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at 485; Chapman v Reilly unreported (Federal Court of Australia, Neaves J, 9 December 1983) at 7). 2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J in Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen [1984] FCA 77; (1984) 1 FCR 287 with Lucic at 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528. 3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534. 4. However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application. 5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6. 6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534-535.17. In Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663 at p.665, Moynihan J of the Supreme Court of Queensland, in dealing with an application for extension of time under s.26(1) of the Judicial Review Act 1991, approved and applied the principles referred to in the Hunter Valley Developments case and in Lucic v Nolan. In particular, Moynihan J's consideration of the merits (or lack thereof) of the substantive application appear to have exerted most influence on his decision to refuse the application for extension of time. The principles from the Hunter Valley Developments case and Lucic v Nolan have also been approved and applied by Thomas J of the Supreme Court of Queensland in Hoffman v Queensland Local Government Superannuation Board QLR, 26 February 1994.18. The principles from the Hunter Valley Developments case which are set out at paragraph 16 above have generally been applied by the Commonwealth AAT in the exercise of the discretion conferred by s.29(7) of the Commonwealth AAT Act; see, for example, Re Bonavia and Secretary, Department of Social Security (1985) 9 ALD 97; Re CSIRO and Barbara (1987) 11 ALD 447, 6 AAR 300. In Re Bell and Australian Telecommunications Commission (1983) 5 ALN N186 which was decided prior to Hunter Valley Developments but after Lucic v Nolan, Deputy President Todd of the Commonwealth AAT expressed misgivings about importing into the proceedings of an administrative tribunal concepts as to burden of proof on an applicant for extension of time (which receive some emphasis in Lucic v Nolan) which are more appropriate to court proceedings. At p.N187, Deputy President Todd said: ... the authorities cited [by the respondent] do not in any way indicate that an application for extension of time under s.29(7) of the Administrative Appeals Tribunal Act 1975 involves any question of onus of proof. The question is rather one of the balance of fairness, having taken into account the various factors impinging upon both sides, including no doubt the question of prejudice. As was said by Reynolds, Hutley and Bowen JJA in Outboard Marine Australia Pty Ltd v Byrnes: Bauknecht (Third Party) [1974] 1 NSWLR 27 at 30, cited with approval by the President of the Tribunal in the full Reasons for Decision in Re Levana Pty Ltd and Minister for the Capital Territory (1982) 4 ALN No 74 (not reported on this point): "it is also appreciated that where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time".19. In Re Johnson and the Commonwealth (Commonwealth AAT, Deputy President Todd, 5 January 1990, unreported) Deputy President Todd repeated his views as to the difficulty in introducing the concept of onus into the proceedings of the Tribunal, however, he went on to endorse the six principles identified in the passage from the Hunter Valley Developments case set out at paragraph 16 above, which are careful to state that an applicant for extension of time does not carry a formal onus.20. The principles from the Hunter Valley Developments case have also been embraced by the Victorian AAT, notably by Jones J, the then President of the Victorian AAT, in Re Pell and Raffles and Bingo Permits Board (1989) 3 VAR 164 at p.171 where Jones J also endorsed the following passage from an earlier decision of the Victorian AAT in Re Vella and Crimes Compensation Tribunal (1985) 1 VAR 65 at 67: There must come a time when delay simpliciter, without any prejudice to the other party, would itself cause the Tribunal to refuse an applicant relief under subs (2). Of necessity there must be some finality in matters of this nature.21. On the question of onus, I note that s.81 of the FOI Act provides: 81. On a review by the Commissioner, the agency which or Minister who made the decision under review has the onus of establishing that the decision was justified or that the Commissioner should give a decision adverse to the applicant.This provision should not be taken to mean that an agency or Minister carries the onus of establishing, on an application for extension of time under s.73(1)(d), that the Information Commissioner should give a decision adverse to the applicant. I read the opening words of s.81 to mean that the onus provision applies when a review under Part 5 of the FOI Act has commenced, and not when I am considering the exercise of the discretion under s.73(1)(d) to allow an extension of time so as to permit a review to commence. I consider that the principles conveniently summarised in the Hunter Valley Developments case (see paragraph 16 above), and those discussed in passages from other cases set out above, should be accepted as affording appropriate guidance to the exercise of the discretion conferred by s.73(1)(d) of the FOI Act. 22. Of those principles, the most significant in the context of a typical FOI dispute where an applicant seeks review of a decision refusing access to documents, are, in my opinion:(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 prospect of success. (It is a characteristic of these cases that the applicant is not aware of the precise contents of the information in issue.)Should an Extension of Time be Granted in the Present Case?23. In the present case, the applicant, through his lawyers, has not provided a compelling explanation for the delay in applying for review. It appears that the applicant's lawyers have belatedly surmised that the document in issue may be of assistance in common law proceedings commenced by the applicant against his employer, and decided to press for access under the FOI Act as an alternative to making an application for discovery in those proceedings. If, however, the document is not privileged from production in legal proceedings, and is otherwise relevant and admissible, the applicant is able to use the well-established court procedures of discovery or subpoena to compel the production of the document for use in those legal proceedings. For that reason, I cannot see any substantial prejudice that would be occasioned to the applicant by a refusal of extension of time. On the other hand, the respondent has informed me that it foresees no prejudice to its interests by the grant of an extension of time. There is no material to suggest that I ought to refuse an extension of time because substantial prejudice would be occasioned to the respondent or to third parties by the grant of an extension of time.24. Ultimately, however, the factor which has carried predominant weight in the exercise of my discretion under s.73(1)(d) is my consideration of the merits of the substantive application for review. The fact that there is only one document in issue has made consideration of the merits relatively easy. Having examined the document in issue, I am satisfied that the applicant has no reasonable prospects of successfully challenging the respondent's decision that folio 67 of the applicant's workers' compensation claim file is exempt under s.42(1)(b) of the FOI Act.25. Section 42(1)(b) of the FOI Act provides as follows: 42.(1) Matter is exempt matter if its disclosure could reasonably be expected to - ... (b) enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained;26. A detailed analysis of s.42(1)(b) is set out in my reasons for decision in Re McEniery and the Medical Board of Queensland (Information Commissioner Qld, Decision No. 94002, 28 February 1994, unreported). At paragraph 16 of that decision I said: 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.27. In the present case, the document in issue comprises information supplied by a confidential source. Indeed the identity of the source is unknown to the respondent, the information having been supplied anonymously. The relevant circumstances compel a finding that the supplier of the information qualifies as a "confidential source of information" according to the test which I endorsed at paragraphs 21 and 22 of my reasons for decision in Re McEniery. Given that the source has refused to reveal his or her identity and the respondent has agreed to accept the information on that basis, and having regard in particular to the nature of the information conveyed, I am satisfied that the information was supplied on the express or implied understanding that the identity of the source of information would not be disclosed. 28. The information supplied concerns the applicant's eligibility for workers' compensation payments. In paragraph 36 of my reasons for decision in Re McEniery, I referred with approval to a series of cases (including decisions of the Federal Court of Australia) applying s.37(1)(b) of the Freedom of Information Act 1982 Cth (which corresponds to s.42(1)(b) of the Queensland FOI Act) in which it has been accepted that information suggesting or alleging that a recipient of social security benefits did not satisfy the eligibility requirements to receive the benefits, was information relating to the enforcement or administration of the law. In my opinion, the same considerations apply equally to information concerning eligibility for receipt of workers' compensation payments under the Workers' Compensation Act 1990 Qld. In particular, information supplied to the respondent concerning the possibility that workers' compensation payments have been fraudulently obtained must, in my opinion, be information which relates to the enforcement or administration of the law within the meaning of s.42(1)(b) of the FOI Act. (In so saying, I should make it clear that I am speaking generally and I do not mean to suggest or imply that the applicant has obtained workers' compensation payments improperly.) I am satisfied that the information which the confidential source has supplied is information in relation to the enforcement or administration of the law.29. Although the information has been supplied anonymously, the nature of the information conveyed is such that its disclosure would enable the applicant to work out the identity of a person who was in a position to observe or obtain information of that nature. Applying the standards referred to in paragraphs 44 and 45 of my reasons for decision in Re McEniery, I am satisfied that disclosure of the document in issue could reasonably be expected to enable the identity of the confidential source of information to be ascertained.30. The three elements of s.42(1)(b) are satisfied. The document, in my opinion, is clearly an exempt document under s.42(1)(b) and the applicant has no reasonable prospect of successfully challenging the decision of which he seeks review under Part 5 of the FOI Act.Conclusion31. In these circumstances, I consider it appropriate to decline to exercise my discretion under s.73(1)(d) of the FOI Act to allow a longer period of time for the applicant to make an application for review of the decision made on 2 February 1993 by Mr Peter Roche, on behalf of the respondent, refusing access to folio 67 of the applicant's workers' compensation claim file. The consequence is that the application for review is invalid for failure to comply with s.73(1)(d)(i) of the FOI Act, and will not be dealt with further.....................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Cooper and Queensland Corrective Services Commission [1995] QICmr 39; (1995) 3 QAR 26 (14 November 1995)

Cooper and Queensland Corrective Services Commission [1995] QICmr 39; (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-

H76 and Brisbane City Council [2022] QICmr 24 (27 April 2022)

H76 and Brisbane City Council [2022] QICmr 24 (27 April 2022) Last Updated: 15 February 2023 Decision and Reasons for Decision Citation: H76 and Brisbane City Council [2022] QICmr 24 (27 April 2022) Application Number: 316412 Applicant: H76 Respondent: Brisbane City Council Decision Date: 27 April 2022 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST INFORMATION - personal information of another individual - 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) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - DOCUMENTS NONEXISTENT OR UNLOCATABLE - whether agency has conducted reasonable searches - whether access to further documents may be refused on the basis they are nonexistent or unlocatable - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISIONSummary The applicant applied[1] to Brisbane City Council (Council) under the Information Privacy Act 2009 (Qld) (IP Act) for access to documents between 1 January 2014 and 1 August 2014 that were ‘on or about’ the applicant. The applicant identified three areas of Council that she considered would likely hold responsive documents. Council located 44 responsive pages. It decided[2] to give access to some information and to refuse access to the remaining information on the ground that its disclosure would, on balance, be contrary to the public interest.[3] The applicant applied for internal review of Council’s decision.[4] On internal review, Council affirmed its decision in respect of the initial 44 responsive pages. However, it also located an additional 48 responsive pages. Council decided to give the applicant full access to 28 of those additional pages, and part access to the remaining 20 pages. Again, Council refused access to information on the ground that its disclosure would, on balance, be contrary to the public interest.[5] The applicant then applied[6] to the Office of the Information Commissioner (OIC) for external review. On external review, the applicant raised a sufficiency of search issue, as well as other issues that fall outside the jurisdiction of OIC. For the reasons set out below, I affirm Council’s internal review decision. I also find that the searches and inquiries that Council conducted in an effort to locate all responsive documents have been reasonable in all the circumstances of this case and that access to any additional documents may be refused on the ground that they are nonexistent or unlocatable under section 67(1) of the IP Act and sections 47(3)(e) and 52(1) of the RTI Act. Background The applicant has made a number of access applications to Council arising out of her interactions with Council occurring either on her own behalf, or while acting as an agent for another person in relation to multiple access applications made to Council by that person. Reviewable decision The decision under review is Council’s internal review decision dated 15 October 2021.Evidence considered Significant procedural steps relating to the external review are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). I have taken account of the applicant’s submissions to the extent that they are relevant to the issues for determination in this review.[7] 10. 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 IP Act and the RTI Act.[9] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[10] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[11]Information in issue The information in issue consists of one sentence contained on page 43, which is an email dated 17 July 2014 from a Council officer sent to an email address shared by the applicant and another person (Information in Issue). Issues for determination The issues for determination are: whether access to the Information in Issue may be refused because its disclosure would, on balance, be contrary to the public interest; and whether Council has taken all reasonable steps to locate documents applied for by the applicant.Matters outside OIC’s jurisdiction In her external review application, and in submissions lodged during the review,[12] the applicant raised complaints about Council generally, and about Council’s processing of the access application. These ranged from complaints about alleged inconsistencies in Council’s handling of information, to complaints about the inconsistent use, or absence, of footers and watermarks on released documents. As noted above, the applicant has been advised in this review,[13] and in numerous previous reviews involving her either as the applicant,[14] or as agent for another applicant,[15] of the limits of OIC’s jurisdiction regarding complaints made about Council, as well as the fact that any procedural errors that an agency may have made when processing an access application are irrelevant on external review because OIC conducts a merits review of the agency decision. Despite this, the applicant continues to make submissions and complaints about irrelevant matters, or about matters falling outside OIC’s jurisdiction. OIC’s role under the IP Act in this review is to consider the information to which Council has refused access and decide whether that refusal of access was correct, as well as to consider the sufficiency of search issue raised by the applicant. To the extent that the applicant has made submissions relevant to these issues, I have taken them into account in making my decision. OIC does not have jurisdiction under the IP Act to deal with the applicant’s complaints about Council’s record-keeping practices, including the use of footers or watermarks on released documents. Contrary to the public interest informationRelevant law Under the IP Act, a person has a right to be given access to documents of an agency.[16] However, this right is subject to provisions of the IP Act and RTI Act including the grounds on which an agency may refuse access to documents.[17] An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[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 considered these lists,[20] together with all other relevant information, in reaching my decision. I have kept in mind the IP Act’s pro-disclosure bias[21] and Parliament’s requirement that grounds for refusing access to information be interpreted narrowly.[22]Discussion Council refused access to the Information in Issue on public interest grounds. As the email in question was sent to an email address used by the applicant, she is aware of the contents of the Information in Issue. Council decided that the Information in Issue comprised the personal information[23] of a third party and that its disclosure to the world at large under the IP Act would, on balance, be contrary to the public interest. The applicant argues that the redaction of the whole sentence is not justified and that only two words comprise the personal information of another person. I do not agree. I consider that the sentence as a whole can reasonably be characterised as comprising the personal information of another person. Furthermore, even if the applicant were correct in her contention, none of the sentence can be characterised as comprising her personal information such as to give rise to the personal information public interest factor favouring disclosure.[24] Additionally, given the nature of the Information in Issue, none of it comprises information which gives rise to any accountability or transparency factors favouring disclosure.[25] As the Information in Issue comprises the personal information of another person, a public interest harm in disclosure automatically arises.[26] There is also an associated prejudice to the protection of that person’s right to privacy.[27] I acknowledge that the weight to be applied to these nondisclosure factors may be reduced where an applicant is already aware of the information. However, it must also be remembered that disclosure under the IP Act is to be regarded as disclosure to the world at large.[28] In these particular circumstances, I am satisfied that the privacy and personal information nondisclosure and harm factors warrant moderate weight. Finding As mentioned above, I am unable to identify any public interest factors favouring disclosure of the Information in Issue to the applicant. I therefore find that the moderate weight of the privacy and personal information nondisclosure and harm factors is sufficient to support a finding that disclosure of the Information in Issue would, on balance, be contrary to the public interest. Access may be refused on that basis. Sufficiency of search Relevant law Access to a document may be refused if the document is nonexistent or unlocatable.[29] To be satisfied that documents are nonexistent, a decision-maker must rely on their particular knowledge and experience and have regard to a number of key factors, including:[30] the administrative arrangements of government the agency’s structure the agency’s functions and responsibilities the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested document/s and the nature of the government activity to which the request relates. If searches are relied on to justify a decision that the documents do not exist, all reasonable steps must be taken to locate the documents. What constitutes reasonable steps will vary from case to case, as the search and enquiry process an agency will be required to undertake will depend on the particular circumstances. To determine whether a document exists, but is unlocatable, 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 listed in paragraph 25.[31] 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.[32] 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.[33] 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. Discussion In its internal review decision, in response to the applicant’s general assertion that additional responsive documents ought to exist, Council stated: Significant search requests were made to the relevant work/business areas identified in items 2, 3 and 4 of your Revised Application and responses provided by all areas. Searches to locate documents included use of Council’s electronic record management and archival email systems such as e-discovery using appropriate search terms. In her external review, the applicant repeated her sufficiency of search concerns, again simply asserting that a greater volume of responsive documents ought to exist, and querying whether Council had searched for responsive documents across its electronic email system.[34] In OIC’s letter to the applicant dated 18 January 2022, the Assistant Information Commissioner (AIC) referred the applicant to the confirmation in Council’s internal review decision that a SourceOne search of Council’s email system had been conducted. The AIC also stated: You have not identified any missing documents, nor identified any additional searches that it would be reasonable to request that Council undertake in an effort to locate missing documents. As you are aware, an applicant bears the practical onus of establishing that the searches and inquiries that an agency has conducted have not been sufficient to identify and locate all responsive documents. The information contained in your external review application does not discharge this onus. As you have been advised, suspicion and mere assertion is not sufficient. Accordingly, on the information presently before me, it is my preliminary view that the searches and inquiries conducted by Council in an effort to locate responsive documents have been reasonable in the circumstances, and I am unable to identify any further searches or inquiries that it would be reasonable to ask Council to undertake. If she did not accept the AIC’s preliminary view, the applicant was invited to provide a written submission in support of her position. After requesting and being granted several extensions of time, the applicant provided a submission on 25 March 2022.[35] She identified 23 emails from her own records that had either been sent to, or received from, Council. The applicant contended these emails fell within the scope of her access application but had not been located by Council. The applicant provided a copy of one of those emails – that is, email number 21 as listed by her – as an example. Having reviewed its contents, I am satisfied that it cannot properly be regarded as being ‘on or about’ the applicant and that it therefore does not fall within the scope of her access application. While the applicant may have sent the email to Council, she clearly did so on behalf of another person. The information in the email is not about the applicant but is about the other person. While the applicant did not provide copies of the other 22 emails she had identified from her own records, her submissions set out various types of information about each email, including when it was sent, its subject line and, where relevant, any attachments to it. The applicant’s submission states that email number 23 (as listed by her) was sent on 8 August 2014. This falls outside the date range of the access application. Council cannot be said to have failed to locate a document which does not fall within the terms of the access application. In regard to the remaining 21 emails specified in the applicant’s submission,[36] none of the subject lines or file names of attachments includes any information about the applicant. To the contrary, the subject line of and/or attachments to 20 of the 21 remaining emails include the name of a person other than the applicant. Based on the information provided by the applicant, and also noting that the practical onus rests with her, I am satisfied that it is reasonable to regard the content of these emails as concerning the other person, and not information that is ‘on or about’ the applicant. The fact that the applicant may have sent the emails on behalf of that other person, or that they were sent from a shared email address, is an insufficient connection to the applicant for the information to be ‘on or about’ her. According to the applicant’s submission, neither the subject line of, nor the attachment to, the last of the remaining emails – that is, email number 22 – includes the name of the other person. However, having had the benefit of considering this particular subject line and attachment in light of the content of email number 21 (which, as noted at paragraph 34 above, I have reviewed, and which, according to the applicant’s submission, has the same subject line and was sent three minutes earlier), I am satisfied that it is again reasonable to regard the content of email number 22 as concerning the other person, and not containing information that is ‘on or about’ the applicant. Even if the emails identified by the applicant could be regarded as falling within the scope of her access application, I am satisfied that the searches and inquiries that Council has conducted in an effort to locate all responsive documents were reasonable in the circumstances. Council advised that search requests were made of the relevant areas of Council identified by the applicant, and searches were also conducted of Council’s electronic management system. Additionally, a SourceOne search of Council’s email system was carried out. I am unable to identify any other searches that I consider would be reasonable to ask Council to conduct in an effort to locate copies of emails that are now over eight years old, and of which the applicant already has copies in any event.Finding The applicant bears the practical onus of establishing reasonable grounds to be satisfied that the agency has not discharged its obligation to locate all relevant documents and that further searches and inquiries ought reasonably be required. I do not consider the applicant has discharged this onus in this review. As noted above, where a sufficiency of search issue is raised on external review, the issues for OIC to determine are: whether there are reasonable grounds for believing that additional responsive documents exist in the agency’s power or possession; and, if so, whether the searches and inquiries conducted by the agency in an effort to locate the additional responsive documents have been reasonable in all the circumstances. I have considered the applicant’s submissions about emails already in her possession and upon which she relies to argue that Council should be required to conduct additional searches to locate those same emails. I am satisfied that these emails fall outside the terms of her access application.[37] I have also considered the searches conducted by Council, and am unable to identify any other searches that I consider it would be reasonable to ask Council to conduct in an effort to locate copies of responsive emails. I therefore find that access to any additional documents may be refused on the basis that they are nonexistent or unlocatable under section 67(1) of the IP Act and sections 47(3)(e) and 52(1) of the RTI Act. DECISION For the reasons set out above, I affirm the decision under review by finding that access to the Information in Issue may be refused under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act because its disclosure would, on balance, be contrary to the public interest. In addition, I find that the searches and inquiries conducted by Council in an effort to locate all responsive documents have been reasonable in all the circumstances and that access to further documents may be refused on the basis they are nonexistent or unlocatable under section 67(1) of the IP Act and sections 47(3)(e) and 52(1) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.A Rickard Acting Right to Information Commissioner Date: 27 April 2022 APPENDIXSignificant procedural steps Date Event 10 November 2021 OIC received the application for external review. 11 November 2021 OIC requested preliminary documents from Council. 18 November 2021 OIC received the preliminary documents. 23 November 2021 OIC accepted the application and requested copies of the Information in Issue from Council. 14 December 2021 OIC received copies of the Information in Issue. 18 January 2022 OIC conveyed a preliminary view to the applicant and requested submissions in response. 3 February 2022 The applicant requested an extension of time. 1 March 2022 The applicant requested a further extension of time. 25 March 2022 OIC received the applicant’s submissions. [1] Council refused to process the applicant’s original access application on the basis that the work involved in processing it would substantially and unreasonably divert Council’s resources (see section 60 of the IP Act). The applicant applied for external review of that decision. Following negotiations between OIC, the applicant and Council, the applicant agreed to reduce the scope of her application. Council agreed to process the reduced scope on 15 July 2021. [2] Decision letter dated 23 August 2021. The decision incorrectly stated that full access was given to 28 pages and part access to 17 pages. The internal review decision clarified that the correct position was full access to 26 pages and part access to 18 pages. [3] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act.[4] On 16 September 2021.[5] Decision dated 15 October 2021. [6] On 10 November 2021. [7] Including the external review application and the submission dated 25 March 2022. [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].[10] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [11] XYZ at [573].[12] Dated 25 March 2022. [13] For example, the applicant received an information sheet at the commencement of the review which outlined OIC’s jurisdiction and explained what OIC can and cannot consider on external review. The information specifically confirms that OIC cannot investigate complaints about an agency’s record-keeping practices. This was again reiterated in OIC’s preliminary view letter dated 18 January 2022. [14] See, for example, U24 and Brisbane City Council [2021] QICmr 61 (22 November 2021).[15] See, for example, Q30 and Brisbane City Council [2022] QICmr 4 (25 January 2022).[16] Section 40 of the IP Act.[17] Section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent it could refuse access to the document under section 47 of the RTI Act were the document to be the subject of an access application under the RTI Act.[18] 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, 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.[19] Section 49(3) of the RTI Act.[20] I have considered each of the public interest factors outlined in schedule 4 of the RTI Act, and any relevant factors are discussed below (in relation to each category of documents). [21] Section 64 of the IP Act.[22] Section 67(2) of the IP Act and section 47(2) of the RTI Act. In deciding whether disclosure of the information in issue would, on balance, be contrary to the public interest, I have taken no irrelevant factors into account in making my decision.[23] ‘Personal information’ is defined in section 12 of the IP Act as ‘information or an opinion ... whether true or not ... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’ [24] Schedule 4, part 2, item 7 of the RTI Act.[25] Such as, for example, schedule 4, part 2, items 1, 3 or 11 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] 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. [29] Section 67(1) of the IP Act and sections 47(3)(e) and 52 of the RTI Act. A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist—section 52(1)(a) of the RTI Act. A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find the document but it cannot be found—section 52(1)(b) of the RTI Act. [30] 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). [31] Pryor at [21]. [32] Section 137(2) of the IP Act. The Information Commissioner also has power under section 115 to require additional searches to be conducted during an external review. [33] Section 87(1) of the RTI Act. [34] Council initially referred to this search tool as ‘e-discovery’ but later advised that it should correctly be referred to as ‘SourceOne’. See the decision in T74 and Brisbane City Council [2021] QICmr 54 (21 October 2021) for a discussion of SourceOne searches and the issues involved. [35] The applicant was initially given over three weeks – until 11 February 2022 – to provide a response to OIC’s preliminary view. On 3 February 2022, the applicant requested an extra three weeks – until 4 March 2022 – to provide a response. On 8 February 2022, OIC agreed to this extension. Then, on 1 March 2022, the applicant requested another three week extension – until 25 March 2022. In support of this request, the applicant provided a medical certificate which advised that she would be ‘unfit for prolonged computer work from 28/02/2022 to 18/03/2022 inclusive’. On 2 March 2022, I agreed to this extension, as requested, but advised that I did not intend to agree to any more extensions of time (in this regard, I noted that although the applicant had been in possession of the released documents since 15 October 2021, she had not provided any evidence regarding sufficiency of search concerns in her external review application dated 10 November 2021, nor in the six weeks since she had received OIC’s preliminary view. I also observed that the work required to respond to this discrete issue did not appear to necessitate ‘prolonged computer work’, and confirmed that the practical onus rested with her). The applicant provided a response on the due date nominated by her – that is, 25 March 2022 (over nine weeks after receiving OIC’s preliminary view). When doing so, however, she voiced her objection to my advice on 2 March 2022 regarding further extensions. Taking into account the applicant’s personal circumstances, as evident from the material provided by her, I am satisfied that the time she has been given to respond to OIC’s preliminary view has been reasonable in all the circumstances and has fulfilled procedural fairness requirements. [36] That is, emails numbered 1 to 20 and 22. [37] Even if I am wrong in characterising the emails as falling outside the terms of the access application (despite the subject lines and attachments which indicate otherwise), I note that progressing this part of the application would require Council to conduct further searches for emails which are already in the applicant’s possession. This may warrant a decision not to deal further with this part of the application on the grounds that it is lacking substance under section 107(1)(a) of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Stiller and Queensland Health [2019] QICmr 41 (27 September 2019)

Stiller and Queensland Health [2019] QICmr 41 (27 September 2019) Last Updated: 3 October 2019 Decision and Reasons for Decision Citation: Stiller and Queensland Health [2019] QICmr 41 (27 September 2019) Application Number: 314359 Applicant: Stiller Respondent: Queensland Health Decision Date: 27 September 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - NONEXISTENT OR UNLOCATABLE DOCUMENTS - applicant submits agency failed to locate documents - whether agency has taken all reasonable steps to locate documents relevant to the access application - whether documents were created - whether access to further documents may be refused on the basis that they are nonexistent or unlocatable - sections 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant requested information from Queensland Health, under the Right to Information Act 2009 (Qld) (RTI Act).[1] In his application, he posed a question about the existence of a signed Ministerial document relating to hand hygiene procedures and requested all information relating to that question. The applicant had previously made inquiries with Queensland Health and other government bodies about the same subject matter. Queensland Health decided[2] to refuse access to the requested information on the basis it was nonexistent or unlocatable. The applicant applied[3] to the Information Commissioner (OIC) for external review of Queensland Health’s decision, submitting that Queensland Health had interpreted his application too narrowly and raising concerns about the sufficiency of searches. For the reasons set out below, I affirm Queensland Health’s decision and refuse access to any further information on the basis that it is nonexistent or unlocatable. Background The decision under review is Queensland Health’s decision dated 29 November 2018. 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). Issue for determination During the external review, Queensland Health accepted that the access application was framed sufficiently broadly to capture documents relating to whether a Minister had issued instructions about hygiene procedures and was not limited to a copy of those instructions. Queensland Health located 29 pages of emails and internal documents dealing with questions from the public, including communications with the applicant. These documents were released to the applicant, subject to the redaction of third party information. The applicant did not contest the redactions in these documents. However, he contends that additional documents must exist (Requested Information). Accordingly, the issue for determination is whether the Requested Information may be refused on the basis that it is nonexistent or unlocatable.[4] On external review, the applicant posed questions about the way in which his prior inquiries in relation to the same subject matter were responded to by Queensland Health and the Minister’s Office. The RTI Act does not afford citizens a legally enforceable right to obtain answers to questions.[5] I am therefore unable to answer the applicant’s questions in this regard. In my findings, I have addressed the applicant’s submissions to the extent they are relevant to the issue under consideration, which is, whether Queensland Health may refuse access to the Requested Information on the basis that it is nonexistent or unlocatable.[6] Relevant law The RTI Act provides citizens a right to be given access to documents of an agency,[7] subject to certain limitations including grounds for refusal.[8] One such ground of refusal is where the document is nonexistent or unlocatable.[9] A document is 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 rely on the agency’s searches to satisfy themselves that a document does not exist. In those cases, all reasonable steps must be taken to locate the documents.[12] 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 is not sufficient to satisfy this onus.[18] Submissions The applicant submits that: Queensland Health had been approached multiple times regarding the existence of the relevant documents and there had been inter-department communications about them;[19] further searches were required as the information released to him during the review indicated that his original question regarding the existence of the Ministerial correspondence was not addressed or referred to the relevant Minister; the ‘lack of continuation in the internal communication’ released to him suggested that Queensland Health ‘deliberately avoided providing all information at hand’; and he was aware of certain communications that had not been located.[20] In support of his contentions, the applicant provided his correspondence with the Leader of the Opposition (OLO) regarding the existence of the Requested Information, including an email to OLO in which the applicant explained that he had a conversation with a Queensland Health employee that indicated to him further relevant documents existed.[21] Queensland Health provided me with search records and certifications to evidence the searches undertaken in the current electronic document and record management system as well as the previously used corporate record system[22] as well as records of inquiries made with the Office of the Chief Health Officer and Nursing Director.[23] In short, Queensland Health submitted that any signed instructions from the Minister to Queensland Health regarding hand hygiene processes would have been sent to the Office of the Chief Health Officer for action and any relevant correspondence would have been recorded on the corporate record management system. Searches of these locations did not locate the Requested Information.[24] In support of these submissions, Queensland Health explained that: the Department’s corporate systems were searched, including the previously used Corporate Record System, RecFIND and the current electronic Document and Record Management System (eDRMS). ‘These systems store all official correspondence including briefing notes, requests to/ from the Minister, letters, reports and references to documents held on hard copy department files’[25] searches for electronic documents were also conducted within the Communicable Diseases Branch, Office of the Chief Health Officer, Prevention Division[26] the Nursing Director of the Communicable Diseases Branch advised hard copy file searches would not identify further documents;[27] and there is no evidence to indicate that the Minister ever provided signed instructions of the subject matter identified in the access application.[28] Findings There is no evidence before me to indicate that the signed Ministerial instructions identified by the applicant exist. The applicant himself concedes that he does not have any facts or evidence to support his enquiry.[29] Therefore, it is unsurprising that minimal related documentation would exist. The search records provided by Queensland Health demonstrate that searches were conducted in the current and superseded electronic document databases and corporate records management systems. Queensland Health has also made specific inquiries with the Chief Health Officer. The Nursing Director of the Communicable Diseases Branch confirmed that searches of hard copy files would not produce any additional documents. The applicant submits that the information released to him leads him to believe that further documents exist, but he has not identified specific missing documents or produced evidence to demonstrate that particular locations have not been searched. I have carefully considered the information released to the applicant, which contains inquiries received by Queensland Health, internal documents regarding proposed response to those inquiries, and the agency’s responses. I am unable to identify any indication within these documents that additional documents should exist, such as references to other documents, or any gaps in the continuity of the documents. OLO’s correspondence to the applicant states that OLO made inquiries with Queensland Health[30] and the Queensland Government had confirmed there is no policy addressing the subject matter of the access application.[31] While I accept this indicates OLO made contact with a Government spokesperson about the matter, I am not satisfied that the evidence available to me indicates that these inquiries or confirmation resulted in the creation of documents that Queensland Health should hold, nor am I satisfied that this identifies any further searches that Queensland Health could reasonably undertake. I acknowledge that the applicant remains concerned about the way his queries to the Minister’s Office were addressed. However, his submissions do not identify or provide any objective evidence of further specific documents that have not been located, or searches that Queensland Health failed to conduct. On the basis of the above, I am satisfied that Queensland Health’s searches and inquiries have been appropriately targeted and informed by its particular knowledge regarding its own processes and record keeping practices and were reasonable in the circumstances of this matter. Given the specific background to this matter, and having considered the applicant’s submissions, Queensland Health’s submissions and the information released to the applicant during the review, I am unable to identify any further searches that could reasonably be conducted. I am therefore satisfied that Queensland Health has taken all reasonable steps to identify documents responsive to the applicant’s request, and any further documents do not exist or are unlocatable.[32] DECISION I affirm Queensland Health’s decision and find that the Requested Information is nonexistent or unlocatable under section 47(3)(e) and 52 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.S MartinAssistant Information CommissionerDate: 27 September 2019 APPENDIX Significant procedural steps Date Event 20 December 2019 OIC received the application for external review. 24 December 2019 OIC notified Queensland Health that it had received the application for external review and requested procedural documents. 14 January 2019 OIC received the requested procedural documents from Queensland Health. 25 January 2019 OIC notified Queensland Health and the applicant that the application for external review had been accepted and requested further information from Queensland Health. 7 February 2019 OIC received the requested information from Queensland Health. 11 March 2019 OIC received telephone submissions from the applicant. 13 March 2019 OIC requested further information from Queensland Health. 18 March 2019 OIC received telephone submissions from Queensland Health. 2 April 2019 OIC received the requested information from Queensland Health. 3 May 2019 OIC requested further information from Queensland Health. 9 May 2019 OIC received the requested information from Queensland Health. 15 May 2019 OIC received submissions from the applicant. 16 May 2019 OIC conveyed a preliminary view to Queensland Health and requested submissions in response. 17 May 2019 OIC received telephone submissions from Queensland Health. 30 May 2019 OIC received submissions from Queensland Health dated 29 May 2019. 21 June 2019 OIC conveyed a preliminary view to the applicant. 9 July 2019 OIC received submissions from the applicant. 1 August 2019 OIC confirmed the submissions received from Queensland Health and OIC confirmed the preliminary view to the applicant. 5 August 2019 OIC received further submissions from the applicant. 7 August 2019 OIC confirmed the preliminary view to the applicant. The applicant advised OIC that he seeks a decision in finalisation of the external review. [1] Access application dated 6 October 2018.[2] Decision dated 29 November 2018.[3] External review application dated 20 December 2018.[4] By email dated 15 May 2019 the applicant also raised concerns about Queensland Health’s processing of his application and OIC’s external review processes. OIC responded to these concerns during external review. In reaching my findings about whether access to further information may be refused, I have not made any determinations in relation to these concerns.[5] Hearl and Mulgrave Shire Council [1994] QICmr 12; (1994) 1 QAR 557 (Hearl) at [30]. Hearl concerned the application of section 21 of the now repealed Freedom of Information Act 1992 (Qld) (FOI Act). Section 23 of the RTI Act is drafted in substantially the same terms as section 21 of the FOI Act and, therefore, the Information Commissioner’s findings in Hearl are relevant in this matter.[6] I also note that my findings in this decision relate to the access application made to Queensland Health. The Minister for Health’s Office is a separate entity for the purposes of the RTI Act. [7] Section 23 of the RTI Act. [8] Set out at section 47 of the RTI Act. [9] Sections 47(3)(e) and 52(1) of the RTI Act.[10] Section 52(1)(a) of the RTI Act.[11] 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 87(1) of the RTI Act.[17] Section 130(2) of the RTI Act.[18] Dubois and Rockhampton Regional Council [2017] QICmr 49 (6 October 2017) at [36].[19] Applicant submissions dated 20 December 2018.[20] Applicant submissions dated 9 July 2019 and 5 August 2019.[21] Applicant submissions dated 5 August 2019.[22] Queensland Health’s submissions dated 7 February 2019 and 2 April 2019, search records dated 16 November 2018 and 27 November 2018, and email record dated 16 November 2018.[23] Queensland Health’s submissions dated 7 February 2019 and file note of a telephone discussion with the Nursing Director of the Communicable Diseases Branch dated 26 November 2018.[24] Queensland Health decision dated 29 November 2018.[25] Queensland Health’s submissions dated 29 May 2019.[26] Queensland Health’s submissions dated 29 May 2019.[27] File note provided by Queensland Health dated 26 November 2018. [28] Telephone conversation with OIC on 17 May 2019.[29] Applicant email to OLO dated 23 February 2018 and provided to OIC in submissions dated 5 August 2019.[30] OLO’s email to the applicant dated 26 March 2018.[31] OLO’s email to the applicant dated 12 June 2019.[32] Section 47(3)(e) and 52 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

SW5Z7D and Queensland Police Service [2016] QICmr 1 (15 January 2016)

SW5Z7D and Queensland Police Service [2016] QICmr 1 (15 January 2016) Last Updated: 20 January 2017 Decision and Reasons for Decision Citation: SW5Z7D and Queensland Police Service [2016] QICmr 1 (15 January 2016) Application Number: 312535 Applicant: SW5Z7D  Respondent: Queensland Police Service Decision Date: 15 January 2016 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION –REFUSAL OF ACCESS – CONTRARY TO PUBLIC INTEREST INFORMATION – information provided to police by a particular individual about an alleged domestic violence matter – 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 made an application to the Queensland Police Service (QPS)[1] under the Right to Information Act 2009 (Qld) (RTI Act) for access to an entry in a QPS notebook recording information provided by his son in relation to an alleged domestic violence matter in 2005. QPS refused access to the requested information on the grounds that its disclosure would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act. The decision was affirmed on internal review. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the decision to refuse access to the requested information. For the reasons set out below, QPS’ decision is affirmed. I find that access to the requested information can be refused as its disclosure would, on balance, be contrary to the public interest. Background Significant procedural steps relating to the external review are set out in the appendix. Reviewable decision The decision under review is QPS’ internal review decision made on 6 July 2015. Evidence considered 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 comprises an entry in a QPS notebook recording information the applicant’s son provided to QPS in relation to an alleged domestic violence matter in 2005 (Information in Issue). Relevant law A person has a right to be given access to documents of an agency under the RTI Act.[2] However, this right is subject to other provisions of the RTI Act, including the grounds on which an agency may refuse access to documents.[3] An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[4] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[5] and explains the steps that a decision-maker must take[6] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosing the information would, on balance, be contrary to the public interest. Findings Irrelevant factors The applicant refers to a previous access application he made to QPS in 2011 for information relating to allegations of domestic violence. In that matter, QPS decided to partially release some information. The applicant submits that the same reasoning has been applied inconsistently in this matter and that the Information in Issue should be released to him in part.[7] The previous decision made by QPS did not deal with the Information in Issue in this review and, on the information available to me, I am satisfied that QPS has not previously released the Information in Issue to the applicant under the RTI Act. OIC is required to apply the provisions of the RTI Act to the particular information and circumstances of each case. The fact that QPS may have decided to release certain information in response to a previous application also relating to domestic violence allegations is not a relevant consideration in this external review. The applicant submits that QPS should have applied sections 73, 74 and 75 of the RTI Act to grant him partial access to the Information in Issue.[8] These provisions allow an agency to delete certain information from a document and grant access to the remainder of the document. However, as I consider access to the Information in Issue can be refused in its entirety, these provisions of the RTI Act do not arise for consideration. The applicant also submits that the decision to refuse access to the Information in Issue is intended to cover up and protect corrupt police officers and constitutes bias, corruption, an attempt to pervert the course of justice and an abuse of public office.[9] There is no evidence before me to support the applicant’s assertions and these submissions are irrelevant to the issue for determination. I will now address the relevant factors favouring disclosure and nondisclosure of the Information in Issue. QPS accountability and transparency QPS must be both transparent and accountable in how it deals with the investigation and prosecution of allegations it receives. I have considered whether disclosing the Information in Issue could reasonably be expected to enhance QPS’ accountability or transparency for its handling of the matter to which the Information in Issue relates.[10] The applicant submits that he already has the Information in Issue because it was disclosed by QPS in proceedings before the Family Court of Australia pursuant to a subpoena and he was permitted to inspect the document and write down the content in full as part of those proceedings.[11] I accept that the applicant may have received this information as a result of Family Court proceedings. I also acknowledge that the applicant is aware of the identity of the individual who provided the information to QPS, given his involvement with the matter. As this information is generally known to the applicant, I am unable to identify how disclosing the Information in Issue to him under the RTI Act could enhance QPS accountability or transparency in any way. Furthermore, the Information in Issue is information provided by another individual. The information does not reveal any of the actions taken by QPS in investigating or dealing with the allegations. The information is from 2005 and is now more than ten years old. I consider the significant passage of time since QPS received this information, also reduces the weight of these factors. For these reasons, I consider these public interest factors carry only minimal weight in this case. Personal information of the applicant The Information in Issue is about the applicant and comprises his personal information.[12] This gives rise to a factor favouring disclosure.[13] I acknowledge the importance of providing individuals with access to their personal information held by public authorities, however, as the Information in Issue is generally known to the applicant, I afford this factor only minimal weight in this case. Personal information and privacy of another individual Even though the Information in Issue is the applicant’s personal information, it also comprises the personal information of another person, that is, the person who provided the information to QPS. I am satisfied that disclosing the Information in Issue could reasonably be expected to: prejudice the protection of an individual’s right to privacy;[14] and cause a public interest harm by disclosing the individual’s personal information.[15] As noted above, I accept that the applicant is generally aware of the content of the Information in Issue. As a result, I consider that the extent of the intrusion, and the anticipated harm, that could be expected to result from disclosing the Information in Issue to the applicant is reduced to some degree. However, I do not consider the weight of these factors is entirely negated for the following reasons.[16] The Information in Issue relates to and identifies a minor[17] in the context of an alleged domestic violence matter. It is therefore highly sensitive and personal in nature. There is a strong public interest in: protecting the identity of individuals involved in alleged domestic violence matters, particularly if the individual was a minor at the time; and not releasing information that these individuals provide to authorities outside of the investigation and court processes and under the RTI Act where there can be no restriction on its use, dissemination or republication. Given the nature of the Information in Issue and the context in which it appears, I am satisfied that any disclosure of this information under the RTI Act would be an intrusion into the relevant individual’s privacy and the anticipated harm associated with disclosure of the personal information is moderate – even though the applicant is generally aware of the content of the Information in Issue. For these reasons, I afford moderate weight to both of these factors favouring nondisclosure in this case. Prejudice the flow of information to QPS There is a very strong public interest in protecting the free flow of information to law enforcement agencies.[18] This is a factor favouring nondisclosure of the Information in Issue. QPS relies on information from the public to be alerted to and to pursue breaches of the law. Disclosing sensitive information obtained from individuals in the context of domestic violence allegations would, in my view, discourage individuals from coming forward and communicating with police. This in turn would significantly prejudice QPS’ ability to respond to these allegations. The applicant submits that the Information in Issue shows that the complaint against him was withdrawn by his son which demonstrates that he did not commit the alleged offences.[19] He also submits that ‘real victims’ of domestic violence are not affected if QPS discloses sensitive information obtained from them in the context of domestic violence allegations and that ‘Perjurers and False Complainants are the only one[s] to be discouraged from coming forward and communicat[ing] with Police’.[20] I am not required to determine whether the allegations about the applicant in this case were genuine or substantiated. This public interest factor is recognised even where protecting the flow of information to law enforcement agencies may result in the investigation of false and/or unsubstantiated allegations.[21] I am not persuaded by the applicant’s submissions and I consider that disclosing the Information in Issue could reasonably be expected to have a detrimental impact on the flow of information to QPS. For these reasons, I afford this factor significant weight. Balancing the relevant factors I acknowledge the general public interest in promoting access to information under the RTI Act and the pro-disclosure bias in deciding access to documents.[22] I have identified three factors which favour disclosure of the Information in Issue. For the reasons addressed above, I afford only minimal weight to each of these factors. I have identified three factors favouring nondisclosure of the Information in Issue. I afford moderate weight to the two factors relating to the protection of the personal information and privacy of the other individual and significant weight to the factor relating to the protection of the flow of information to QPS. As a result, the factors favouring nondisclosure outweigh the factors favouring disclosure of the Information in Issue. Accordingly, I am satisfied that QPS was entitled to refuse access to the Information in Issue under section 47(3)(b) of the RTI Act as its disclosure would, on balance, be contrary to the public interest. DECISION I affirm the decision under review and find that access to the Information in Issue can be refused under section 47(3)(b) of the RTI Act as its disclosure would, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ J Mead Right to Information Commissioner Date: 15 January 2016 APPENDIX Significant procedural steps Date Event 6 May 2015 QPS received the access application. 5 June 2015 QPS issued its initial decision to the applicant. 24 June 2015 The applicant applied to QPS for internal review of the initial decision. 6 July 2015 QPS affirmed the initial decision on internal review. 29 July 2015 OIC received the external review application. OIC notified QPS that the external review application had been received and requested that QPS provide a number of procedural documents by 6 August 2015. 5 August 2015 OIC received the requested documents from QPS. 13 August 2015 OIC notified QPS and the applicant that the external review application had been accepted. OIC asked QPS to provide the documents located in response to the access application by 28 August 2015. 31 August 2015 OIC received the requested documents from QPS. 28 September 2015 OIC conveyed its preliminary view to the applicant and invited him to provide submissions supporting his case by 13 October 2015 if he did not accept the preliminary view. 8 October 2015 OIC received the applicant’s submissions. The applicant requested that OIC refer this matter to the Queensland Civil and Administrative Tribunal under section 118 of the RTI Act. 26 October 2015 OIC notified the applicant that it did not intend to refer the matter to the Queensland Civil and Administrative Tribunal as requested. 29 October 2015 OIC asked QPS to provide a copy of the 15 pages which it had released to the applicant pursuant to a previous access application. 12 November 2015 OIC received the requested documents from QPS. 30 November 2015 OIC conveyed a second preliminary view to the applicant and invited him to provide submissions supporting his case by 14 December 2015 if he did not accept the preliminary view. 10 December 2015 OIC received the applicant’s submissions. [1] The Public Safety Business Agency dealt with the application on behalf of QPS. [2] Section 23 of the RTI Act.[3] Section 47 of the RTI Act.[4] Section 47(3)(b) and 49 of the RTI Act. The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs, for the wellbeing of citizens generally. This means that, ordinarily, a public interest consideration is one which is common to all members of, or a substantial segment of, the community as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.[5] 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. [6] Section 49(3) of the RTI Act.[7] Internal review application to QPS dated 23 June 2015 and external review application to OIC dated 26 July 2015. [8] Submissions to OIC dated 8 October 2015. [9] Submissions to OIC dated 10 December 2015. [10] Schedule 4, part 2, items 1 and 11 of the RTI Act. [11] Submissions to OIC dated 8 October 2015. [12] 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.’[13] Schedule 4, part 2, item 7 of the RTI Act. [14] Schedule 4, part 3, item 3 of the RTI Act. [15] Schedule 4, part 4, section 6 of the RTI Act.[16] In Setschnjak and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 25 May 2012) at 21-23, the Assistant Information Commissioner noted that the applicant knowing the personal information potentially reduces but does not negate the privacy interests attaching to the information.[17] In submissions to OIC dated 10 December 2015, the applicant notes that his son is no longer a child. As explained above, the Information in Issue is now more than 10 years old and I am satisfied that the applicant’s son was a minor at the time he provided the Information in Issue to QPS.[18] P6Y4SX and Department of Police (Unreported, Queensland Information Commissioner, 31 January 2012) (P6Y4SX) at paragraphs 35-40.[19] Submissions to OIC on 10 December 2015. [20] Submissions to OIC on 10 December 2015.[21] P6Y4SX at paragraph 40.[22] Section 44 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Nine Entertainment Co Pty Ltd and Department of the Premier and Cabinet [2022] QICmr 31 (21 June 2022)

Nine Entertainment Co Pty Ltd and Department of the Premier and Cabinet [2022] QICmr 31 (21 June 2022) Last Updated: 15 February 2023 Decision and Reasons for Decision Citation: Nine Entertainment Co Pty Ltd and Department of the Premier and Cabinet [2022] QICmr 31 (21 June 2022) Application Number: 316529 Applicant: Nine Entertainment Co Pty Ltd ACN 122 205 065 Respondent: Department of the Premier and Cabinet Decision Date: 21 June 2022 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - INFORMATION AS TO EXISTENCE OF PARTICULAR DOCUMENTS - request for access to records relating to telephone communications - whether requested documents would comprise prescribed information - neither confirm nor deny - whether section 55 of the Right to Information Act 2009 (Qld) applies REASONS FOR DECISION Summary The applicant applied[1] to the Department of the Premier and Cabinet (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to various telephone communication records between the Premier of Queensland and a specified mobile telephone number, including copies of electronic messages and logs of calls and messages. The Department decided[2] to neither confirm nor deny the existence of requested documents, under section 55 of the RTI Act. I affirm the Department’s decision. Background Significant procedural steps relating to the external review are otherwise as set out in the Appendix to this decision. Reviewable decision The decision under review is the Department’s decision dated 7 January 2022. 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).[3] Issue for determination The access application requested access to several categories of documents in connection with telephone communications involving the Premier and a specified telephone number. From a recordkeeping perspective, if relevant documents existed, some would be held by the Office of the Premier (i.e., the Minister) whereas others would, if they existed, be held by the Department.[4] Under the RTI Act, a Minister is a separate entity to an agency. Where an application seeks documents of an agency as well as documents of a Minister,[5] the requests essentially comprise separate applications, with each subject to a separate application fee, one to be processed by the Minister’s Office and one to be processed by the Department.[6] In this case, the applicant paid one application fee and the application was processed by the Department.[7] This decision thus only considers whether the Department may neither confirm nor deny the existence of telephone records which, if they existed, would be documents of the agency (the ‘Requested Documents’). To summarise, the issue I must determine is whether the Department may neither confirm nor deny the existence of the Requested Documents, under section 55 of the RTI Act. 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, such as the Department. This right is subject to other provisions of the RTI Act, including section 55 of the RTI Act. Section 55 of the RTI Act allows a decision maker to neither confirm nor deny the existence of a document which, assuming its existence, would be a document to which access would be refused under section 47(3) of the RTI Act,[8] to the extent it contained ‘prescribed information’.[9] ‘Prescribed information’[10] includes personal information[11] the disclosure of which would, on balance, be contrary to the public interest. Determining this issue essentially requires a decision maker to conduct a hypothetical public interest[12] balancing exercise, making a judgment as to where the balance of the public interest would lie, were requested documents to exist. This involves a notional application of the public interest balancing test, as prescribed in section 49 of the RTI Act,[13] including identifying public interest factors that would operate to favour disclosure and nondisclosure, assuming the existence of relevant documents.[14] Discussion The applicant’s representative stated[15] he has ‘evidence’ of the existence of the Requested Documents. OIC invited the applicant to supply any such evidence[16] to assist OIC in reviewing the merits of the Department’s decision under section 55 of the RTI Act. The applicant’s representative declined to supply such evidence, relevantly noting that it had been ‘...given to me in confidence for preparation of a story. I cannot disclose it to a 3rd party without permission.’[17] In the absence of such evidence, I am left to conduct the hypothetical balancing exercise required by section 55 of the RTI Act on the strength of the information and submissions before me. Having regard to that information, my view is that if the Requested Documents existed in the Department’s possession or under its control, they would comprise prescribed information, that is, personal information the disclosure of which would, on balance, be contrary to the public interest. The applicant’s case is that the mobile telephone number stated in its access application is that of a private citizen. I have no evidence to the contrary and therefore, I have proceeded on the basis that the number stated in the application belongs to a private individual. The identity of the owner of the stated number, however, remains a matter unknown to me. The applicant has referred me to a media article concerning an individual and their contact with the Premier, and essentially invited me to infer that the individual the subject of that article is the owner of the phone number stated in the access application.[18] There is, however, nothing before me definitively establishing ownership of the stated mobile number by a particular individual, and in the absence of better evidence, I am not prepared to assume the veracity of the applicant’s assertion. What I am left to consider is an access application framed as seeking access to documents that, if confirmed to exist, would establish that the individual with whom that number is associated – who, as noted above, I assume is a private individual – engaged in telephone communications with the Premier. Such information would comprise the personal information of the relevant individual (and, potentially, the Premier), as information being about that individual, from which their identity could reasonably be ascertained (either because that identity is known, at least to the applicant according to its submissions, or because it could be ascertained by calling the stated number). The RTI Act presumes that disclosure of personal information would give rise to a public interest harm.[19] The Department indicated that if the Requested Documents existed, they would be in the form of itemised telephone billing records, showing ‘...dates and times of outbound calls and outbound text messages including the number to which the call or text was sent to’, from the Premier’s mobile number.[20] I am satisfied that disclosure of itemised telephone bills, if they existed, could reasonably be expected to prejudice protection of another individual’s right to privacy.[21] Records showing when a private individual is contacted on their telecommunications device is, to my mind, very much a matter within an individual’s personal sphere. Unrestricted disclosure of such information under the RTI Act[22] (in the event it existed) would obviously intrude upon that aspect of their personal sphere, and thus prejudice protection of the individual’s right to privacy. Safeguarding personal information and protecting individual privacy are fundamental public interests, each of which ordinarily attract substantial weight for the purposes of balancing the public interest. I see no reason either should be given anything less in this review. Favouring disclosure is the general public interest in promoting access to government-held information.[23] Additionally, if the Requested Documents did exist, then they would self-evidently concern use, by the Premier, of a government-owned (or, at least, funded) telecommunications device, giving rise to public interest factors favouring disclosure in terms of enhancing Government accountability and transparency.[24] These are important public interest factors. However, given the particular nature of the Requested Documents, if they existed, I am not satisfied those factors would attract weight sufficient to displace the strong public interests in protecting personal information and safeguarding individual privacy, as discussed above. As noted above, the Requested Documents would, in the event they existed, comprise itemised billing records, revealing only outgoing communications from a telecommunications device used by the Premier to the number nominated in the access application, together with date and time (and, possibly, duration of contact and the charge incurred).[25] Essentially, they would reveal little more than the fact the Premier had contacted the particular number. The mere fact a public official has had contact with (what I am assuming to be) a private individual’s phone number via a government-owned/funded device is not sufficient to justify the unrestricted disclosure of the private individual’s personal information and intrusion into their right to privacy. Indeed, it may also be insufficient to justify disclosing the public official’s personal information and prejudicing their privacy – it being the case that public officials are often entitled to some level of personal use of official devices.[26] I would afford the pro-disclosure factors modest weight. In reaching the above conclusion, I have carefully considered all of the applicant’s submissions, including that: This is a case where transparency is needed to see how and when there was contact. ... Showing the frequency and timing of any contact will allow ... allegations (of significant public interest) to be tested.[27] However, the applicant’s submissions are premised on assumptions and unsubstantiated allegations. As set out above, I have no evidence to connect the phone number stated in the application with the individual whom the applicant submits is the owner, let alone any evidence[28] tending to establish other matters and allegations canvassed by it in its submissions.[29] In making this decision, I am constrained by the evidence available to me, and what the applicant has elected to provide. Having given that and all other relevant material careful consideration, I consider that when the modestly weighted factors favouring disclosure are balanced against the substantially-weighted factors telling against, the latter prevail. Disclosure of the Requested Documents would – in the event they existed – therefore comprise personal information the disclosure of which would, on balance, be contrary to the public interest. The Requested Documents[30] meet the definition of ‘prescribed information’, and the Department may neither confirm nor deny their existence, under section 55 of the RTI Act. Before concluding, I note that the applicant argued that neither the Premier nor the individual to whom the applicant contends the stated phone number relates, had objected to disclosure of information that may concern either party (in the event it existed).[31] The views of third parties are only required to be obtained in circumstances stated in section 37 of the RTI Act; strictly speaking, where documents are confirmed to exist, and an agency is contemplating disclosure of same. Accordingly, consultation was not conducted in this review, and therefore, I have not taken the applicant’s submission into account.DECISION I affirm the Department’s decision to neither confirm nor deny the existence of the Requested Documents under section 55 of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.K ShepherdActing Right to Information CommissionerDate: 21 June 2022 APPENDIX Significant procedural steps Date Event 12 January 2022 OIC received the applicant’s external review application. OIC requested and received preliminary documents from the Department. 2 February 2022 OIC notified the applicant and the Department that the external review application had been accepted. OIC requested submissions from the Department. 24 February 2022 OIC received submissions from the Department. 7 March 2022 OIC requested further information from the applicant. The applicant provided OIC with further information. 25 March 2022 OIC conveyed the applicant’s further information to the Department and invited a response. 11 April 2022 OIC received further submissions from the Department. 19 April 2022 OIC conveyed a preliminary view to the applicant. OIC received submissions from the applicant contesting the preliminary view. 21 April 2022 OIC referred the applicant’s 19 April 2022 submissions to the Department and invited submissions in reply. 5 May 2022 The Department advised OIC it did not wish to make any further submissions. [1] Application dated 29 November 2021.[2] Decision dated 7 January 2022. [3] 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 the HR Act: section 11. 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. 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. This is because in observing and applying the law prescribed in the RTI Act, as I have done in this case, an RTI decisionmaker 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.’[4] Letter from the Department dated 11 April 2022.[5] As that concept is defined in section 13 of the RTI Act.[6] A matter explained to the applicant in an OIC letter dated 19 April 2022.[7] The access application was lodged via a ‘whole of government’ online application form, which requires a selection of options from various ‘drop down’ boxes, including entities to whom an applicant intends to direct the application. The applicant selected an option it thought would ensure the access application was directed to both the Department and the Office of the Premier – which based on the material the applicant has supplied to me, was not entirely unreasonable. It does remain the case, however, that only one application fee was paid, thereby enlivening only one application. [8] Grounds on which access may be refused.[9] Section 55 of the RTI Act is appropriately used where there is something about the way in which, whether by accident or design, an access application is framed which will mean that the agency acknowledging the existence or non-existence of the particular kind of information is liable to cause the very kinds of detriment that key grounds for refusal prescribed in the RTI Act are intended to avoid – in this case, revealing personal information, by impliedly confirming whether or not communications have been made by individuals. The procedure to be followed in cases of this kind – and the limitation on what information can be conveyed to an applicant – was explained by the Information Commissioner in EST and Department of Family Services and Aboriginal and Islander Affairs [1995] QICmr 20; (1995) 2 QAR 645 at [20], the Commissioner noting that such a review ‘...must largely proceed in private...’. See also Phyland and Queensland Police Service (Unreported, Queensland Information Commissioner, 31 August 2011) [11], citing Tolone and Department of Police (Unreported, Queensland Information Commissioner, 9 October 2009) [28].[10] Defined in schedule 5 of the RTI Act.[11] 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.’: section 12 of the Information Privacy Act 2009 (Qld) (IP Act) and schedule 6 of the RTI Act.[12] The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests, 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.[13] In summary terms, section 49 of the RTI Act requires a decision maker to identify any irrelevant factors and disregard them; identify relevant public interest factors favouring disclosure and nondisclosure of subject information; balance relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the subject information would, on balance, be contrary to the public interest. I have taken no irrelevant factors into account.[14] Nadel and Queensland Police Service [2020] QICmr 19 (6 April 2020) at [15].[15] In an email to OIC dated 3 February 2022.[16] By email dated 7 March 2022.[17] Email from the applicant’s representative dated 7 March 2022.[18] Emails from the applicant’s representative to OIC dated 7 March and 19 April 2022.[19] Schedule 4, part 4, section 6 of the RTI Act.[20] Letter from the Department dated 11 April 2022.[21] A factor favouring nondisclosure of information: schedule 4, part 3, item 3 of the RTI Act. The concept of ‘privacy’ is not defined in the IP Act. OIC has adopted the Australian Law Reform Commission’s definition of the concept, being the right of an individual to preserve their personal sphere free from interference from others: “For your information: Australian Privacy Law and Practice” Australian Law Reform Commission Report No. 108 released 11 August 2008, at paragraph 1.56.[22] As Judicial Member McGill SC of the Queensland Civil and Administrative Tribunal (QCAT) recently observed ‘... the effect of the... [Information Privacy Act 2009 (Qld)] is that, once information has been disclosed, it comes under the control of the person to whom it has been disclosed. There is no provision of that Act which contemplates any restriction or limitation on the use which that person can make of that information, including by way of further dissemination.’: FLK v Information Commissioner [2021] QCATA 46 at [17]. These observations apply equally to the cognate right of access conferred by the RTI Act.[23] Implicit in the object of the RTI Act.[24] In this case, schedule 4, part 2, item 1, 3 and 4 of the RTI Act.[25] Commonly contained in mobile phone billing records. [26] As regards to public servants employed by agencies, Information Standard 38 - ‘Use of ICT services, facilities and devices policy’ – provides that ‘[t]he use of government provided ICT services, facilities and devices is for official approved purposes. Employee limited personal use of these resources may be made available to employees on a basis approved by the department's chief executive officer.’: https://www.qgcio.qld.gov.au/documents/use-of-ict-services,-facilities-and-devices-policy-is38. [27] Email from applicant’s representative dated 19 April 2022.[28] Beyond the representative’s assertions.[29] Which, if they could be established, might potentially give rise to other factors favouring disclosure, such as schedule 2, part 2, factors 2 and 5 of the RTI Act.[30] Assuming their existence.[31] Submissions dated 19 April 2022.

queensland

court_judgement

Queensland Information Commissioner 1993-

Green and Red [2000] QICmr 100; (2000) 6 QAR 30 (23 January 2000)

Green and Red [2000] QICmr 100; (2000) 6 QAR 30 (23 January 2000) Last Updated: 17 March 2005 Circumcision Information Australia and Health Rights Commission ([2005] QICmr 1 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 01/2005 Application 338/03 Participants: CIRCUMCISION INFORMATION AUSTRALIA AS AGENT FOR "DMO" Applicant HEALTH RIGHTS COMMISSION Respondent DR HARRY STALEWSKI Third Party DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION – refusal of access – matter in issue comprising a response by a medical practitioner to a complaint lodged by the applicant with the Health Rights Commission – whether response was communicated in confidence as against the applicant – application of s.46(1)(a) and s.46(1)(b) of the Freedom of Information Act 1992 Qld. Freedom of Information Act 1992 Qld s.46(1)(a), s.46(1)(b), s.52, s.78 Health Practitioners (Professional Standards) Act 1999 Qld s.11, s.62, s.78, s.116 Health Rights Commission Act 1991 Qld s.4, s.10, s.30, Part 5 (ss. 57 – 80), Part 6 (ss. 81 – 94), Part 7 (ss.95 – 127A) "B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279 Chand and Medical Board of Queensland; Dr Adam Cannon (Third Party), Re (2001) 6 QAR 159 Dunford & Elliot Ltd v Firth Brown Ltd [1978] 1 FSR 143 McCann and Queensland Police Service, Re [1997] QICmr 10; (1997) 4 QAR 30 Orth and Medical Board of Queensland; Dr Robert J Cooke (Third Party) Re, (2003) 6 QAR 209 Pemberton and The University of Queensland, Re (1994) 2 QAR 293 Smith Kline and French Laboratories (Aust) Limited & Ors v Secretary, Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291 Villanueva and Queensland Nursing Council; Others (Third Parties), Re (2000) 5 QAR 363 DECISION I set aside the decision under review (which is identified in paragraph 5 of my accompanying reasons for decision). In substitution for it, I decide that the matter in issue (identified in paragraph 17 of my reasons for decision) does not qualify for exemption from disclosure under the Freedom of Information Act 1992 Qld, and that the applicant is therefore entitled to obtain access to it under the Freedom of Information Act 1992 Qld. Date of decision: 17 March 2005 ......................................................... CATHI TAYLOR INFORMATION COMMISSIONER TABLE OF CONTENTS Page Background 1 External review process 2 Matter in issue 4 The HRC's complaints-handling scheme – relevant legislative provisions 4 Handling of the applicant's complaint Application of s.46(1) of the FOI Act 9 10 Submissions of the participants (a) The HRC's submissions (b) The third party's submissions (c) The applicant's submissions 10 10 12 12 Application of s.46(1)(a) of the FOI Act to the matter in issue Requirement (a) Requirement (b) Requirement (c) Finding Application of s.46(1)(b) of the FOI Act to the matter in issue Requirements (a) and (b) Requirement (c) – prejudice to future supply Requirement (d) – public interest balancing test Finding Conclusion 13 14 14 14 17 17 18 19 21 23 23 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 01/2005 Application 338/03 Participants: CIRCUMCISION INFORMATION AUSTRALIA AS AGENT FOR "DMO" Applicant HEALTH RIGHTS COMMISSION Respondent DR HARRY STALEWSKI Third Party REASONS FOR DECISION Background 1. Circumcision Information Australia, as agent for a person whom I shall hereinafter refer to as "DMO", seeks review of a decision by the Health Rights Commission (the HRC) refusing DMO access, under the Freedom of Information Act 1992 Qld (the FOI Act), to information concerning the third party's response to a complaint lodged by DMO with the HRC. 2. On 31 May 1999, the third party performed a circumcision on DMO's one day old son. By letter dated 11 September 2001, DMO lodged a complaint with the HRC in which she alleged that: •the third party had failed to inform her that circumcision is no longer considered a routine procedure;•the circumcision had caused her son's penis to be crooked when erect; and•the circumcision should not have been performed before her son was six weeks old. 3. The HRC assessed DMO's complaint (the various stages involved in the HRC's complaints-handling scheme are discussed in detail below). During that assessment process, it sought and obtained a response to the complaint from the third party, and also obtained an informal expert opinion (over the telephone) from an independent surgeon experienced in performing circumcisions. At the end of the assessment process, the HRC decided that the health service provided by the third party was reasonable, and that DMO's complaint should be closed under s.79(1)(c) of the Health Rights Commission Act 1991 Qld (the HRC Act), on the basis that the complaint had been adequately dealt with by the HRC. By letter dated 13 August 2002, the HRC informed DMO of its decision, and a summary of the reasons for its decision. 4. By letter dated 23 January 2003, Circumcision Information Australia, acting as agent for DMO, sought access under the FOI Act to correspondence and notes held by the HRC in relation to DMO's complaint, including correspondence with the third party. (Hereinafter, I will, where appropriate, refer to Circumcision Information Australia and DMO collectively as "the applicant"). 5. By letter dated 7 March 2003, Mr David Kerslake, Commissioner of the HRC, informed the applicant that he had identified 56 folios as falling within the terms of the applicant's FOI access application. Mr Kerslake decided to give the applicant full access to 50 folios, and partial access to 3 folios, but refused access to 3 folios under s.46(1)(b) of the FOI Act. Those three folios to which Mr Kerslake refused access in full comprised the third party's written response to DMO's complaint, and a file note recording a telephone conversation between the third party and an HRC officer. 6. By letter dated 7 April 2003, the applicant sought internal review of Mr Kerslake's decision to refuse access to three folios in full. However, as Mr Kerslake is the principal officer of the HRC, his decision was not subject to internal review under s.52 of the FOI Act. Accordingly, by letter dated 9 April 2003, Mr Kerslake referred the applicant's application for review to my office. By letter dated 17 April 2003, the Deputy Information Commissioner advised the applicant that Mr Kerslake's decision would be reviewed by the Information Commissioner under Part 5 of the FOI Act. External review process 7 Copies of the folios containing matter in issue were obtained and examined, together with copies of those folios that had been disclosed to the applicant. 8. The third party was granted participant status in the review, in accordance with s.78 of the FOI Act. By letter dated 26 May 2003, the third party advised that he objected to the disclosure of the matter in issue, and he provided a brief submission in support of his case. 9. On 7 July 2003, at a meeting with members of staff of my office, Mr Kerslake made oral submissions in support of the HRC's case (in this review, and in another review before the Information Commissioner involving the HRC which raises similar issues), that the matter in issue qualified for exemption from disclosure to the applicant because: •the information provided by the third party to the HRC had been given voluntarily, and had been given and received in confidence;•the HRC had discharged its duty to accord DMO procedural fairness by informing her, at the end of the assessment process, of the HRC's decision not to take any action against the third party, and by providing DMO with a summary of the information upon which the HRC had relied in reaching that decision; and •the HRC has no power, during the assessment phase, to compel medical practitioners to provide information to assist the HRC in assessing complaints, and that if the matter in issue were disclosed to the applicant contrary to the third party's understanding of confidence, medical practitioners would simply decline to provide information to the HRC in future during the assessment phase, which would prejudice the HRC's ability to expeditiously assess and resolve complaints. (Those oral submissions were later incorporated into written submissions which were sent to the applicant for response – see paragraph 12 below). 10. By letters dated 4 August 2003, Assistant Information Commissioner (AC) Moss conveyed to the HRC and to the third party her preliminary view that, with the exception of a segment of information contained in one folio, the matter in issue did not qualify for exemption under s.46(1)(a) or s.46(1)(b) of the FOI Act. In her letters, AC Moss pointed out that some of the matter in issue had already been disclosed to DMO in the HRC's letter to her dated 13 August 2002, such that it could not be regarded as confidential vis-à-vis the applicant. 11. By letter dated 19 August 2003, the third party, through his representative, United Medical Protection (UMP), advised that he maintained his objection to disclosure of the matter in issue, and sought an extension of time within which to lodge a written submission in support of his case. By letter dated 25 August 2003, UMP lodged a submission on behalf of the third party, outlining the grounds on which the third party argued that the matter in issue was exempt from disclosure to the applicant. 12. By letter dated 2 September 2003, the HRC lodged a written submission in support of its case for exemption of the matter in issue and advised: The HRC would be happy for the release of any information that is already known to the applicants as a result of correspondence we have previously had with them. The HRC maintains its objection to the release of any information, provided on a confidential basis, which is not already known to the applicants. 13. Under cover of letters dated 2 December 2003, AC Moss sent to the HRC and to the third party, copies of the folios in issue on which was highlighted the matter that had already been disclosed to the applicant during the course of the HRC's review. AC Moss asked the HRC and the third party to advise whether or not they continued to object to the disclosure of that information to the applicant under the FOI Act. Both participants eventually advised that they did not object, and the matter in question was disclosed to the applicant. However, the applicant advised that it wished to continue to pursue access to the remainder of the matter in issue. 14. Also by letter dated 2 December 2003, AC Moss advised the applicant of her preliminary view that a segment of matter contained in one folio in issue qualified for exemption under s.46(1). The applicant advised that it did not continue to pursue access to that segment of matter, and it therefore is no longer in issue in this review. By letter dated 14 January 2004, the applicant lodged submissions in support of its case for disclosure of the matter remaining in issue. 15. The applicant's submissions were sent to the HRC and to the third party. They provided submissions in response dated 4 March 2004 and 11 March 2004, respectively. Those submissions were, in turn, sent to the applicant, which lodged a final submission by email dated 12 April 2004. By letters dated 13 April 2004, AC Moss forwarded the applicant's final submission to the HRC and to the third party, for their information. The third party's representative advised by telephone that, while the third party did not wish to lodge any further written submissions in support of his case, he did wish it to be noted that he was of the view that none of the applicant's final submission dated 12 April 2004 was relevant to the issues for determination in this review. 16. In making my decision in this case, I have taken into account the following material: •the contents of the matter in issue;•the applicant's FOI access application dated 23 January 2003, and application for external review dated 7 April 2003;•the decision of Mr Kerslake of the HRC dated 7 March 2003;•letters from the applicant dated 5 January 2004, 14 January 2004, 16 February 2004 and 12 April 2004;•letters from the third party dated 26 May 2003, 19 August 2003, 25 August 2003, 9 January 2004 and 11 March 2004;•file note of a meeting held on 7 July 2003 with representatives of the HRC, and letters from the HRC dated 2 September 2003, 4 December 2003 and 4 March 2004. Matter in issue 17. The matter in issue in this review comprises: (i) parts of a letter dated 8 March 2002 from the third party to the HRC; (ii) parts of a file note dated 14 May 2002 recording a telephone conversation between the third party and a member of staff of the HRC. The HRC's complaints-handling scheme – relevant legislative provisions 18. The HRC is an independent authority established by the HRC Act. One of the principle objectives of the HRC (as set out in s.4 of the HRC Act) is to receive and resolve health service complaints. Complaints can be made to the HRC about public and private health services, and about registered health service providers (e.g., dentists, medical practitioners, nurses, et cetera) and unregistered health service providers (e.g., acupuncturists, hypnotists, naturopaths, et cetera). The HRC's complaints-handling powers differ according to whether or not the subject of the complaint is a registered health service provider. As will be seen in the discussion below, where the complaint involves a registered provider, the HRC is required to involve the provider's registration board at various stages of the complaint-handling process. In addition, the HRC has no formal investigatory powers regarding complaints made against registered health service providers. The complaint must be referred to the relevant registration board for investigation (with the agreement of the board) under the Health Practitioners (Professional Standards) Act 1999 Qld (hereinafter referred to as the Health Practitioners Act). 19.In summary, the HRC Act establishes a four-stage complaint-handling process (see Parts 5-7 of the HRC Act): (i) Intake 20. The HRC's complaint intake staff obtain relevant preliminary information from complainants and, where appropriate, provide informal advice to complainants to enable them to address their concerns. Where appropriate, the HRC encourages the complainant to make contact with the relevant health service provider with a view to facilitating direct resolution of the complaint. In his 2002-03 Annual Report, the Commissioner stated at page 6: "The Commission finds that many complaints, especially those of a less serious nature, can be dealt with reasonably quickly by encouraging direct communications between the parties concerned". (ii) Assessment 21. The assessment phase is dealt with in Part 5, Division 2, of the HRC Act. Complaints that are not able to be resolved informally or that are deemed to be unsuited to such an approach are assessed by the HRC to determine what further action, if any, is necessary. Within 14 days of starting the assessment, the HRC is required to give notice of the assessment to the complainant, to the provider complained about, and, if the provider is a registered provider, to the provider's registration board (see s.69 of the HRC Act). During the assessment stage, the HRC seeks to gather sufficient information to enable it to make an informed decision about whether or not to take further action in respect of the complaint. This may entail obtaining access to patient records, seeking submissions (under s.70(1)(a) of the HRC Act) from the health service provider complained about (the HRC has no power to compel the provider to provide a response to the complaint), or perhaps obtaining informal advice on clinical issues from independent experts. If the complaint is against a registered health service provider, the HRC must invite submissions from the provider's health registration board. 22. At page 4 of his 2002-03 Annual Report, the Commissioner said: Firstly, although the Commission is required to invite providers to respond to complaint made against them, it has no power to compel them to do so. In many cases, this means the Commission's capacity to deal with complaints quickly and efficiently will ultimately depend upon the willingness of health service providers to respond to complaints in a thorough and timely way. No-one likes being criticised and I can therefore understand why some providers might react to complaints in a negative or defensive way. I also appreciate that we live in an increasingly litigious age. This is recognised in the Health Rights Commission Act, which provides that the Commission can refer complaints to a process of conciliation, a setting in which anything said or admitted by either party is protected and cannot be used in a court of law. While this process may be appropriate in cases where compensation is a potential outcome, the vast majority of complaints made to the Commission simply do not fall into this category. Nevertheless, in the Commission's experience, providers (or, in many cases, their advisers) often decline to provide even the barest response to a complaint unless the matter can be dealt with in conciliation. ... 23. At the end of the assessment phase, the Commissioner either decides to accept the complaint for action, or decides not to take action on the complaint under s.79 of the HRC Act. The process differs depending upon whether or not the provider complained about is registered. Section 71 provides: 71 Assessment of complaint (1) On assessing a health service complaint, the commissioner is to– (a) make a decision to accept the complaint for action; or (b) make a decision not to take action on the complaint under section 79. (2) Before deciding to accept a health service complaint for action, the commissioner is to be satisfied– (a) that all reasonable steps have been taken by the complainant to resolve the complaint with the provider; or (b) that a reasonable opportunity has been given to the complainant to resolve the complaint with the provider; or (c) that it is not practicable for steps mentioned in paragraph (a) to be taken or for the opportunity mentioned in paragraph (b) to be given. (3) Also, before making a decision under subsection (1) about a complaint about a registered health provider, the commissioner must consult with the provider's registration board about the complaint. (4) The consultation between the commissioner and the registration board may be in the form of a standing arrangement or more specific consultation. (5) The registered provider's registration board must give the commissioner the board's comments about the complaint within– (a) 14 days of the commissioner consulting with the board; or (b) a longer period agreed to by the commissioner. (6) The commissioner– (a) must not take any action about the complaint until the first of the following happens– (i) the commissioner receives the registration board's comments about the complaint; (ii) the registration board advises the commissioner that the board does not intend to give the commissioner comments about the complaint; (iii) the period mentioned in subsection (5) for the registration board to provide comments has ended; and (b) must have regard to any comments made by the registration board in making a decision about the action to be taken in relation to the complaint. (7) The commissioner must not decide not to take action on the complaint under section 79 if the registered provider's registration board has advised the commissioner it considers the complaint warrants investigation or other action by the board. 24. Section 72 provides: 72 Notice of assessment decision (1) Subject to section 133, the commissioner is to give notice of the commissioner's decision on assessing a health service complaint under section 71 to the complainant and the provider. (2) If the decision is to take action on the complaint, the notice is to state the action the commissioner has decided to take under section 73 or 74. (3) If the decision is not to take action on the complaint, the notice given to the complainant is to state the grounds of the decision. 25. Section 73 relates to complaints about non-registered providers. It states that the HRC can conciliate the complaint under Part 6, or investigate the complaint under Part 7, or refer the complaint to another entity (e.g., the police, or a relevant Commonwealth agency). Conciliation is to be preferred if the HRC considers the complaint can be resolved in that way (see s.73(3)). 26. Section 74 relates to complaints about registered providers. Sections 74(1) – (5) provide: 74 Action on acceptance of complaint about registered provider (1) This section applies if the commissioner decides under section 71 to accept a health service complaint about a registered provider for action. (2) The commissioner– (a) if the commissioner and the registered provider's registration board agree that the complaint requires investigation or other action by the board--must immediately refer the complaint to the board; or (b) if either the commissioner or the registered provider's registration board, but not both, consider that the complaint should be referred to the board--must immediately refer the complaint to the Minister; or (c) if neither paragraph (a) nor (b) applies– (i) may refer the complaint to another entity (a "relevant entity"); or (ii) may conciliate the complaint under part 6. (3) If the commissioner takes action under subsection (2)(a) or (b) the commissioner may decide to also take action under subsection (2)(c)(i) or (ii) or both. (4) Subject to subsection (5) and section 75, the commissioner is to try to resolve the complaint by conciliation if the commissioner considers it can be resolved in that way. (5) In deciding whether to conciliate a complaint, the commissioner must take into account the public interest. 27. Accordingly, as noted above, the HRC does not have power to investigate a complaint under Part 7 if the complaint relates to a registered health service provider. (However, if appropriate, the HRC can still conciliate the complaint under s.74(2)(c) of the HRC Act (it must advise the relevant registration board of its intention to do so), or refer it to another relevant entity for action.) Rather, the complaint is to be referred to the registered provider's registration board for investigation by the board, if the board agrees (see s.62 of the Health Practitioners Act). The functions of registration boards under the Health Practitioners Act are set out in s.11 of that Act. As far as the investigation of complaints is concerned, registration boards primarily address issues of competency or discipline. Unlike the HRC, the boards do not have power to pursue remedies for individual complainants. 28. While an investigation into a complaint against a registered provider is being conducted by a registration board, the board must give the Commissioner reasonable reports as asked for by him/her (see s.116 of the Health Practitioners Act). When conducting an investigation, the board has power to compel persons to provide information to the investigator, or to attend before the committee and provide information or produce evidence (see s.78 of the Health Practitioners Act). As soon as practicable after the board prepares its report into the investigation, it must give the Commissioner a copy, which must include the board's findings and the action proposed to be taken. The Commissioner may then give the board comments about the report within 14 days or a longer agreed period. The board is to have regard to the Commissioner's comments in its consideration of the matter. (iii) Conciliation 29. The conciliation process is dealt with in Part 6 of the HRC Act. It is an entirely voluntary process, designed to assist parties to resolve the complaint through discussion and negotiation. At any stage of the negotiations, either party can decide not to proceed any further in conciliation. 30. The conciliation process is privileged. Section 91 of the HRC Act provides that anything said or admitted during conciliation is not admissible in a proceeding before a court, tribunal or disciplinary body, and cannot be used by the Commissioner as a ground for investigation or inquiry. 31. At the conclusion of the conciliation process, the conciliator is to give to the Commissioner a written report of the results of the conciliation. If no agreement has been reached, the conciliator may make recommendations about the action the Commissioner should take in respect of the complaint. 32. Under s.88 of the HRC Act, upon receiving a report under s.87 that agreement was not reached during the conciliation, the Commissioner may: •take action on the complaint by:- for a complaint about a registered provider, referring it to the registered provider's registration board or another entity; - for a complaint about a provider other than a registered provider, by investigating it under Part 7 or referring it to another entity •decide under s.79 not to take action on the complaint; or•further conciliate the complaint. 33. Under s.90 of the HRC Act, the Commissioner may end the conciliation if he/she considers that the relevant complaint cannot be resolved in that way. He/she may then take action on the complaint as described above, i.e., by referring it to the relevant registration board (if the subject of the complaint is a registered provider), or by investigating it under Part 7 if the subject of the complaint is a non-registered provider. (iv) Investigation 34. The Commissioner's investigative powers are dealt with in Part 7, Division 1, of the HRC Act. They can be used only to investigate complaints against non-registered health service providers. 35. The investigation process is a formal process whereby the HRC has power to compel the production of information and records, to interview relevant parties, and to enter and search premises. During the course of the investigation, the Commissioner may refer the complaint (or part thereof) to a relevant authority that has a function to take action on the matter - see s.101 of the HRC Act. 36. At the end of the investigation process, the Commissioner may issue a report outlining the information obtained, sources of the information, the Commissioner's opinion, and any recommendations for action that the Commissioner considers appropriate (see s.125 of the HRC Act). Section 126 identifies the parties to whom such a report can be given. They include any person or entity that has a function or power to take action on matters raised in the report. 37. As noted at paragraph 28 above, in respect of complaints made against registered health service providers, while the HRC does not have power to investigate those complaints, it does have power to monitor the investigations as conducted by the relevant registration boards. Handling of the applicant's complaint 38. As noted at paragraph 3 above, the HRC assessed DMO's complaint under Part 5, Division 2 of the HRC Act. Under s.69(1) of the HRC Act, it notified both the third party, and the third party's registration board (the Medical Board of Queensland), of the complaint, and invited submissions in response to the complaint. The third party provided submissions in response, part of which comprise the matter in issue in this review (see paragraph 17 above). After consideration of the third party's submissions, and an informal expert opinion obtained from an independent surgeon, the HRC notified DMO that it was of the view that the health service provided by the third party was reasonable, and that the HRC was therefore closing DMO's complaint in accordance with s.79(1)(c) of the HRC, i.e., on the basis that the complaint had been adequately dealt with by the HRC. Application of s.46(1) of the FOI Act 39. 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. 40. The issue of whether or not a person's response to a complaint made about them to a regulatory authority can be regarded as having been provided in confidence as against the complainant has been considered in a number of previous decisions of the Information Commissioner's office: see particularly Re Villanueva and Queensland Nursing Council; Others (Third Parties) (2000) 5 QAR 363, Re Chand and Medical Board of Queensland; Dr Adam Cannon (Third Party) (2001) 6 QAR 159, and Re Orth and Medical Board of Queensland; Dr Robert J Cooke (Third Party) (2003) 6 QAR 209. 41. In each of those cases, it was decided that, while it may have been reasonable for the person supplying the response to the complaint to expect that the response would be kept confidential from the world at large, an expectation that the response would be treated in confidence as against the complainant was not reasonable, having regard to the functions of the relevant regulatory authority, and the uses it might properly wish to make of the information contained in the response in discharging its responsibility to deal fairly and properly with the complaint. 42. Both the HRC and the third party have sought, in this case, to distinguish those previous decisions. I will discuss their submissions in that regard below, in the context of considering the application of s.46(1)(a) and s.46(1)(b) to the particular matter in issue in this review. Submissions of the participants (a) The HRC's submissions 43. In its various submissions, the HRC argued as follows in support of its case that the matter in issue was communicated in confidence as against the applicant: •the third party's response to the applicant's complaint was marked "In Confidence";•the general understanding of confidence under which the response was provided and received was recognised by the HRC to be subject to the obligation on the HRC to accord the applicant procedural fairness in dealing with her complaint; •however, in according the applicant procedural fairness, the HRC was obliged only to provide the applicant with a summary of the substance of the third party's response, and not with a copy of the response itself;•procedural fairness does not require disclosure to a complainant of the source and nature of all information that comes to the attention of an administrative decision-maker;•the amount and nature of the information to be disclosed to a complainant will depend upon the extent to which the HRC actually relied upon the information supplied in the response - if the HRC looked elsewhere for information to form the basis of its decision, it may be necessary to disclose only a very small part (perhaps not any) of the response;•s.72 of the HRC Act provides only that a complainant must be advised of the reasons for the Commissioner's decision. 44. As regards the third and fourth requirements for exemption under s.46(1)(b) - that disclosure could reasonably be expected to prejudice the future supply of similar information, and that disclosure would, on balance, be contrary to the public interest - the HRC argued as follows: •unlike the Medical Board of Queensland (the MBQ), the HRC has no power to conduct a formal investigation of a complaint against a registered health service provider. Moreover, at the assessment stage of its complaint-handling process, the HRC cannot compel the provider (registered or unregistered) to respond to a complaint made against him or her. It can do no more than invite a response (see s.70 of the HRC Act);•in many cases, it would be impossible for the HRC to conduct even the most rudimentary of inquiries into a complaint without the co-operation of providers in supplying essential information;•if the HRC's capacity to receive information in confidence were seriously eroded, some health service providers would refuse to co-operate with the HRC's inquiries at all, or would provide a response only on the condition that the complaint be referred to conciliation, where the information provided is protected from disclosure under the FOI Act by s.91 and s.92 of the HRC Act. Because of the HRC's limited number of trained conciliators, this would lead to significant delays in resolving complaints, which would be contrary to the public interest;•if registered health service providers refuse to provide any information at all, many complainants would end up with no-where to go. On the one hand, their complaints may not be serious enough to attract the attention of the relevant registration board. On the other hand, even if the relevant board agreed to deal with the case, it could only address competency or disciplinary issues. Unlike the HRC, boards have no power to pursue remedies for individual complainants. Either way, the only avenue available to complainants may be recourse to litigation, with all the costs and delays that this entails. This would appear to defeat one of the key objectives of the HRC Act. In summary, it would be contrary to the public interest for the Commission to place at risk the cooperation it receives from health providers ... by release of documents that have been provided in confidence. The end result would be that many complainants would be denied a free and impartial means of having their health concerns looked into and resolved. Many would be denied a remedy to which they would otherwise be entitled. ... More importantly, most of the cases the Commission deals with are not about compensation. They are about seeking explanations or acknowledgements, outcomes that would also be jeopardised if the Commission's sources of information were to dry up. [HRC's submission dated 4 March 2004] (b) The third party's submissions 45. In support of his case for exemption of the matter in issue under s.46(1)(a) and/or s.46(1)(b) of the FOI Act, the third party argued as follows: •the third party's letter was marked "In confidence" and a response to a complaint must inherently be of a confidential nature;•the fact that the HRC extracted some of the information provided by the third party in his response and gave it to the complainant only enhances the quality of confidence attaching to the remainder of the information, because it indicates that it was done by the HRC in an effort to protect the confidentiality of that remaining information;•the previous decisions of the Information Commissioner's office (cited at paragraph 40 above) can be distinguished because the HRC is not a regulatory authority. It is a body with only limited powers to deal with complaints against registered health service providers. Section 72 of the HRC Act provides only that a complainant be informed of the grounds for the HRC's decision in response to a complaint. If Parliament had intended that the service provider's response be given to the complainant, it would have specifically included it within s.72. All that a complainant is reasonably entitled to expect is that they will be given, where necessary, a summary of the relevant parts of what the respondent said. 46. As regards the third and fourth requirements for exemption under s.46(1)(b) - that disclosure could reasonably be expected to prejudice the future supply of similar information, and that disclosure would, on balance, be contrary to the public interest - the third party argued relevantly as follows: •the third party himself would not provide information to the HRC in future cases if his expectation of confidence were not upheld in this matter;•the experience of UMP is that the level of concern by medical practitioners about many complaints merely being fishing expeditions prior to the institution of civil proceedings is such that a significant number of practitioners will elect not to provide any information to the HRC except in conciliation, where there is clear protection for the information. This will result in delays being experienced in the resolution of complaints;•if the matter in issue were to be disclosed to the applicant, UMP would advise its members not to communicate with the HRC during any assessment process; and •the balance of the public interest lies in protecting the confidentiality of voluntary responses to complaints. It is not in the public interest to allow the complaints-handling processes of the HRC to be used by complainants as a form of pre-litigation disclosure. (c) The applicant's submissions 47. The applicant's submissions in support of disclosure of the matter in issue can be summarised as follows: • the HRC's policy of providing the medical practitioner with a copy of the complaint made against them, but refusing to supply the complainant with a copy of the medical practitioner's response, is fundamentally unfair; • the third party's refusal to co-operate with future HRC complaint assessments may simply force future complainants to proceed directly to litigation, which would be in conflict with the interests of the HRC, the third party, and UMP; • the HRC failed to give to independent experts, with whom it consulted about the third party's treatment of DMO's son, a copy of the third party's response to DMO's complaint, resulting in the experts being unable to give an accurate assessment of the third party's treatment. The proper functioning of the HRC is, in fact, impaired by withholding the third party's response; • the public interest weighs in favour of disclosure of the third party's response so that it can be assessed by experts in the field – peer review is an integral and essential component of quality control in the practice of medicine; and • withholding the third party's response from DMO will only arouse mistrust and resentment from parents, who have come to believe that the HRC serves only to diffuse public complaints regarding health care. If the HRC is genuinely concerned with the health rights of patients, and if the third party and UMP are genuinely concerned about the possibility of civil action, it would be counter-productive for all three parties to force the complainant into a situation where the only avenue of resolution is litigation. Application of s.46(1)(a) of the FOI Act to the matter in issue 48. In Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279, Commissioner Albietz explained in some detail (at pp.288-335) the correct approach to the interpretation and application of 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 there is an identifiable plaintiff, the third party, who would have standing to bring such an action for breach of confidence. 49. There are five requirements, all of which must be established, to obtain 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). Requirement (a) 50. I am satisfied that the information claimed to be the subject of an obligation of confidence can be specifically identified. Requirement (b) 51. I am satisfied that the matter in issue has not been disclosed to the applicant, and that it has the necessary degree of secrecy/inaccessibility to satisfy requirement (b) above. Requirement (c) 52. In its letter dated 20 February 2002 to the third party, in which it advised the third party of the applicant's complaint and requested the third party's response, the HRC said: As our files are accessible under the Freedom of Information Act 1992, any comment you make may be accessible under that Act, subject to possible exemptions such as the confidentiality of information provided. You may wish to advise us when any comment you make is "Given in Confidence" for the purpose of that legislation. If a decision is made to refer the complaint to another body, for example, a registration board, the Commission may decide to provide it with a copy of any submission you make. 53. I note that, in response to the HRC's invitation, the third party marked his letter dated 8 March 2002 "In Confidence". 54. However, a supplier of confidential information cannot unilaterally and conclusively impose an obligation of confidence: see Re "B" at pp.311-316, paragraphs 79-84, and pp.318-319, paragraphs 90-91. If a stipulation for confidence was unreasonable at the time of making it, or if it was reasonable at the beginning but afterwards, in the course of subsequent happenings, it becomes unreasonable to enforce it, then the courts will not do so: Dunford & Elliott Ltd v Johnson & Firth Brown Ltd [1978] 1 FSR 143 at p.148 per Lord Denning MR. 55. The touchstone in assessing whether requirement (c) to found an action in equity for breach of confidence has been satisfied, lies in determining what conscionable conduct requires of an agency in its treatment of information claimed to have been communicated in confidence. That is to be determined by an evaluation of all the relevant circumstances surrounding the communication of that information to the agency. The relevant circumstances will include (but are not limited to) the nature of the relationship between the parties, the nature and sensitivity of the information, and circumstances relating to its communication of the kind referred to by a Full Court of the Federal Court of Australia in Smith Kline and French Laboratories (Aust) Limited & Ors v Secretary, Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291 at pp.302-3: see Re "B" at pp.314-316, paragraph 82. 56. Re Orth clearly sets out the relevant circumstances that need to be evaluated in each case (see paragraph 34): In evaluating the relevant circumstances, it should be borne in mind that the courts have recognised that special considerations may apply in determining whether a government agency owes an obligation of confidence in respect of information communicated to it by a person outside government: Attorney-General (UK) v Heinemann Publishers (1987) 75 ALR 353 at p.454; for example: •in Smith Kline & French, Gummow J refused to hold that the first respondent was bound by an equitable obligation not to use confidential information in a particular way because to do so would or might inhibit the first respondent's statutory functions. •account must be taken of the uses to which the government agency must reasonably be expected to put information, purportedly communicated to it in confidence, in order to discharge its functions. The giving of information to a regulatory or law enforcement authority may mean an investigation must be started in which particulars of the information must be put to relevant witnesses, and the information may ultimately have to be exposed in a public report or perhaps in court or tribunal proceedings: Re "B" at p.319, paragraph 93. •a government official, who is required to comply with common law principles of procedural fairness when making decisions, may be confronted with an apparently conflicting duty to respect a confidence, in circumstances where the official proposes to make a decision adverse to a person's rights or interests on the basis of confidential information obtained from a third party. Ordinarily, conscionable conduct on the part of a government agency would require compliance with a common law duty to accord procedural fairness, and equity would not enforce an obligation of confidence to the extent that it conflicted with a legal duty of that kind: see, for example, Re Hamilton and Queensland Police Service [1994] QICmr 21; (1994) 2 QAR 182 at p.198, paragraph 52; Re Coventry and Cairns City Council [1996] QICmr 3; (1996) 3 QAR 191 at pp.199-200, paragraphs 27-29, and pp.202-203, paragraphs 36-37; Re Kupr and Department of Primary Industries [1999] QICmr 6; (1999) 5 QAR 140 at pp.156-157, paragraphs 42-45. •public interest considerations (relating to the public's legitimate interest in obtaining information about the affairs of government) may affect the question of whether enforceable obligations of confidence should be imposed on government agencies in respect of information purportedly supplied in confidence by parties outside government: see Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; Commonwealth of Australia v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662; Re Cardwell Properties Pty Ltd & Williams and Department of the Premier, Economic and Trade Development (1995) [1995] QICmr 19; 2 QAR 671 at pp.693-698, paragraphs 51-60. 57. Applying those principles to the present circumstances, I note that the third party knew that he was responding to a formal complaint made against him by the applicant (a copy of the complaint had been provided to him), and that the HRC was assessing that complaint with a view to deciding whether or not to take any action in respect of it. In those circumstances, I do not consider that it was reasonable for the third party to expect that his response would be kept confidential from the applicant. Both the third party and the HRC ought reasonably to have expected that, in properly dealing with the complaint, the HRC might want or need to put the third party's response (or aspects of it) to the applicant, as part of the process of testing their respective accounts of relevant events, or indeed as part of a proper explanation to the applicant of the outcome of her complaint (especially if the third party's response was relied upon by the HRC as a basis for taking no further action in respect of her complaint). 58. Both the HRC and the third party accepted in the submissions that they lodged during the course of this review, that any understanding of confidence they held about the third party's response to the complaint must necessarily have been subject to implicit conditions/exceptions permitting disclosure of relevant information to persons directly involved in the investigation (see Re McCann and Queensland Police Service [1997] QICmr 10; (1997) 4 QAR 30 at pp. 53-54). That is, they accepted that the HRC was obliged to accord the complainant procedural fairness in dealing with her complaint, and that, in fulfilling that obligation, the HRC might be required to disclose to the complainant some of the information contained in the third party's response. However, they both have argued that procedural fairness did not require the complainant to be given a full copy of the third party's response. All that procedural fairness required was that the complainant be informed of the HRC's decision in response to her complaint and the reasons for that decision, and, to the extent that the third party's response was taken into account in making the decision, a summary of the substance of the response. Both the third party and the HRC argue that that has occurred, and that any information contained in the response that was not required to be communicated to the complainant in those circumstances should be regarded as having been communicated in confidence as against the complainant. 59. I accept that what is required to accord procedural fairness in any given case may vary according to the circumstances of the particular case (see the discussion about procedural fairness at paragraphs 33-36 of Re Chand). However, I consider that there are problems with the approach advocated by the HRC and the third party. In effect, they have argued that it is up to the HRC to choose which parts of a response to a complaint will be disclosed to a complainant on the basis that, if the HRC does not consider particular information relevant or responsive to the complaint, there is no need for it to be put to the complainant. A similar argument by Dr Cannon was dealt with in Re Chand (see paragraphs 38-44). In Re Chand it was accepted that while different considerations might apply to genuinely "peripheral" information contained in Dr Cannon's report which had not already been disclosed to the complainant, and which was not responsive or relevant to the complaint that had been made against him, equity would not ordinarily impose an obligation of confidence restraining the MBQ from disclosing to a complainant any information contained in a response to a complaint, which is information that is relevant to the substance and details of the relevant complaint. (As explained in Re Chand "ordinarily" was qualified because there could be exceptions in certain cases, where, for example, disclosure would not be in the best interests of the complainant's continued health-care treatment, or where disclosure of medical information about a person other than the complainant would infringe the patient's interests in privacy and confidentiality. I am satisfied that no such exceptional circumstances exist in this case.) 60. Procedural fairness requires that a complainant be satisfied that the assessment of their complaint has been conducted fairly – for example, that the assessing body took into account all relevant information; that it did not erroneously rely upon, or make findings based upon, incorrect or irrelevant information; and that the findings it made were reasonable in all the circumstances, et cetera. It is difficult to see how a complainant could properly scrutinise an assessing body's decision in that regard without being given access to all relevant information contained in a response to the complaint. In this case, the complainant is expected to be satisfied that the summary of the substance of the third party's response that the HRC gave to her, in its letter dated 13 August 2002, was an accurate and fair summary – that the HRC did not, for example, mistakenly overlook some information contained in the response that the complainant might consider to be of significance; that it did not mistakenly misstate some information provided by the applicant; or that it did not place undue emphasis on parts of the response while dismissing other parts that the complainant, at least, might consider to be of relevance or importance. While, in the particular circumstances of this case, the summary of the third party's response that the HRC provided to the applicant may have been an entirely accurate and fair summary, it is not difficult to envisage circumstances where that may not be the case, or may not be perceived by the complainant to be the case. Hence, the problems in the HRC simply preparing what it considers to be a fair and accurate summary of the substance of a response to a complaint, and providing only that information to the complainant. 61. The matter remaining in issue in this case is information that was not disclosed to the complainant at the conclusion of the HRC's assessment of her complaint. I am satisfied, from my examination of it, that all of that information is relevant and responsive (including relevant background information) to the particular issues of complaint that DMO raised in her letter dated 11 September 2001. There is nothing in the matter in issue that I regard as being genuinely peripheral or irrelevant information, such that procedural fairness would not require its disclosure to the applicant. Accordingly, I do not consider that equity would impose on the HRC an obligation of confidence, as against the applicant, in respect of any of the matter in issue. 62. As to the third party's contention that the decisions in Re Villanueva, Re Chand and Re Orth ought to be distinguished because, unlike the Nursing Council and the MBQ, the HRC is not a regulatory authority, I can see no valid basis for that contention. The HRC is a statutory body established for the primary purpose of receiving, assessing, conciliating or investigating health service complaints (see s.10 of the HRC Act). In performing those functions, it is clear that the HRC is bound to observe the requirements of procedural fairness. Section 30 of the HRC Act specifically provides that, in performing functions and exercising powers under the HRC Act, the Commissioner is to have regard to the rules of natural justice (more commonly referred to today as procedural fairness). Finding 63. For the reasons discussed above, I find that requirement (c) to found an action in equity for breach of confidence is not satisfied with respect to the matter in issue, and hence that the matter in issue cannot qualify for exemption under s.46(1)(a) of the FOI Act. (It is unnecessary, in light of that finding, to consider requirements (d) and (e) from paragraph 49 above.) Application of s.46(1)(b) to the matter in issue 64. 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 considerations favouring disclosure. (See Re "B" at pp.337-341; paragraphs 144-161.) Requirements (a) and (b) 65. 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 (considered at paragraphs 51 to 62 above). I find that the first requirement for exemption under s.46(1)(b) is satisfied with respect to the matter in issue. 66. As to the second requirement for exemption under s.46(1)(b), Commissioner Albietz explained the meaning of the phrase "communicated in confidence", at paragraph 152 of Re "B", as follows: 152 I consider that the phrase "communicated in confidence" is used in this context to convey a requirement that there be mutual expectations that the information is to be treated in confidence. One is looking then for evidence of any express consensus between the confider and confidant as to preserving the confidentiality of the information imparted; or alternatively for evidence to be found in an analysis of all the relevant circumstances that would justify a finding that there was a common implicit understanding as to preserving the confidentiality of the information imparted. 67. 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 at paragraph 34). 68. In marking his response to the applicant's complaint "In Confidence", the third party conveyed his desire for confidential treatment of his response. However, both the third party and the HRC have acknowledged that any implicit mutual understanding of confidence that existed between them regarding the response was conditional, and that the HRC was impliedly authorised to disclose to the complainant any information contained in the response that was relevant to the complaint. For the reasons explained at paragraphs 60 to 61 above, I consider that all of the matter remaining in issue is relevant to the complaint made against the third party, and therefore that, as least against the applicant, none of that information was "communicated in confidence", such as to qualify for exemption under s.46(1)(b) of the FOI Act. 69. While it is not strictly necessary for me to do so, I will make some comments about requirements (c) and (d) for exemption under s.46(1)(b), in light of the fact that both the HRC and the third party have made submissions relevant to those requirements. Requirement (c) – prejudice to future supply 70. The third requirement for exemption under s.46(1)(b) largely turns on the test imported by the phrase "could reasonably be expected to", which requires a reasonably based expectation, i.e., an expectation for which real and substantial grounds exist, that disclosure of the particular matter in issue could have the specified prejudicial consequences. A mere possibility, speculation or conjecture is not enough. In this context "expect" means to regard as likely to happen. (See Re "B" at pp.339-341, paragraphs 154-160, and the Federal Court decisions referred to there.) 71. The third party submitted that, if the matter in issue in this review were to be disclosed to the applicant, he would not, in the future, provide any information to assist the HRC in its assessment of a complaint. However, this requirement for exemption under s.46(1)(b) does not apply by reference to whether the particular confider, whose confidential information is being considered for disclosure, could reasonably be expected to refuse to supply such information in the future, but by reference to whether disclosure could reasonably be expected to prejudice the future supply of such information from a substantial number of sources available, or likely to be available, to an agency: see Re "B" at p.341, paragraph 161. 72. I accept that the HRC has no power, at any stage of its complaint-handling process, to compel registered health service providers (such as the third party) to respond to complaints made against them (it can compel the provision of information from non-registered providers during the investigation stage). Commissioner Albietz considered the same situation in Re Villanueva regarding the Nursing Council. In that case, the Queensland Nurses Union, the Australian Medical Association, and the National Association for Specialist Obstetricians and Gynaecologists submitted that, in the event that the matter in issue in that review were to be disclosed to the complainant, they would all, in the future, advise their members not to provide any information to the Nursing Council to assist with an investigation. Similarly, in this case, UMP has made the same submission in respect of its clients. 73. I acknowledge the difficult position in which the HRC finds itself. It is charged with the important function of assessing, and resolving where possible, complaints against registered health service providers for the benefit and protection of the Queensland public. Yet it has been given no coercive powers to assist it in the discharge of that function. If a registered health service provider against whom a complaint has been made to the HRC simply refuses to provide information to the HRC to assist it to assess the complaint, the HRC must try to assess the complaint as best it can, perhaps, for example, by seeking expert advice from an independent third party, or simply by assessing the information provided by a complainant and forming its own view about the merits of the complaint (in its submission dated 2 September 2003, the HRC stated that it in fact resolved quite a number of complaints using those methods). However, I accept that a considerable number of complaints may be unable to be adequately assessed by the HRC without the provision of relevant information by the health service provider under investigation. While it is open to the HRC to refer such unassessed complaints to relevant registration boards (which have coercive powers) such as the MBQ for investigation, there is no guarantee that the boards will accept the complaints as serious enough to warrant board intervention (see the HRC's submissions at paragraph 44 above). 74. From the submissions and evidence provided by the HRC and the third party, it appears that there is already a degree of reluctance amongst medical practitioners to provide any information to the HRC during the assessment stage, even without the "threat" of disclosure under the FOI Act. That fact could be seen as casting doubt on the proposition that disclosure under the FOI Act, of itself, could reasonably be expected to prejudice the future supply of information to the HRC. Moreover, while acknowledging the apparent inadequacy of the powers that have been given to the HRC in conducting assessments of complaints, I would note that I find the position taken by the HRC and the third party in respect of this issue in this particular case to be somewhat anomalous. On the one hand, they both apparently accept that it is reasonable for a medical practitioner to expect that the substance or thrust of his response to a complaint, upon which the HRC relies in making its decision, may need to be given to the complainant in the interests of procedural fairness. Yet they both argue that disclosure to the complainant, under the FOI Act, of that same information, could reasonably be expected to cause a substantial number of medical practitioners to refuse to supply the HRC with any information at all, relevant or otherwise. I have difficulty in seeing why disclosure of relevant information to a complainant under the FOI Act, should be viewed any differently from the HRC disclosing that same information to the complainant when conveying the HRC's decision in response to the complaint. Based upon the third party's submissions, disclosure of such information to the complainant should always be within the medical practitioner's contemplation when responding to a complaint. If the matter in issue were to be disclosed to the complainant and if the third party's submissions were followed through to their logical conclusion, what would be the effect? In that scenario, the only information that medical practitioners could reasonably be expected to refuse to supply in the future would be irrelevant or non-responsive information that they did not contemplate the HRC would rely upon in assessing the complaint. It is difficult to accept that the efficacy of the HRC's complaints-handling process would suffer any detriment through the refusal to supply that type of information in the future. 75. However, returning to the general proposition asserted by the HRC and the third party, namely, that disclosure to complainants under the FOI Act of responses provided by medical practitioners could reasonably be expected to prejudice the future supply of information from a substantial number of medical practitioners, I note the comments made by Commissioner Albietz at paragraph 126 of Re Villanueva: I consider it reasonable to assume that nurses under investigation by the QNC would be willing to cooperate with the investigation if they consider that they have nothing to fear and they wish to take the opportunity to exculpate themselves. The supply of information in such a case would be motivated by the wish to explain matters to the investigator and avoid disciplinary action. Equally, I think it is reasonable to assume that in cases where nurses fear that disciplinary action may result from an investigation, they will be inhibited from cooperating with the investigation in any event, quite apart from the added 'threat' of the possibility of disclosure under the FOI Act of the information they provide. However, in a situation where nurses think that they can demonstrate to an investigator that they did nothing wrong such that there is no warrant for disciplinary action being taken against them, but they also fear exposure to a civil suit by the complainant if the information they provide to the investigator can be accessed under the FOI Act by the complainant, I accept that, in those circumstances, nurses may choose, because of the potential for disclosure under the FOI Act of information adverse to their interests, not to provide the QNC with any information at all during the course of its investigation, thereby resulting in prejudice to the supply of information to the QNC. [my underlining] 76. In this case, it is clear that, like the midwife in Re Villanueva, the third party believed that he had done nothing wrong in the medical treatment he had provided to the complainant's son. He chose to co-operate with the HRC during its assessment of the complaint so as to be in a position to provide his version of events, and to try to avoid any further action being taken in respect of the complaint made against him. However, unlike the midwife in Re Villanueva, I accept that there was a valid basis for the third party to fear exposure to a civil suit by the complainant. In their letter of complaint dated 11 September 2001 to the HRC, DMO and her husband stated: ... We gave uninformed consent regarding something that we should have been fully advised about. We are both angry and hurt over this, and had we been informed, we would not have consented to the unnecessary and irreversible procedure of circumcision on our son. We would like to take legal action against him [the third party]. [my underlining] 77. While it is not necessary for me to make a conclusive finding on this issue, I would simply note that I consider that it is not unreasonable to expect that a substantial number of medical practitioners in the same situation as the third party (that is, having received a direct threat of legal action being brought against them) may choose, regardless of their belief that they have done nothing wrong, not to provide any information to the HRC to assist it with its assessment of a complaint made against them, for fear of any adverse information being used against them in the course of any legal proceedings. Requirement (d) – public interest balancing test 78. I have discussed above, in some detail, the principles of procedural fairness, and the fact that, in assessing a complaint and deciding whether or not to accept the complaint for action, the HRC has a duty to accord the complainant, and the subject of the complaint, procedural fairness, by demonstrating that it has discharged its duty to conduct an adequate and fair assessment of the complaint made to it. I have explained why I am of the view that, in respect of the applicant in this case, the HRC has not discharged that duty, and that procedural fairness requires that the applicant be given access to all information that is relevant and responsive (including relevant background information) to the particular issues of complaint which DMO raised in her letter dated 11 September 2001. In this case, I am satisfied that the matter in issue is all information of that type, and that there is therefore a strong public interest weighing in favour of disclosure of that information to the applicant. 79. I consider that there is a public interest in the accountability of the HRC for the discharge of its functions, that would be assisted by the disclosure of the matter in issue. DMO, as the complainant against the third party regarding the third party's treatment of her son, has a special interest in scrutinising the HRC's assessment process and the relevant information collected by the HRC during that process. Commissioner Albietz recognised in Re Pemberton and The University of Queensland (1994) 2 QAR 293 at pp.376-377 (paragraph 190) that a particular applicant's interest in obtaining access to particular documents is capable of being recognised as a facet of the public interest, which may justify giving a particular applicant access to documents: The kind of public interest consideration dealt with in the above cases is closely related to, but is potentially wider in scope than, the public interest consideration which I identified in Re Eccleston at paragraph 55, i.e., the public interest in individuals receiving fair treatment in accordance with the law in their dealings with government. This was based on the recognition by the courts that: "The public interest necessarily comprehends an element of justice to the individual" (per Mason C J in Attorney-General (NSW) v Quin (1989-90) 170 CLR 1 at 18; to similar effect see the remarks of Jacobs J from Sinclair v Mining Warden at Maryborough quoted at paragraph 178 above). It is also self-evident from the development by the courts of common law of a set of principles for judicial review of the legality and procedural fairness of administrative action taken by governments, that compliance with the law by those acting under statutory powers is itself a matter of public interest (see Ratepayers and Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746 at p.750). The public interest in the fair treatment of persons and corporations in accordance with the law in their dealings with government agencies is, in my opinion, a legitimate category of public interest. It is an interest common to all members of the community, and for their benefit. In an appropriate case, it means that a particular applicant's interest in obtaining access to particular documents is capable of being recognised as a facet of the public interest, which may justify giving a particular applicant access to documents that will enable the applicant to assess whether or not fair treatment has been received and, if not, to pursue any available means of redress, including any available legal remedy. 80. The public interest considerations weighing against disclosure of the matter in issue which have been identified by the HRC and the third party are mostly subsumed within the prima facie ground of exemption under s.46(1)(b) of the FOI Act, i.e., they mostly relate to the third requirement for exemption - prejudice to the future supply of information to the HRC (discussed above), and the resulting detrimental effect which that could reasonably be expected to have on the HRC's complaint assessment processes. 81. I acknowledge that the HRC's complaint assessment processes may suffer if persons are reluctant to provide it with information in a situation where there is no power to compel them to do so. However, I think that the issues that have arisen during the course of this review demonstrate a need for the HRC to review its complaint-handling procedures, and the information that it provides to health service providers when it invites them to respond to a complaint made against them. While the HRC accepted, during the course of this review, that at least parts of the third party's response ought to be disclosed to the applicant (and had, in fact already been disclosed by the HRC, albeit in summary form, during the course of its assessment of the complaint), it was only through the external review process that this disclosure occurred. The decision that the HRC gave in response to the applicant's FOI access application was that all information contained in the third party's response was confidential from the applicant. The HRC's decision in that regard apparently was made on the basis that the third party, in response to an invitation from the HRC, had marked his response as being given "in confidence" (see paragraph 43 above). For the reasons explained above, I do not consider that it was reasonable for the third party to have had an understanding that any relevant and responsive information contained in his response could, except in exceptional circumstances, be kept confidential from the applicant, taking into account the purpose for which he provided his response, i.e., to assist the HRC to discharge its responsibility to deal properly and fairly with the applicant's complaint. If that had been made clear to the third party from the outset, some of the problems encountered in this case could, in my view, have been avoided. It may also improve the quality of the responses that the HRC receives from medical practitioners who are the subject of complaint, in that they may be more careful in framing their responses, and confine their responses to the issues directly under consideration. 82. In its submissions dated 4 March 2004, the HRC argued that disclosure of the matter in issue would not, on balance, be in the public interest, because it would place at risk the co-operation that the HRC receives from health service providers, and that the "end result would be that many complainants would be denied a free and impartial means of having their health concerns looked into and resolved...". I would simply point out that, at least as far as DMO is concerned, she clearly is not satisfied that her complaint has been properly handled, or that she has been treated fairly by the HRC. She considers that the HRC's practice of giving the person complained about a copy of the complaint, but refusing to give the complainant a copy of the response to the complaint, to be inherently unfair. I would simply observe that there may be little point in trying to protect a complaints assessment process if that process leaves a party feeling that they have not been treated fairly or equitably. (I would also note that, despite the HRC's contention that complainants would be denied a free and impartial means of having their complaints examined, the HRC still has the option of dealing with appropriate complaints through its conciliation process.) 83. In summary, I consider that there is a legitimate public interest in a complainant being given access to all relevant information gathered during a complaint assessment process so as to be satisfied that the investigating body has conducted a thorough assessment and reached a fair and realistic decision about whether the available information and evidence was sufficient or insufficient to justify the complaint being accepted for action. 84. For the reasons discussed above, I am satisfied that disclosure to the applicant of the matter in issue would, on balance, be in the public interest. Finding 85. I find that the matter in issue does not satisfy the second and fourth requirements for exemption under s.46(1)(b) of the FOI Act, and that the matter in issue therefore does not qualify for exemption from disclosure to the applicant under s.46(1)(b). Conclusion 86. For the foregoing reasons, I set aside the decision under review (being the decision dated 7 March 2003 by Mr David Kerslake of the HRC). In substitution for it, I decide that the matter in issue (identified in paragraph 17 above) does not qualify for exemption from disclosure to the applicant under the FOI Act. ............................. CATHI TAYLOR INFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Basil Bay Residents Association and Department of Natural Resources and Water; Keswick Island Pty Ltd [2006] QICmr 31 (29 October 2007)

Basil Bay Residents Association and Department of Natural Resources and Water; Keswick Island Pty Ltd [2006] QICmr 31 (29 October 2007) Office of the Information Commissioner Decision and Reasons for Decision Application Number: 210072 Applicant: Basil Bay Residents Association Respondent: Department of Natural Resources and Water Third Party: Keswick Island Pty Ltd Decision Date: 29 October 2007 Catchwords: FREEDOM OF INFORMATION - section 45(1)(c) of the Freedom of Information Act 1992 (Qld) - business professional, commercial or financial affairs - adverse effect - competitive harm - public interest balancing test FREEDOM OF INFORMATION - section 46(1)(a) of the Freedom of Information Act 1992 (Qld) - matter communicated in confidence - whether disclosure would found an action for breach of confidence Contents Background ................................................................................................................. 2 Steps taken in the external review process ................................................................ 3 Matter in issue ............................................................................................................. 4 Findings......................................................................................................................... 4 Decision ...................................................................................................................... 10 Reasons for Decision Background 1. By application dated 2 March 2006, Basil Bay Residents Association (Basil Bay) sought access to the following documents from the Department of Natural Resources and Water (Department): ...correspondence and government department approvals relating to Keswick Island Pastoral Company Pty Ltd and/or Keswick Island Proprietary Ltd. In particular, the Committee requests a copy of the submission made by Keswick Island Proprietary Ltd in 2005 to alter the Head Lease between the State of Queensland and Keswick Island Pastoral Company Pty Ltd. 2. In a conversation with Mr Peter Turner of the Department on 23 May 2006, Mr Rick White, President of Basil Bay, clarified the scope of Basil Bay’s request for documents. In that discussion, it was agreed that Basil Bay sought access to documents relating to the negotiations preceding, and the reason for, the decision to remove the clause from the Head Lease between the State of Queensland and Keswick Island Pastoral Company Pty Ltd (KIPL) relating to the $150 million worth of development to be undertaken by the Head Lessee by February 2006. 3. Prior to making an initial decision on Basil Bay’s application, the Department engaged in consultation in accordance with section 51 of the Freedom of Information Act 1992 (Qld) (FOI Act) with two third parties regarding certain documents which, the Department considered, if released, could reasonably be expected to be of substantial concern to those parties (Consultation Documents). In response to that consultation, those parties objected to the release of the Consultation Documents on the ground that they qualified for exemption under the FOI Act. 4. By letter dated 2 August 2006, Mr Rob Zubrinich, Manager, Administrative Review, informed Basil Bay of his initial decision to: • grant full access to 75 folios • grant partial access to 55 folios • refuse access to 99 folios. 5. Mr Zubrinich informed Basil Bay that the documents to which access was refused in part and in full contained matter which qualified for exemption under sections 43, 45 and 46 of the FOI Act. 6. By letter dated 28 August 2006, Basil Bay applied for internal review of Mr Zubrinich’s decision. Neither of the third parties consulted under section 51 of the FOI Act sought internal review of Mr Zubrinich’s decision. 7. By letter dated 18 September 2006, Mr Ken Davis, Director, Executive and Administrative Services, informed Basil Bay of his decision to affirm Mr Zubrinich’s decision in its entirety. 8. In light of the fact that the third parties did not seek internal review, once their review rights under the FOI Act had expired, the Department released additional documents to Basil Bay on 21 September 2006 in accordance with Mr Zubrinich’s decision. 9. By letter dated 10 October 2006, Basil Bay applied to this Office for external review of Mr Davis’ decision. Steps taken in the external review process 10. Copies of the documents in issue were obtained from the Department and examined by this Office. 11. In a telephone consultation with a staff member of this Office on 12 October 2007, Basil Bay agreed to withdraw the parts of its application for external review which related to: • documents containing matter falling outside the scope of its freedom of information (FOI) access application • legally privileged documents which were subject to the Department’s exemption claim under section 43(1) of the FOI Act. 12. In that consultation, it was also agreed that the remaining documents in issue in this review contained matter subject to the Department’s exemption claims under section 45(1)(c) and/or section 46(1)(a) of the FOI Act. 13. By letter dated 13 April 2007, this Office asked the Department to provide submissions in support of its exemption claims under sections 45(1)(c) and 46(1)(a) of the FOI Act. The Department’s submissions were received by this Office on 4 May 2007. 14. By letter dated 23 July 2007, I informed Keswick Island Pty Ltd (KIPL), a third party consulted under section 51 of the FOI Act by the Department, that the Information Commissioner was conducting an external review of Mr Davis’ decision dated 18 September 2006 and invited it to apply to become a participant in this review. In that letter, I also requested that KIPL provide submissions on the matter remaining in issue in this review. On 27 July 2007, KIPL applied to become a participant in this review and on 6 August 2007, it provided submissions with respect to the matter remaining in issue in this review. 15. By letter dated 5 September 2007, I advised the Department that I had formed the preliminary view that: • the majority of the matter remaining in issue qualified for exemption under section 45(1)(c) of the FOI Act • certain matter in folios 346, 343, 341, 328, 325, 323 and 294 (Collection 1) did not qualify for exemption under section 45(1)(c) or section 46(1)(a) of the FOI Act • matter which had been released to Basil Bay by the Department in folios 345-336 and 329-319 did not qualify for exemption under the FOI Act where such matter appeared, in a similar format, in other folios in issue in this review. 16. By letter dated 9 September 2007, the Department: • acknowledged my preliminary view dated 5 September 2007 • advised that it would not be making any further submissions in this review • stated that it would await my final decision and any remaining instructions to give effect to that decision. 17. By letters dated 24 September 2007, I: • conveyed my preliminary view on the matter remaining in issue in this review to KIPL and Basil Bay • advised KIPL and Basil Bay that the Department did not intend to make any submissions in response to my preliminary view • requested KIPL and Basil Bay respond to my preliminary view by 8 October 2007. 18. On 8 October 2007, Basil Bay requested an extension of time within which to respond to my preliminary view. On 9 October 2007, I advised Basil Bay that I consented to its request for an extension of time and requested any submissions be provided to this Office by 18 October 2007. 19. By email dated 18 October 2007 Basil Bay: • advised that it contested my preliminary view • provided submissions in response to my preliminary view. 20. KIPL provided no submissions in response to my preliminary view and is therefore, deemed to have accepted that view as set out in my letter dated 24 September 2007. 21. In making my decision, I have taken into account the following: • Basil Bay’s initial FOI access application dated 2 March 2006 • consultation letters sent by the Department in accordance with section 51 of the FOI Act • consultation responses from third parties dated 14 July 2006 and 18 July 2006 • initial decision of Mr Zubrinich to the third parties dated 2 August 2006 • initial decision of Mr Zubrinich to Basil Bay dated 2 August 2006 • Basil Bay’s application for internal review dated 28 August 2006 • internal review decision of Mr Ken Davis dated 18 September 2006 • Basil Bay’s external review application dated 10 October 2006 • documents in issue • written correspondence exchanged between this Office and the Department, Basil Bay and KIPL during the course of this review • file notes of telephone conversations held between staff members of this Office and the Department, Basil Bay and KIPL during the course of this review • the Department’s submissions dated 4 May 2007 • Basil Bay’s submissions dated 18 October 2007 • relevant sections of the FOI Act and applicable case law. Matter in issue 22. In light of the negotiations between the applicant and this Office during the course of this review, the documents containing matter remaining in issue in this review are: • folios 347-336, 329-319 and 294 in Collection 1 • folios 343, 236 and 085 in Collection 2. Findings 23. I find that the matter remaining in issue in this review, except that listed in the Schedule attached to this decision, qualifies for exemption under section 45(1)(c) of the FOI Act. 24. I find that the matter listed in the Schedule does not qualify for exemption under section 45(1)(c) or section 46(1)(a) of the FOI Act. Section 45(1)(c) of the FOI Act 25. The Department contended that all matter remaining in issue in this review qualified for exemption under section 45(1)(c) of the FOI Act. That section 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. Application of section 45(1)(c) of the FOI Act 26. In Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 (Cannon) at paragraphs 66-88, the Information Commissioner stated that matter qualifies for exemption under section 45(1)(c) of the FOI Act if: a) the matter in issue is information concerning the business, professional, commercial or financial affairs of a person (including a company or agency); and b) disclosure of the matter in issue 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 person, which the information in issue concerns; or (ii) prejudice to the future supply of such information to government, 27. If matter meets the requirements of (a) and (b), a public interest balancing test will then apply, ie. it must be determined whether disclosure of the matter in issue would, on balance, be in the public interest. Business, professional, commercial or financial affairs 28. The Department, in its submissions dated 4 May 2007, contended that each segment of matter remaining in issue in this review qualified for exemption under section 45(1)(c) of the FOI Act because it fell into one or more of the categories listed in the table below: Table 1 Category Description of matter in issue A Statements as to the lack of confidence lending institutions and other potential investors and/or business partners have in the development on the Island, and the subsequent difficulties KIPL has experienced in attracting investment to the island B The company’s own evaluation of the possible financial viability of future developments on the island C The company’s evaluation of the actual cost of developing existing infrastructure on the site D Details of the company’s future plans and its own evaluation of the possible costs of those plans (both for developments, such as Krystal Beach Stage 2, and also for associated infrastructure) E The company’s evaluation of the negative impact on the future development of the difficulties experienced in gaining planning approval 29. In submissions to this Office dated 6 August 2007, KIPL did not specifically address the parts of matter remaining in issue in this review but generally submitted that all documents contained ‘commercially sensitive financial and other data’. 30. Based on my analysis of the matter remaining in issue in this review, I am satisfied that the great majority of it falls into one or more of the five categories set out in Table 1 above. With the exception of the matter listed in the Schedule, I find that the matter remaining in issue in this review concerns the business, commercial or financial affairs of KIPL. Adverse effect 31. In Cannon, the Information Commissioner stated as follows (at paragraph 84): In most instances, the question of whether disclosure of information could reasonably be expected to have an adverse effect will turn on whether the information is capable of causing competitive harm to the relevant agency, corporation or person. Since the effects of disclosure of information under the FOI Act are ... 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 ... 32. The Department contended, in its submissions dated 4 May 2007, that competitive harm to KIPL’s business affairs would result if the matter remaining in issue was disclosed. Specifically, the Department submitted that: • a competitor could use the Category A, B and E matter to undermine KIPL’s negotiations with potential partners or investors, cut KIPL’s margin of profitability and/or force KIPL out of the market • disclosure of the Category C and D matter would enhance a competitor’s ability to take actions adverse to KIPL’s business affairs. 33. In submissions to this Office dated 6 August 2007, KIPL did not address specific parts of matter remaining in issue but submitted generally in respect of all documents remaining in issue that their disclosure would ‘significantly damage the operation’ of KIPL. 34. I have examined the matter remaining in issue in this review and with the exception of the matter listed in the Schedule, I am satisfied that its disclosure: • could reasonably be expected to cause competitive harm to KIPL • could reasonably be expected to have an adverse effect on the business, commercial and financial affairs of KIPL Public interest 35. In its submissions dated 4 May 2007, the Department contended that the circumstances surrounding Keswick Island and the relationship between KIPL and Basil Bay are relevant considerations in the public interest balancing test. The Department submitted that the following considerations favour disclosure of the matter in issue: • the sub-lessees obtaining access to information that indicates the reason for amending the Head Lease and the efforts made to develop the Island in accordance with that lease • there are numerous individuals (the sub-lessees) who potentially have an interest in the information over and above that of the general community • the overwhelming majority of sub-lessees would seek to protect the commercial information if it was released. 36. The Department acknowledged that the public interest arguments in favour of disclosure were significant but submitted that they were marginally outweighed by those considerations in favour of non-disclosure, including: • the principle that release under the FOI Act constitutes release to the world at large and an agency can place no restrictions on the use to which information can be used once it has been released • the matter in issue could come to the attention of a competitor of KIPL who may use the information that may adversely effect KIPL’s business affairs, eg. forfeiture of the Head Lease • potential for the investments by KIPL and sub-lessees in Keswick Island to be undermined by a competitor • the information currently in the public domain is sufficient to constitute a general explanation for the decision to amend the Head Lease • documents in the public domain indicate that the apparent rationale for considering amendment to the head lease has already been communicated to the Basil Bay community, ie. KIPL’s difficulty in securing the finance necessary to meet the developmental requirements in the lease. 37. In its submissions dated 18 October 2007, Basil Bay contended as follows: The Association believe some of the submissions made by Keswick Island Pty Ltd to the Dept of Natural Resources and Water, which resulted in changes to the head lease, were misleading or false. The changes made to the head lease are contrary to the conditions that prompted most, if not all, sublessees to purchase subleases. The Association questions the transparency of the government’s decision making where it is unclear that the decisions were made in the public interest. 38. KIPL did not make any submissions with respect to the public interest during the course of this review. 39. I recognise that there is a public interest in ensuring transparency in government decision making as identified by Basil Bay in its submissions. I also acknowledge that there is a strong public interest in terms of the sub-lessees obtaining access to information which discloses the full reasons for amending the Head Lease and the efforts made to develop the Island in accordance with the terms of that lease. However, those considerations must be balanced against the public interest arguments which favour non-disclosure of the matter remaining in issue. Specifically, the principle that release under the FOI Act constitutes release to the world at large and the potential for the matter in issue to be used by a competitor to undermine the investments of KIPL and the sub-lessees are significant considerations in favour of non-disclosure. 40. Having considered the public interest arguments raised by the Department and Basil Bay in this review, (see paragraphs 35-37 of this decision), I am satisfied that the public interest considerations favouring disclosure of the matter remaining in issue in this review, with the exception of that matter listed in the Schedule, are marginally outweighed by the public interest considerations favouring non-disclosure. 41. Accordingly, I am satisfied, with respect to the majority of matter remaining in issue in this review, ie. all matter except that listed in the Schedule, that: • it concerns the business, commercial or financial affairs of KIPL • its disclosure could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of KIPL • its disclosure would not, on balance, be in the public interest • it qualifies for exemption under section 45(1)(c) of the FOI Act. Matter which does not qualify for exemption under section 45(1)(c) of the FOI Act 42. In respect of the matter listed in the Schedule, I am not satisfied that the exemption set out in section 45(1)(c) of the FOI Act applies. In my preliminary view to the Department and KIPL, I provided detailed reasons as to why that exemption provision does not apply. 43. In light of the fact that this decision is being provided to all parties who may wish to exercise appeal rights, I am unable to express those detailed reasons in this decision. In the event that appeal rights are not exercised, the Department will proceed to release the documents remaining in issue in accordance with my preliminary view dated 5 September 2007 to the applicant. Section 46(1)(a) of the FOI Act 44. The Department has also contended that certain matter remaining in issue in this review qualifies for exemption under section 46(1)(a) of the FOI Act. As I have found that the matter listed in the Schedule does not qualify for exemption under section 45(1)(c) of the FOI Act, it is necessary for me to consider the application of section 46(1)(a) of the FOI Act to that matter. 45. Section 46(1)(a) of the FOI Act provides: 46 Matter communicated in confidence (1) Matter is exempt if— (a) its disclosure would found an action for breach of confidence ... Application of section 46(1)(a) of the FOI Act 46. The test for exemption under section 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 agency not to disclose the information in issue. In my view, there is an identifiable plaintiff, KIPL, who would have standing to bring such an action for breach of confidence. 47. KIPL and the Department submitted that the matter in issue was communicated and received in confidence and therefore, the criteria required to establish an equitable obligation of confidence are met. To support that submission, the Department and KIPL have sought to rely on the fact that certain documents were marked ‘commercial in confidence’. 48. In B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (B and Brisbane North), the Information Commissioner identified five requirements, all of which must be established, to obtain protection in equity of allegedly confidential information as follows: (a) it must be possible to specifically identify the information, in order to establish that it is secret, rather than generally available information (see B and Brisbane North at pp.303-304, paragraphs 60-63) (b) the information in issue must have ‘the necessary quality of confidence’; ie, the information must not be trivial or useless information, and it must have a degree of secrecy sufficient for it to be the subject of an obligation of conscience (see B and Brisbane North at 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 B and Brisbane North at paragraphs 76-102) (d) disclosure to the applicant for access would constitute an unauthorised use of the confidential information (see B and Brisbane North at paragraphs 103-106) (e) disclosure would be likely to cause detriment to the confider of the confidential information (see B and Brisbane North at paragraphs 107-118). 49. As set out in paragraph 4 of this decision, the Department released parts of the documents remaining in issue to Basil Bay during the course of the FOI process. Significantly, parts of folios 347-336 and 329-319 which were marked ‘commercial in confidence’ were released to Basil Bay. In light of the partial release of those folios, I am satisfied that: • the Department’s partial release of the matter remaining in issue is inconsistent with its submission that that matter was communicated and received in confidence • the requirements set down in B and Brisbane North are not fulfilled as the relevant information no longer possesses the necessary degree of secrecy • the matter which I have found does not qualify for exemption under section 45(1)(c) of the FOI Act, also does not qualify for exemption under section 46(1)(a) of the FOI Act. Conclusion 50. Based on the information available to me in this review, I am satisfied that: • all matter remaining in issue in this review, except that listed in the attached Schedule, qualifies for exemption under section 45(1)(c) of the FOI Act • the matter listed in the attached Schedule does not qualify for exemption under section 45(1)(c) or section 46(1)(a) of the FOI Act. 51. With respect to the matter which I have found is not exempt under the FOI Act, detailed reasons for my findings are set out in my preliminary view letters to the Department and KIPL, dated 5 September 2007 and 24 September 2007, respectively. Decision 52. I vary the decision under review (being the internal review decision of Mr Davis dated 18 September 2006) and find as follows: • all matter in issue in this review, except that listed in the attached Schedule, qualifies for exemption under section 45(1)(c) of the FOI Act • the matter listed in the attached Schedule does not qualify for exemption under section 45(1)(c) or section 46(1)(a) of the FOI Act. 53. I have made this decision as a delegate of the Information Commissioner, under section 90 of the FOI Act. ________________________ F Henry Assistant Commissioner Date: 29 October 2007 Schedule Matter not exempt under section 45(1)(c) or section 46(1)(a) of the FOI Act Folio No. Location of matter in issue 346 First paragraph, part of first sentence 343 Whole second paragraph Parts of first and second columns in table at end of page 342 Matter appearing in fourth row, second column Parts of the Estimated Development Schedule in first and second columns 341 Part of first paragraph 338 Part of second last line in fifth paragraph Part of second line in seventh paragraph 337 Parts of third paragraph 328 Part of second sentence and whole of third and fourth sentences, second paragraph 327 Part of last sentence, third last paragraph 326 Whole of last sentence, third last paragraph 325 Whole third paragraph 323 Parts of first and second sentences in first paragraph under heading “Constraints” 321 Part of first sentence, fourth paragraph 320 Part of third and fourth sentences, third paragraph Part of third sentence, sixth paragraph 319 Part of last sentence, second paragraph Part of second sentence, fourth paragraph 294 Part of sentence commencing “In your letter of 19 May 2003...”

queensland

court_judgement

Queensland Information Commissioner 1993-

Queensland Newspapers Pty Ltd and Queensland Police Service; Third Parties [2014] QICmr 27 (12 June 2014)

Queensland Newspapers Pty Ltd and Queensland Police Service; Third Parties [2014] QICmr 27 (12 June 2014) Last Updated: 21 January 2015 Decision and Reasons for Decision Citation: Queensland Newspapers Pty Ltd and Queensland Police Service; Third Parties [2014] QICmr 27 (12 June 2014) Application Number: 311773 Applicant: Queensland Newspapers Pty Ltd Respondent: Queensland Police Service Third Parties: 8X5FXF (Venue One) YW87TN (Venue Two) 5FHX2A (Venue Three) Decision Date: 12 June 2014 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - names and addresses of three venues contained in Liquor Enforcement and Proactive Strategies incident reports - whether access to information can be refused on the basis that it comprises exempt information - sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - whether access to information can be refused on the basis that its 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 Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) for access to the Liquor Enforcement and Proactive Strategies incident reports (LEAPS Reports) for a number of licensed venues between 1 January 2011 and 29 January 2013. QPS located the requested documents and decided to release the LEAPS Reports to the applicant subject to the deletion of information which would identify the venues on the basis that disclosing this information would, on balance, be contrary to the public interest. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the decision to refuse access to this information. On external review, QPS accepted OIC’s view that there was no basis to refuse access to the remaining information under the RTI Act and agreed to release the information to the applicant. OIC notified each of the relevant venues 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 information. Venues One, Two and Three objected to disclosure of the information and contended that the relevant information comprised exempt information and also that its disclosure would, on balance, be contrary to the public interest. Despite these objections, and for the reasons set out below, there is no basis to refuse access to the remaining information in issue under the RTI Act. Background Significant procedural steps are set out in the appendix to these reasons. The Liquor Enforcement and Proactive Strategies (LEAPS) program requires QPS officers to report alcohol-related incidents at licensed venues to the QPS LEAPS Coordinator. This information is compiled in the LEAPS Reports and then conveyed to the Office of Liquor and Gaming Regulation (OLGR) which assesses the information as part of its regulatory activities.[1] In correspondence to the third parties, OIC explained that it had previously decided to release similar information under the RTI Act and that some of the reasoning in those decisions was relevant to the information in issue in this review. OIC provided the third parties with a copy of those decisions.[2] The third parties provided objections in this review which are similar to the objections OIC received in the previous reviews and which rely on numerous provisions of the RTI Act. It is necessary for OIC to consider these objections again in the context of this review. Reviewable decision The decision under review is the decision QPS was deemed to have made refusing access to the requested information.[3] Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and appendix). Information in issue The information in issue is limited to the names and addresses of the three third party venues within the LEAPS Reports between 1 January 2011 and 29 January 2013 (Information in Issue). QPS decided to release all other information in the LEAPS Reports. This information is not in issue on external review and was not the subject of consultation with the third parties. Issues for determination The issue for determination on external review is whether access to the Information in Issue can be granted under the RTI Act. As QPS has agreed to release the Information in Issue, there is a practical onus on the third parties in this review to establish that access to the Information in Issue can be refused.[4] Many of the objections made by the venues relate to concerns about disclosing the LEAPS Reports in general and details about the incidents. This information is not in issue on external review and, as a result, many of the objections are not relevant to the issues for determination. However, where relevant, I have considered the impact that disclosing the Information in Issue could have when viewed with the remainder of the LEAPS Reports. Based on the third party objections, the issues for determination are whether: the RTI Act applies to the Information in Issue the Information in Issue identifies any individuals the Information in Issue comprises exempt information; and disclosing the Information in Issue would, on balance, be contrary to the public interest. My findings in relation to each of these issues follow. Does the RTI Act apply to the Information in Issue? Yes, for the reasons that follow. Venue One submits that the ‘information is of a private nature’ concerning its ‘business operations’ and therefore is ‘not within the scope of the RTI Act’. I do not accept this submission. Section 23 of the RTI Act creates a legally enforceable right for any person to access ‘documents of an agency’. ‘Document’ is broadly defined as including ‘any paper or other material on which there is writing’ and ‘any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced ...’.[5] This definition covers the LEAPS Reports and the Information in Issue. Section 12 of the RTI Act relevantly defines ‘document of an agency’ as ‘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...’. The Information in Issue is in the physical possession of QPS, which is an agency for the purposes of the RTI Act,[6] and it is not a document to which the RTI Act does not apply.[7] Accordingly, the Information in Issue comprises a document of an agency and is therefore subject to the operation of the RTI Act. Does the Information in Issue identify any individuals? No, for the reasons that follow. For a number of the exemptions and public interest factors in the RTI Act to apply to the Information in Issue, it must first be possible to identify individuals from the incidents recorded in the LEAPS Reports. The venues all submit that disclosing the Information in Issue, together with the allegations contained in the LEAPS Reports, would provide sufficient detail to enable the identification of various individuals including QPS officers, victims, suspects, witnesses, security personnel and other staff of the venues. The Information in Issue is limited to the name and address of the venues. I am satisfied that disclosing this information on its own would not identify an individual. The summaries of the incidents in the LEAPS Reports do not include names or other identifying information of the individuals involved or venue staff. I am satisfied that it is not possible to directly identify any individual from that information.[8] The LEAPS Reports identify the QPS reporting officer by name. Venues Two and Three submit that disclosing the names of the QPS officers would be of concern to QPS. QPS has not raised concerns about disclosing this information. The names of the QPS officers are not in issue in this review and were not the subject of consultation with the venues. To the extent the venues’ submissions relate to concerns about releasing the names of QPS officers, I will not address them any further in these reasons. I have considered whether the identity of any of the individuals can reasonably be ascertained, that is, whether it is possible to indirectly identify an individual from the Information in Issue when read together with incident summaries in the LEAPS Reports and any publicly available information. Due to the general nature of the Information in Issue, which includes only a brief summary of the incident as reported to the attending QPS officers, I do not consider it is possible to definitively link any publicly available information to the incidents in the Information in Issue. At best, disclosure may enable people to speculate that individuals named in, for example, media reports and court documents, may have been involved in the incidents referred to within the Information in Issue. For these reasons, I am satisfied that disclosing the Information in Issue would not enable individuals (other than the QPS reporting officers) to be identified. Does the Information in Issue comprise exempt information? No, for the reasons that follow. 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 a document comprising exempt information.[9] The categories of exempt information are set out in schedule 3 of the RTI Act. Parliament considers disclosure of this type of information would, on balance, be contrary to the public interest. I will now address each of the exemptions relied on by the venues. Contempt of court or contrary to an order or direction Information is exempt if its public disclosure would, apart from the RTI Act and any immunity of the Crown, be: in contempt of court;[10] or contrary to an order made or direction given by a royal commission or commission of inquiry.[11] Venue One did not rely on these provisions to support its case. Venues Two and Three submit that: the Information in Issue identifies suspected perpetrators and victims public disclosure of the information would be in contempt of court, jeopardising a fair trial for the potential suspects and could have a ‘profound’ effect on any court proceeding a large majority of the occurrences have not been finalised and the information details incidents which have not likely been determined by a court there is a real possibility that an order has been made or direction given; and as decision-makers, QPS and OIC are compelled to ensure that no such orders have been made or directions given, in respect of the whole or any part of the information, prior to any disclosure being contemplated. Venues Two and Three sought (and were granted) an extension of time to provide submissions explaining that they were ‘making investigations to identify individuals’ and ‘undertaking to identify court proceedings, royal commission and/or a commission of enquiry’ to support their claims that these exemptions applied. However these venues now submit that, although they are unable to identify any proceedings which would identify individuals, they still contend that people can be identified through release of the information. As explained above, I am satisfied that disclosing the Information in Issue would not enable relevant individuals to be identified. The venues have not provided any evidence to support the application of these provisions to the Information in Issue, nor have they identified a particular court proceeding, royal commission or commission of inquiry to which the Information in Issue may relate. OIC is not required to make inquiries to positively determine that these exemptions do not apply. As noted previously, the venues objecting to disclosure of the Information in Issue bear the onus to establish that access to the Information in Issue can be refused on this basis. I am not satisfied that the Information in Issue is exempt under schedule 3, section 6(a) or (b) of the RTI Act. Prejudice the investigation of a possible contravention of the law Information is exempt if its disclosure could reasonably be expected to[12] prejudice the investigation of a contravention or possible contravention of the law in a particular case.[13] Venue One submits that it is currently involved in ‘legal matters and investigations’ with OLGR and disclosing the Information in Issue could significantly impact and prejudice the investigations. Venues Two and Three submit that: the information relates to contraventions or possible contraventions of the law, all of an allegedly criminal nature, some or all of which are likely to be subject to investigation and court proceedings and the full facts and circumstances are yet to be ascertained the information identifies suspects and victims and, if disclosed, would impact adversely on the ability of QPS to discharge its duties; and disclosing the names of QPS officers would provide an opportunity for the perpetrators and general public to inflict undue influence on these officers before the matters are finalised. QPS did not rely on this exemption as a basis for refusing access to the Information in Issue, nor has it raised any concerns about prejudice to ongoing investigations in submissions to OIC. As explained above, I am satisfied that disclosing the Information in Issue would not enable relevant individuals to be identified. In order for this exemption to apply, there must be an ongoing investigation and a reasonable expectation that the investigation would be adversely impacted by disclosure. The venues have not identified: the particular investigation they claim would be prejudiced; nor the nature of the prejudice they consider would arise as a result of disclosing the Information in Issue. I am unable to identify how disclosing the Information in Issue could reasonably be expected to prejudice an investigation and I am not satisfied the Information in Issue is exempt under schedule 3, section 10(1)(a) of the RTI Act. Identify a confidential source of information Information is exempt if it would enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained.[14] The venues submit that the information could reasonably be expected to enable the identity of QPS officers, victims, suspects, security personnel, employees of the venue and witnesses, to be ascertained and, in many cases, they are likely to be confidential sources of information. As explained above, I am satisfied that disclosing the Information in Issue would not enable relevant individuals to be identified. There is no evidence before me to indicate that the Information in Issue was obtained from confidential sources. I am not satisfied that the Information in Issue is exempt under schedule 3, section 10(1)(b) of the RTI Act. Endanger a person’s life or physical safety or result in a serious act of harassment or intimidation Information is exempt if its disclosure could reasonably be expected to: endanger a person’s life or physical safety;[15] or result in a person being subjected to a serious act of harassment or intimidation.[16] Venue One submits that the Information in Issue identifies QPS officers, victims, suspects, security personnel, employees of the venue and witnesses and that alleged offenders or parties involved in the reported incidents could be located and subjected to continual harassment. Venues Two and Three submit that: a person who has divulged information or taken action against a person of interest, whose identity is reasonably ascertainable from the information, may reasonably fear their physical safety is in danger the security personnel have been involved with a number of the incidents which included enforcing hotel policies and if this information is used and published out of context there may be backlash towards the security personnel; and publishing information about the incidents which are neither fully investigated nor finalised may result in a reactionary response from the public and cause security personnel and QPS officers ‘to have reasonable fear that their physical safety is in danger’. The venues have provided no evidence about how disclosing the Information in Issue could reasonably be expected to result in the necessary harm to individuals. This is particularly improbable given that disclosing the Information in Issue would not enable relevant individuals to be identified. I am not satisfied that the Information in Issue is exempt under schedule 3, section 10(1)(c) or (d) of the RTI Act. Prejudice a person’s fair trial or the impartial adjudication of a case Information is exempt if its disclosure could reasonably be expected to prejudice a person’s fair trial or the impartial adjudication of a case.[17] Venue One submits that disclosing the Information in Issue would disadvantage it in current proceedings which include ‘legal matters’ with the OLGR and an ongoing Supreme Court action and costs order. Venues Two and Three submit that: the information identifies alleged offenders, victims and witnesses the Information in Issue ‘discloses specific incidents of an allegedly criminal nature which have not been determined by a court’; and disclosure could reasonably be expected to ‘impact adversely upon the impartiality of jurors and/or judicial officers’, jeopardise a fair trial for the potential suspects and have a ‘profound’ effect on any court proceeding. As explained above, I am not satisfied that disclosing the Information in Issue would enable relevant individuals to be identified. The venues have not identified a particular proceeding they consider would be impacted by disclosure or provided any evidence to suggest that the incidents referred to in the Information in Issue are the subject of ongoing legal proceedings. In any event, it is not reasonable to expect that jurors or judicial officers in a legal proceeding would be swayed in their views by information which was recorded by QPS shortly after it having been reported, particularly when the information merely states that the incidents occurred at particular venues. I am not satisfied that the Information in Issue is exempt under schedule 3, section 10(1)(e) of the RTI Act. Prejudice methods, systems or procedures 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;[18] or a system or procedure for the protection of persons, property or the environment.[19] Venue One submits that disclosing the Information in Issue will ‘create a wall of protection between the venue and the QPS and information will not be freely provided’. Venues Two and Three submit that disclosing the Information in Issue will: negatively impact on the important relationship between these venues, their staff and QPS as the venues would be less likely to contact QPS when there are incidents if they know that all records of incidents are likely to be released to third parties; and the venues and QPS must work together and communicate openly for the safe and effective operation of licensed venues and the safety of the public at large and the environment. I accept that the attendance of QPS officers at licensed venues, either at the request of the venues, or through other sources, and the subsequent reporting of incidents to OLGR through the LEAPS program constitutes a lawful method for preventing, detecting and dealing with contraventions or possible contraventions of the law and a system for the protection of persons and property. The QPS Commissioner’s Circular relevantly states[20] that: Minor incidents at licensed premises, considered in isolation, may not warrant breach action or reporting to [OLGR] for further investigation. However, past occurrences have shown that a succession of minor 'one-off' incidents may be regarded as precursors to significant incidents such as brawls and other behaviour resulting in injury to members of the public and officers. It may be possible to prevent the occurrence of some significant incidents through negotiations between the OLGR and licensees. Such negotiations should provide a forum for the development of remedial strategies aimed at reducing the identified minor incidents and preventing significant incidents from occurring. The OLGR has agreed to centrally record any incidents reported by officers whether or not breach action has been taken. The purpose of recording these incidents is to enable the OLGR to identify any trends at licensed premises that may require proactive negotiations with the licensee of the premises aimed at curtailing potential significant incidents. In order for these exemptions to apply, however, a decision-maker must be satisfied that disclosing the Information in Issue could reasonably be expected to prejudice the particular method or system. The Liquor Act 1992 (Qld) (Liquor Act) places a number of obligations on licensed venues in relation to safety and security. One of these is the obligation to maintain a safe environment in and around the premises.[21] As part of this obligation, I consider it reasonable to expect that licensed venues would call the police to respond to incidents in or near their premises. Even if licensed venues failed to contact QPS in response to the type of incidents which appear in the LEAPS Reports, information may still be sourced by QPS from victims, witnesses and ambulance staff who would continue to report them. Venues Two and Three also submit that disclosure would discourage the use of Police Specials[22] and the use of QPS generally in and around licensed venues. I do not consider that the broad cooperative relationship between QPS, Police Specials and licensees constitutes a method or procedure used by QPS for preventing, detecting, investigating and dealing with contraventions or possible contraventions of the law or a system for the protection of persons and property. In any event, the venues have not provided any evidence or explanation as to how disclosure would prejudice this relationship. I am not satisfied that the Information in Issue is exempt under schedule 3, section 10(1)(f) or (i) of the RTI Act. Information obtained, used or prepared for an investigation Information is exempt if it consists of information obtained, used or prepared: for an investigation by a prescribed crime body or another agency, in the performance of the prescribed functions of the prescribed crime body[23] for an investigation by the State Intelligence Group or the State Security Operations Group;[24] or by Crime Stoppers Queensland Limited.[25] Venues Two and Three submit that ‘this is a real possibility’ and that QPS and OIC are compelled to ensure these exemptions do not apply. These submissions reference no evidence to support the claims that the exemptions apply and, as noted previously, the venues relying on these provisions bear the onus to establish that access to the Information in Issue can be refused. I am not satisfied that the Information in Issue is exempt under schedule 3, section 10(4) or (5) of the RTI Act. Would disclosing the Information in Issue be contrary to the public interest? No, for the reasons that follow. Relevant law An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[26] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[27] and explains the steps that a decision-maker must take[28] 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. Irrelevant factors Venue One submits that the Information in Issue, if disclosed, could: be taken out of context be published by the applicant; and lead the public to assume the venue does not comply with liquor laws, which is ‘contrary to the reality’. Venues Two and Three submit that the Information in Issue ‘will not be used to somehow further openness and accountability of Government, but rather, would simply permit those who seek information for their own purposes, enquiring unnecessarily, into the affairs of others’. Under section 49(3)(d) of the RTI Act, I must disregard whether disclosing the information could reasonably be expected to result in the applicant misunderstanding or misinterpreting the document as the RTI Act states that this is an irrelevant factor.[29] An applicant is not required to provide reasons for requesting information under the RTI Act nor indicate what they intend to do with the information.[30] The RTI Act also provides that it is irrelevant to consider whether disclosing the information could reasonably be expected to result in mischievous conduct by the applicant.[31] To the extent these submissions relate to irrelevant factors, I have not taken them into account in balancing the public interest in disclosure. However, when considering the possible harm or prejudice that may result from disclosing the Information in Issue, I have assessed it as though the Information in Issue would be made publicly available. Relevant factors favouring disclosure I have considered whether disclosing the Information in Issue could reasonably be expected to: promote open discussion of public affairs and enhance the government’s accountability[32] contribute to positive and informed debate on important issues or matters of serious interest[33] reveal environmental or health risks or measures relating to public health and safety;[34] and inform consumers about the marketplace so they are able to make more informed decisions.[35] Given the nature of the Information in Issue and the context in which it appears, I am satisfied that these factors are relevant. However it is necessary for me to consider the weight to be afforded to these factors. Venue One submits that ‘it serves no further purpose to the public interest to disclose details of the venue or street address’ and that disclosing the Information in Issue would be ‘premature and cause unnecessary debate, concern and confusion in the community to an extent that would be contrary to public interest’. There is no evidence before me to support the contention that disclosing the Information in Issue could reasonably be expected to cause unnecessary debate, concern and confusion in the community and I do not accept this submission. Venues Two and Three acknowledge that there are some factors favouring disclosure because of the ‘apparent current general interest in the effects of alcohol and alleged alcohol misuse’. However, these venues also submit that disclosing the information is not in keeping with the purpose and objects of the RTI Act and that: As previously espoused, the Preamble to the RTI Act makes clear that its whole purpose (and Parliament’s express intention in enacting it) is openness in Government, to enhance, among other things, Government’s accountability and to contribute to representative, democratic Government. Parliament has taken the unusual step of including this Preamble within the RTI Act. It is a drafting technique to which regard should be given, particularly when it comes to exercising functions under the RTI Act which take the decision maker into territory in which questions of policy and the balancing of competing interests are involved. Consequently, when the RTI Act states, in Section 3(1), its primary object (not its only object) is to give a right of access to information in the Government's possession, it intends to confer that right to further the more fundamental matters with which the Preamble deals. It is suggested that there are a number of other indications in the Act that Parliament intended it to be applied for the purposes its Preamble articulates. The whole reason for including the range of considerations it does, for example, in considering the public interest, is to ensure that disclosures will occur which promote open, democratic, representative and good government. As noted previously, the LEAPS Reports are documents of an agency and are subject to the RTI Act. Section 44 of the RTI Act provides that the RTI Act is to be administered with a pro-disclosure bias. This means that an agency should decide to give access to information unless its disclosure would, on balance, be contrary to the public interest. The Information in Issue and the LEAPS Reports were created by QPS in performance of its functions and as a result of responding to incidents at licensed venues. I do not consider that the primary object of the RTI Act is to confer a right of access to information relating to ‘more fundamental matters’ as Venues Two and Three submit. Venues Two and Three also submit that: It is again noted that QPS granted access to some information, including the year the incident occurred and description of offence, eg. assault occasioning bodily harm. Accordingly, the Applicant has much of the information it seeks. In light of this, our client submits that the additional information ought not to be disclosed because disclosure of the names and addresses of the licensed premises at which alleged incidents occurred, does nothing to advance the accountability of Government or advanced discussions of public affairs etc, which the RTI Act seeks to achieve. The information is not about government policies and decisions, nor does it describe the manner in which the QPS respond to and deal with such issues. I acknowledge that the information which QPS has decided to disclose furthers these public interest considerations to a significant degree and the remaining Information in Issue is limited in nature. The access application covers the period from 1 January 2011 to 29 January 2013. Venue One submits that the information is ‘outdated’ and ‘not current’. I also acknowledge that a significant passage of time has elapsed since some of the entries in the LEAPS Reports were recorded.[36] In my view, the age of the LEAPS Reports and the limited nature of the Information in Issue reduce the weight of these public interest factors marginally. Despite this, I am of the view that disclosing the Information in Issue would further these public interest considerations as: the Information in Issue was created by QPS officers who responded to reports of incidents at particular licensed venues and shows the way information has been recorded by QPS it would enable the public to examine the nature and frequency of alcohol-related incidents reported to QPS at particular venues the process whereby QPS officers disclose information about alcohol-related incidents to OLGR is a measure designed to improve public safety at licensed venues by enabling OLGR to identify trends and take proactive action to prevent more serious incidents alcohol-related incidents which occur at licensed venues and the safety of licensed venues are issues of serious public interest and debate;[37] and disclosing this information will enable patrons to make a more informed decision about their choice of venue by providing some information about the safety of particular identified venues. For these reasons, and in view of the strong public interest in public safety at licensed venues, I afford these four factors moderate weight. Relevant factors favouring nondisclosure Prejudice the business affairs of entities The RTI Act recognises that a factor favouring nondisclosure will arise where disclosing information could reasonably be expected to prejudice the private, business, professional, commercial or financial affairs of entities.[38] In most instances, the question of whether disclosing information could reasonably be expected to prejudice business affairs will turn on whether the information is capable of causing competitive harm to an entity.[39] Given the nature of the Information in Issue and the context in which it appears, I am satisfied that this factor is relevant. However it is necessary for me to consider the weight to be afforded to this factor. Venue One submits that disclosing the Information in Issue could reasonably be expected to prejudice its business affairs as: the allegations inaccurately and unfairly portray the venue as being ‘habitually non-compliant’ with liquor laws and suggest ‘misconduct and unlawful, negligent or improper conduct by the venue’ disclosure would adversely affect its reputation which will in turn affect patronage causing ‘long term’ competitive and financial harm; and disclosure would lead people to form the view that the venue has not complied with the liquor laws and is unsafe and this may result in ‘devious or troublesome’ patrons frequenting the venue and ‘troublesome activities being conducted’. Venues Two and Three submit that disclosing the Information in Issue could significantly prejudice their business affairs and damage their reputations by: misleading people to think that the venues are dangerous and unsafe with poor safety measures which would compromise the safety and security of the venues; and enabling the applicant to ‘skew the information’ and use it to ‘further a certain discourse or angle espoused by the media outlet’ which would lead to an unfair or prejudicial portrayal of the venues being presented to the public. I accept that disclosing the Information in Issue could reasonably be expected to prejudice the venues’ business affairs by damaging their reputations and deterring some existing or potential patrons from visiting these venues. However, I consider members of the public are generally aware that alcohol-related incidents occur in many licensed venues and still choose to attend the venues. Incidents generally attract significant publicity when they occur. I also consider that the perceived safety of a venue, based on its history of alcohol-related incidents, is only one factor of many considered by people when selecting a venue to attend. Accordingly, I consider that the weight of this factor is reduced to some degree. Venue One submits that one of the entries in the LEAPS Reports contains a complaint made by a female patron about a security officer relating to an alleged sexual offence at the venue and that: disclosing the information could significantly damage the venue’s reputation while alcohol-related offences occur at all premises, offences of a sexual nature are far more damaging to the reputation of a licensed premises and disclosing this information could discourage female patrons from attending the premises; and as a result, the allegation should not be disclosed. I have considered the information to which this submission relates. The allegations recorded in the LEAPS Report are not in issue in this review as the Information in Issue is limited to the name and address of the venue. However, I acknowledge that identifying the venue will indicate where the incident was alleged to have occurred. As noted above, I accept that disclosing the Information in Issue could reasonably be expected to damage the reputations of the venues and deter some existing or potential patrons from visiting them. I do not consider that the anticipated harm from disclosing the Information in Issue in association with these allegations of a sexual offence would be any greater than for the other types of offences which appear in the LEAPS Reports, some of which relate to serious allegations of alcohol-related violence involving female patrons. Again, I consider that members of the public are generally aware that sexual offences of this nature occur occasionally in licensed venues and still choose to attend the venues. Venue One submits that: the information is untested by Venue One and it has been denied procedural fairness in conducting its own investigations as to the accuracy of the allegations releasing this information illustrates ‘only one side of the facts and that is an allegation made by a patron’; and the absence of any independent review or investigation by the venue could cause a ‘detrimental impact’ on the business and it should be allowed the opportunity to conduct its own investigation into the allegations prior to disclosure. As I have noted previously, the allegations recorded in the LEAPS Report are not in issue in this review. The Information in Issue is limited to the name and address of the venue. However, I acknowledge that the Information in Issue will be associated with the relevant allegations. The entries in the LEAPS Reports were created by QPS officers responding to reports of incidents at the venues shortly after the alleged incidents occurred and based on information provided at the scene. It is clear that the allegations have not been investigated or substantiated. In that regard, I agree with Venue One’s submission that the information only records the version of events provided by other patrons or staff. However, I am of the view that readers would understand this and would be able to distinguish the information in the LEAPS Reports from other types of documents which may record the final outcome of any investigations. Venue One submits that disclosing the Information in Issue could reasonably be expected to prejudice its business affairs as it would have a negative effect on the attitudes of people in their dealings with the venue and its staff and lead to ‘overzealous compliance activity’. Licensed venues are subject to oversight by OLGR and other regulatory agencies. I do not accept that an increase in regulatory or compliance activity by government agencies, acting within the law, could reasonably be expected to prejudice a venue’s business affairs. The Information in Issue is also somewhat dated.[40] This reduces the likely impact of disclosure on the venues’ business affairs as the public will recognise that there may have been significant changes to the venues, their management and their practices since the time of the relevant incidents in 2011-2013. I consider this also reduces the weight of this factor to some degree. Venues Two and Three submit that: OIC cannot purport to take the age of the Information in Issue into consideration at the time the application was made the Information in Issue was current and relevant and if it had been released at that time, the prejudice to the venue’s business affairs would have been significant; and the fact that the Information in Issue is now somewhat dated does not justify its release. I do not accept these submissions. The age of the Information in Issue as it appears in the LEAPS Reports is only one factor which I have taken into account in reaching my decision. Furthermore, in the circumstances of this review, it is appropriate to assess the anticipated prejudice which may result from disclosure at the time of the decision. For the reasons addressed above, I afford this factor moderate weight. Prejudice the fair treatment of individuals A factor favouring nondisclosure will arise where disclosing the Information in Issue 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.[41] Venue One submits that the Information in Issue is ‘unsubstantiated information’, has not been ‘verified’ and ‘no evidence has been obtained from the venue in relation to the allegations’. Venues Two and Three submit that the publication of unfounded accusations and reports pertaining to the incidents could be defamatory towards persons involved, particularly the accused. The information which QPS decided to release contains allegations of unlawful conduct by patrons (such as assault). However, the Information in Issue which is the subject of this review does not contain this type of information. As explained above, I am satisfied that disclosing the Information in Issue would not enable relevant individuals to be identified. As a result, I am not satisfied that this factor is relevant. Prejudice security, law enforcement or public safety A factor favouring nondisclosure will arise where disclosing the Information in Issue could reasonably be expected to prejudice security, law enforcement or public safety.[42] Venue One submits that disclosing the Information in Issue would: ‘create the perception that the premises has poor security thereby attracting patrons who may seek to take advantage of the situation and misbehave’ which would significantly impact on security arrangements at the venue; and lead people to form the view that the venue has not complied with the liquor laws and is unsafe and this may result in ‘devious or troublesome’ patrons frequenting the venue and ‘troublesome activities being conducted’. Venues Two and Three submit that disclosing the Information in Issue would mislead people to think that the venues are ‘dangerous and unsafe’ with poor safety measures in place which would compromise their safety and security. I consider a risk to public safety could reasonably be expected to arise through disclosure if the security arrangements at the venues were in fact inadequate. However, there is no evidence before me to suggest that this is the case. In any event, the Information in Issue does not include details of the security arrangements in place at the venues. I do not consider it reasonable to expect that disclosure would enable patrons to prejudice security or public safety and I am not satisfied that this factor is relevant. Impede the administration of justice Factors favouring nondisclosure will arise where disclosing the Information in Issue could reasonably be expected to impede the administration of justice generally, including procedural fairness,[43] or impede the administration of justice for a person.[44] Venue One submits that it is currently involved in ‘legal matters and investigations’ with OLGR and an ongoing Supreme Court action and that disclosing the Information in Issue would disadvantage it in these matters and impede the administration of justice. Venues Two and Three have merely identified these factors as relevant but have not provided any evidence supporting their application to the Information in Issue. In the absence of any evidence from the venues about how disclosing the Information in Issue could reasonably be expected to impede the administration of justice, I am not satisfied that these factors are relevant. Prejudice the flow of information Factors favouring nondisclosure will arise where disclosing the Information in Issue could reasonably be expected to prejudice: the flow of information to the police or another law enforcement or regulatory agency;[45] or an agency’s ability to obtain confidential information.[46] Venue One submits that disclosing the Information in Issue ‘will create a wall of protection between the venue and the QPS’ and that ‘information will not be freely provided’. Venues Two and Three submit that: a cooperative and open relationship between QPS and licensees is pertinent to the safe and effective operation of licensed venues as well as the safety of the public generally disclosing the information could reasonably be expected to prejudice the effectiveness of LEAPS and similar initiatives which require accurate data in order to address alcohol-related issues, including identifying trends and potential trouble areas; and licensees will not freely communicate with QPS if they know all records of incidents will be released to third parties. I refer to my findings in relation to schedule 3 section 10(1)(f) and (i) of the RTI Act at paragraphs 57 to 60. I do not consider it reasonable to expect that disclosing the Information in Issue would prejudice the flow of information to QPS in the future and there is no evidence before me to suggest the Information in Issue was provided to QPS on a confidential basis. I am not satisfied that these factors are relevant. Prejudice a deliberative process of government The RTI Act recognises that: a public interest factor favouring nondisclosure will arise where disclosing information could reasonably be expected to prejudice a deliberative process of government (Nondisclosure Factor);[47] and disclosing information could reasonably be expected to cause a public interest harm through disclosure of an opinion, advice or recommendation that has been obtained, prepared or recorded, or a consultation or deliberation that has taken place, in the course of, or for, the deliberative processes involved in the functions of government (Harm Factor).[48] I am not satisfied the Harm Factor applies as the Information in Issue does not comprise either 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. However, I will now consider whether the Nondisclosure Factor applies. Venue One submits that: the Information in Issue ‘is a deliberative process of government and could be prejudicial as it relates to disciplinary action of OLGR against the venue, which is ongoing in the Supreme Court’; and ‘disclosure of the information would be a disruption to OLGR objectives and functions contained in the liquor act and would also be premature and cause unnecessary debate, concern and confusion in the community to an extent that would be contrary to public interest’. It is not enough for a party objecting to disclosure to simply assert that disclosure will result in some kind of adverse consequence. The Nondisclosure Factor requires a reasonable expectation of prejudice to the relevant deliberative process.[49] It is not clear how disclosing the Information in Issue could reasonably be expected to disrupt OLGR’s functions or objectives. There is no evidence before me to suggest that disclosing the Information in Issue could reasonably be expected to cause ‘premature and unnecessary debate’. I am not satisfied that the Nondisclosure Factor applies. Disclosure is prohibited by an Act A factor favouring nondisclosure will arise where an Act prohibits disclosure of the information.[50] The venues submit that the Liquor Act and the Victims of Crime Assistance Act 2009 (Qld) prohibit the disclosure of the Information in Issue. Victims of Crime Assistance Act 2009 (Qld) Venues Two and Three submit that the Victims of Crime Assistance Act 2009 (Qld) prohibits disclosure of the Information in Issue and that: ‘disclosure of the information in issue may be in conflict with the principles of the Victims of Crime Assistance Act 2009 which declares fundamental principles of justice to [underpin] the treatment of victims by certain entities dealing with them’; and ‘[QPS] have a responsibility to protect the interest of the victims and release of the information may prejudice this’. Disclosing the Information in Issue would not enable the identification of any individual (as previously explained), including any individual who may have been the victim of a crime, and its disclosure is not in conflict with the principles of that legislation. I do not consider that the Victims of Crime Assistance Act 2009 (Qld) prohibits disclosure of the Information in Issue under the RTI Act. Liquor Act 1992 (Qld) The venues submit that section 48 of the Liquor Act prohibits disclosure of the Information in Issue and that significant weight should be given to this factor. Venue One submits that significant weight should be given to this factor as it specifically prohibits disclosure of information similar to the Information in Issue and that ‘the police obtained the information for the purpose of giving effect to the Liquor Act’. Venues Two and Three also submit that significant weight should be given to this factor because in ‘drafting the Liquor Act parliament has turned its mind to the issue of disclosure of such information and consciously deemed it was necessary to include an express provision in the Liquor Act prohibiting disclosure of such information’. Section 48 of the Liquor Act provides: 48 Preservation of confidentiality (1) Subject to subsection (2), a person who is engaged, or has been engaged, in giving effect to this Act must not make a record of, or directly or indirectly disclose, information about the affairs of another person gathered in the course of administration of this Act. Maximum penalty—35 penalty units. (2) Subsection (1) does not apply to— (a) disclosing information in compliance with lawful process requiring production of documents or giving of evidence before a court or tribunal; or (b) disclosing information in the register; or (c) disclosing information about the status of an application required to be advertised under section 118(1); or (d) disclosing information about the status of an application to the tribunal for a review and the names of the parties to the review; or (e) doing anything for the purposes of this Act. I consider it likely that the primary purpose for QPS to gather the information which appears in the LEAPS Reports (including the Information in issue) was to investigate alleged criminal offences. However, I also note that the QPS Commissioner is required to convey information about certain incidents to OLGR at OLGR’s request for the purpose of OLGR deciding whether to classify licensed premises as high risk.[51] Accordingly, I consider the Information in Issue may have been gathered by QPS officers for the purpose of giving effect to the Liquor Act. I therefore consider that section 48 of the Liquor Act would generally prohibit disclosure of the Information in Issue and this factor favouring nondisclosure arises for consideration. It is then necessary to consider the weight to be afforded to this public interest factor. Officers of the agency administering the Liquor Act have access to a wide range of information, some of which is particularly sensitive, for example, individuals’ criminal history checks. Section 48 of the Liquor Act is, in my view, a standard confidentiality provision included in legislation to prevent the indiscriminate disclosure of information which an agency officer may have access to in the course of their duties. It is not, however, a blanket prohibition on disclosure. The Liquor Act still authorises disclosure of information in a range of specific circumstances including, for example, doing anything for the purposes of the Liquor Act or producing documents in compliance with a lawful process requiring production of documents. This provision must be balanced against the express intention of the RTI Act, a later Act, to override provisions in other Acts prohibiting the disclosure of information.[52] Parliament did not include information gathered under the Liquor Act in schedule 3, section 12 of the RTI Act, which specifically exempts information the disclosure of which is prohibited under several listed Acts. Accordingly, while I consider this factor is relevant, it warrants only moderate weight. Personal information If disclosing the Information in Issue would disclose the personal information of a person, a public interest harm factor will arise.[53] 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’.[54] Venue One submits that the Information in Issue could enable the identity of QPS officers, victims, suspects, security personnel, employees of the licensee and witnesses to be ascertained. Venues Two and Three submit that the Information in Issue discloses personal information of QPS officers, the licensee, victims, suspects, security personnel and the licensee's staff ‘by facilitating identification due to association with the incidents’. The Information in Issue comprises the name and address of the venues. An ‘individual’ is a natural person.[55] As the venues are not natural persons, I do not consider information about the venues is ‘personal information’. I refer to my previous finding that disclosing the Information in Issue would not enable relevant individuals to be identified. I am not satisfied that this factor is relevant. Insignificance of the data The venues submit that that incidents in the LEAPS Reports represent an insignificant incident rate as against patronage at the venues and, accordingly, it is not in the public interest to disclose the information. As noted above, there is a public interest in enabling the public to examine the nature and frequency of alcohol-related incidents reported to QPS. I do not consider the public interest is reduced simply because the venues consider the rate of incidents is insignificant for the rate of patronage at the venue. These submissions do not give rise to a factor favouring nondisclosure of the Information in Issue. Incorrect information Venue One raised concerns about the accuracy of some of the Information in Issue as a reason for not disclosing the Information in Issue. I note that the RTI Act gives rise to a factor favouring disclosure where disclosing the information could reasonably be expected to reveal that the information was incorrect.[56] Venue One submits that the address recorded for a particular entry in the LEAPS Report is incorrect as it records the wrong suburb and therefore doesn’t relate to Venue One. I acknowledge that the street address appears to have been recorded incorrectly but, in my view, it is clear that this entry in the LEAPS Report otherwise relates to Venue One. Venue One submits that two of the entries in the LEAPS Reports are for a different venue. I agree that these entries relate to other venues and it appears this information was inadvertently provided to Venue One by QPS in the consultation process. As this information does not relate to Venue One, it was not intended to be the subject of consultation with Venue One. Venue One submits that it has been incorrectly identified as the trading entity of a particular company throughout the LEAPS Reports and disclosing the Information in Issue would be misleading, defamatory and would result in legal action by the company. Based on my review of the LEAPS Reports, it is clear that the entries relate to Venue One. The fact that the venue may have concerns with how it is identified in the LEAPS Reports is an issue which the venue may raise with QPS or OLGR. These submissions do not give rise to a factor favouring nondisclosure of the Information in Issue. Balancing the relevant public interest 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.[57] Alcohol-related incidents which occur at licensed venues and the safety of licensed venues are issues of serious public interest and debate and disclosing the Information in Issue will enable patrons to make a more informed decision about their choice of venue by providing some information about the safety of particular identified venues. I consider the four factors favouring disclosure warrant moderate weight in the circumstances of this review. These factors must be weighed against the potential prejudice to the venues’ business affairs and the fact that disclosing the Information in Issue is prohibited by the Liquor Act. I afford moderate weight to both of these factors favouring nondisclosure of the Information in Issue. For the reasons outlined above, I do not consider the two factors favouring nondisclosure are of sufficient weight to outweigh the four public interest factors favouring disclosure, particularly given the high and ongoing public interest in the safety of licensed venues. Accordingly, I am not satisfied that disclosing the Information in Issue would, on balance, be contrary to the public interest. DECISION As QPS was deemed to have refused access to the Information in Issue, I set aside the decision under review and find that there is no basis to refuse access to the Information in Issue under the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ L Lynch Assistant Information Commissioner Date: 12 June 2014 APPENDIX Significant procedural steps Date Event 29 January 2013 QPS received the access application under the RTI Act. 2 October 2013 QPS did not issue a decision within the required timeframe and was therefore deemed to have refused access to the requested information. Despite this, QPS issued a purported decision to the applicant. 10 October 2013 OIC received the external review application. 11 October 2013 OIC asked QPS to provide relevant procedural documents by 18 October 2013. 23 October 2013 OIC received the requested documents from QPS. 25 October 2013 OIC notified QPS and the access applicant that the external review application had been accepted and asked QPS to provide the relevant documents to OIC by 11 November 2013. 20 November 2013 OIC received the requested documents from QPS. 22 November 2013 OIC conveyed its preliminary view to the applicant by phone that the requirement for OIC to consult with the large number of venues covered by the scope of the application would result in a substantial and unreasonable diversion of OIC’s resources and that OIC could refuse to deal with the application on this basis. 3 December 2013 OIC confirmed the preliminary view in writing and invited the applicant to narrow the scope of the application or provide further submissions supporting its case by 17 December 2013. 7 January 2014 The applicant agreed to narrow the scope of the application to the LEAPS Reports for 16 venues for the relevant timeframe. 9 January 2014 OIC conveyed a preliminary view to QPS by phone that there was no basis to refuse access to the Information in Issue. QPS accepted the preliminary view and agreed to release the Information in Issue. 10 January 2014 OIC asked QPS to provide another copy of the relevant documents to OIC by 24 January 2014. 7 February 2014 QPS requested an extension of time to provide the requested information. OIC agreed to extend the timeframe until 14 February 2014. 17 February 2014 18 February 2014 QPS provided the requested information to OIC. 19 February 2014 OIC asked QPS to provide further documents to OIC by 27 February 2014. 20 February 2014 OIC received the requested response from QPS. 24 February 2014 OIC notified 16 relevant venues about the likely release of the Information in Issue and invited them to provide submissions supporting their case by 10 March 2014 if they objected to release of the information. OIC asked QPS to forward the relevant LEAPS Reports to the venues by 3 March 2014. 4 March 2014 QPS provided OIC with a copy of the LEAPS Reports in the form they were sent to the relevant venues. 7 March 2014 Lawyers, on behalf of Venue Two, requested an extension of time until 24 March 2014 to provide submissions supporting its case. OIC granted Venue Two the requested extension of time. 10 March 2014 OIC received submissions from Venue One. 24 March 2014 OIC received submissions from Venue Two. 26 March 2014 Lawyers contacted OIC by phone and, on behalf of Venue Three, requested an extension of time to provide submissions in response to OIC’s letter. OIC granted Venue Three an extension of time until 4 April 2014. 3 April 2014 OIC received submissions from Venue Three. 30 April 2014 OIC conveyed its preliminary view to Venues One, Two and Three and invited them to provide final submissions supporting their case by 15 May 2014 if they continued to object to disclosure of the Information in Issue. 12 May 2014 Venue Two requested an extension of time until 29 May 2014 to respond to the preliminary view. OIC granted Venue Two an extension of time until 26 May 2014. 13 May 2014 Venue Three requested an extension of time until 29 May 2014 to respond to the preliminary view. OIC granted Venue Three an extension of time until 26 May 2014. 14 May 2014 Venue One requested an extension of time until 19 May 2014 to respond to the preliminary view. OIC granted Venue One the requested extension of time. 19 May 2014 OIC received submissions from Venue One. 26 May 2014 OIC received submissions from Venues Two and Three. [1] QPS Commissioner’s Circular No 27/2010 ‘Drink Safe Precincts and Banning Orders’ which sets out police officers’ powers and obligations with respect to managing behaviour in the vicinity of licensed premises and is available at: http://www.police.qld.gov.au/Resources/Internet/rti/policies/documents/Circular%2027-2010.pdf.[2] N31ZEO and Department of Justice and Attorney-General; Queensland Newspapers Pty Ltd (Unreported, Queensland Information Commissioner, 8 November 2013) and Nine Network Australia Pty Ltd and Queensland Police Service; Third Parties (Unreported, Queensland Information Commissioner, 5 December 2013). [3] QPS did not make a decision within the processing period set out in section 18 of the RTI Act. Accordingly, QPS is deemed to have refused access to the requested documents under section 46(1) of the RTI Act. QPS subsequently provided a decision to the applicant dated 2 October 2013 and OIC treated this as a submission in the review.[4] Section 87(2) of the RTI Act relevantly provides that, if the decision under external review is a disclosure decision, the participant in the external review who opposes it has the onus of establishing that a decision not to disclose the information is justified. As noted at footnote 3, the reviewable decision in this case is the one that QPS was deemed to have made refusing access to the requested information. Therefore, as QPS did not formally make a disclosure decision, section 87(2) of the RTI Act does not apply. However, as QPS agreed to release the Information in Issue to the applicant on external review, there is now a practical onus on the third parties objecting to disclosure to establish that a decision not to disclose the Information in Issue is justified. [5] Section 36 and schedule 1 of the Acts Interpretation Act 1954 (Qld). [6] Section 14 of the RTI Act.[7] As it is not a document mentioned in schedule 1 of the RTI Act: see section 11 of the RTI Act. [8] Venue One submitted that a particular incident in the LEAPS Report contained the last name of the involved party. OIC raised this issue with QPS and it has agreed to delete this information from the documents prior to release. [9] Sections 47(3)(a) and 48 of the RTI Act. [10] Schedule 3, section 6(a) of the RTI Act. [11] Schedule 3, section 6(b) of the RTI Act. [12] The term ‘could reasonably be expected to’ requires that the expectation be reasonably based, that it is neither irrational, absurd or ridiculous, nor merely a possibility. Whether the expected consequence is reasonable requires an objective examination of the relevant evidence. It is not necessary for a decision-maker to be satisfied upon a balance of probabilities that disclosing the document will produce the anticipated prejudice. The expectation must arise as a result of disclosure, rather than from other circumstances. See Nine Network Australia Pty Ltd and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 14 February 2012) at paragraph 31. [13] Schedule 3, section 10(1)(a) of the RTI Act.[14] Schedule 3, section 10(1)(b) of the RTI Act. [15] Schedule 3, section 10(1)(c) of the RTI Act. [16] Schedule 3, section 10(1)(d) of the RTI Act. [17] Schedule 3, section 10(1)(e) of the RTI Act. [18] Schedule 3, section 10(1)(f) of the RTI Act. [19] Schedule 3, section 10(1)(i) of the RTI Act. [20] Page 2 of the QPS Commissioner’s Circular No 27/2010 ‘Drink Safe Precincts and Banning Orders’.[21] Section 148A(4) of the Liquor Act.[22] Police Specials are defined in the submissions as ‘off duty Queensland Police Officers engaged by the venue at its cost, and provide a very important service over and above security personnel’.[23] Schedule 3, section 10(4) of the RTI Act. [24] Schedule 3, section 10(5)(a) and (b) of the RTI Act. [25] Schedule 3, section 10(5)(c) of the RTI Act.[26] 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. [27] 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. [28] Section 49(3) of the RTI Act.[29] Schedule 4, part 1, item 2 of the RTI Act. [30] CH32GI and Department of Justice and Attorney-General; Third Parties (Unreported, Queensland Information Commissioner, 22 November 2012) at paragraph 44.[31] Schedule 4, part 1, item 3 of the RTI Act.[32] Schedule 4, part 2, item 1 of the RTI Act. [33] Schedule 4, part 2, item 2 of the RTI Act. [34] Schedule 4, part 2, item 14 of the RTI Act. [35] This public interest factor is not listed in schedule 4 of the RTI Act but was recognised by the Information Commissioner in Seven Network (Operations) Limited and Redland City Council; Third Party (Unreported, Queensland Information Commissioner, 30 June 2011) at paragraphs 33 - 45.[36] Venues Two and Three submit that OIC cannot take into account the age of the Information in Issue. I will address this submission under the factor relating to prejudice to business affairs.[37] Alcohol-related violence at licensed premises has been the subject of consideration and reform by both the Queensland Government and the Federal Government in recent years. Recent Queensland Government measures include, for example, the ‘Safe Night Out Strategy’ which aims to ‘restore responsible behavior and respect, stamp out alcohol and drug-related violence and ensure Queensland’s nightlife is safe for all’ and is available at: http://www.qld.gov.au/safenightout. Also see, for example, the report by the Law, Justice and Safety Committee ‘Inquiry into Alcohol-Related Violence - Final Report’, Report No 74, March 2010 which is available at http://www.parliament.qld.gov.au/documents/TableOffice/TabledPapers/2010/5310T1903.pdf and chapter 4 of the National Preventative Health Taskforce’s publication ‘Australia: the healthiest country by 2020 National Preventative Health Strategy – the roadmap for action’ which is available at: http://www.preventativehealth.org.au/internet/preventativehealth/publishing.nsf/Content/nphs-roadmap-toc~nphs-roadmap-4. [38] Schedule 4, part 3, item 2 of the RTI Act. [39] Kalinga Wooloowin Residents Association Inc and Brisbane City Council; City North Infrastructure Pty Ltd; Treasury Department (Unreported, Queensland Information Commissioner, 9 May 2012) at paragraph 89.[40] I also considered the age of the Information in Issue in relation to the factors favouring disclosure and decided that it reduced the weight of these factors to some degree.[41] Schedule 4, part 3, item 6 of the RTI Act. [42] Schedule 4, part 3, item 7 of the RTI Act. [43] Schedule 4, part 3, item 8 of the RTI Act. [44] Schedule 4, part 3, item 9 of the RTI Act. [45] Schedule 4, part 3, item 13 of the RTI Act. [46] Schedule 4, part 3, item 16 of the RTI Act. [47] Schedule 4, part 3, item 20 of the RTI Act. [48] Schedule 4, part 4, item 4 of the RTI Act. [49] Abbot and The University of Queensland (Unreported, Queensland Information Commissioner, 16 October 2012) at paragraph 24.[50] Schedule 4, part 3, item 22 of the RTI Act.[51] Section 99G of the Liquor Act. [52] Section 6 of the RTI Act. [53] Schedule 4, part 4, section 6 of the RTI Act. [54] Section 12 of the Information Privacy Act 2009 (Qld).[55] Section 36 and schedule 1 of the Acts Interpretation Act 1954 (Qld). [56] Schedule 4, part 2, item 12 of the RTI Act. [57] Section 44 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Z18 and Queensland Police Service [2020] QICmr 8 (14 February 2020)

Z18 and Queensland Police Service [2020] QICmr 8 (14 February 2020) Last Updated: 12 May 2020 Decision and Reasons for Decision Citation: Z18 and Queensland Police Service [2020] QICmr 8 (14 February 2020) Application Number: 314813 Applicant: Z18 Respondent: Queensland Police Service Decision Date: 14 February 2020 Catchwords: ADMINISTRATIVE LAW - AMENDMENT OF PERSONAL INORMATION - application to amend letter describing applicant as of “unsound mind” - whether the information sought to be amended is inaccurate, incomplete, out of date or misleading - section 72 of the Information Privacy Act 2009 (Qld) REASONS FOR DECISIONSummary The applicant applied[1] to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) for amendment of a reference to the applicant as being of “unsound mind” in a letter from QPS’s Ethical Standards Command (ESC) to the applicant dated 28 March 2019 (Letter). QPS decided[2] to refuse the requested amendment on the basis that the Letter did not form part of a functional record of QPS.[3] The applicant applied to the Office of the Information Commissioner (OIC) for external review of QPS’s decision. For the reasons set out below, I find that the amendment to the Letter sought by the applicant may be refused. Background In January 2017, the applicant was charged with using a carriage service to menace, harass or cause offence under section 474.17(1) of the Criminal Code Act 1995 (Cth). When heard before a Queensland Magistrates Court in August 2017, the charge was dismissed under section 20BQ(1)(c)(iii) of the Crimes Act 1914 (Cth), on the basis that the applicant had a mental illness. Prior to this outcome, the applicant’s solicitor furnished the Court with two reports from Forensic Consultant Psychiatrist Dr A.[4] The applicant then made a complaint to QPS’s ESC regarding the conduct of two police officers during the matter. ESC determined that neither officers’ conduct amounted to misconduct and finalised the complaint. The Letter advised the applicant of this outcome. The applicant has since raised concerns about the charge against him, the outcome of the Court proceedings, and the Letter itself with various parties, including OIC. In terms of the Letter, the applicant’s concerns focus on a reference to him being of “unsound mind”, which appears in the following overview of facts in the Letter: I am aware you subsequently sought legal representation and in your defence of the charge, a mental health report was furnished by [Forensic Consultant Psychiatrist Dr A]. This report declared you were of unsound mind at the time of the alleged offence(s) which was accepted by the Magistrate. The charge was ultimately dismissed under the Mental Health Act 2016. [emphasis added] It is this reference to the applicant being of “unsound mind” which is the subject of the applicant’s amendment application and this external review. Significant procedural steps taken during the external review are set out in the Appendix to this decision.Reviewable decision The decision under review is QPS’s decision dated 30 August 2019.Evidence considered The applicant has provided voluminous and largely unprompted submissions over the course of the external review. Over a period of approximately five months, OIC has received more than 220 emails from the applicant, most of which included multiple attachments, and many of which were sent to other parties as well as OIC. Most of the issues raised by the applicant with various parties, including OIC, fall outside the scope of OIC’s jurisdiction. For example, in emails to OIC, his former law firm, the Queensland Law Society, media organisations and multiple government agencies, including the Crime and Corruption Commission and the Queensland Ombudsman, the applicant has made a number of unsubstantiated allegations of misconduct by numerous government departments, agencies, officers, and a Minister. However, OIC’s functions on external review relate to access to and amendment of documents[5] and do not extend to investigating these allegations of misconduct. Accordingly, I have carefully considered the applicant’s emails and addressed his submissions to the extent that they are relevant to the issue for determination. The evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix).Issue for determination The issue for determination is whether QPS is entitled to refuse to amend the reference to the applicant as being of “unsound mind” in the Letter. During the external review, the applicant has also raised concerns about a reference to the Mental Health Act 2016 (Qld) (MH Act) which, as set out at paragraph 6 above, appears in the overview of facts in the Letter along with the reference to the applicant being of “unsound mind”. The applicant appears to consider that the Letter should have referred to the Commonwealth provision under which his charge was dismissed, rather than Queensland’s MH Act, which provided the meaning of mental illness for the purpose of that provision. It is my understanding that the applicant’s comments regarding the MH Act are directed at supporting his request for amendment of the phrase “unsound mind”. However, to the extent that the applicant intended that these comments be construed as a request for amendment of the Letter’s reference to the MH Act as well, I confirm that, as a review body tasked with conducting merits review, OIC’s jurisdiction is limited to reviewing decisions by agencies regarding access and amendment app[6]ications.6 The requirements for making an amendment application include ‘stat[ing] the information the applicant claims is inaccurate, incomplete, out of date or misleadi[7]g’.7 In this regard, the only information identified by the applicant in his application was the phrase “unsound mind”. In these circumstances, the Information Commissioner has no jurisdiction under the IP Act to consider amendment of the Letter’s reference to the MH Act in this review. Before addressing the issue for determination, it is necessary that I first address a preliminary matter – namely, the applicant’s allegations that the Information Commissioner and certain OIC staff are biased against him. Alleged bias by the Commissioner The applicant has made submissions alleging that the Information Commissioner and the Review Officer managing his review have displayed bias against him. For example, the applicant’s submissions include allegations that ‘the operational side of the QPS has been in touch with the Office of the Information Commissioner’, ‘it would not be unreasonable to suggest that your office was bribed by the Queensland Police Service’, and the Review Officer was ‘batting for the Queensland Police Service’.[8] These allegations of bias were made after I wrote to the applicant advising him of my preliminary view that the amendment sought by him may be refused.[9] In terms of the applicant’s allegations of bias, I have carefully considered these allegations, 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’.[10] 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’.[11] 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.[12] In order to ensure procedural fairness (as required by both the IP Act[13] 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 a preliminary view to the applicant that amendment of the Letter may be refused. In my letter, I advised the applicant that the purpose of my view was to give him the opportunity to put forward his views, and if he provided additional information supporting his case, this would be considered and may influence the outcome.[14] On the afternoon that the applicant received my preliminary view, the applicant had two telephone conversations with the Review Officer tasked with managing his review. In the first conversation, the Review Officer confirmed that the applicant could make submissions. Then, after receiving submissions regarding criminal law matters from the applicant, the Review Officer advised the applicant that his submissions should address relevant provisions of the IP Act.[15] Contrary to the applicant’s belief that ‘the operational side of QPS has been in touch with [OIC]’, neither the Review Officer, myself or any other OIC officer has been in contact with any operational area of QPS regarding the applicant during this review.[16] For this review, I am the delegate of the Information Commissioner.[17] The Information Commissioner has not been involved, directly or indirectly, in the conduct of this review. Accordingly, there is nothing before me to suggest that the applicant’s allegations of bias by the Information Commissioner are possessed of any substance. In terms of the applicant’s allegations of bias by the Review Officer, again there is nothing before me to suggest that there is any substance to these allegations. I am satisfied that the Review Officer’s two telephone conversations with the applicant following his receipt of my preliminary view were directed at assisting him to make submissions addressing the issues in this external review, rather than broader matters of concern to him. I also confirm that the Review Officer has acted under my supervision and in accordance with my instructions in this review. Given my role as the Information Commissioner’s delegate and the Review Officer’s supervisor, although the applicant has not made any allegations of bias against me, I will take the opportunity to confirm the following for sake of completeness. I have not to my knowledge dealt with the applicant in any capacity prior to this review, and cannot identify any conflict of interest in my dealing with his application for review of QPS’s decision to refuse amendment. Also, I consider that my express advice to the applicant that he could respond to my preliminary view, and provide additional information supporting his case, which would be considered and may influence the outcome, demonstrates that I was not so committed to my preliminary view that my conclusion was already formed and incapable of alteration, whatever evidence or arguments may be presented by the applicant.[18] Further, I do not consider that the fact that the applicant has made complaints about various OIC officers during the course of this review[19] 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[20] might not bring an impartial and unprejudiced mind to the resolution of this matter. Amendment of informationRelevant law Under the IP Act[21] an individual has a right to apply for amendment of documents of an agency containing the individual’s personal information where the following requirements are satisfied: the applicant has previously obtained access to the relevant document the information the applicant seeks to amend is their personal information;[22] and the personal information is inaccurate, incomplete, out of date, or misleading. An agency must consider the application and decide whether amendment of the information is to be permitted.[23] Relevantly for this review, an agency may refuse amendment of a document on the basis that it does not form part of a functional record.[24] The IP Act defines a ‘functional record’ as meaning ‘a record available for use in the day-to-day or ordinary performance of the agency’s or Minister’s functions’.[25] An agency may also refuse amendment of a document on the basis that the information sought to be amended is not ‘inaccurate’, ‘incomplete’, ‘out of date’ and ‘misleading’. These terms are not defined in the IP Act, nor the Acts Interpretation Act 1954 (Qld). These terms are therefore used in their ordinary sense and the dictionary definitions[26] of them, as set out below, are relevant: ‘inaccurate’ not accurate. ‘incomplete’ 1. not complete; lacking some part. 2. not to the entire extent: incomplete combustion. ‘out of date’ 1. (of a previous style or fashion) obsolete. 2. (of a ticket, etc.) no longer valid. ‘mislead’ 1. to lead or guide wrongly; lead astray. 2. to lead into error of conduct, thought or judgement. Even if it is shown that the information an applicant seeks to amend is inaccurate, incomplete, out of date or misleading for the purposes of requirement (c) at paragraph 23 above, the opening words of section 72(1) of the IP Act – ‘[w]ithout limiting the grounds on which the agency or Minister may refuse to amend the document’ – confer a discretion on the agency to refuse amendment. The exercise of this discretionary refusal may take into account the fact that the purpose of amending a document is not to: re-write history,[27] as this destroys the integrity[28] 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[29] re-write a document in words other than the author’s[30] review the merits or validity of official action;[31] or correct any perceived deficiencies in the work undertaken by agencies or re-investigate matters.[32]FindingsIs the Letter a functional record? QPS decided to refuse amendment on the basis that the Letter did not form part of a functional record. The definition of functional record is set out at paragraph 25 above. I asked QPS[33] to explain how the Letter was not a functional record – that is, how the Letter was not available for use in the day-to-day or ordinary performance of QPS’s functions. In this regard, I asked QPS to identify any limitations that prevented such use. QPS made verbal submissions to OIC in response to this request.[34] In terms of physical limitations, QPS stated that the Letter is held in the ESC database and that only ESC officers within QPS have electronic access to the ESC database. Secondly, regarding policy limitations, QPS submitted that the policies within QPS prevent access to records without a specific reason, such as an RTI request or a ministerial complaint. Thirdly, in relation to legislative limitations, QPS submitted that the IP Act and the Right to Information Act 2009 (Qld) prevent unlawful access; and the Police Service Administration Act 1990 (Qld) makes it unlawful for an officer to access information that is not directly related to their work. I have carefully considered the submissions by QPS. These submissions tend to address whether the Letter would be accessed or used by QPS officers in their day to day work, rather than whether the Letter is available for use in the day-to-day or ordinary functions of QPS. While I accept QPS’s advice that documents such as the Letter are not generally available to all QPS officers, and not available without specific reason, I do not accept that this demonstrates that the Letter is not a functional record of QPS. QPS’s submissions acknowledge that the documents such as the Letter are available to relevant parts of QPS which have a specific reason to access it – for example, QPS’s RTI officers, if the Letter were subject to an access application, and QPS’s ESC officers, if the Letter was directly related to their work. This, in my view, is sufficient to establish that the Letter is available for use as part of the day-to-day or ordinary performance of QPS’s functions. In these circumstances, I consider that the Letter is part of QPS’s functional record. Accordingly, I find that amendment of the Letter may not be refused on the basis that it does not form part of QPS’s functional record.[35] Can QPS refuse amendment of the phrase “unsound mind” in the Letter for other reasons? There is no dispute that the applicant has previously obtained access to the Letter or that it contains the applicant’s personal information. Accordingly, I find that requirements a. and b. as set out at paragraph 23 above are satisfied. The applicant disputes the reference by the ESC Officer who wrote the Letter (Author) to him being of “unsound mind” and seeks to amend this reference. As noted at paragraph 10 above, the applicant sent more than 220 emails, with multiple attachments on each, in the course of this review. Each email contained multiple attachments. The following comprise the applicant’s submissions, insofar as they are relevant to the issue of dete[36]ination:36 The Queensland Police Service have not discharged the onus... of establishing that the decision was justified (what a joke). The decision is wrong at law. [The Letter is] cruel, despicable, malicious, manufactured and vile. This is all about the Queensland Police Service infiltrating as many government department about myself. There is no evidence that has been produced and I have produced evidence and you have simply ignored that... The decision should be reversed as...Section 72(1) is not satisfied as [the Letter] is inaccurate and misleading. The Queensland Police Service did not comply with section 3(a) of the IP Act. It is no [sic] contrary to the public interest to allow the information to be amended as outlined in Section 72(1)(a)(I) (ii) supra. It is submitted that the Queensland Police Service have not applied section 72(a)(i)(ii) of the Act supra as section 32A of Acts Interpretation Act 1954 (Qld) is the Law with respect of interpretation in Queensland Acts. The Act must be applied and interpreted to further the primary object (see Section 32CA(2) in the penultimate paragraph). I will file a complaint with the Ombudsman of Queensland ... Take note I rely on section 47 of the OA. I trust common sense will prevail and that you will stop protecting [QPS Officer]. I [sic] you people serious? It must be apparent that I am totally exonerated and the Office of the Information Commissioner have [sic] no alternative to accede to my request. The Queensland Police Service operational area infiltrated the Hospital. I have reviewed [Forensic Consultant Psychiatrist Dr A] report of the 22 June 2017. I was not of unsound mind at the material time as I was and am capable of managing my Affairs. I was not insane. I am not an idiot and I am not an imbecile. [Dr A] found tat [sic] I am a person of superior intelligence. I did not and have not every [sic] had Delusional Order or Bipolar Disorder. Please see the relevant pages of [Forensic Consultant Psychiatrist Dr A] Medico Legal Report of the 20 February 2017. It must be apparent that with the Mental Health Assessment of a consultant Psychiatrist [Dr B] of the 31 May 2019 that my mental health assessment leaves [the Letter] out of date. Not to mention that it is totally out of date and simply misleading as that would appear to any reasonable thinking person like myself... Don’t worry about my mental health as I know exactly what I am doing. It’s all over red rover.... You are fully aware the documents are a total fraud. As a Lawyer it would not be unreasonable to suggest that your office was bribed by the Queensland Police Service.[37] [sic] Given the applicant’s submissions, the questions I must now consider are: whether, in terms of requirement c. as set out at paragraph 23 above, the applicant has demonstrated that the information sought to be amended within the Letter is inaccurate, incomplete, out of date or misleading; and if so, whether amendment of the information may, in any event, be refused under the discretion afforded by section 72(1) of the IP Act. Question 1 - Is the phrase “unsound mind” in the Letter inaccurate, incomplete, out of date or misleading? Evidence QPS provided OIC with the following documents relating to the charge against the applicant and the Magistrates Court proceedings referred to at paragraph 4: Form 44 – a form 44 (verdict and judgement record) of the Magistrates Court dated 15 August 2017; and June Report – a 4 page letter by Forensic Consultant Psychiatrist Dr A to the applicant’s solicitors dated 22 June 2017.[38] The applicant also provided OIC with some documents relating to the abovementioned charge and proceedings – namely: Partial Transcript – a partial transcript of the proceedings before a Magistrates Court on 15 August 2017; and Appendix One – a partial appendix of 21 pages titled ‘Appendix One’. Further, the applicant provided OIC with the following documents relating to other mental health assessments of the applicant: April 2019 Assessment Request – hospital records from 26 April 2019 showing that QPS requested an assessment of the applicant’s mental health, due to concerns (which arose following 250 contacts from the applicant) that the applicant may be fixated on the charge and Magistrates Court proceedings referred to at paragraph 4 May 2019 Assessment – a 4 page extract of an assessment by a Hospital Psychiatrist Dr B dated 31 May 2019 October 2019 Assessment – an incomplete record showing part of an involuntary assessment by Hospital Psychiatrist Dr C; and 2015/2016 Assessments – two reports by Staff Psychiatrist Dr D and two letters by Psychiatrist Dr E considered in proceedings before the Queensland Civil and Administrative Tribunal.[39] The Form 44 records that, on 15 August 2017, pursuant to section 20BQ(1)(c)(iii) of the Crimes Act 1914 (Cth), a Magistrate dismissed the charge against the applicant referred to at paragraph 4<[40] above.40 The provision under which the charge was dismissed – section 20BQ(1)(c)(iii) of the Crimes Act 1914 (Cth) – provides:Person suffering from mental illness or intellectual disability (1) Where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence, it appears to the court: (a) that the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability; and (b) that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law;the court may, by order: (c) dismiss the charge and discharge the person:.... (iii) unconditionally. [emphasis added] In Queensland, ‘mental illness’ is defined in section 10(1) of the MH Act as ‘a condition characterised by a clinically significant disturbance of thought, mood, perception or memory.’ Relevantly, given the applicant seeks amendment of the phrase “unsound mind”, section 109(1)(a) of the MH Act defines ‘unsound mind’, as ‘a state of mental disease or natural mental infirmity described in the Criminal Code, section 27(1)’.[41] The phrases of ‘mental disease’ and ‘natural mental infirmity’ as appearing in this definition of ‘unsound mind’ are also used in the definition of ‘insanity’ in section 27(1) of the Criminal Code Act 1899 (Qld). The Partial Transcript of the proceedings on 15 August 2017, at which the charge against the applicant was dismissed, records Mr F, the legal representative for the applicant, as commenting: ... It’s a hearing of sorts. We’re here under the mental health provisions for your Honour to make a determination of ruling. It’s not contested but it’s a little more complex in the sense that they are Commonwealth charges. ... ... There’s two medical reports under the hand of [Forensic Consultant Psychiatrist Dr A] and a further report under the hand of [Dr Z] ... [the letter from Dr Z] is just evidence that [the applicant] is currently under care.... My instructions are that [the applicant] does attend the doctor every three weeks and is maintaining that regime of medication. ... Your Honour’s empowered in this case by section 20BQ of the Commonwealth Crimes Act and for the reasons that I’ve outlined in there, the summary, I’d urge your Honour to order a complete discharge. [emphasis added] In terms of the two medical reports by Dr A referred to by Mr F in the Partial Transcript: The applicant provided OIC with the document titled Appendix One, which appears to be part of an appendix that was appended to an April Report. The part of this appendix before OIC comprises a transcript of an interview[42] with the applicant dated 20 February 2017, which cuts off at the point following the interview where Dr A starts to write his analysis. Neither the applicant nor QPS were able to produce the April Report to OIC. Nor has either party produced any further appendices to the April Report.[43] The June Report (provided to OIC by QPS, but also in the possession of the applicant[44]) indicates that the April Report was a medicolegal report dated 27 April 2017 that Dr A prepared in response to a letter of instruction from the applicant’s solicitors dated 17 February 2017. Based on the content of the June Report, and the timing of the April Report and June Report relative to the proceedings at which the charge against the applicant was dismissed, I am satisfied that the two reports by Dr A furnished to the Court on 15 August 2017 were the April Report and the June Report. Further, based on QPS’s advice that the June Report was held on its prosecution file from the hearing on 15 August 2017, and that the June Report is the only report from Dr A that it could locate,[45] I consider it reasonable to assume that the June Report was viewed by the Author before she wrote the Letter. Given the June Report is closest in time to the Magistrates Court proceedings on 15 August 2017, given it includes a statement by Dr A that ‘I affirm the opinions expressed in the [April Report]’, and given it was, most likely, viewed by the Author of the Letter, I am satisfied that viewing the June Report is sufficient for the purpose of this decision. In the June Report, Dr A made the following comments which I consider to be relevant to the issue for determination: There is no doubt [the applicant] suffers from a mental illness. There is inconvertible evidence of this fact from multiple different sources, psychiatrists and psychiatric services, including inpatient mental health services. ... The mental illness from which he suffers is complicated by the fact that he does not believe he has the mental illness... and does not believe he needs treatment from a mental illness. Given the opinions of various independent assessors and treating medical specialists he has had contact with in 2014, 2015 and 2016, this is quite a remarkable fact, and one of serious concern in terms of how health authorities might monitor, assess and care for [the applicant]. ... The history is clearly one in which the delusional paranoid system of mental state dysfunction becomes complicated by his frustration that ‘no one will listen’ as he harangues various authorities, repeatedly. The content of the emails which brought the charges is based on his state of emotional and psychological disturbance at that time, given the impact of the underlying psychiatric illness from which he has suffered for some years and which is a persistent constant state of Delusional Disorder or paranoid type. This means there is no possibility that at the relevant time this sort of disorder was in remission, or quiescent or absent. ... ... It is my opinion that your client is not criminally responsible for the acts for which the charges have been laid as ... your client was in such a state of mental disease as to be deprived of the capacity to understand what he was doing, and he lacked the capacity to control his actions.’ Analysis I have considered the above information and the applicant’s submissions in support of his contentions that the phrase “unsound mind” is inaccurate, misleading, incomplete and out of date. The applicant contends that amendment should occur because the IP Act, including section 72 of the IP Act, must be applied and interpreted in furtherance of the object of the IP Act set out in section 3(a) [sic] of that Act. Section 3(2) of the IP Act provides that ‘[t]he [IP] Act must be applied and interpreted to further the primary object’.[46] Section 3(1)(b) of the IP Act[47] provides that the primary object of the IP Act includes ‘a right of access to, and amendment of, personal information in the government’s possession or under the government’s control’. However, this right is not absolute. Section 3(1)(b) itself specifies that the right to amendment applies ‘unless, on balance, it is contrary to the public interest to give the access or allow the information to be amended’. That is, the provision in the IP Act which sets out IP Act’s object specifies that the right to amend is subject to qualifications and exceptions. In this regard, section 41(1) of the IP Act provides that ‘[s]ubject to this Act, an individual has a right under this Act to amend, if inaccurate, incomplete, out of date or misleading ... documents of an agency to the extent they contain the individual’s personal information’ [emphasis added]. Accordingly, the right to amend personal information under the IP Act only applies if the information in question is inaccurate, incomplete, out of date or misleading and is subject to the discretion of the agency or Minister, in accordance with Parliament’s express intention. Given this position, I am satisfied that relying on section 72 of the IP Act as a basis for refusing to amend information that is not inaccurate, incomplete, out of date or misleading is consistent with the primary object of the IP Act. The applicant also contends that QPS has failed to discharge its onus. In this external review, QPS has the onus of establishing that its decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[48] However, the Information Commissioner has previously held[49] that the requirements of section 44 of the IP Act are such that a practical or evidentiary onus shifts to an applicant to provide evidence to support their entitlement to relief under the IP Act on the basis that the documents comprise information that is inaccurate, incomplete, out of date or misleading. Where disputed information comprises an individual’s interpretation of events or issues, an applicant seeking amendment must establish not only that the relevant information inaccurately recounts or 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.[50] Further, in considering whether information is misleading, the Information Commissioner has previously observed[51] 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. It is concerned that the third persons reading the personal information do not get the wrong impression... It is relevant to note that, in the overview of facts in which the phrase “unsound mind” appears (as set out at paragraph 6 above), the Author of the Letter did not express the view that she considered the applicant was of unsound mind. Rather, the Author stated her understanding that Dr A considered that the applicant was of unsound mind and that, based on Dr A’s view, the Magistrate also considered that the applicant was of unsound mind – and dismissed the charge on this basis. However, the applicant’s submissions do not expressly contend that Author was not actually of this understanding. Nor do the applicant’s submissions suggest that the Author failed to accurately record her understanding of these facts in the Letter or has unfairly misrepresented them. Rather, the applicant has attempted to litigate the status of his mental health and his perceived ‘guilt’ or ‘innocence’ regarding being mentally unwell at the time the charge was dismissed, as evidenced by his comments[52] and his provision of the May 2019 Assessment and October 2019 Assessment to OIC. In this regard, the applicant emailed a copy of the June Report to OIC and said ‘I have reviewed [Forensic Consultant Psychiatrist Dr A] report of the 22 June 2017. I was not of unsound mind at the material time as I was and am capable of managing my Affairs. I was not insane. I am not an idiot and I am not an imbecile. [Dr A] found tat I am a person of superior intelligence’ [sic].[53] Also, the applicant provided the 2016 QCAT Documents and submitted that these documents proved that ‘the Officer in Charge of Southport Police Station, knew and mean knew, that there was nothing I mean nothing wrong with my mental health’ [sic].[54] It is my understanding that these submissions contend that neither Dr A nor QPS held the view that the applicant was of unsound mind; and therefore the Magistrate could not, or should not, have considered that the applicant was of unsound mind and dismissed the charge on this basis; and therefore the Letter was inaccurate insofar as it recorded this outcome. However, the contents of the June Report, as quoted at paragraph 42 above, clearly indicate that Dr A considered that the applicant suffered from a mental illness within the meaning of the MH Act, and the Form 44 clearly confirms that the Magistrate dismissed the charge on this basis. Even if this were not the case, it is not a function of Information Commissioner to reconsider or overturn the Magistrate’s decision to dismiss the charge. The applicant has also contended that the Letter is inaccurate or misleading because Dr A did not use the specific phrase “unsound mind” in his June Report and because the Letter references the MH Act instead of the Crimes Act 1914 (Cth). In making this submission, the applicant appears to acknowledge that the June Report was accepted by the Magistrate when the charge was dismissed, and considered by the Author when she prepared the Letter. Noting the variety of descriptions of the applicant’s mental health set out by Dr A in the June Report,[55] alongside the terms used in the civil law of Queensland outlined above at paragraph 41, I am satisfied the Author’s use of the phrase “unsound mind” is generally consistent with, and a reasonable summary of, the June Report. Further, insofar as the applicant’s submission about the Author’s reference to the MH Act is directed at supporting his request for amendment of the phrase “unsound mi[56]”,56 I note that the Commonwealth provision under which the applicant’s criminal charge was dismissed requires that ‘the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territo[57]’.57 Given this, I do not consider the Author’s reference to the MH Act demonstrates that the phrase “unsound mind” was based on erroneous facts. Taking these matters into account, I am satisfied that the phrase “unsound mind” accurately records the actual understanding held by the Author of the Letter.[58] I am also satisfied that the phrase “unsound mind” and the reference to the MH Act are generally consistent with the actual facts of the matter and, accordingly, do not unfairly harm the applicant or misrepresent personal facts about the applicant. In this regard, I have noted the consistency between the overview of facts set out by the Author in the Letter and the factual evidence before me, particularly the Partial Transcript and Form 44, as well as the June Report. The applicant has also made submissions that the May 2019 Assessment demonstrates that he is not of “unsound mind”. The May 2019 Assessment is a 4 page extract of an assessment by way of an Examination Authority[59] by a Dr B on 31 May 2019, in which Dr B notes that ‘past psychiatric history [included] consideration of possible early onset dementia symptoms – neuropsychological assessment indicated executive dysfunction with impulsivity, cognitive rigidity, and poor reasoning/problem solving’ and the applicant ‘continued to dispute his past diagnosis of Delusional Disorder and Bipolar Affective Disorder, and that on assessment today the applicant showed nil evidence of an underlying relapse of a psychotic illness.’[60] The applicant has also provided an April 2019 Assessment Request by QPS (which I note may possibly have resulted in the May 2019 Assessment). Further, he has provided part of an October 2019 Assessment by Dr C.[61] Also, he has provided 2015/2016 Assessments by Drs D and E, which were considered in proceedings before QCAT in 2016.[62] The applicant has not made any submissions about how these documents pertain to his request for amendment. Nonetheless, for sake of completeness, I have considered these documents alongside the May 2019 Assessment. The applicant appears to consider that the reference to him being of “unsound mind” is incomplete or out of date because of Dr B’s May 2019 Assessment. He may also intend to make the same argument regarding Dr C’s October 2019 Assessment and Dr D and E’s 2015/2016 Assessments. However, I do not accept that the Author’s reference to the applicant being of “unsound mind” is incomplete.[63] As noted at paragraph 53, I am satisfied that the overview of facts set out by the Author in the Letter is consistent with, and constitutes a reasonable summary of, the factual evidence before me, particularly the Partial Transcript, Form 44 and June Report. Further, I consider it relevant to note that the Letter records the Author’s understanding that Dr A considered that the applicant was ‘of unsound mind at the time of the alleged offence(s)’ (my emphasis) and the Magistrate accepted Dr A’s assessment. Noting the Author’s use of the words ‘at the time of the alleged offence(s)’, I do not accept that the Author’s reference to the applicant being of “unsound mind” is incomplete because it failed to take into account assessments by psychiatrists other than Dr A which occurred before the alleged offence – specifically, the assessments by Drs D and E considered in 2015 and 2016 (before the applicant was charged with the offence).[64] Further, I do not accept that the Author’s reference to the applicant being of unsound mind is incomplete because it did not refer to the May 2019 Assessment by Dr B or the October 2019 Assessment by Dr C. These assessments both occurred more than two years after the alleged offence and nearly two years after the Magistrate dismissed the charge. Also, in practical terms, the May and October 2019 Assessments both occurred after the Author had sent the Letter to the applicant (on 28 March 2019). It is difficult to envisage how the Author’s reference to Dr A’s view that the applicant was ‘of unsound mind at the time of the alleged offence(s)’, and the Magistrate’s acceptance of that view, could be considered incomplete because it did not refer to psychiatric assessments that had not yet occurred. Similarly, in terms of whether the reference to the applicant being of “unsound mind” is out of date because of the May 2019 Assessment and the October 2019 Assessment, I note that information is not out of date simply because it is old or refers to past events. It is only out of date where newer information causes it to be obsolete or no longer valid. The May and October 2019 Assessments are by psychiatrists other than Dr A over two years after the alleged offence. Therefore, regardless of Dr B’s and Dr C’s conclusions regarding the status of the applicant’s mental health as at May and October 2019 respectively, their Assessments cannot, in my opinion, render the Author’s reference to the applicant being ‘of unsound mind at the time of the alleged offence(s)’ (my emphasis) obsolete or no longer valid. In reaching these conclusions, I have had regard to the Human Rights Act 2019 (Qld),[6] particularly the rights in sections 21 and 25 of that Act regarding freedom of expression and reputation respectively. I consider that in observing and applying the law prescribed in the IP Act, a decision-maker will be ‘respecting and acting compatibly with’ these rights and others prescribed in the HR Act,[6] 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 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.’[6] I acknowledge that the applicant has genuinely held concerns about the charge against him, the outcome of the Court proceedings, and the Letter’s use of the phrase “unsound mind” regarding him. However, for the reasons outlined above, I am satisfied that: the reference to the applicant being of “unsound mind” that the applicant seeks to amend in the Letter is not inaccurate, incomplete, out of date or misleading; and this amendment may therefore be refused under section 72(1)(a)(i) of the IP Act. Question 2 - Should the discretion to refuse to amend the phrase “unsound mind” be exercised in any event? Given my above finding, it is not necessary for me to consider whether the discretion to refuse amendment afforded by specific wording of section 72 of the IP Act (which does not limit the grounds on which an agency or Minister can refuse to amend the document) applies in the circumstances of this review. However, for sake of completeness, I will now address this issue. As noted in paragraph 27 above, it is not the purpose of the amendment provisions to permit the ‘re-writing of histo[65]’,65 particularly where to do so would violate the integrity of the original record. In his emails to OIC, QPS and other agencies, the applicant has spoken of redressing the injustice he feels occurred regarding the charge against him and the outcome of the court proceedings. In seeking to delete the phrase “unsound mind” from the Letter, the applicant is attempting to rewrite the history of the charge, its dismissal on the basis of mental illness, and the matters considered by QPS when responding to his subsequent complaint about the two officers involved in the proceedings. In my view, deleting the phrase “unsound mind” would result in the Letter being an incomplete representation of the Author’s understanding of the facts surrounding his court matter and his subsequent complaint, thereby detracting from the accuracy and integrity of the Letter. It would also be an attempt to rewrite the history of the actual events, which are substantiated by the Form 44 and the Partial Transcript. The amended Letter would, in my opinion, be a ‘contrived document containing invented contents, essentially putting words into the mouth of the [A]uthor in a manner that would distort the official historical record’.[66] For these reasons, I consider that – even if the phrase “unsound mind” in the Letter could properly be regarded as inaccurate, incomplete, out of date or misleading – I would nevertheless be justified in exercising my discretion under section 72(1) of the IP Act to refuse amendment. In conclusion, I do not consider the phrase “unsound mind” to be inaccurate, incomplete, out of date or misleading, and in any event, I consider that, in the circumstances of this case, the applicant’s amendment request can be refused. DECISION I vary QPS’s decision to refuse to amend the phrase “unsound mind” in the Letter under section 72(1)(b) of the IP Act, and find that the amendment application may be refused under section 72(1)(a)(i) of the IP Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.A RickardAssistant Information Commissioner Date: 14 February 2020 APPENDIXSignificant procedural steps Date Event 31 August 2019 OIC received the application for external review. 2 September 2019 OIC received four emailed submissions from the applicant. 4 September 2019 OIC notified the applicant and QPS that the application had been received, and requested procedural documents from QPS. 7 September 2019 OIC received two emailed submissions from the applicant. 9 September 2019 OIC received one emailed submission from the applicant. 15 September 2019 OIC received one emailed submission from the applicant. 16 September 2019 OIC received one emailed submission from the applicant. 4 October 2019 OIC wrote to QPS, reiterating its request for procedural documents. 7 October 2019 OIC received the requested documents from QPS. 15 October 2019 OIC received one emailed submission from the applicant. 16 October 2019 OIC wrote to both QPS and the applicant advising that the external review application had been accepted. OIC received two emailed submissions from the applicant. 25 October 2019 OIC conveyed a preliminary view to QPS, and requested that it provide a copy of Dr A’s April Report.[67] OIC wrote to the applicant, updating him on the progress of the review and advising we did not require any submissions from him at the present time. The applicant responded with one emailed submission. 27 October 2019 OIC received four emailed submissions from the applicant. 28 October 2019 OIC received one emailed submission from the applicant. 10 November 2019 OIC received three emailed submissions from the applicant. 11 November 2019 OIC received oral submissions from QPS by telephone discussion. 12 November 2019 OIC wrote to QPS, reiterating its request for Dr A’s April Report. OIC received Dr A’s June Report from QPS. OIC received oral submissions from QPS regarding whether the Letter formed part of a functional record. 13 November 2019 OIC notified QPS by telephone that it had not sent Dr A’s April Report, and reiterated its request. 14 November 2019 QPS wrote back to OIC, enquiring about the existence of Dr A’s April Report. 15 November 2019 OIC wrote to QPS, clarifying details surrounding Dr A’s April Report. 19 November 2019 OIC wrote to the applicant, updating him on the progress of the review. OIC received one emailed submission from the applicant. QPS provided oral submissions to OIC by telephone discussion as to the existence of Dr A’s April Report. 20 November 2019 OIC wrote to the applicant and requested that he provide the full transcript of his court matter. The applicant advised OIC that he had already provided the full transcript, and that there was no hearing. He then sent OIC two copies of one transcript and Appendix One. The applicant then provided OIC with oral submissions by telephone discussion. The applicant then provided OIC with four emailed submissions. 21 November 2019 OIC received three emailed submissions from the applicant. 22 November 2019 OIC received two emailed submissions from the applicant. 5 December 2019 OIC conveyed a written preliminary view to the applicant, advising that QPS was entitled to refuse to make the requested amendment and offering a notation. The applicant responded advising that he rejected the preliminary view and provided two oral submissions and nine written submissions. 6 December 2019 OIC wrote to the applicant, confirming Appendix One and the June Report (both by Dr A) were considered in our preliminary view, and he could obtain a copy of the June Report from his legal representative, whom he copied into his correspondence with OIC. OIC received five emailed submissions from the applicant. 7 December 2019 OIC received six emailed submissions from the applicant. 8 December 2019 OIC received one emailed submission from the applicant. 9 December 2019 OIC received thirteen emailed submissions from the applicant. 10 December 2019 OIC wrote to the applicant, advising that a decision would be issued and OIC would be accepting further submissions on the matter up until 19 December 2019. OIC received one emailed submission from the applicant. 13 December 2019 OIC received three emailed submissions from the applicant. 14 December 2019 OIC received three emailed submissions from the applicant. 17 December 2019 OIC received one emailed submission from the applicant. 19 December 2019 OIC received five emailed submissions from the applicant. 21 December 2019 OIC received one emailed submission from the applicant. 22 December 2019 OIC received four emailed submissions from the applicant. 25 December 2019 to 2 January 2020 While OIC was closed over the Christmas / New Year period, OIC received six emailed submissions from the applicant. 3 January 2020 OIC received sixteen emailed submissions from the applicant. 17 January 2020 OIC received two emailed submissions from the applicant. 18 January 2020 OIC received two emailed submissions from the applicant. 19 January 2020 OIC received eight emailed submissions from the applicant. 21 January 2020 OIC received three emailed submissions from the applicant. 22 January 2020 OIC received one emailed submission from the applicant. 24 January 2020 OIC received three emailed submissions from the applicant. 25 January 2020 OIC received three emailed submissions from the applicant. 26 January 2020 OIC received fourteen emailed submissions from the applicant. 27 January 2020 OIC received twenty-two emailed submissions from the applicant. 28 January 2020 OIC received two emailed submissions from the applicant. 29 January 2020 OIC received fifteen emailed submissions from the applicant. 31 January 2020 OIC received nineteen emailed submissions from the applicant. 1 February 2020 OIC received two emailed submissions from the applicant. 2 February 2020 OIC received four emailed submissions from the applicant. 3 February 2020 OIC received two emailed submissions from the applicant. 5 February 2020 OIC received one emailed submission from the applicant. 6 February 2020 OIC received one emailed submissions from the applicant. 7 February 2020 OIC received two emailed submissions from the applicant. 8 February 2020 OIC received six emailed submissions from the applicant. 9 February 2020 OIC received four emailed submissions from the applicant. 10 February 2020 OIC received five emailed submissions from the applicant. 11 February 2020 OIC received two emailed submissions from the applicant. [1] Amendment application dated 25 July 2019. [2] Decision dated 30 August 2019. [3] Under section 72(1)(b) of the IP Act. [4] This is evident in a partial transcript of proceedings first emailed by the applicant to OIC on 31 August 2019.[5] Section 137 of the IP Act. [6] Section 99 and ‘reviewable decision’ in schedule 5 of the IP Act. [7] Section 44(4)(d) of the IP Act.[8] In multiple emails sent by the applicant to OIC between 5 December 2019 and 19 December 2019. [9] At the same time that the applicant made these submissions alleging bias, he also sent multiple emails with many attachments that he described as ‘a log of complaints’. These complaints were dealt with separately to this external review, and the Right to Information Commissioner advised the applicant by letter dated 24 January 2020 that she was satisfied that the processes adopted in his review accorded with OIC’s role and legislative power. The applicant then sent multiple further emails with many attachments which complained about the outcome of his complaint. These complaints are also being dealt with separately to this external review. As at the date on which this decision is issued, it is my understanding that consideration of them is ongoing.[10] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. See also Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [31] per Gummow ACJ, Hayne, Crennan and Bell JJ.[11] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [20] per Keifel, Bell, Keane and Nettle JJ. [12] Section 108 of the IP Act.[13] Section 110 of the IP Act.[14] Footnote 1. of letter from OIC to applicant dated 5 December 2019.[15] Particularly, section 72 of the IP Act.[16] Contact between OIC and operational areas of QPS may occur in some reviews – for example, when OIC is considering the sufficiency of QPS’s searches for particular documents, so as to clarify when documents would be created and where they would be stored.[17] Section 139 of the IP Act.[18] With reference to the test for prejudgment noted in Minister for Immigration v Jia Le Geng [2001] HCA 17; (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J.[19] As noted at footnote 9 above.[20] As a delegate of the Information Commissioner under section 139 of the IP Act.[21] Sections 41 and 44 of the IP Act.[22] ‘Personal information’ is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’[23] Section 70 of the IP Act. [24] Section 72(1)(b) of the IP Act.[25] Section 72(2) of the IP Act.[26] Susan Butler (ed), Macquarie Dictionary (7th ed, 2017) at pages 765, 768, 1067 and 960 respectively.[27] DenHollander and Department of Defence [2002] AATA 866 (DenHollander) at [96].[28] To ensure that the document, as a public record, is preserved without any alteration. [29] Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 (Crewdson) at [34].[30] Re Traynor and Melbourne and Metropolitan Board of Works (1987) 2 VAR 186 (Traynor) at [190], cited in 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.[31] Crewdson at [24].[32] Shaw and Medical Board of Queensland (Unreported, Queensland Information Commissioner, 3 July 2008) (Shaw) at [57].[33] By letter on 25 October 2019.[34] By telephone call from QPS RTI Officer on 12 November 2019.[35] Section 72(1)(b) of the IP Act.[36] Emails from the applicant received by OIC between 5 December 2019 and 23 December 2019.[37] Allegations of bias, including this allegation, are addressed at paragraphs [16] to [22] above.[38] Emails from the applicant dated 9 December 2019 at confirm that the applicant obtained a copy of the June Report from his former law firm on 9 December 2019.[39] The applicant provided the 2015/2016 Assessments to OIC by email on 21 November 2019, along with part of a 2016 QCAT decision, which considered these Assessments in the course of determining a non-publication order regarding proceedings in which the applicant agreed he had engaged in several counts of professional misconduct and unsatisfactory professional conduct. [40] That is, the charge under section 474.17(1) of the Criminal Code Act 1995 (Cth) of using a carriage service to menace, harass or cause offence. A penalty of up to 3 years imprisonment applies to this offence.[41] Or ‘a state of mind described in the Criminal Code section 28(1) for which the Criminal Code, section 27(1) applies to a person’ (section 109(1)(b)).[42] As stated on page 1 of Appendix One.[43] Which may possibly exist, given the title ‘Appendix One’ suggests that there may have been subsequent appendices.[44] As noted at footnote 38 above.[45] By telephone to OIC on 19 November 2019.[46] Also, section 14A(1) of the Acts Interpretation Act 1954 (Qld) provides that ‘[i]n the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation’ [47] Not section 3(a) as submitted by the applicant.[48] Section 100(1) of the IP Act.[49] Doelle and Legal Aid Office (Qld) [1993] QICmr 5; (1993) 1 QAR 207 at [18]; see also A4STL6K and Queensland Health (Unreported, Queensland Information Commissioner, 6 September 2013) (A4STL6K) at [12]. [50] A4STL6K at [25]-[27], paraphrasing the relevant principle as stated in Crewdson at [34]. See G78QTW and Department of Education [2019] QICmr 5 (20 February 2019) at [30]-[39]; and Y86 and Sunshine Coast Hospital and Health Service [2019] QICmr 45 (25 October 2019) at [19]-[20].[51] 3DT2GH at [15] citing Re Buhagiar and Victoria Police (1989) 2 VAR 530, per Jones J. See also Cowen and Queensland Building and Construction Commission [2016] QICmr 43 (14 October 2016).[52] Including ‘Please see the enclosed that will totally and I mean totally exonerate myself and this is once and for all’ in an email received by OIC on 7 December 2019.[53] Email received by the applicant on 9 December 2019.[54] Email from the applicant on 21 November 2019.[55] Dr A uses a variety of terms in the June Report to describe the applicant’s mental health at the time of committing the offence, and historically over several years, including ‘mental illness’, ‘mental state’, ‘a disturbed mind’, ‘delusional paranoid system of mental state dysfunction’, ‘emotional and psychological disturbance’, ‘persistent constant state of Delusional Disorder or paranoid type’, and ‘mental disease’.[56] As noted at paragraph 14 above. [57] Section 20BQ(1)(a) of the Crimes Act 1914 (Cth).[58] A4STL6K at [23]-[29]. This decision was upheld on appeal to QCAT – see Minogue v Information Commissioner & Queensland Health (No 2) [2014] QCATA 101.[59] By order of the Mental Health Review Tribunal.[60] May 2019 Assessment first emailed by applicant in this review on 7 December 2019.[61] October 2019 Assessment first emailed by the applicant in this review on 8 December 2019.[62] As noted at footnote 39 above, the applicant provided the 2015/2016 Assessments to OIC by email on 21 November 2019, along with part of a 2016 QCAT decision, which considered these Assessments in the course of determining a non-publication order regarding proceedings in which the applicant agreed he had engaged in several counts of professional misconduct and unsatisfactory professional conduct.[63] Shaw at [58].[64] I note that the applicant does not appear to agree with the 2015/2016 Assessments in any event. In this regard, I note that at the same time that the applicant provided OIC with the 2015/2016 Assessments and part of a 2016 QCAT decision (by email dated 21 November 2019), the applicant also provided OIC with an affidavit by him dated 17 May 2017, in which he claims that Dr D and E’s 2015/2016 Assessments amounted to criminal defamation, regarding which he sought relief that they ‘be committed to Her Majesties prison for contempt of the tribunal pursuant to Section 219 (3) of the QCAT Act’ [sic]. [65] 3DT2GH at [16]-[18], and [50]-[51]. See also DenHollander at [96].[66] 3DT2GH at [51].[67] That is, the Medicolegal Report dated 27 April 2017 prepared by Dr A following request by applicant’s legal representative.

queensland

court_judgement

Queensland Information Commissioner 1993-

Tedesco and Queensland Police Service [2013] QICmr 39 (13 December 2013)

Tedesco and Queensland Police Service [2013] QICmr 39 (13 December 2013) Last Updated: 7 August 2014 Decision and Reasons for Decision Application Number: 311638 Applicant: Tedesco Respondent: Queensland Police Service Decision Date: 13 December 2013 Catchwords: ADMINISTRATIVE LAW – INFORMATION PRIVACY ACT - REFUSAL OF ACCESS – applicant sought access to activity log of Queensland Police Service – whether access may be refused on the basis that the document does 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 the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to a range of information relating to complaints made by him to QPS between 2006 and 2010. QPS identified 42 pages responding to the access application and decided to grant full access to 5 pages and partial access to 37 pages.[2] The applicant sought internal review of QPS’s decision on the basis that additional documents should have been located. Although QPS conducted further enquiries, no further documents were located. QPS determined that all documents relating to the application had been identified and released to the applicant.[3] The applicant applied to the Office of the Information Commissioner (OIC) for external review of QPS’s decision to refuse access,[4] submitting that an additional QPS activity log regarding a complaint made by the applicant (Additional Activity Log) should have been located. For the reasons set out below, I affirm QPS’s internal review decision and find it is entitled to refuse access to the Additional Activity Log on the basis that it does not exist under section 67(1) of the IP Act and sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) (RTI Act). 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 internal review decision dated 5 June 2013. Evidence considered 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 issue for determination[5] in this external review is whether QPS is entitled to refuse access to the Additional Activity Log on the basis that this document is nonexistent.[6] Relevant law 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 that it could refuse access to the document under section 47 of the RTI Act. The RTI Act provides that access to a document may be refused if the document is nonexistent or unlocatable.[7] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[8] The RTI Act is silent on how an agency can be satisfied that a document does not exist. However in PDE and The University of Queensland (PDE),[9] the Information Commissioner explained that, to be satisfied that a document does not exist, an agency must rely on its particular knowledge and experience, having regard to various key factors including: the administrative arrangements of government the agency structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including: ○ the nature and age of the requested document/s; and ○ the nature of the government activity the request relates to. When these factors are properly considered and a conclusion reached that the document does not exist, it may be unnecessary for searches to be conducted. Alternatively, an agency may rely on searches to justify a decision that the document sought does not exist. If an agency relies on searches, all reasonable steps must be taken to locate the requested document. In determining whether all reasonable steps have been taken, regard should be had to the factors listed in PDE as set out above. Findings In deciding that QPS has taken all reasonable steps to locate the Additional Activity Log and that there is a reasonable basis to be satisfied that this document does not exist, I have had regard to the information identified by QPS in response to the access application, the nature of the requested document and QPS’s recordkeeping practices and procedures. I have carefully reviewed the applicant’s submissions. He submits that it is contrary to QPS practice not to prepare an activity log when a serious complaint is made.[10] QPS did locate an activity log regarding the day in question prepared by a QPS officer that includes an entry regarding the applicant but this entry does not detail the conversation between the two attending police officers and the applicant regarding his complaint. No further documents were located by QPS.[11] The applicant submits that there must be another activity log (the Additional Activity Log) detailing the conversation prepared by the other officer who attended his home at the same time.[12] In response to OIC requests for information regarding QPS practices, QPS submits that the normal practice is for one activity log to be prepared for each “crew” per shift.[13] Accordingly, it would not be consistent with normal QPS practice for both officers who together attended upon the applicant on the day in question to each prepare an activity log in relation to that day. In addition to this submission about QPS practice, the senior attending police officer on the day in question has expressly confirmed to OIC that only one activity log was prepared in relation to the visit and it was written by the other officer who attended with him on that day.[14] On this occasion, I am satisfied that the Additional Activity Log does not exist, and the activity log located by QPS is the only activity log relevant to the applicant’s application for the day in question. Accordingly, QPS is entitled to refuse access to the Additional Activity Log on the ground that it is nonexistent. Finally, the applicant submits that the QPS activity log regarding the day in question should have been more detailed. As OIC has explained to the applicant,[15] the only issue the Information Commissioner can consider is whether there are reasonable grounds to be satisfied that the Additional Activity Log does not exist. Issues about what QPS has recorded in the activity log are not within the Information Commissioner’s jurisdiction.[16] DECISION I affirm the internal review decision by finding that QPS is entitled to refuse access to the Additional Activity Log under section 67(1) of the IP Act and section 47(3)(e) of the RTI Act on the ground that it does not exist under section 52(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. ________________________ Louisa Lynch Assistant Information Commissioner Date: 13 December 2013APPENDIX Significant procedural steps Date Event 15 March 2013 QPS received the applicant’s application. 22 April 2013 QPS located 42 pages and decided to release 5 pages in full and it partially released 37 pages. 10 May 2013 QPS received the applicant’s application for internal review. 5 June 2013 QPS made its internal review decision again deciding to release 5 pages in full and partially release 37 pages. 2 July 2013 OIC received the applicant’s application for external review. 23 July 2013 OIC advised the applicant and QPS that the application had been accepted for review and confirmed the issue OIC would consider was whether an additional actively log existed in relation to an attendance by police upon the applicant on 11 November 2006. 23 July 2013 OIC asked QPS for copies of documents located in response to the access application. 9 August 2013 OIC received the requested documents from QPS. 23 August 2013 OIC asked QPS to conduct further searches for documents relevant to the day in question. 5 September 2013 OIC received the requested submissions from QPS. 16 September 2013 OIC requested QPS provide a submission about its record keeping practices. 30 September 2013 OIC received the requested submission from QPS. 30 September 2013 OIC conveyed a preliminary view to the applicant that access may be refused to the Additional Activity Log because it does not exist. 1 October 2013 OIC clarified to the applicant that it cannot investigate complaints about agency record-keeping practices. 18 October 2013 OIC received submissions from the applicant. 21 October 2013 OIC confirmed receipt of the applicant’s submissions and further clarified that OIC cannot investigate complaints about agency record-keeping practices. 25 October 2013 Applicant confirmed verbally that he would like OIC to proceed to a formal decision. [1] Application dated 15 March 2013.[2] Partial access was due to the deletion of some irrelevant material pursuant to section 88 of the IP Act and deletion of some personal information the disclosure of which would have been contrary to the public interest pursuant to section 67(1) of the IP Act and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld). The applicant did not seek external review of these refusals.[3] By internal review decision dated 5 June 2013.[4] External review application dated 2 July 2013.[5] On internal review, the applicant indicated that all documents relating to a police visit to his home on 11 November 2006 were not disclosed. On external review, the applicant requested release of the activity log for the 11 November 2006 visit written by both attending police officers and he has discussed the significance of that visit to him. OIC confirmed with the applicant by letters dated 23 July and 30 September 2013 that the issue being considered on external review was that QPS had not disclosed an additional activity log regarding the visit to his home on 11 November 2006. Throughout the external review and in numerous conversations with OIC staff and in correspondence (as already indicated) the issue has at all times been the existence of an additional activity log for 11 November 2006. Only after notification to the applicant that a final decision would issue shortly, did he raise a further issue regarding non-location of documents on a different date. However, that issue has not been considered here.[6] Sections 47(3)(e) and 52(1)(a) of the RTI Act.[7] Sections 47(3)(e) and 52 of the RTI Act.[8] Section 52(1)(a) of the RTI Act. See PDE and The University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at [43]. Although this decision concerned section 28A of the now repealed Freedom of Information Act 1992 (Qld), the requirements of that section are substantially replicated in section 52 of the RTI Act.[9] (Unreported, Queensland Information Commissioner, 9 February 2009).[10] Submissions received 18 October 2013.[11] Submissions received 5 September 2013.[12] External review application dated 2 July 2013 and submissions received on 18 October 2013.[13] Submissions received 30 September 2013.[14] Submissions received 30 September 2013.[15] In conversation with the applicant on 1 and 25 October 2013 and by email dated 21 October 2013.[16] Section 137(2) of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

A4STL6K and Queensland Health [2013] QICmr 26 (6 September 2013)

A4STL6K and Queensland Health [2013] QICmr 26 (6 September 2013) Last Updated: 7 August 2014 Decision and Reasons for Decision Application Number: 311438 Applicant: A4STL6K Respondent: Queensland Health Decision Date: 6 September 2013 Catchwords: ADMINISTRATIVE LAW – INFORMATION PRIVACY ACT – application to amend information in a letter from the agency to the applicant’s professional registration body – grounds on which amendment may be refused – whether information is inaccurate, incomplete, out of date or misleading – whether agency entitled to exercise discretion to refuse to amend information – section 72 of the Information Privacy Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] under the Information Privacy Act 2009 (Qld) (IP Act) to amend part of a letter from Queensland Health (QH) to the Queensland Nursing Council[2] summarising the contents of an investigation report. QH refused to amend the letter under section 72 of the IP Act as it was not satisfied the information was inaccurate, incomplete, out of date or misleading. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the decision to not amend the relevant information. The part of the letter the applicant seeks to amend is generally consistent with relevant content in the investigation report, and there is no objective evidence to suggest it does not accurately reflect the author’s interpretation of that latter document. Accordingly, the information is not inaccurate, incomplete, out of date or misleading. QH was therefore entitled to refuse to amend the letter. In any event, even if the information was inaccurate, incomplete, out of date or misleading, QH was nevertheless entitled to exercise the discretion to refuse to amend the information. Amending official correspondence actually sent and received would violate the integrity of the official record. Background The applicant raised various issues and allegations with QH, which ultimately resulted in QH conducting a formal investigation and preparing a report concerning same (Investigation Report).[3] Following completion of this process, QH then wrote to, among others, the Queensland Nursing Council,[4] noting the contents of the Investigation Report (Letter).[5] The Letter included a brief passage[6] summarising observations in the Investigation Report reflecting on the applicant (Information in issue). The applicant contends the Information in Issue in the Letter misrepresents the Investigation Report, so as to render the former inaccurate, incomplete, out of date or misleading within the meaning of sections 41 and 44 of the IP Act. Significant procedural steps relating to the application and external review process are set out in the appendix to this decision. Reviewable decision The decision under review is QH’s decision dated 25 March 2013 refusing to amend the Information in Issue as it appears in the Letter. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including footnotes and appendix). Relevant law The cumulative effect of sections 41 and 44(1) of the IP Act is to confer on an individual a right to apply for amendment of documents of an agency containing the individual’s personal information,[7] where the following requirements are satisfied: the applicant has previously obtained access to the document said to contain the applicant’s personal information the information which the applicant seeks to amend is the applicant’s personal information; and the personal information is inaccurate, incomplete, out of date or misleading. QH carries the ultimate legal onus to justify its decision.[8] However, the requirements of section 44 of the IP Act[9] are such that in an external review of a decision to refuse to amend information: “[a] practical or evidentiary onus shifts to [an applicant] to provide evidence to support ... [their] entitlement to relief under [the IP Act] on the basis that the documents in issue contain information that is inaccurate, incomplete, out-of-date or misleading”.[10] Importantly, an agency may still refuse to amend a relevant document even where an applicant satisfies the requirements outlined in paragraph 11. This is due to the opening words of section 72(1) of the IP Act, which provide: 72 Grounds on which amendment may be refused (1) Without limiting the grounds on which the agency or Minister may refuse to amend the document, the agency or Minister may refuse to amend the document because— (a) the agency or Minister is not satisfied— (i) the personal information is inaccurate, incomplete, out of date or misleading; ... [my emphasis] Section 72 of the IP Act thus confers a discretion on a decision-maker whether to grant or refuse an amendment application. While the provision specifies grounds on which amendment may be refused, the decision-maker is not limited solely to those grounds. Findings I am satisfied the first two requirements specified in paragraph 11 have been met. The applicant has previously had access to the Letter and it contains his personal information. The issues for determination are therefore whether: the applicant has demonstrated that the Information in Issue is inaccurate, incomplete, out of date or misleading, and, if so, QH was nevertheless entitled to refuse to amend that information, under the discretion conferred by section 72 of the IP Act. The applicant relevantly contends the Information in Issue is inaccurate, incomplete or misleading. As alluded to above, this text purports to summarise commentary in the Investigation Report mentioning the applicant, as follows: Investigation report The Ethical Standards Unit made a number of observations and recommendations in the investigation report including: ... the complainant failed to meet his own obligations to report suspected official misconduct in a timely manner. The applicant, in essence, submits that the Information in Issue misrepresents the Investigation Report. The applicant contends that the Investigation Report contains no information of the kind stated in the Information in Issue, and that the Letter’s author has therefore fabricated an unfounded allegation that damages the applicant’s good name and personal and professional reputation.[11] The applicant in his amendment application requested various actions in redress, most of which raise matters irrelevant to the issues to be determined in this review.[12] The applicant did, however, request the Information in Issue be removed from the Letter. As noted above, the applicant has not[13] actually had access to the Investigation Report. In making the submissions summarised in paragraph 18, he instead relies on various seconda[14] sources,14 some of which refer to the outcomes of the relevant investigation. As I understand his submissions, the applicant argues these secondary materials support his contention that the Investigation Report contains no content of the kind the Information in Issue purports to summarise. I am not persuaded that these secondary sources permit the conclusions the applicant seeks to draw – i.e. that they suggest any inconsistency between the contents of the Investigation Report and the Information in Issue. In any event, the proper construction of these documents is irrelevant, and not a matter on which it is necessary to dwell. This is because the key issue in this review is not whether there exists a material inconsistency between the Information in Issue and other secondary sources containing commentary on the Investigation Report,[15] but the Information in Issue and the Investigation Report itself. I am not satisfied that there is. Unlike the applicant, I have had the advantage of reviewing the Investigation Report, and of comparing it with the Information in Issue. The Investigation Report does indeed contain observations referring to the applicant. While not a word for word recitation of same, the Information in Issue is generally consistent with those observations.[16] On this basis alone, I am not satisfied that the applicant has demonstrated the Information in Issue is inaccurate, incomplete, out of date or misleading. Additionally, however, it is worth bearing in mind the nature of the Information in Issue – i.e. it essentially reflects not just the content of the Investigation Report, but the author’s interpretation or understanding of that content. Accordingly, even if it were the case that the Information in Issue could be said to misrepresent or inaccurately recount relevant parts of the Investigation Report, that would not, on my understanding of applicable principles, of itself enliven the right to have the request for amendment considered. As Deputy President Todd of the Administrative Appeals Tribunal has observed,[17] what is amended under amendment rights of the kind embodied in section 41 of the IP Act is not: ...information, but a record of information. Thus incorrect information can be recorded correctly. The record ought not be amended simply because, qua record, the information that it correctly records is incorrect information...it ...[is] not for an agency or the Tribunal to cure what was considered to have been an incorrectly formed opinion. In other words, where, as here, disputed information comprises a specific individual’s interpretation of events or issues – i.e. the author of the Letter’s understanding of relevant parts of the Investigation Report – an amendment applicant must establish not only that that information inaccurately, incorrectly or misleadingly represents the underlying events or issues, but that the authoring individual had not actually held and accurately entered into the official record[18] their particular understanding of said events. There is in this case nothing–other than the applicant’s unsubstantiated assertions to the contrary–before me to suggest that the Information in Issue does anything other than accurately reflect what the author wrote. Accordingly, I am not satisfied the Information in Issue is inaccurate, incomplete, out of date or misleading. For these reasons, I find that: the Information in Issue is not inaccurate, incomplete, out of date or misleading; and QH was therefore entitled to refuse to amend the Letter. In view of the above, it is not strictly necessary for me to consider whether QH would have been entitled to exercise the discretion to refuse to amend the Information in Issue under section 72 of the IP Act. For the sake of completeness, however, I note that even if my findings as recorded in the preceding paragraph are incorrect–and the Information in Issue is properly regarded as inaccurate, incomplete, out of date or misleading–QH would nevertheless be justified in refusing to amend the Letter. This is because to do so would essentially ‘re-write history’ and destroy the integrity of a public record. As Assistant Information Commissioner Jefferies noted in a substantially similar case:[19] ... it is not the purpose of the amendment provisions to permit the ‘re-writing of history’, particularly where to do so would violate the integrity of the original record. Yet this is precisely what would occur were the amendments requested by the applicant to be made. To replace words actually used by the authoring officer with the text sought by the applicant would result in a contrived document containing invented contents, essentially putting words into the mouth of the author in a manner that would distort the official historical record. This alone would, in my view, justify an exercise of the discretion to refuse to amend the Letter in terms as requested by the applicant. The above comments are pertinent in this case. Amending a piece of official correspondence in the manner the applicant requests–i.e. by removing or altering text–would violate the integrity of the original record, creating an artificial document divorced from the original as actually sent and received, thereby ‘removing the historical trail’.[20] This is not, in my view, an outcome the right of amendment is intended to permit,[21] and to allow such a result would be inappropriate. I do not consider the Information in Issue to be inaccurate, incomplete, out of date or misleading, and, in any event, I consider QH would nevertheless be justified in refusing the requested amendment in the particular circumstances of this case. DECISION For the reasons set out above, I affirm QH’s decision to refuse to amend the Letter under section 72(1)(a)(i) of the IP Act, on the basis that the Information in Issue is not inaccurate, incomplete, out of date or misleading. I have made this decision as a delegate of the Acting Information Commissioner, under section 139 of the IP Act. ________________________ Jim Forbes Acting Assistant Information Commissioner Date: 6 September 2013 APPENDIX Significant procedural steps Date Event 14 February 2013 QH received the amendment application under the IP Act. 25 March 2013 QH issued its decision to the applicant. 26 March 2013 OIC received the external review application. OIC asked QH to provide a number of procedural documents by 2 April 2013. 5 April 2013 OIC received the requested procedural documents from QH. 29 April 2013 OIC notified the applicant and QH that it had accepted the external review application. 5 July 2013 OIC conveyed a preliminary view to the applicant and invited the applicant to provide submissions supporting his case by 19 July 2013 if he did not accept the preliminary view. 8 July 2013 The applicant notified OIC that he did not accept the preliminary view and provided submissions supporting his case. 15 August 2013 OIC reiterated the preliminary view to the applicant and invited the applicant to provide any further and final submissions by 29 August 2013. 27 August 2013 The applicant provided further submissions supporting his case. [1] By application dated 4 February 2013.[2] Now, as I understand, the Queensland Board of the Nursing and Midwifery Board of Australia, itself a board of the Australian Health Practitioner Regulation Agency. For ease of reference, I have simply referred to the ‘Queensland Nursing Council’. [3] The applicant has previously sought access under the Right to Information Act 2009 (Qld) (RTI Act) to the Investigation Report. QH refused access under section 47(3)(a) of the RTI Act, on the basis the Investigation Report comprised exempt information under section 48 and schedule 3, section 10(4) of the RTI Act. QH’s decision was subsequently affirmed by the Right to Information Commissioner on external review. As it may tend to identify the applicant, I have not included the citation of that latter decision in these reasons.[4] The applicant’s professional registration body.[5] Specifically, letter dated 20 May 2010, from the Manager Human Resources of the Health Services District in which the applicant was employed to the Queensland Nursing Council.[6] Appearing against the third bullet point on the second page of the Letter, the text of which is extracted at paragraph 17 of these reasons.[7] ‘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.[8] Section 100(1) of the IP Act.[9] Section 44(4) of the IP Act requires an applicant to, among other things, state both the way in which the applicant claims the information is inaccurate, incomplete, out of date or misleading and the amendments the applicant claims to be necessary for the information to be accurate or not misleading.[10] Doelle and Legal Aid Office (Qld) [1993] QICmr 5; (1993) 1 QAR 207 at paragraph 18, considering the amendment provisions of the repealed Freedom of Information Act 1992 (Qld), the terms of which were materially indistinct from those of the IP Act. [11] See the applicant’s amendment application dated 4 February 2013.[12] The applicant requested that QH acknowledge that the Information in Issue is unfounded and fabricated, that the Queensland Nursing Council be informed of same, and that responsible employees be held accountable for their actions. In this regard, I should also note that the applicant’s submissions in the course of this review include submissions raising issues, asking questions or seeking outcomes that are outside my jurisdiction or similarly irrelevant to the issues I am required to determine.[13] To my knowledge.[14] Relevant documents were referred to in and/or variously attached to the applicant’s amendment application, external review application and submissions on external review. They include several pieces of correspondence, a transcript of proceedings in a matter initiated by the applicant in the Queensland Civil and Administrative Tribunal, and a file note summarising a grievance. [15] Such that the Information in Issue in the Letter could therefore be said to be inaccurate, incomplete or misleading.[16] As I advised the applicant by way of letter dated 15 August 2013.[17] Cox and Department of Defence (1990) 20 ALD 499, at 502.[18] Paraphrasing the relevant principle as stated in Crewdson v Central Sydney AHS [2002] NSWCA 345 at paragraph 34.[19] 3DT2GH and Department of Housing and Public Works (Unreported, Queensland Information Commissioner, 26 November 2012) at paragraphs 50 and 51, the Assistant Information Commissioner having comprehensively canvassed principles and considerations relevant to the exercise of the discretion to refuse to amend at paragraphs 16-18, including the specific considerations discussed in the paragraphs excerpted in these reasons. See also DenHollander and Department of Defence [2002] AATA 866 at paragraph 96.[20] DenHollander, at paragraph 96.[21] A view reinforced by the existence of section 76 of the IP Act, which entitles an applicant to require an agency refusing to amend a document to add to the document a notation stating: the way an applicant claims the information to be inaccurate, incomplete, out of date or misleading, and the amendments the applicant claims are necessary for the information to be accurate or not misleading. This is a mechanism that allows an applicant to put on record their ‘side of the story’, whilst ensuring the ‘historical trail’ is not obscured and the integrity of the original document preserved. The notation provision was twice brought to the applicant’s attention during the course of this external review (by letters dated 5 July 2013 and 15 August 2013) but the applicant elected to have the matter determined formally.

queensland

court_judgement

Queensland Information Commissioner 1993-

WRT and Department of Corrective Services [2002] QICmr 12 (26 April 2002)

WRT and Department of Corrective Services [2002] QICmr 12 (26 April 2002) "WRT" and Department of Corrective Services (S 182/98, 26 April 2002, Deputy Information Commissioner) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.-2. These paragraphs deleted. REASONS FOR DECISION Background The applicant, ["WRT"], seeks review of a deemed refusal of access by the Department of Corrective Services (the Department) to parts of a psychiatric report concerning him. By letter dated 22 July 1998, the applicant applied to the Department for access, under the FOI Act, to a series of documents connected with his imprisonment. The Department did not process the applicant's FOI access application within the time limits prescribed by the FOI Act. Accordingly, by letter dated 12 November 1998, the applicant applied to the Information Commissioner for review, under Part 5 of the FOI Act, of the Department's deemed refusal of access to the requested documents. External review process Copies of the documents in issue were obtained and examined. As a result of concessions made by the Department during the course of the review, the only matter now remaining in issue comprises parts of a psychiatric report dated 4 July 1998 by [Dr A]. During the course of the review, the applicant was given access to parts of that report, and he withdrew his application for access to segments of information contained in the report that were claimed to be exempt from disclosure to him under s.44(1) of the FOI Act (comprising [Dr A's] address and signature, and the penultimate sentence contained in the last full paragraph on page 5 of the report - which sentence refers to the medical treatment of another person). Accordingly, that information is no longer in issue in this review. The Department has withdrawn its claim for exemption in respect of the remainder of the report. However, [Dr A] (who, in accordance with s.74(1) of the FOI Act, was consulted by my office regarding disclosure of the report) continues to object to disclosure to the applicant of those parts of the report which remain in issue. [Dr A] claims that the matter remaining in issue in his report is exempt from disclosure under s.42(1)(c), s.42(1)(f), s.42(1)(h), s.46(1)(a) and s.46(1)(b) of the FOI Act. [Dr A] has also submitted that, in the event that the matter remaining in issue does not qualify for exemption under the FOI Act, then access should only be given to a qualified medical practitioner, nominated by the applicant and approved by the Department, in accordance with s.44(3) of the FOI Act. Upon the Department withdrawing its claim for exemption in respect of the report, [Dr A] was invited to lodge submissions and/or evidence in support of his case that the matter remaining in issue is exempt from disclosure under the FOI Act. (Section 81 of the FOI Act provides that, in a review under Part 5 of the FOI Act, the agency which made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant. In the present case, however, the Department has withdrawn its claim for exemption. Accordingly, while [Dr A] does not bear a formal legal onus under s.81 of the FOI Act, like other third party objectors to disclosure of information under the FOI Act, he has, in practical terms, an evidentiary onus to ensure that there is material before me from which I am able to be satisfied that all of the elements of the particular exemption provisions relied upon by [Dr A], are established: see Brisbane City Council v F N Albietz (Sup Ct of Qld, S 10342 of 2000, Wilson J, 17 May 2001, unreported) at paragraph 14.) [Dr A] provided a statutory declaration dated 4 June 2001 and advised that he also wished to rely upon an earlier statutory declaration, dated 30 June 1999, which he had provided to the Department. In making my decision in this case, I have taken into account the following material: the matter in issue contained in [Dr A's] report dated 4 July 1998; the applicant’s FOI access application dated 22 July 1998 and external review application dated 12 November 1998; the statutory declarations of [Dr A] dated 30 June 1999 and 4 June 2001, and his letter dated 27 December 1998; a letter from the Department dated 21 March 2001; and relevant extracts from the applicant's parole file. 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. Section 46(2) of the FOI Act provides: 46.(2) Subsection (1) does not apply to matter of a kind mentioned in section 41(1)(a) unless its disclosure would found an action for breach of confidence owed to a person or body other than— (a) a person in the capacity of— (i) a Minister; or (ii) a member of the staff of, or a consultant to, a Minister; or (iii) an officer of an agency; or (b) the State or an agency. Before one arrives at a consideration of the substantive exemption provision contained in s.46(1), it is necessary to consider the application of s.46(2). I am satisfied that the matter in issue comprises matter of a kind mentioned in s.41(1)(a) of the FOI Act - it comprises opinion, advice or recommendation prepared by [Dr A] for the purposes of the deliberations of the Queensland Community Corrections Board (QCCB) regarding the applicant. (The QCCB is a division of the Department, appointed to determine applications by prisoners for parole, release to work, home detention, et cetera.) I am further satisfied that [Dr A] was retained by the QCCB as an independent consultant, and therefore that the matter in issue was provided by a person or body outside the categories specified in s.46(2)(a) and (b). In Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279, the Information Commissioner said (at paragraph 36): The terms of s.46(2) actually render s.46(1)(b) redundant, for practical purposes, in respect of matter of a kind mentioned in s.41(1)(a). Even where matter of that kind was provided by a person or body outside the categories referred to in s.46(2)(a) and (b), s.46(2) stipulates that disclosure of the matter must found an action for breach of confidence owed to such a person or body. If that requirement can be satisfied, then s.46(1)(a) will apply, and the issue of whether s.46(1)(b) also applies is of academic interest only. Accordingly, the issue for my determination under s.46(1) of the FOI Act is whether disclosure of the matter in issue to the applicant would found an action for breach of confidence owed to [Dr A] by the Department. Whether disclosure would found an action for breach of confidence The test for exemption under s.46(1)(a) is to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, with appropriate standing to bring an action to enforce an obligation of confidence claimed to bind the respondent agency not to disclose the information in issue. I am satisfied that [Dr A], as author of the matter in issue, would have standing to bring an action to enforce an obligation of confidence claimed to bind the Department not to disclose the contents of his report which remain in issue in this review. At paragraph 43 of Re "B", the Information Commissioner said that an action for breach of confidence may be based on a contractual or an equitable obligation. There is no material before me to suggest that [Dr A] might be entitled to rely upon a contractual obligation of confidence in respect of the matter in issue. In relation to equitable obligations of confidence, the Information Commissioner explained in Re "B" that there are five cumulative requirements for protection in equity of allegedly confidential information: it must be possible to specifically identify the information, in order to establish that it is secret, rather than generally available information (see Re "B" at pp.303-304, paragraphs 60-63); the information in issue must 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); 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); 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 disclosure would be likely to cause detriment to the confider of the confidential information (see Re "B" at pp.325-330, paragraphs 107-118). Requirement (a) I am satisfied that the information claimed to be the subject of an obligation of confidence can be specifically identified. Requirement (b) Some of the matter in issue records statements made to [Dr A] by the applicant during their consultation, and those statements cannot quality as confidential information vis-à-vis the applicant. I am satisfied that the rest of the matter in issue has the necessary quality of confidence and is not trivial or useless information. It does not consist of generally available information, nor information that would be known to the applicant. It therefore has a degree of secrecy sufficient for it to be the subject of an obligation of conscience. Requirement (c) In his statutory declaration dated 30 June 1999, [Dr A] stated:... The large majority of the reports that I prepare for the Queensland Community Corrections Board are prepared on a strictly confidential basis and are not intended for viewing by inmates. I usually advise inmates at the interview that my reports are the property of the Queensland Community Corrections Board and cannot be released to them. My report was not intended to be provided to the applicant. It was written for the Queensland Community Corrections Board, to be read by the Secretary and the Members only. This is evidenced by the fact that my reports are addressed to the Queensland Community Corrections Board and discuss the inmate as a third person, not as a potential reader. I always mark my psychiatric reports with the notation "Confidential" at the top of the front page of the report as I did with the present report on the applicant. If I knew that a report was to be provided to the applicant, I would prepare it on a different basis to the majority of confidential reports. I would not include my professional interpretation of the inmate's background and its linkages with the inmate's offending behaviour as do "confidential" reports. I would not include strong recommendations as to parole. I would not include the inmate's potential for re-offending. I would tighten up the language used. I note that [Dr A's] report is marked "Confidential" but, as the Information Commissioner observed in Re "B" (at p.307, para 71), while such a marking may be relevant to the issue, it is not, of itself, determinative of whether or not the recipient of a document is bound by an obligation of confidence. A supplier of confidential information cannot unilaterally and conclusively impose an obligation of confidence: see Re "B" at pp.311-316, paragraphs 79-84, and pp.318-319, paragraphs 90-91. The touchstone in assessing whether requirement (c) to found an action in equity for breach of confidence has been satisfied, lies in determining what conscionable conduct requires of an agency in its treatment of information claimed to have been communicated in confidence. That is to be determined by an evaluation of all the relevant circumstances attending the communication of that information to the agency. The relevant circumstances will include (but are not limited to) the nature of the relationship between the parties, the nature and sensitivity of the information, and circumstances relating to its communication of the kind referred to by a Full Court of the Federal Court of Australia in Smith Kline and French Laboratories (Aust) Limited & Ors v Secretary, Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291 at pp.302-3: see Re "B" at pp.314-316, paragraph 82. There is no evidence before me of any express agreement or understanding between [Dr A] and the QCCB that [Dr A's] report was supplied and received in confidence, as against the applicant. I have reviewed the terms of the QCCB's request for the report, as contained in its letter to [Dr A] dated 23 June 1998: The Queensland Community Corrections Board is presently considering an application for community-based supervision submitted by the above named ["WRT"]. The Board has requested a psychiatric assessment be prepared and submitted for its further consideration. It would be appreciated if arrangements were made for the assessment to be forwarded to this office as soon as possible. A copy of the case history is enclosed which should be returned to this office when no longer required. The Board has requested, if possible, you make a recommendation on the prisoner's suitability for release to work, home detention and parole. [Dr A's] case for exemption under s.46(1)(a) of the FOI Act is therefore based on an implied understanding of confidence between him and the QCCB. However, it does not appear that the QCCB shared that understanding. In a letter to this office dated 21 March 2001, Mr Thomas of the Department stated: I would also like to concede that matter contained within [Dr A's] report will not be exempt matter under section 46(1)(a). Given that [Dr A's] report contains matter of a kind which is mentioned in section 41(1)(a), section 46(2) requires consideration of whether disclosure would found an action of breach of confidence. There is quite clearly no contractual obligation of confidence between [Dr A] and the Queensland Community Corrections Board. In considering the five cumulative criteria the Information Commissioner has established as required to be satisfied in order to found an action in equity for breach of confidence, I am not satisfied that matter within [Dr A's] report is subject to an equitable obligation of confidence. ... I note that [Dr A] himself, in paragraph 9 of his statutory declaration (quoted above), acknowledges that his report is the property of the Department. That is the usual position when a professional person is retained to write a report for a client, and is paid a fee for his/her time and effort in producing the report, i.e., upon payment, property in the report passes to the client who requested and paid for it, and clients are ordinarily free to use the report for their own purposes as they see fit: cf. Re Hopkins and Department of Transport [1995] QICmr 28; (1995) 3 QAR 59 at paragraphs 30-31, 33, 47; Re Spilsbury and Brisbane City Council (1999) 5 QAR 355 at paragraphs 24-25. Given the purposes for which it could reasonably be expected the Department would use [Dr A's] report, i.e., to assist in making a decision regarding the applicant's application for community-based supervision/parole, the question is whether equity would hold it to be an unconscionable use of the matter in issue for the Department to disclose it to the applicant without [Dr A's] consent. At paragraphs 92-93 of Re "B", the Information Commissioner said: Another principle of importance for government agencies was the Federal Court's acceptance in Smith Kline & French that it is a relevant factor in determining whether a duty of confidence should be imposed that the imposition of a duty of confidence would inhibit or interfere with a government agency's discharge of functions carried on for the benefit of the public. The Full Court in effect held that the restraint sought by the applicants on the Department's use of the applicant's confidential information would go well beyond any obligation which ought to be imposed on the Department, because it would amount to a substantial interference with vital functions of government in protecting the health and safety of the community. (This finding could also have followed from an application of Lord Denning's statement of principle set out at paragraph 85 above.) Thus, when a confider purports to impart confidential information to a government agency, account must be taken of the uses to which the government agency must reasonably be expected to put that information, in order to discharge its functions. Information conveyed to a regulatory authority for instance may require an investigation to be commenced in which particulars of the confidential information must be put to relevant witnesses, and in which the confidential information may ultimately have to be exposed in a public report or perhaps in court proceedings. The significance of the functions of a government agency as a recipient of information has also been stressed in the High Court decision of Esso Australia Resources Ltd v Plowman (1995) 69 ALJR 404; 128 ALR 391 (for a discussion of which see paragraphs 51-60 of the Information Commissioner's decision in Re Cardwell Properties Pty Ltd & Williams and Department of the Premier, Economic and Trade Development [1995] QICmr 19; (1995) 2 QAR 671). In assessing the relevant circumstances attending the communication to the QCCB of [Dr A's] report, I consider that the following paragraphs from the decision of the Information Commissioner in Re Hamilton and Queensland Police Service [1994] QICmr 21; (1994) 2 QAR 182 are also relevant: In paragraph 139 of my decision in Re "B", I stated as follows: There will be cases where the seeking and giving of an express assurance as to confidentiality will not be sufficient to constitute a binding obligation, for example if the stipulation for confidentiality is unreasonable in the circumstances, or, having regard to all of the circumstances equity would not bind the recipient's conscience with an enforceable obligation of confidence (see paragraphs 84 and 85 above). ... In paragraph 85 of Re "B", I had referred in particular to Lord Denning MR's statement in Dunford & Elliott Ltd v Johnson & Firth Brown Ltd [1978] FSR 143 at p.148, which bears repeating in this context: If the stipulation for confidence was unreasonable at the time of making it; or if it was reasonable at the beginning, but afterwards, in the course of subsequent happenings, it becomes unreasonable that it should be enforced; then the courts will decline to enforce it; just as in the case of a covenant in restraint of trade. I remarked in Re "B" that, despite the different wording, this dictum probably equates in substance, and in practical effect, to the emphasis in the judgments of the Federal Court of Australia in Smith Kline & French Laboratories (Aust) Ltd and Others v Secretary, Department of Community Services & Health (1990) 22 FCR 73 (Gummow J)[1991] FCA 150; , (1991) 28 FCR 291 (Full Court), that the whole of the relevant circumstances must be taken into account before a court determines that a defendant should be fixed with an enforceable obligation of confidence. I also referred in Re "B" (at paragraph 83) to the suggestion by McHugh JA in Attorney-General (UK) v Heinemann Publishers (1987) 75 ALR 353 at p.454 that special considerations apply where persons outside government seek to repose confidences in a government agency: ... when ... a question arises as to whether a government or one of its departments or agencies owes an obligation of confidentiality to a citizen or employee, the equitable rules worked out in cases concerned with private relationships must be used with caution. ... An illustration of this is afforded by the result in Smith Kline & French where Gummow J refused to find that the first respondent was bound by an equitable obligation not to use confidential information in a particular way, because the imposition of such an obligation on the first respondent would or might clash with, or restrict, the performance of the first respondent's functions under a relevant legislative scheme. (The relevant passages are set out at paragraphs 80 and 81 of Re "B", and see also my remarks at paragraph 92 of Re "B".) Another illustration of this principle, in my opinion, is the fact that government officials empowered to make decisions which may adversely affect the rights, interests or legitimate expectations of citizens are ordinarily subject to the common law duty to act fairly, in the sense of according procedural fairness, in the exercise of such decision-making powers (see, for example, Kioa v West [1985] HCA 81; (1985) 159 CLR 550; 60 ALJR 113, relevant extracts from which are reproduced at paragraph 28 of my reasons for decision in Re McEniery and the Medical Board of Queensland [(1994) [1994] QICmr 2; 1 QAR 349]). Circumstances may be encountered where the duty to accord procedural fairness clashes with an apparent duty to respect the confidentiality of information obtained in confidence, for example, where a government decision-maker proposes to make a decision which is adverse to the rights or interests of a citizen, on the basis of information obtained in confidence from a third party. ... In Re McEniery and Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349, at pp.361-364, paragraphs 28-33, the Information Commissioner pointed out that the legal requirements binding government agencies to observe the rules of procedural fairness will affect the question of whether a supplier of confidential information and the recipient agency could reasonably expect the confidentiality of the information to be preserved while taking appropriate action in respect of the information conveyed. Procedural fairness usually requires that a person, whose rights or interests are liable to be affected by some proposed government decision or action, be given an effective opportunity to know the substance of information provided to the government decision-maker which is adverse to his/her rights or interests, including, in particular, the critical issues or factors on which the case is likely to turn, so that the person is given an effective opportunity of dealing with the case against him or her. It is clear from judgments of the High Court of Australia, and of superior courts in the Australian states, that Parole/Community Corrections Boards are required to accord procedural fairness to persons whose rights or interests may be adversely affected by their decisions, except to the extent that the requirements of procedural fairness are excluded by express provision (or by necessary implication) in legislation governing the operations of the particular board: see, for example, the High Court decision in South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378 (where, I note, the parole board in question had given the prisoner copies of relevant psychiatric reports); Re Bromby v Offenders' Review Board (1991) 51 A Crim R 249 at p.277 per Clarke & Handley JJA of the New South Wales Court of Appeal; and the Queensland Supreme Court cases discussed below. Some jurisdictions (for example, Western Australia and Victoria) have legislated to expressly exclude what would otherwise be a common law requirement for their parole boards to accord procedural fairness (see s.115 of the Sentencing Administration Act 1995 WA and s.69 of the Corrections Act 1986 Vic), but that is not the case in Queensland. In Re Solomon (No. 2) [1994] 2 Qd R 97, Ambrose J stated that procedural fairness can be said to require the parole board to bring to the notice of the applicant for parole, who might be adversely affected by the board's determination, the critical issues or factors on which the determination is likely to turn, so that he or she may have an opportunity of dealing with them. In McEncroe v Queensland Community Corrections Board [1997] QSC 159, Thomas J stated: I consider then that in making a decision upon an application of this kind the Queensland Community Corrections Board is not free from a duty to accord natural justice to the applicant, and that subject to some obvious limitations which may be implied in relation to the content of the procedural fairness that must be provided, the principles of Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584, 588; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598, 607, are applicable. I note also a comment made by McPherson J in the case of Re Smith [1991] 2 Qd R 467 (although this case did not involve a procedural fairness issue but one of whether leave should be granted to issue a subpoena duces tecum to the parole board to produce documents to the court), that where the existence of a psychiatric report and identity of the psychiatrist is known to the applicant, there is no advantage in allowing the contents of the assessment to remain in the realm of speculation as it would only tend to engender suspicions that may be more dangerous than what the psychiatric report actually contains. In the present circumstances, it is clear that the QCCB requested that [Dr A] provide a report for the purpose of assisting the QCCB to consider the applicant's application for community release/parole, and that that report was before the QCCB when it considered the applicant's application. [Dr A] was specifically asked to make a recommendation on the applicant's suitability for release to work, home detention and parole. The QCCB ultimately rejected the applicant's application for parole, but gave approval for the applicant to be granted leave of absence during a period of 6 months for the purposes of seeking, or engaging in, employment, and to prepare the applicant for community resettlement. The applicant was advised that his application for parole would be considered when he had completed 6 months on release to work. The applicant then specifically queried why his application for parole was not approved, given that his eligibility date for parole had passed. He was advised by the Secretary of the QCCB that a Ministerial Guideline provided that early release from custody should ordinarily be a staged process, i.e., through release to work, to home detention, to parole. The QCCB stated that it was of the view that there were no particular circumstances in the applicant's case which justified a departure from the Ministerial Guideline. Given that [Dr A's] report was part of the material considered by the QCCB in deciding the applicant's application for parole, and that the report contained some material adverse to the applicant's interests in obtaining parole, I consider that procedural fairness required the QCCB to apprise the applicant of at least the substance of the adverse material, so as to give the applicant an effective opportunity to respond to those findings and perhaps to gather his own psychiatric evidence. In summary, it appears that the state of the law in Queensland, where the principles of procedural fairness clearly apply to the operations of the QCCB, is such that, in the ordinary case, neither a psychiatrist submitting a report adverse to an applicant for parole, nor the QCCB receiving such a report, could reasonably have an expectation that the report is to be treated in confidence as against the subject of the report. I consider that equity would not ordinarily find a parole board conscience-bound to treat a psychiatric report as confidential from the subject of the report, in a situation where the common law principles of procedural fairness require disclosure of information in the psychiatric report to the subject of the report. It is arguable that, in exceptional circumstances, equity might impose a binding obligation of confidence restraining a parole board from disclosing an adverse psychiatric report to the subject of the report, e.g., where the subject of the report has a demonstrated propensity to violence or retribution against persons perceived to have wronged the subject, and certain information in the report is so sensitive in nature that its disclosure to the subject could reasonably be expected to pose a genuine danger to the physical safety of others. In such circumstances, the common law requirements of procedural fairness may not extend to requiring disclosure of the adverse material, or equity might hold that conscionable conduct on the part of the parole board required non-disclosure regardless of the usual rules of procedural fairness. (I observe that, in a situation of that kind, exemption would ordinarily be available under s.42(1)(c) of the FOI Act. For the reasons explained at paragraphs 38-42 below, I am not satisfied that the requirements for exemption under s.42(1)(c) are met by the matter in issue in this case.) However, in the ordinary case, I consider that equity would hold that conscionable conduct on the part of the QCCB and the Department would require compliance with the principles of procedural fairness. I am not satisfied from my examination of the matter in issue, and the applicant's known criminal history, that there are any circumstances which take this case outside of the ordinary. In the particular circumstances of this case, I am satisfied that equity would not hold the Department and the QCCB subject to a binding obligation of confidence restraining disclosure to the applicant of the matter in issue from [Dr A's] report. As requirement (c) from paragraph 13 above is not satisfied, I find that disclosure to the applicant of the matter remaining in issue from [Dr A's] report would not found an action for breach of confidence, and hence that it does not qualify for exemption from disclosure to the applicant under s.46(1) of the FOI Act. Given the terms of s.46(2) of the FOI Act (as explained at paragraph 11 above), no separate consideration of s.46(1)(b) is called for. I observe, however that s.46(1)(b) requires that there be an express or implicit mutual understanding between the supplier and the recipient of confidential information that the relevant information was communicated in confidence, and here it is apparent that the Department did not share such an understanding. Nor, in my opinion, could it reasonably have done so, given the legal obligations on parole boards to accord procedural fairness to parole applicants as explained above. Application of s.42(1)(c) of the FOI Act to the matter in issue 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; ... The phrase "could reasonably be expected to" imposes a requirement that there be a reasonably based expectation (that the relevant prejudicial consequences would follow as a result of disclosure of the matter in issue), namely, an expectation for which real and substantial grounds exist. A mere possibility, speculation or conjecture is not enough. (See Re "B" at pp.339-341, paragraphs 154-160, and the Federal Court decisions referred to there.) In this context, "expect" means to regard as likely to happen. The Information Commissioner discussed the application of s.42(1)(c) of the FOI Act in Re Murphy and Queensland Treasury [1995] QICmr 23; (1995) 2 QAR 744 (see, particularly, paragraphs 43-57). At paragraph 45 (page 761), the Information Commissioner stated that the question posed by s.42(1)(c) is to be examined objectively by the decision-maker authorised to determine questions of access under the FOI Act, in light of the relevant evidence: see News Corporation Ltd v National Companies and Securities Commission [1984] FCA 400; (1984) 57 ALR 550, per Fox J at p.555. At paragraph 52 (page 762) of Re Murphy, the Information Commissioner said that the relevant words of s.42(1)(c) require an evaluation of the expected consequences of disclosure of the particular information in issue in terms of endangering (i.e., putting in danger) a person's life or physical safety, rather than in terms of the actual occurrence of physical harm. The risk to be guarded against is that of a person's life or physical safety being endangered by disclosure of the particular information in issue. In support of his case for exemption under s.42(1)(c), [Dr A] submitted, in essence, that the disclosure to the applicant of [Dr A's] opinion regarding the applicant's psychiatric condition would upset the applicant and, given the applicant's past history of violence against women, could reasonably be expected to endanger [Dr A's] life or physical safety. The sexual offences for which the applicant was convicted occurred approximately eight years ago. There is no evidence before me to suggest that, since that time, the applicant has engaged in any behaviour that could reasonably be regarded as endangering any person's life or physical safety. As far as I am aware, he has never displayed violent behaviour towards an adult male. Moreover, the applicant has previously been given access to a number of psychological assessments and reports concerning him which deal with matter not dissimilar to the matter contained in [Dr A's] report. There is nothing before me to suggest that the disclosure to the applicant of that information resulted in the endangerment of any person's life or physical safety. I am not satisfied that there is anything exceptional about the nature of the matter in issue in this review (as compared with matter that has previously been disclosed to the applicant) such as to afford a reasonable basis for expecting that its disclosure could endanger the physical safety of [Dr A]. The applicant has been aware of [Dr A's] identity as the author of the report for some time. [Dr A] has not suggested that the applicant has attempted to initiate any contact with [Dr A]. In any event, mere contact, even if it is perceived by the recipient as harassment or intimidation, is not enough to satisfy the requirements of s.42(1)(c) of the FOI Act. The focus of s.42(1)(c) is on physical safety. An expectation of harassment or intimidation will not satisfy s.42(1)(c) unless it is harassment or intimidation which endangers a person's life or physical safety. I am not satisfied, on the evidence before me, that disclosure to the applicant of the matter in issue could reasonably be expected to endanger the physical safety of [Dr A] or any other person. Accordingly, I 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)(f) and s.42(1)(h) of the FOI Act to the matter in issue Section 42(1)(f) and s.42(1)(h) of the FOI Act provide: 42.(1) Matter is exempt matter if its disclosure could reasonably be expected to— ... (f) prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety; ... (h) prejudice a system or procedure for the protection of persons, property or environment; ... Both exemption provisions involve consideration of the test imposed by the phrase "could reasonably be expected to", and my comments at paragraph 38 above are again applicable in that regard. Section 42(1)(f) The focus of s.42(1)(f) is on the maintenance or enforcement of a lawful method or procedure for the protection of public safety. This wording contrasts with that of s.42(1)(e) which refers to prejudice to the "effectiveness" of a lawful method or procedure: see Re Byrne and Gold Coast City Council (1994) 1 QAR at p.484, paragraph 20. In order to find that the matter in issue in [Dr A's] report is exempt matter under s.42(1)(f), I must be satisfied that its disclosure could reasonably be expected to prejudice the maintenance or enforcement of a lawful method or procedure for the protection of public safety. In support of the application of s.42(1)(f) to his report, [Dr A] submitted: The second ground I rely upon is section 42(1)(f) of the Act on the basis that disclosure of the remaining sections of the report could reasonably be expected to prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety. The report was prepared at the request of the [Queensland Community Corrections] Board in relation to the appropriateness of ["WRT"] being considered for release to work, home detention and parole. ... There is an identifiable method or procedure; the method or procedure is for protecting public safety; the method or procedure is lawful and disclosure of the particular matter in issue could reasonably be expected to prejudice the maintenance or enforcement of the method or procedure. If the remaining sections of the report had to be disclosed the disclosure could reasonably be expected to prejudice the maintenance or enforcement of the parole procedure. Put at its highest, [Dr A's] case for exemption under s.42(1)(f) must be that disclosure to the applicant of the matter in issue in his report could reasonably be expected to result in psychiatrists refusing to provide the QCCB with reports on prisoners, or providing less frank and candid reports. Even if I were to accept that that was a reasonable expectation (and I do not, in the particular circumstances of this case, for the reasons indicated at paragraphs 57-58 below), it would be unfortunate, but it would not amount to prejudice to the maintenance or enforcement of the parole system under s.42(1)(h). The parole system itself would remain in place, whether or not it became harder to obtain full and frank psychiatric reports on prisoners. Moreover, the system is not of its nature one that is enforceable; it is simply a procedure that is available to prisoners who are eligible to apply for early release from prison. I am not satisfied that disclosure of the matter in issue could reasonably be expected to prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety, and I find that the matter in issue does not qualify for exemption under s.42(1)(f) of the FOI Act. Section 42(1)(h) Section 42(1)(h) requires me to consider whether disclosure of the matter in issue could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment. The Information Commissioner considered the meaning of "system or procedure" in s.42(1)(h) in Re Ferrier and Queensland Police Service [1996] QICmr 16; (1996) 3 QAR 350 (see, especially, paragraphs 27-36). In Re "ROSK" and Brisbane North Regional Health Authority [1996] QICmr 21; (1996) 3 QAR 416, the Information Commissioner decided that certain provisions contained in the Mental Health Act 1974 Qld established a system or procedure whereby members of the community who hold a genuine belief that a person is mentally ill, and a danger to himself/herself or to others, can initiate action to protect that person or others from the apprehended danger. The Information Commissioner decided that that system answered the description of "a system or procedure for the protection of persons", within the meaning of s.42(1)(h) of the FOI Act. Similarly, it is arguable that Part 4 of the Corrective Services Act 1988 Qld, together with the relevant provisions contained in the Corrective Services Regulations 1989 Qld, comprise a system or procedure for the protection of persons or property. The statutory framework is one under which prisoners may apply for release into the community, but I note that the first of the principles contained in "Ministerial Guidelines to the Queensland Community Corrections Board", a document issued under s.139(1) of the Corrective Services Act, is: 1.1 When considering whether a prisoner should be released from custody to a community based programme the priority for the Queensland Community Corrections Board should always be the protection of the community. While it is reasonably arguable that the regime established in Part 4 of the Corrective Services Act regarding the making, and determining, of applications for parole, answers the description of "a system or procedure for the protection of persons, property or the environment" under s.42(1)(h) (and perhaps also the description "a lawful procedure for the protection of public safety" under s.42(1)(f)), it is unnecessary for me to express a conclusion on that issue in this case (where the issue has not been fully argued), because, even assuming the point in [Dr A's] favour, I am not satisfied that there is a reasonable basis for expecting disclosure of the matter in issue to have the specified prejudicial consequences. As regards the application to the matter in issue of s.42(1)(h) of the FOI Act, [Dr A] submitted as follows, in his statutory declaration dated 4 June 2001: The third ground upon which I rely is section 42(1)(h) of the Act in that disclosure of the remaining sections of the report could reasonably be expected to prejudice a system or procedure for the protection of persons, property or environment. It is essential for the efficacy of the parole system for medical practitioners not to be unduly inhibited when assessing prisoners pursuant to the system, "ROSK" and Brisbane North Regional Health Authority & Ors (18 November 1996). I accept that the parole system generally would be prejudiced if parole boards were unable to make fully informed decisions regarding whether or not to release prisoners into the community because psychiatrists were declining to provide the parole boards with psychiatric assessments of prisoners, or were providing less frank and candid assessments. In its letter to this office dated 21 March 2001, the Department also expressed concern that psychiatrists would become less frank in their reports to the QCCB because of the potential for those reports to be disclosed to prisoners, resulting in prejudice to the parole system. The "candour and frankness" argument raised by [Dr A] (and supported by the Department) has been upheld in various decisions of the Victorian Administrative Appeals Tribunal and the Victorian Civil and Administrative Tribunal. In Re Fogarty and Office of Corrections; Re Fogarty and Health Department (1989) 3 VAR 215, Judge Jones considered an application by a prisoner under the Freedom of Information Act 1982 Vic (the Victorian FOI Act) to obtain access to documents held by the respondent agencies in connection with the prisoner's incarceration. The documents included memoranda between officers of the Office of Corrections, parole board reports, and correspondence between psychiatrists concerning the applicant. Jones J accepted the respondents' arguments that the provision of full and frank information was vital to the operations of the parole board and that disclosure to prisoners of reports supplied to the parole board would inhibit the provision of reports and the quality and value of such reports. In relation to psychiatric reports in particular, Jones J said at pp.235-236: ... The comments I have expressed about the importance of full and frank parole reports to the Parole Board apply as much if not more to psychiatric reports such as these. ... The comments on the effect of such reports not being provided also apply with as much if not more force to psychiatric reports. It is of critical importance that the Parole Board has comprehensive, open and frank psychiatric reports. The consequences would be serious if such reports were not provided because psychiatrists were concerned that their reports could be disclosed to the prisoner concerned. Such a situation would prejudice the administration of the parole system and consequently the administration of the law. However, these remarks were made in a jurisdiction where specific legislative provision curtailed a common law requirement to disclose information adverse to the interests of an applicant for parole: see paragraph 25 above, and paragraphs 26-28 for the legal position in Queensland. Jones J was also considering the application of exemption provisions contained in the Victorian FOI Act which have no direct counterparts in the Queensland FOI Act. As far as s.42(1)(h) of the Queensland FOI Act is concerned, what must be assessed are the reasonably apprehended consequences on the parole system of disclosure of the particular matter in issue. I do not accept that disclosure of the matter remaining in issue in [Dr A's] report, in the particular circumstances of this case, could reasonably be expected to cause the type of prejudice to the parole system which is contended for by the applicant. It is nearly four years since [Dr A's] report was written and the applicant's application for parole was considered by the QCCB, and more than three years have passed since the applicant was released from prison. As I noted in the context of my discussion above regarding the application of s.42(1)(c), there is no evidence before me to suggest that the applicant has ever displayed violent behaviour towards an adult male, or that he currently poses a physical threat to any person. I have already noted that there has been no suggestion that the applicant has made any attempt to contact [Dr A], despite being aware for some years of [Dr A's] identity as the author of the report in issue, and having already been given access to parts of the report (and to other psychological reports and assessments). I am unable to accept that the matter remaining in issue is of such sensitivity that its disclosure to this applicant could reasonably be expected to cause substantial concern to a substantial number of psychiatrists. I am not satisfied that disclosure to the applicant of the matter remaining in issue from [Dr A's] report could reasonably be expected to cause psychiatrists to decline to provide parole boards with psychiatric assessments of prisoners, or to provide less frank and candid assessments, or to otherwise prejudice the parole system, and I find that the matter remaining in issue does not qualify for exemption under s.42(1)(h) of the FOI Act. Application of s.44(3) of the FOI Act to the matter in issue Section 44(3) of the FOI Act provides: 44.(3) If— (a) an application is made to an agency or Minister for access to a document of the agency or an official document of the Minister that contains information of a medical or psychiatric nature concerning the person making the application; and (b) it appears to the principal officer of the agency or the Minister that the disclosure of the information to the person might be prejudicial to the physical or mental health or wellbeing of the person; the principal officer or Minister may direct that access to the document is not to be given to the person but is to be given instead to a qualified medical practitioner nominated by the person and approved by the principal officer or Minister. In his statutory declaration dated 4 June 2001, [Dr A] submitted: The fifth alternative ground upon which I rely to support my contention that the remaining material in my report should not be disclosed to ["WRT"] is pursuant to section 44(3) of the Act. The remaining sections of the report relate to my assessment of ["WRT's"] psychiatric condition and disclosure of that material might be prejudicial to ["WRT's"] physical or mental health or well being. If it is determined that the remaining sections of my report are to be disclosed then pursuant to section 44(3) of the Act the Principal Officer should direct that access to the remaining sections of the report be given only to a qualified medical practitioner for ["WRT's"] continuing medical treatment and not for the purpose of disclosure to ["WRT"]. Under s.88(1) of the FOI Act, the Information Commissioner has the power to decide any matter in relation to an application for review that could have been decided by an agency, and the decision of the Information Commissioner in that regard has the same effect as a decision of the agency or Minister. Accordingly, I have the power, as an authorised delegate of the Information Commissioner, to decide whether or not information of a medical or psychiatric nature about the applicant should be disclosed in accordance with s.44(3) of the FOI Act. In Re "S" and the Medical Board of Queensland [1994] QICmr 28; (1994) 2 QAR 249, the Information Commissioner endorsed the following approach to the application of s.44(3): The terms of s.44(3) of the FOI Act are almost identical to the terms in which s.41(3) of the Freedom of Information Act 1982 Cth (the Commonwealth FOI Act) was framed, prior to its amendment by the Freedom of Information Amendment Act 1991 Cth. In its former terms, s.41(3) of the Commonwealth FOI Act was considered by Deputy President Smart QC (now His Honour Mr Justice Smart of the New South Wales Supreme Court) in the decision of the Commonwealth Administrative Appeals Tribunal in Re K and Director-General of Social Security (1984) 6 ALD 354. Deputy President Smart observed (at pp.356-7) that the provision raised these matters for consideration: Does the document in issue contain information of a medical or psychiatric nature concerning the applicant? If the information were disclosed direct to the applicant is there a real and tangible possibility as distinct from a fanciful, remote or far-fetched possibility of prejudice to the physical or mental health or well-being of the applicant? This is what the words "might be prejudicial" mean. Well-being has a wide import and a phrase "physical or mental health or well-being" indicates that a broad approach is to be taken. The general health, welfare and good of the person of the person is to be considered. If there is a real and tangible possibility of such prejudice the decision-maker is called upon to exercise his discretion whether to direct that access which would otherwise be given to the applicant should be given to a medical practitioner nominated by him. In the exercise of such discretion the decision-maker should consider the nature and extent of any real and tangible possible prejudice and the likelihood of it occurring. A number of situations could arise: (a) The possible prejudice may be small and not such as to justify giving a direction. (b) The possible prejudice may be sufficient to be of concern, but not major concern. In such a case if the likelihood of such prejudice eventuating was small, the decision-maker may not give a direction. (c) The possible prejudice, if it eventuated, may be great but the likelihood of it occurring may be small. In such a case the gravity of possible consequences might prove decisive in exercising the discretion whether to give a direction. In the exercise of his discretion the decision-maker has to carefully consider all the circumstances and balance the relevant factors. I consider that this passage should be accepted and applied in Queensland as correctly stating the general approach to be taken by decision-makers when considering the application of s.44(3) of the FOI Act. The matter in issue is clearly information of a medical or psychiatric nature about the applicant. However, [Dr A] has merely asserted that "disclosure of that material might be prejudicial to ["WRT's"] physical or mental health or well-being". He has not attempted to explain how the disclosure of the matter in issue might have such an effect, or to explain the nature or seriousness of the possible prejudice, or to assess the degree of likelihood of such prejudice occurring. From my own examination of the matter in issue, I am not satisfied that the possibility of its disclosure to the applicant having a prejudicial effect on the applicant's health or wellbeing is sufficiently high, or that any prejudicial effect would be sufficiently serious, as to warrant a decision that access should be given to a qualified medical practitioner in accordance with s.44(3). Accordingly, I decline to exercise the discretion contained in s.44(3) so as to direct that access to the matter in issue be given to a qualified medical practitioner nominated by the applicant. DECISION I set aside the decision under review (being a deemed decision by the Department of Corrective Services to refuse access to the matter in issue). In substitution for it, I decide that those parts of [Dr A's] report dated 4 July 1998 which remain in issue do not qualify for exemption from disclosure to the applicant under the FOI Act, and that the applicant is therefore entitled to be given access to them under the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

E82 and Queensland Police Service [2021] QICmr 31 (22 June 2021)

E82 and Queensland Police Service [2021] QICmr 31 (22 June 2021) Last Updated: 19 August 2021 Decision and Reasons for Decision Citation: E82 and Queensland Police Service [2021] QICmr 31 (22 June 2021) Application Number: 315791 Applicant: E82 Respondent: Queensland Police Service Decision Date: 22 June 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - IRRELEVANT INFORMATION - request for information concerning an incident involving the applicant - whether information may be excluded on the basis it is irrelevant to the scope of the application - section 88 of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - personal information of other individuals - accountability, transparency and administration of justice - personal information, privacy and prejudice to flow of information and agency’s ability to obtain confidential information - whether disclosure would, on balance, be contrary to the public interest - whether access may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) section 47(3)(b) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - UNLOCATABLE OR NONEXISTENT DOCUMENTS - applicant contends that CCTV footage and audio recordings should exist - whether agency has taken all reasonable steps to locate the relevant documents - whether access may be refused on the basis the documents do not exist or are unlocatable - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary 1. The applicant was injured during an incident in November 2011 (Incident). In July 2012, the applicant applied to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) to access certain information relating to a charge that arose from the Incident.[1] 2. In 2020, the applicant applied again to QPS under the IP Act to access information about the Incident (Incident).[2] Although the applicant sought some of the same information requested in his previous access application,[3] QPS chose to deal with the 2020 access applications. QPS located 40 pages, disclosed 5 full pages and parts of 28 pages to the applicant, and decided[4] to refuse access to the remaining information. QPS also deleted irrelevant information from the disclosed documents. 3. The applicant sought internal review of QPS’ decision. As QPS did not make an internal review decision within the statutory timeframe, it was taken to have affirmed its original decision.[5] 4. The applicant then applied[6] to the Office of the Information Commissioner (OIC) for external review of QPS’ decision to refuse or delete information and raised concerns that QPS had not located all requested documents. During the external review, QPS disclosed a small amount of additional written information to the applicant. 5. The applicant remains dissatisfied with the information which has been disclosed to him and continues to seek access to unredacted copies of the located information, together with CCTV footage and electronic recordings which he believes exist. 6. For the reasons set out below, I affirm QPS’ decision to delete irrelevant information and refuse access to information on the ground disclosure would, on balance, be contrary to the public interest. I also find that access to any further documents may be refused on the basis they do not exist or cannot be located. Reviewable decision and evidence considered 7. The decision under review is QPS’ decision dated 15 October 2020, which QPS is deemed to have affirmed on internal review. 8. Significant procedural steps taken in the external review are set out in the Appendix. The 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.[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] Information in issue 10. The information in issue appears on 37 pages (Information in Issue) and comprises: portions of information which QPS deleted from four disclosed pages[10] on the basis it was irrelevant to the application (Irrelevant Information); and portions of information to which QPS refused access on 36 pages[11] (CTPI Information). 11. I am constrained in how I may describe the CTPI Information[12] however, I can confirm that it comprises the personal information[13] of individuals other than the applicant (such as their names, contact details, dates of birth, signatures and information they provided to the QPS investigation of the Incident). Issues for determination 12. The issues for determination are whether: the applicant is entitled to access the Irrelevant Information access may be refused to the CTPI Information on the ground disclosure would, on balance, be contrary to the public interest; and access to further documents may be refused on the basis they do not exist or cannot be located. Irrelevant Information 13. Under the IP Act, an individual has the right to be given access to documents of a Queensland government agency, to the extent they contain the individual’s personal information.[14] However, section 88 of the IP Act permits an agency to delete information that is not relevant to an access application from a document before giving access to a copy of the document. In deciding whether information is irrelevant, it is necessary to consider whether the information has any bearing upon, or is pertinent to, the terms of the application.[15] 14. Each of the applicant’s access applications request ‘any information’ held by QPS in relation to the Incident. Having carefully considered the Irrelevant Information and the terms of the access applications, I am satisfied that this information does not relate to the Incident or the applicant. 15. On this basis, I find that the Irrelevant Information was validly deleted[16] from the documents that QPS has disclosed. CTPI Information 16. The general right of access under the IP Act is subject to certain limitations, including grounds for refusal of access.[17] One ground for refusal is where disclosure of information would, on balance, be contrary to the public interest.[18] 17. In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[19] 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 18. The applicant submits that a number of factors favour disclosure of the CTPI Information apply and these strongly outweigh the factors which favour nondisclosure.[20] More specifically, the applicant relies on the following public interest factors favouring disclosure, which arise where disclosing information could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability[21] allow or assist with inquiry into possible deficiencies in the conduct or administration of an agency or official[22] reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct[23] advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies[24] contribute to the maintenance of peace and order[25] contribute to the administration of justice for person;[26] and contribute to the enforcement of the criminal law.[27] 19. I have taken no irrelevant factors into account in making my decision and consider none apply. Factors favouring disclosure 20. A minimal amount of the CTPI Information relates to the applicant and comprises his personal information. This gives rise to a factor favouring disclosure to which I afford high weight.[28] However, this information about the applicant is intertwined with the personal information of other individuals to such an extent that it cannot be disclosed without also disclosing the personal information of those other individuals (which raises the nondisclosure factors discussed below). 21. The RTI Act recognises that public interest factors favouring disclosure will arise where disclosing information could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability[29] inform the community of the Government’s operations, including, in particular, the policies, guidelines and codes of conduct followed by the Government in its dealings with members of the community;[30] and reveal the reason for a government decision and any background or contextual information that informed the decision.[31] 22. I acknowledge that QPS must be transparent and accountable about how it investigates, and deals with, assault incidents. The applicant submits that: ... the information disclosed to date does not reasonably assist [the applicant] in determining whether QPS conducted a competent investigation into the incident, free of any bias. Accordingly, the conclusions reached by QPS could only be challenged by [the applicant] following a careful, independent, re-examination of the available evidence, including, in particular, the evidence of any eye-witnesses to the incident). Evidently, these investigations cannot be reasonably carried out in circumstances where the names and contact details of such potential eyewitnesses are not known or disclosed to [the applicant].[32] 23. I accept that disclosing the CTPI Information would provide the applicant with a complete picture of the information that was available to QPS in its investigation of the Incident. However, while there is a public interest in affording assault complainants (and the public generally) with an understanding of the process and conclusions of such investigations, this does not extend to affording complainants a right to reinvestigate, particularly in circumstances where other avenues of redress for perceived investigative inadequacy are available.[33] QPS has disclosed a significant amount of information to the applicant and its disclosure has substantially advanced the accountability and transparency factors,[34] by enabling scrutiny of QPS’ investigative actions[35] and providing contextual information about QPS’ decision not to prosecute any individual in respect of the applicant’s assault complaint. Given the particular nature of the CTPI Information, I do not consider its disclosure would further advance these accountability and transparency factors in any significant way. In these circumstances, I attribute minimal weight to these factors. 24. Public interest factors favouring disclosure also arise in circumstances where disclosing information could reasonably be expected to allow or assist enquiry into, or reveal or substantiate, deficiencies in the conduct of QPS or its officers.[36] 25. The applicant disagrees with the investigation outcome and asserts that these factors apply because disclosure of the CTPI Information may highlight ‘significant flaws in the Police Investigation’.[37] For these factors to be relevant, there must be a reasonable expectation that disclosing the CTPI Information (that is, the personal information of private individuals) would allow or assist enquiry into, reveal or substantiate, agency or official conduct deficiencies. I have considered the CTPI Information, together with the information which has been released to the applicant. I am satisfied that there is nothing in the CTPI Information which gives rise to a reasonable expectation that its disclosure would allow or assist enquiry into, reveal or substantiate, any deficiencies in the conduct of QPS or its officers. For this reason, I find to these factors favouring disclosure do not apply. 26. Where disclosing information could reasonably be expected to contribute to the administration of justice for a person, a public interest factor favouring disclosure arises.[38] The applicant submits that, without knowing the identity of the individual/s who injured him, he is unable to make any civil or criminal claim in respect of those injuries.[39] He contends that this factor deserves significant weight because: the CTPI Information would have ‘circumstantial relevance’ to such a claim[40] the names and contact details of any witnesses to the Incident are ‘central to [the applicant’s] ability to commence civil or criminal proceedings against the responsible party’;[41] and the CTPI information may also be relevant to the complaints he has made concerning the QPS investigation of the Incident.[42] 27. In determining whether this factor 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.[43] 28. On external review, the applicant confirmed that he has already made complaints about the QPS investigation to relevant complaint bodies, based upon information he already possesses.[44] I also note that these complaint bodies are generally empowered to obtain information relevant to their investigatory processes.[45] Taking into account the nature of the CTPI Information, I am not satisfied that disclosing this information is required to enable the applicant to evaluate, pursue or assist those complaint processes. 29. I acknowledge that the applicant suffered injuries during the Incident and that he has identified there may be a civil or criminal remedy available to him in that regard. On completion of the Incident investigation, QPS decided that there was insufficient evidence to proceed with the applicant’s assault complaint. I also note that the information which has been disclosed to the applicant includes the substance of obtained witness statements; confirms that these statements provided conflicting versions of what had occurred during the Incident; and concluded that the version of events supplied by the only independent witness did not support the applicant’s statement. The applicant submits that QPS’ investigation conclusion does not ‘diminish the evidentiary value’ of the CTPI Information.[46] In these circumstances, while it is unclear whether the applicant has a reasonable basis for pursuing his identified criminal remedy, I accept there may be a basis for him to pursue a civil remedy. For these reasons, I find that the requirements set out above are met and this administration of justice factor applies. 30. In terms of the weight to be attributed to this factor, I am not satisfied that the CTPI Information possesses the ‘high evidentiary value’ submitted by the applicant.[47] Taking into consideration the nature of the CTPI Information and the information which has been disclosed to the applicant, I attribute this administration of justice factor moderate weight. I also note that, as the disclosed information generally identifies the residential/work location of involved individuals at the time of the Incident,[48] there may be other avenues of enquiry or processes available to the applicant for obtaining the identities of the involved individuals. 31. Public interest factors favouring disclosure will also arise where disclosing information could reasonably be expected to advance the fair treatment of individuals in accordance with the law in their dealings with agencies[49] and contribute to the administration of justice generally, including procedural fairness.[50] Although the applicant has raised concerns about the QPS investigation and submits the disclosure factor concerning fair treatment applies,[51] he has not detailed how disclosure of the CTPI Information would advance his fair treatment. I note that the applicant was given the opportunity to participate in the QPS investigation process and that he is aware of the investigation outcome. In these circumstances, and taking the particular nature of the CTPI Information into account, I am not satisfied that that there is a reasonable expectation its disclosure would advance the applicant’s fair treatment or contribute to the administration of justice generally. Accordingly, to the extent these disclosure factors[52] apply, I afford them only low weight. 32. The RTI Act also recognises that public interest factors favouring disclosure will arise where disclosing information could reasonably be expected to contribute to the maintenance of peace and order or the enforcement of the criminal law.[53] Although the applicant submits that these factors apply, he has not explained how disclosure of this particular CTPI Information could reasonably expected to have these outcomes. Given the nature of the CTPI Information, I do not consider these factors favouring disclosure apply. 33. Taking into account the particular nature of the CTPI Information, I cannot identify any other public interest considerations favouring its disclosure.[54] Factors favouring nondisclosure 34. As noted above, the applicant generally submits that any factors supporting nondisclosure are strongly outweighed by the factors favouring disclosure.[55] 35. The RTI Act recognises that disclosing an individual’s personal information to someone else can reasonably be expected to cause a public interest harm[56] and also that disclosing information that could reasonably be expected to prejudice the protection of an individual’s right to privacy, will favour nondisclosure.[57] The concept of ‘privacy’ is not defined in the IP Act or the RTI Act. It can, however, essentially be viewed as the right of an individual to preserve their ‘personal sphere’ free from interference from others.[58] 36. Having carefully reviewed the CTPI Information, I am satisfied that it comprises the personal information of private individuals appearing in the context of a police investigation into an incident where individuals were injured.[59] Some of the CTPI Information is sensitive in nature. Given this, I am satisfied that disclosure of the CTPI Information would interfere with the personal sphere of these private individuals and could reasonably be expected to prejudice the protection of their 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. 37. 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. 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 significant weight to these factors favouring nondisclosure. 38. I acknowledge that the applicant will be aware of some of the CTPI Information by reason of his involvement in the Incident investigation. However, I do not consider that reduces the weight of these nondisclosure factors to any significant degree, particularly as there can be no restriction on the use, dissemination or republication of information disclosed under the IP Act. 39. A public interest factor favouring nondisclosure will also arise if disclosing information could reasonably be expected to prejudice the flow of information to law enforcement agencies.[60] 40. It is generally recognised that there is a very strong public interest in protecting the ability of QPS to obtain information which is relevant to its investigations.[61] Although the police possess certain coercive powers when investigating criminal matters such as assault incidents, the efficient and effective use of public resources is facilitated by police being able to cooperatively seek and obtain information, including from complainants, witnesses, the subjects of a compliant or other involved individuals. I consider that routinely disclosing information which QPS obtains or receives in this context would tend to discourage individuals from coming forward with relevant information or participating openly in future QPS investigations, particularly where information is of a sensitive nature. Accordingly, I find the nondisclosure factor relating to the flow of information to QPS deserving of significant weight. 41. The RTI Act recognises that there is a public interest harm in disclosing information of a confidential nature that was communicated in confidence where its disclosure could reasonably be expected to prejudice the future supply of information of that type.[62] A public interest factor favouring nondisclosure also arises where disclosing information could reasonably be expected to prejudice an agency’s ability to obtain confidential information.[63] 42. Some of the CTPI Information is inherently confidential in nature. I consider that routinely disclosing information of this nature would tend to discourage individuals from coming forward with relevant information in the future and that it is reasonable to expect that this would, in turn, detrimentally effect QPS’ ability to effectively discharge its regulatory functions. On this basis, to the extent the CTPI Information comprises information of a confidential nature, I afford significant weight to these nondisclosure factors. Balancing the public interest 43. I acknowledge the pro-disclosure bias in deciding access to documents under the IP Act.[64] I have afforded high weight to the factor favouring disclosure of the applicant’s personal information within the CTPI Information, however, that personal information of the applicant is inextricably intertwined with the personal information of other individuals. Although I also accept that the public interest factor concerning administration of justice for the applicant applies, I consider it is deserving of moderate weight in the circumstances of this matter. Taking into account the nature of the CTPI Information, I also afford minimal or low weight to additional factors which favour disclosure of the CTPI Information (including those relating to QPS’ transparency and accountability, fair treatment and administration of justice generally). 44. On the other hand, I have afforded significant weight to the nondisclosure factors which relate to protecting the personal information and right to privacy of other individuals, the flow of information to QPS and the ability of QPS to obtain confidential information. 45. On balance, I am satisfied that the public interest factors favouring nondisclosure outweigh the factors favouring disclosure. Accordingly, I find that disclosure of the CTPI Information would, on balance, be contrary to the public interest and access may be refused on that basis.[65] Nonexistent or unlocatable documents 46. On external review, the functions of the Information Commissioner include investigating and reviewing whether an agency has taken reasonable steps to identify and locate documents applied for by applicants.[66] However, access to a document may be refused if it is nonexistent or unlocatable.[67] 47. To be satisfied that documents are nonexistent, a decision-maker must rely on their particular knowledge and experience of the agency’s operations and have regard to a number of key factors[68], including the recordkeeping practices and procedures of the agency, and the nature and age of the requested documents. An agency may also rely on searches to justify a decision that documents do not exist, and in such a case, all reasonable steps must be taken to locate the documents. What constitutes reasonable steps will vary from case to case, depending on the particular circumstances. 48. To substantiate a finding that a document is unlocatable, the agency must be satisfied that the requested document has been or should be in the agency’s possession; and that all reasonable steps have been taken to find the document, but the document cannot be found. In determining whether all reasonable steps have been taken, regard should again be had to the circumstances of the case and key factors previously identified by the Information Commissioner.[69] Findings 49. The applicant contends that:[70] at the time of the Incident investigation, Officer C informed him that CCTV footage existed, however, it did not capture the assault that caused the applicant’s injuries and did not identify the perpetrator; and he was advised by Officer G (from a specified police station) on 21 August 2020 that footage ‘clearly depicting his assault’ was located in the Incident investigation records relating to the applicant’s assault complaint. 50. As noted above, QPS conducted further searches and enquiries on external review but did not locate the requested CCTV footage or electronic recordings. QPS relied on searches conducted by its officers to justify its position that reasonable steps have been taken to locate documents responsive to the applications and provided information about its recordkeeping system and searches, as set out below. 51. QPS submitted[71] that it conducted the following searches and enquiries: in processing the applications, QPS conducted searches of its electronic records (including QPRIME) and officer notebooks and diaries and no audio or video records were found QPS conducted further searches of records held by its District Office; and enquiries made of Officer G confirmed that there is no record of CCTV footage being held at the specified police station and that the Incident investigation records confirm that CCTV footage was viewed at the scene; was unable to be played on QPS computers; and there is no record of any CCTV footage being logged as a property item. 52. I note that, in response to the applicant’s prior access application in 2012, QPS confirmed that it had not located CCTV footage and electronic recordings relevant to the timeframe of the Incident. I further note that the information QPS has disclosed to the applicant in respect of his current access applications confirms that QPS: was unable to download CCTV footage from a street camera which depicted the applicant attacking other individuals; and viewed CCTV footage from a private business, which was unable to be played on police computers. 53. Having reviewed the applicant’s submissions and QPS’ search submissions,[72] I consider that QPS has conducted comprehensive searches of locations where it would be reasonable to expect the types of information requested in the access applications to be stored. I am also satisfied that enquiries have been made of staff who have relevant knowledge of the Investigation records. 54. In view of the above, and taking into account the documents that were located by QPS (including the Information in Issue), there is nothing before me, other than the applicant’s assertions, to support an expectation that the requested CCTV footage and electronic recordings exist. Accordingly, I am satisfied that: QPS has taken reasonable steps to locate documents relevant to the access applications; and access to further documents, including the requested CCTV footage and electronic recordings, may be refused on the basis they do not exist, or cannot be located.[73] DECISION 55. For the reasons set out above, I affirm QPS’ decision to delete the Irrelevant Information under section 88 of the IP Act and refuse access to the CTPI Information as disclosure would, on balance, be contrary to the public interest.[74] In addition, I find that access to any further information may be refused on the basis it is nonexistent or unlocatable.[75] 56. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.Louisa LynchRight to Information Commissioner Date: 22 June 2021 Appendix Significant procedural steps Date Event 14 December 2020 OIC received the application for external review. 17 December 2020 OIC requested QPS provide initial procedural documents. 24 December 2020 OIC received the requested procedural documents. 11 February 2021 OIC requested certificated evidence of identity from the applicant’s legal representative. 12 February 2021 OIC received the requested evidence of identity. 3 March 2021 OIC notified the applicant and QPS that it had accepted the external review application and asked QPS to provide information. 17 March 2021 OIC received the requested information from QPS. 25 March 2021 OIC requested further information from QPS. 7 April 2021 OIC provided an update to the applicant’s legal representative. 21 April 2021 OIC received the requested information from QPS. 27 April 2021 OIC provided a further update to the applicant’s legal representative. 28 April 2021 OIC received a further request from the applicant’s legal representative for an update. 29 April 2021 OIC conveyed a preliminary view to the applicant and invited him to provide further submissions if he did not accept the preliminary view. 14 May 2021 OIC received the applicant’s submissions, contesting the preliminary view and requesting that OIC proceed to issue a formal decision. [1] The applicant’s external review application included a copy of a QPS decision, dated 31 August 2012, in respect of this previous application. However, a copy of the 2012 access application, and the documents which the applicant received from QPS in response, are not before me. [2] The applicant made two access applications to QPS on 26 August 2020. Each application requested any information held by QPS in relation to the Incident for the period 14 October 2011 to March 2012 (including CCTV footage, electronic recordings, photographs, statements of witnesses and involved persons, police reports and police emails, memos and messages) but referenced different QPS investigation numbers. As the scope of each application was identical, QPS dealt with both applications together. [3] Potentially enlivening section 62 of the IP Act. [4] On 15 October 2020. [5] Under section 97(2) of the IP Act. QPS confirmed this to the applicant by letter dated 23 December 2020. [6] On 14 December 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 [111]. [9] I also note the following observations made by Bell J in XYZ at [573], on the interaction between equivalent pieces of Victorian legislation (namely, the Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic)): ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’. [10] Pages numbered 1, 2, 33 and 37. This information is identified with the code ‘s.88’ on these pages. [11] Pages numbered 2-16, 18-31, 33-35, 37-39 and 40. [12] Section 121 of the IP Act, which relevantly prevents OIC from revealing information claimed to be contrary to the public interest information. [13] ‘Personal information’ is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. [14] Section 40 of the IP Act. [15] O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) at [52]. [16] Under section 88 of the IP Act. [17] 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). [18] Section 47(3)(b) of the RTI Act. The phrase ‘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 merely private or personal interests, although 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. [19] Section 49(3) of the RTI Act.[20] External review application and submissions dated 14 May 2021. [21] Schedule 4, part 2, item 1 of the RTI Act. [22] Schedule 4, part 2, item 5 of the RTI Act. [23] Schedule 4, part 2, item 6 of the RTI Act. [24] Schedule 4, part 2, item 10 of the RTI Act. [25] Schedule 4, part 2, item 15 of the RTI Act. [26] Schedule 4, part 2, item 17 of the RTI Act. [27] Schedule 4, part 2, item 18 of the RTI Act. [28] Schedule 4, part 2, item 7 of the RTI Act.[29] Schedule 4, part 2, item 1 of the RTI Act. [30] Schedule 4, part 2, item 3 of the RTI Act. [31] Schedule 4, part 2, item 11 of the RTI Act. [32] Submissions dated 14 May 2021. [33] In this regard, the applicant confirmed in the external review application that he has lodged complaints about QPS’ investigation with the Crime and Corruption Commission and the Queensland Parliamentary Crime and Corruption Committee. [34] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act. [35] This disclosed material has provided the applicant with a substantial understanding of how the Incident investigation was conducted. [36] Schedule 4, part 2, items 5 and 6 of the RTI Act. [37] External review application. [38] Schedule 4, part 2, item 17 of the RTI Act. [39] External review application and submissions dated 14 May 2021. [40] External review application. [41] Submissions dated 14 May 2021. [42] External review application. [43] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 at [17] and confirmed in 1OS3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011) at [16]. [44] The applicant identified that one of these separate complaint processes has already been finalised. [45] This was advised to the applicant on 29 April 2021. [46] Submissions dated 14 May 2021. [47] External review application. [48] I cannot provide a further description of this information in this decision. [49] Schedule 4, part 2, item 10 of the RTI Act. [50] Schedule 4, part 2, item 16 of the RTI Act. [51] External review application. [52] Schedule 4, part 2, items 10 and 16 of the RTI Act. [53] Schedule 4, part 2, items 15 and 18 of the RTI Act. [54] Having carefully considered all factors listed in schedule 4, part 2 of the RTI Act, I cannot see how disclosing the CTPI Information could, for example, contribute to positive and informed debate on important issues or matters of serious interest (schedule 4, part 2, item 2 of the RTI Act); ensure oversight of expenditure of public funds (schedule 4, part 2, item 4 of the RTI Act); or 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). In the event that further relevant factors exist in favour of disclosure, I am satisfied that there is no evidence before me to suggest that any would carry sufficient weight to outweigh the significant weight that I have afforded to the public interest factors that favour the nondisclosure of the CTPI Information. [55] Submissions dated 14 May 2021. [56] Schedule 4, part 4, section 6(1) of the RTI Act. [57] Schedule 4, part 3, item 3 of the RTI Act. [58] 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.[59] As noted above, a small amount of this information is intertwined with the applicant’s personal information. [60] Schedule 4, part 3, item 13 of the RTI Act. [61] See for example: P6Y4SX and Queensland Police Service [2015] QICmr 25 (11 September 2015), P6Y4SX and Department of Police (Unreported, Queensland Information Commissioner, 31 January 2012), and SW5Z7D and Queensland Police Service [2016] QICmr 1 (15 January 2016) and Marshall and Department of the Police (Unreported, Queensland Information Commissioner, 25 February 2011). [62] Schedule 4, part 4, section 8(1) of the RTI Act. [63] Schedule 4, part 3, item 16 of the RTI Act. [64] Section 64 of the IP Act. [65] Under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act.[66] Section 137(2) of the IP Act. [67] Sections 47(3)(e) and 52 of the RTI Act. A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist—section 52(1)(a) of the RTI Act. A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find the document but it cannot be found—section 52(1)(b) of the RTI Act. [68] These factors are identified in Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) (Pryor) at [19], which adopted the Information Commissioner’s comments in PDE and the University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at [37]-38]. They were more recently considered in Van Veendendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017) and P17 and Queensland Corrective Services [2020] QICmr 68 (17 November 2020). [69] Pryor at [21]. [70] External review application. [71] Submissions received 17 March 2021 and 21 April 2021. Search records and certifications were provided with QPS’ submission on 17 March 2021. [72] Including search records and certifications. [73] Under 67(1) of the IP Act and section 47(3)(e) of the RTI Act. [74] Under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. [75] Under 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-

Dacey and Department of Education, Training and Employment [2013] QICmr 32 (18 October 2013)

Dacey and Department of Education, Training and Employment [2013] QICmr 32 (18 October 2013) Last Updated: 7 August 2014 Decision and Reasons for Decision Application Number: 311594 Applicant: Dacey Respondent: Department of Education, Training and Employment Decision Date: 18 October 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 – information subject to legal professional privilege – whether the information would be privileged from production in a legal proceeding on the ground of legal professional privilege – sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Department of Education, Training and Employment (Department) under the Information Privacy Act (IP Act) for access to documents concerning his employment with the Department as held by the Department’s South East Regional Office. In its decision of 16 May 2013 the Department advised it had identified 4130 documents and decided to grant full access to 3875 documents, partial access to 74 documents and refuse access to the remaining information. Access was refused to information on the basis that it was subject to legal professional privilege or its disclosure would, on balance, be contrary to the public interest. The applicant applied to the Department for internal review of its decision. The applicant also contended that the Department had not located all relevant documents. On internal review, the Department made the same decision dated 12 June 2013 on refusal of access and decided that access to the further documents could be refused because they are nonexistent. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision on 12 June 2013. During the course of the external review, the applicant did not contest OIC’s view that the Department was entitled to refuse access to: 74 documents in part as disclosure would, on balance, be contrary to the public interest;[1] and the additional documents the applicant contends exist on the ground that they are nonexistent.[2] For the reasons set out below, I am satisfied that the Department is entitled to refuse access to 181 documents in full because they 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 internal review decision dated 12 June 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 under consideration in this review is 181 documents which the Department submits would be privileged from production in a legal proceeding on the ground of legal professional privilege[3] (Information in Issue). Is the Information in Issue subject to legal professional privilege? 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.[4] However, this right is subject to provisions of the Right to Information Act 2009 (RTI Act) including the grounds on which an agency may refuse access to documents.[5] Relevantly, the RTI Act provides that access may be refused to documents to the extent that they comprise exempt information.[6] 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.[7] 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.[8] The general principles of legal professional privilege were summarised by the High Court of Australia in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission[9] as follows: It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings... Legal professional privilege is generally divided into two categories, advice privilege and litigation privilege.[10] Advice privilege attaches to confidential communications between a legal adviser and client or third party which are made for the dominant purpose of obtaining or providing legal advice.[11] Litigation privilege attaches to confidential communications between a legal adviser and client in relation to current or reasonably anticipated litigation.[12] Findings The applicant objected to OIC’s view but did not make specific submissions on why he thinks that the Information in Issue is not subject to legal professional privilege. I have considered below whether the requirements of legal professional privilege apply to the Information in Issue. Confidential communications I am prevented by the RTI Act from describing the actual content of the Information in Issue in these reasons.[13] However, the Information in Issue can be described generally as correspondence to and from officers of the Department’s Legal and Administrative Law Branch for the purpose of obtaining and providing legal advice. There is no evidence that these communications have been disclosed to the applicant or any other party outside of the relevant units of the Department. Therefore, I am satisfied the Information in Issue can be characterised as confidential communications. Dominant purpose The dominant purpose is ‘the ruling, prevailing, paramount or most influential purpose’[14] and is to be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions.[15] Legal advice can involve more than just advising a client about the law—it also includes advice as to ‘what should prudently and sensibly be done in the relevant legal context’.[16] However, it does not include advice that is predominantly for administrative, financial, personal, commercial or public relations purposes.[17] I am satisfied that the communications contained in the Information in Issue were made for the dominant purpose of requesting and providing legal advice. Professional relationship and independence 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. The relevant communications are between officers of the Department’s Legal and Administrative Law Branch and other officers of the Department who were involved in handling the relevant issues. I am satisfied that: in each case, the officers of the Legal and Administrative Law Branch are salaried legal advisors there is a professional relationship of legal adviser and client; and this relationship secures to the advice an independent character. This requirement is therefore satisfied. Waiver and the improper purpose exception In some cases, communications may not be subject to legal professional privilege because privilege has been waived, either expressly or impliedly, or the improper purpose exception applies. There is no evidence before me to indicate that legal professional privilege has been waived in relation to the Information in Issue or that the improper purpose exception applies. Conclusion For the reasons set out above, I am satisfied that the Information in Issue is exempt from disclosure as it would be privileged from production in a legal proceeding on the ground of legal professional privilege. DECISION I affirm the decision under review by finding that the Information in Issue 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 139 of the IP Act. ________________________ Lisa Meagher Acting Assistant Information Commissioner Date: 18 October 2013APPENDIX Significant procedural steps Date Event 21 December 2012 The Department received the applicant’s access application for access to documents concerning his employment with the Department. 10 April 2013 The applicant agreed to the Department processing documents concerning the applicant’s employment with the Department held by the Department’s South East Regional Office as a separate application to the remaining documents held by the Department. 16 May 2013 The Department issued its decision to the applicant. The applicant applied for internal review of the Department’s decision. 12 June 2013 The Department issued its internal review decision to the applicant. 12 June 2013 OIC received the external review application. 5 July 2013 The Department provided OIC with a copy of the information in issue. 13 September 2013 OIC conveyed its view to the applicant on the issues in the review. 25 September 2013 The applicant advised OIC that he did not accept OIC’s view on legal professional privilege. [1] Sections 47(3)(b) and 49 of the Right to Information Act 2009 (RTI Act); section 67 of the IP Act. [2] Sections 47(3)(e) and 52 of the RTI Act; section 67 of the IP Act. [3] Sections 47(3)(a), 48 and schedule 3 section 7 of the RTI Act.[4] Section 40 of the IP Act.[5] As set out in section 47 of the RTI Act; section 67 of the IP Act.[6] Section 47(3)(a) of the RTI Act. [7] Section 48(2) of the RTI Act. [8] Ozcare and Department of Justice and Attorney-General (Unreported, Information Commissioner of Queensland, 13 May 2011) at [12].[9] [2002] HCA 49; (2002) 213 CLR 543 at [9].[10] Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 322 at [8]-[9]. [11] AWB v Cole (No.5) [2006] FCA 1234; (2006) 155 FCR 30 at [41]; Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at [95] (Waterford); Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 (Pratt Holdings). [12] Above n 10.[13] Section 108(3) of the RTI Act.[14] Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404 at [416].[15] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at [692].[16] Balabel v Air India [1988] Ch 317 per Lord Justice Taylor at [330] and referred to with approval in Pratt Holdings at [382]. [17] Three Rivers District Council v Governor and Company of the Bank of England (No.6) [2004] UKHL 48; [2005] 4 All ER 948, 989; Barnes v Commissioner for Taxation [2007] FCAFC 88 at [8]; Waterford at [77], [85].

queensland

court_judgement

Queensland Information Commissioner 1993-

Wildman and Caloundra City Council [2006] QICmr 9 (8 February 2007)

Wildman and Caloundra City Council [2006] QICmr 9 (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-

Allanson and Queensland Tourist & Travel Corporation [1997] QICmr 20; (1997) 4 QAR 219 (30 December 1997)

Allanson and Queensland Tourist & Travel Corporation [1997] QICmr 20; (1997) 4 QAR 219 (30 December 1997) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 97020Application S 192/96 Participants: KERSTIN ALLANSON Applicant QUEENSLAND TOURIST AND TRAVEL CORPORATION Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - jurisdiction of the Information Commissioner - application for review made pursuant to s.79(1) of the Freedom of Information Act 1992 Qld on the basis of a deemed refusal of access to requested documents - whether the Information Commissioner lacks jurisdiction to review because the relevant access applications were invalid for failure to pay required $30 application fees - relevance of the respondent's failure, in breach of obligations imposed on it by s.27(2)(c) and s.27(5) of the Freedom of Information Act 1992 Qld, to notify the applicant of a decision that $30 application fees were payable - observations on the interpretation of s.6 of the Freedom of Information Regulation 1992 Qld.FREEDOM OF INFORMATION - entitlement of an agency to refuse to deal with an FOI access application on the ground that to do so would substantially and unreasonably divert the resources of an agency from the performance of its functions - application of s.28(2) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.25(2)(b), s.27(2)(c), s.27(4), s.27(5), s.28(2)(a), s.28(2)(b), s.28(4), s.52, s.77(1), s.79(1)Freedom of Information Regulation 1992 Qld s.6(1)Queensland Tourist and Travel Corporation Act 1979 Qld s.13(1), s.13(2)Fraser Island Defenders Organisation Limited v Hervey Bay Town Council [1983] 2 Qd R 72Price and Surveyors Board of Queensland, Re (Information Commissioner Qld, Decision No. 97017, 27 October 1997, unreported)Ryder and Department of Employment, Vocational Education, Training and Industrial Relations, Re [1994] QICmr 23; (1994) 2 QAR 150Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227 DECISION 1. I set aside the decision under review, being the decision the respondent was deemed to have made under s.79(1) of the Freedom of Information Act 1992 Qld, refusing to grant access to documents requested in the applicant's FOI access applications dated 5 June 1996 and 7 June 1996.2. In substitution for it, I decide that the respondent should refuse to deal with the applicant's FOI access applications dated 5 June 1996 and 7 June 1996, pursuant to s.28(2) of the Freedom of Information Act 1992 Qld.Date of decision: 30 December 1997............................................................F N ALBIETZINFORMATION COMMISSIONER OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 97020Application S 192/96 Participants: KERSTIN ALLANSON Applicant QUEENSLAND TOURIST AND TRAVEL CORPORATION Respondent REASONS FOR DECISION Background1. In this case, the respondent submits that I should rule that it is entitled to refuse to deal with the applicant's two access applications under the Freedom of Information Act 1992 Qld (the FOI Act), dated 5 June 1996 and 7 June 1996, on one or more of the following grounds--(a) the FOI access applications were invalid because payment of a required $30 application fee had not been made at the time of their lodgment, and (further) the Information Commissioner has no jurisdiction to deal with an alleged deemed refusal of access, under s.79 of the FOI Act, in respect of access applications that were invalid for that reason;(b) the FOI access applications were invalid because they did not comply with the requirements of s.25(2)(b) of the FOI Act, in that they did not provide such information concerning the requested documents as was reasonably necessary to enable a responsible officer of the respondent agency to identify the requested documents;(c) the respondent is entitled, pursuant to s.28(2) of the FOI Act, to refuse to deal with the FOI access applications because the work involved in dealing with them would substantially and unreasonably divert the resources of the respondent from their use in the performance of its functions; and(d) the FOI access applications, and the application for review, were frivolous, vexatious, misconceived and lacking in substance, and the Information Commissioner should exercise the discretion conferred on him by s.77(1) of the FOI Act by deciding not to review, or not to review further.2. The applicant's FOI access application dated 5 June 1996 sought access to 50 separate and broad-ranging categories of documents, and her FOI access application dated 7 June 1996 sought access to 29 separate and broad-ranging categories of documents (in both cases, many of the categories comprised multiple sub-categories). By a letter dated 16 July 1996, the Minister for Tourism, Small Business and Industry informed the applicant's solicitors that the applicant's FOI access applications to the respondent did not comply with the requirements of the FOI Act, and invited the applicant to respond to certain suggestions in previous correspondence from the respondent that would assist the applicant in making her access applications in a way that complied with the FOI Act. The applicant did not respond to those suggestions, and the respondent took no further steps to deal with her FOI access applications dated 5 June and 7 June 1996. By a letter received in my office on 2 January 1997, the applicant applied for external review, under Part 5 of the FOI Act, on the basis that the respondent was deemed, under s.79(1) of the FOI Act, to have made a decision refusing access to the documents requested in her FOI access applications dated 5 June and 7 June 1996.External review process3. On 15 January 1997, a member of my staff conferred with representatives of the respondent to ascertain the respondent's explanation for its refusal to deal with the applicant's FOI access applications, and to assess whether there were any possible solutions to the impasse that had developed. No possible avenue of informal resolution was evident, and, by letter dated 24 January 1997, the respondent was invited to lodge evidence and written submissions in support of its case that it was entitled to refuse to deal with the applicant's FOI access applications dated 5 June and 7 June 1996.4. Through its solicitors, Allen, Allen and Hemsley, the respondent lodged a statutory declaration made on 7 March 1997 by Mr Glen Robert Brown, the respondent's Finance Manager and nominated FOI officer, plus a ten page written submission.5. By letter dated 11 March 1997, I forwarded copies of those documents to the applicant, together with my observation that the respondent had made out a strong case for the application of s.28(2) of the FOI Act, and invited her to lodge evidence and submissions in response. Since then, the applicant has forwarded a number of letters and facsimile transmissions to my office; however, most of them do not address the issues raised in the respondent's evidence and written submission. Under cover of one letter dated 20 April 1997, the applicant lodged a document headed "Response to Submission made by the Queensland Tourism and Travel Corporation relating to the 'Freedom of Information Act 1992'." However, even this document contained little of relevance to the issues raised by the respondent for my determination. Nevertheless, I forwarded a copy of it to the respondent's solicitors, who saw no need to lodge a reply.6. In the view I have reached, I find it necessary to give detailed consideration only to grounds (a) and (c) of the four grounds relied upon by the respondent, as set out in paragraph one above. I will merely observe, in respect of ground (b), that I consider that some of the many separate categories of documents specified by the applicant in her FOI access applications dated 5 June and 7 June 1996 are framed in terms sufficiently precise as to satisfy the requirement imposed by s.25(2)(b) of the FOI Act, but most are not. Since there is evidence before me that the respondent extended to the applicant, through her then solicitors, Purvis Duncan, a reasonable opportunity of consultation with a view to making an FOI access application in a form that complied with the requirement imposed by s.25(2)(b) of the FOI Act, it may well have been open to me to also find that the respondent was entitled to refuse to deal with the applicant's FOI access applications because they did not comply with the requirement imposed by s.25(2)(b) of the FOI Act.Whether an application for external review, based on a deemed refusal of access under s.79(1) of the FOI Act, is precluded by the invalidity of the relevant FOI access application for failure to pay a $30 application fee7. The nature of the respondent's case in this regard is set out in the following extract from the respondent's written submission (at pp.2-4):It is not in dispute that the $30 application fee for each of the letters of 5 June or 7 June 1996 was not paid by Ms Allanson at the time the requests were made. Accordingly, no application was in fact made by Ms Allanson.Subsequently, a cheque for $30.00 has been (indirectly) delivered to QTTC at the end of February 1997 - presumably in respect of one of the two requests. Accordingly, for the reasons set out below, no application has ever been made in respect of one of her requests, and an application has only been made in late February 1997 in respect of the other.In Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 the decision under review was the decision of the Department of Transport that ... "Therefore the required fee [$30] must be paid before your request can be accepted as an application under the Act." (see page 231)The Information Commissioner, after finding that a request for access to documents need seek only one document which does not concern the personal affairs of the applicant to attract the imposition of the $30 application fee, affirmed the decision under review (see page 269).It is submitted that the decision is plainly correct, given the clear and mandatory terms of regulation 6 of the FOI regulations, which states:"An applicant who applies for access to a document that does not concern the applicant's personal affairs must pay an application fee of $30 at the time the application is made."There is no question that Ms Allanson's requests seek access to a multitude of documents that do not concern her personal affairs. For example, the requests seek access to:"... documents and correspondence to establish the role and responsibilities of the QTTC as set down by the Commonwealth from 1992 and through the ATC - Partnership signed in December 1993" (see Ms Allanson's letter of 5 June 1996).Access is also sought to:"Written information as to when the QTTC as a statutory body and a State Government owned enterprise will be subject to the Trade Practices Act through legislation in Parliament according to the Agreement made in respect of the Hilmer Report" (see Ms Allanson's letter of 7 June 1996).The decision in Re Stewart requiring the payment of a $30 application fee before a request can be accepted as an application under the Act was applied again by the Information Commissioner in Re Ryder and Department of Employment, Vocational Education, Training and Industrial Relations [1994] QICmr 23; (1994) 2 QAR 150.Accordingly, if one treats the 2 letters of 5 June 1996 and 7 June 1996 as constituting 2 separate requests (as was the case in Re Ryder), Ms Allanson was required to first pay two fees of $30 before either request constituted an application under the FOI Act. As one fee was paid at the end of February, only at that time was QTTC obliged to deal with that single application.In addition to the Information Commissioner's own decisions, there is considerable case authority in Queensland in which it has been held that an application which is not accompanied by a prescribed application fee is not an application duly made and that no obligation to consider the application arises until such a prescribed fee has been paid: see Fraser Island Defenders Organisation Limited v Hervey Bay Town Council [1983] 2 Qd R 72; Brisbane City Council v Mainsell Investments Pty Ltd [1989] 2 Qd R 204; Citie Centre Projects (No. 2) Pty Ltd v Council of the Shire of Albert [1992] QPLR 258.In particular, the decision of Connolly J in Fraser Island (supra) is directly on point. There, the relevant by-law of the Hervey Bay Town Plan required that an application fee be lodged "at the time of making the application". This is also the case with regulation 6 of the FOI regulations.His Honour held that, as the prescribed fee had not been paid, no application had been duly made, and therefore no obligation to consider an application had arisen. His Honour further held that the application should not have been dealt with and decided by the relevant council and that the decision upon the application was void.The present facts of Ms Allanson's requests are directly on point. Further, there is no suggestion that the requirement for the fee was waived by the QTTC. In any event, QTTC would not have the power to waive the fee prescribed as it is by regulation.It is suggested in correspondence from the Information Commissioner that QTTC somehow has placed upon it a legal obligation to inform Ms Allanson that a $30 application fee is payable. This suggestion is, with respect, incorrect. There is no obligation under the FOI Act for QTTC to so inform Ms Allanson (cf. ss25 and 28) of the legal requirements of the FOI Act regarding payment of an application fee. Such a requirement to, in effect, give legal advice to Ms Allanson would be nonsensical. [I should observe, at this point, that this paragraph of the respondent's submission is clearly incorrect, having apparently been prepared without regard to s.27(2)(c) and s.27(5) of the FOI Act - see the discussion below on the effect of those provisions.]To put it simply, no applications have ever been made at all until one was made at the end of February 1997. On this basis, not only is QTTC not obliged to have dealt with Ms Allanson's requests but, as Connolly J points out, any such dealings would have been void.The correspondence from the Information Commissioner also suggests that the Information Commissioner has the jurisdiction to conduct an external review. Again, it is respectfully submitted that this is incorrect.Whilst the Information Commissioner may have the power to consider whether he has standing to conduct an external review, the clear substantive answer is that he does not have jurisdiction to so conduct a review, given that only one application has been made at all and that it was only made at the end of February 1997.Section 79 (the section relied upon for external review, based upon a deemed refusal) has an express condition precedent to its application that (inter alia) "... an application has been made to an agency or Minister under this Act" and that "the time period provided in section 20(2), 27(4) or 57 has ended". Clearly, based on the case authorities set out above, no such application has been made (save for one made in late February) and no requisite time limits have expired. Accordingly, the Commissioner's only basis for invoking s79 does not exist.8. I do not accept the respondent's contentions, which pay no regard to the obligations imposed on the respondent by s.27(2)(c) and s.27(5) of the FOI Act, and their implications for the proper interpretation of s.79 of the FOI Act as a provision inserted for the benefit of users of the FOI Act in the event of a failure or refusal by an agency to comply with its obligations under the FOI Act.9. Sections 27(2), s.27(4), s.27(5) and s.79(1) of the FOI Act are relevant to the discussion which follows, and I will reproduce them for ease of reference: 27.(2) After considering the application [for access to a document], the agency or Minister must decide-- (a) whether access is to be given to the document; and (b) if access is to be given--any charge that must be paid before access is granted; and (c) any charge payable for dealing with the application.... (4) If the agency or Minister fails to decide an application and notify the applicant under section 34 within-- (a) the appropriate period; or (b) if action is required under section 51 in relation to the application--a period equal to the appropriate period plus 15 days;the agency or Minister is taken to have refused access to the document to which the application relates at the end of the period. (5) If the agency or Minister decides that the applicant is liable to pay a charge in relation to the application or the provision of access to a document, the agency or Minister must notify the applicant in writing of the amount of the charge and of the basis on which the amount of the charge was calculated. 79.(1) Subject to this section, if-- (a) an application has been made to an agency or Minister under this Act; and (b) the time period provided in section 20(2), 27(4) or 57 has ended; and (c) notice of a decision on the application has not been received by the applicant;the principal officer of the agency or the Minister is, for the purpose of enabling an application to be made to the commissioner under section 73, taken to have made a decision on the last day of the relevant time period refusing-- (d) to publish a statement of affairs under section 20, or to ensure that a statement of affairs complies with Part 2; or (e) to grant access to the document; or (f) to amend the information.10. The respondent has placed reliance on my decisions in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 and Re Ryder and Department of Employment, Vocational Education, Training and Industrial Relations [1994] QICmr 23; (1994) 2 QAR 150. Both were cases in which the relevant respondent agencies had properly complied with the obligations imposed on them by s.27(2)(c) and s.27(5) of the FOI Act to notify the respective applicants for access of their obligation, pursuant to s.6 of the Freedom of Information Regulation 1992 Qld (the FOI Regulation), to pay a $30 application fee before the agency was obliged to accept the respective FOI access applications as validly made, and commence processing them. The respective applicants were therefore given the opportunity of accepting the decision that a $30 application fee was payable, or challenging that decision, and it is appropriate in those circumstances that time should cease to run (for the purpose of applying s.27(4) and s.79 of the FOI Act) until the $30 application fee, if properly payable under s.6 of the FOI Regulation, has been paid. (An applicant for access in those circumstances also has the option of paying the $30 application fee under protest, so that time commences to run for processing the FOI access application, while pursuing a challenge to the decision that a $30 application fee was payable. If the applicant's challenge succeeds, the respondent agency would be obliged to refund the $30 application fee.)11. In the present case, the respondent did not comply with the obligations imposed on it by s.27(2)(c) and s.27(5) to decide whether or not a $30 application fee was payable in respect of each of the applicant's FOI access applications dated 5 June and 7 June 1996, and to notify the applicant in writing of any decision in the affirmative. In those circumstances, I do not consider that the respondent is entitled to object to the validity of the application for review invoking s.79 of the FOI Act, or to the Information Commissioner's power to conduct a review under that head of jurisdiction, on the basis of the applicant's non-payment of a $30 application fee that was properly payable.12. The obvious purpose of enacting s.79(1) of the FOI Act was to provide users of the FOI Act with a means of invoking the review jurisdiction of the Information Commissioner (as the independent external review authority appointed under the FOI Act) in the event of a failure or refusal by an agency to deal with an application made to it under the FOI Act, in accordance with the obligations imposed on agencies by the FOI Act. In my opinion, the relevant provisions of the FOI Act do not permit an agency to fail or refuse to process an FOI access application (where there is also a failure or refusal to comply with the obligations imposed by s.27(2)(c) and s.27(5) of the FOI Act) within the statutory time limit imposed by s.27(4) and s.27(7) of the FOI Act, and subsequently use the non-payment of a $30 application fee as a basis for that conduct, and for objecting to the jurisdiction of the Information Commissioner to review the agency's handling of the FOI access application.In those circumstances, an applicant for access should have, and in my opinion does have (on the correct, purposive interpretation of s.79(1) of the FOI Act), the right to invoke the jurisdiction of the Information Commissioner under s.79(1) of the FOI Act in order to ensure that the FOI access application is properly processed.13. Of course, I would take the view that the proper processing of an FOI access application required that, where a $30 application fee was properly payable under s.6 of the FOI Regulation, the fee should be paid by the applicant for access before any decision was made in respect of the applicant's entitlement to access to requested documents. (I have informed the applicant in those terms in the present review, by letters dated 3 February 1997, 24 February 1997 and 11 March 1997, and the applicant has since validated her two FOI access applications, by paying the required application fees to the respondent.)14. However, that situation is clearly preferable to the patent unfairness in an access applicant receiving no decision on access within the statutory time limit, and no notice that a $30 application fee is payable (a question which in many instances is not clear-cut, turning as it does on whether the applicant has sought access to at least one document which contains no information concerning the personal affairs of the applicant: see Re Stewart; Re Price and Surveyors Board of Queensland (Information Commissioner Qld, Decision No. 97017, 27 October 1997, unreported) at paragraphs 26-32) and then being further delayed by an objection to the Information Commissioner's review jurisdiction under s.79 of the FOI Act on the basis that the relevant FOI access application was not validly made because a $30 application fee required under s.6 of the FOI Regulation had not been paid.15. The respondent has contended that the decision of Connolly J in Fraser Island Defenders Organisation Limited [FIDO] v Hervey Bay Town Council [1983] 2 Qd R 72 is directly in point, but, in my view, that decision is distinguishable. In the FIDO case, the relevant by-law required that a prescribed application fee be lodged "at the time of making the application".However, the relevant regulatory scheme in the FIDO case had no provisions comparable to s.27(2)(c) and s.27(5) of the FOI Act, requiring the agency dealing with the application to notify the applicant of its decision that an application fee was payable. 16. It is true that s.6(1) of the FOI Regulation uses the word "must" in providing: 6.(1) An applicant for access to a document that does not concern the applicant's personal affairs must pay an application fee of $30 at the time the application is made.17. However, when due regard is had to the provision made by s.27(2)(c) and by s.27(5) of the FOI Act, being provisions also expressed in mandatory terms but which are only capable of being complied with by an agency after receipt and consideration of an access application which has already been made to the agency (and when due regard is had to the practical considerations referred to in parentheses in paragraph 14 above), then, in my opinion, the conclusion is inescapable that, while the obligation to pay a $30 application fee to obtain access to a document that does not concern the applicant's personal affairs is mandatory (in accordance with the use of the word "must" in s.6(1) of the FOI Regulation), the requirement that the $30 application fee be paid at the time the access application is made, is merely directory. The very existence of s.27(2)(c) and s.27(5) indicates that it cannot have been intended that an access application would be void/of no effect unless a $30 application fee, if required, was paid at the time of making the access application. Rather, the existence of s.27(2)(c) and s.27(5) indicates that an access application that is not valid by reason of the failure or omission to pay a required $30 application fee at the time of making the access application, may subsequently be validated by payment of the $30 application fee, after the applicant receives notice of the relevant agency's decision that payment of a $30 application fee is required.18. In practical terms, this means that if an applicant applies to an agency for access under the FOI Act to a document that does not concern the applicant's personal affairs, but omits to pay the $30 application fee required by s.6 of the FOI Regulation at the time the access application is made, the access application is not a mere nullity (as contended in the respondent's submission). The access application will still be one that an agency is obliged to deal with, at least to the extent of discharging the obligations imposed by s.27(2)(c) and s.27(5) of the FOI Act (and perhaps other obligations such as those imposed by s.25(4) or s.28(4) of the FOI Act). And the access application will still constitute "an application [that] has been made to an agency under [the FOI] Act", within the terms of s.79(1)(a) of the FOI Act, for the benefit of an applicant who wishes to invoke s.79(1). 19. If, however, the agency gives the applicant written notice, in accordance with s.27(2)(c) and s.27(5) of the FOI Act, of its decision that a $30 application fee is payable in respect of the access application, the applicant will not be entitled to have the agency process the access application or to obtain access to the requested documents, until the applicant pays the $30 application fee, or successfully challenges the agency's decision that a $30 application fee was payable. In the meantime, time would cease to run for the purposes of the application of s.79 of the FOI Act, because the applicant has received notice of a decision on the application, i.e., that the applicant is not entitled to have the agency process the access application, or to obtain access to the requested document(s), until the $30 application fee required under s.6(1) of the FOI Regulation is paid. In my view, time would commence to run again, for the purposes of the application of s.79 of the FOI Act, from the date when the $30 application fee is subsequently paid, or from the date on which the decision to require payment of a $30 application is overturned by a decision on a review under s.52, or under Part 5 of the FOI Act.20. In summary, I am satisfied that I do have jurisdiction to conduct a review, in accordance with s.79(1) of the FOI Act, of the respondent's deemed refusal to grant the applicant access to the documents requested in her FOI access applications dated 5 June and 7 June 1996.Application of s.28(2) of the FOI Act21. Section 28(2) and s.28(4) of the FOI Act provide: 28.(2) If-- (a) an application is expressed to relate to all documents, or to all documents of a specified class, that contain information of a specified kind or relate to a specified subject matter; and (b) it appears to the agency or Minister dealing with the application that the work involved in dealing with the application would, if carried out– (i) substantially and unreasonably divert the resources of the agency from their use by the agency in the performance of its functions; or (ii) interfere substantially and unreasonably with the performance by the Minister of the Minister functions; having regard only to the number and volume of the documents and to any difficulty that would exist in identifying, locating or collating the documents within the filing system of the agency or the office of the Minister;the agency or Minister may refuse to deal with the application.... (4) An agency or Minister must not refuse access to a document under subsection (2) or (3) without first giving the applicant a reasonable opportunity of consultation with a view to making an application in a form that would remove the ground for refusal.22. The statutory declaration by Mr Glen Brown is directed to the application of s.28(2) of the FOI Act. It describes the resources available to the respondent to process the applicant's FOI access applications, and then analyses a sample of the categories of documents specified in the relevant access applications, describing the work entailed in processing each of those categories.23. In his statutory declaration, Mr Brown has outlined the operating structure of the QTTC and stated that the only division of the QTTC capable of assisting in the processing of an FOI access application is the Finance and Administration Department which has 26 full-time employees, all of whom provide specific financial and administrative support to the QTTC.There is no full-time FOI officer employed by the QTTC, but rather, Mr Brown, who is the Finance Manager, has responsibility as the QTTC's FOI officer. In paragraph 9 of his statutory declaration, Mr Brown has stated that to process Ms Allanson's FOI accessapplications according to their terms would require significant involvement by (in addition to Mr Brown himself) the Chief Executive Officer of the QTTC, the Director of Finance and Administration, the Corporate Communications Manager, two administrative officers, the retail managers of 10 interstate QTTC offices, and the managers of 9 international QTTC offices. At paragraphs 10 and 11, Mr Brown continued:10. To divert these staff from their operational duties in attempting to identify, locate and collate the documents covered by Ms Allanson's FOI request, particularly given the extraordinarily large number and volume of such documents would have a significantly onerous impact on the operations and functioning of the QTTC and, in my opinion, would certainly constitute a substantial and unreasonable diversion of the resources of the QTTC from their use by the QTTC in the performance of its functions.11. The QTTC would, in addition to the allocation of the above employees, have to source external staff to provide secretarial/administrative support to identify, locate and collate the necessary documentation. I conservatively estimate that, based on the specific examples referred to in this declaration alone, that at least two FTE's [Full Time Equivalents] would need to be employed, at a cost to the Corporation of approximately $60,000 per annum.24. Mr Brown then selected 8 of the 50 separate categories of requested documents in the FOI access application dated 5 June 1996, and 6 of the 29 separate categories of requested documents in the FOI access application dated 7 June 1996, and described the work involved in processing each of the selected categories of documents (in the terms in which they are framed), in order to demonstrate the incredible breadth of the access applications and the nature of the difficulties that would exist in identifying, locating or collating the documents within the records and filing systems of the QTTC.25. Mr Brown's evidence in that regard is credible and compelling. I need only illustrate the substance of it by referring to his analysis of two of the requested categories of documents in the 5 June 1996 access application, and one of the requested categories of documents in the 7 June 1996 access application.26. In the 26th category of documents specified in her 5 June 1996 access application, the applicant sought access to:... any written correspondence to and from the QTTC and the following tourist operators in respect of participating in JMA Programmes:- Australian Coachlines Ansett Airlines Compass Eastwest Airlines Qantas Brisbane Visitors & Convention Bureau Regional Tourist Associations Air New Zealand Singapore Airlines Overseas tour operators.27. Mr Brown's evidence about that category of requested documents is as follows:21. This request is not even date specific and as such would involve the QTTC reviewing all of its numerous correspondence files (and other associated files) regarding each of these tourism operators at each of its interstate, international and Brisbane offices for the period from 1992 (the date of creation of the JMA programmes) to the present date.22. I do not understand precisely what Ms Allanson is referring to by the term "JMA". If (as I assume she is) she means joint marketing agreements, she is referring to the various different types of agreements between QTTC and the tourist operators and regional tourist associations referred to by her.There are numerous such agreements which encompass the majority of the largest operators in the tourism and travel industry. These agreements would encompass operations of well over a decade.23. Given the size and nature of each of these operators in the tourism and travel industry, QTTC would have to provide an indeterminable but a very significant amount of documentation to fulfil this request. It would involve, at a minimum, tens of thousands of documents. Such action would significantly, substantially and unreasonably divert the resources of QTTC at each of these locations from their use by QTTC in the performance of its functions.28. In the 28th category of documents specified in her FOI access application dated 5 June 1996, the applicant sought access to:... correspondence related to the ATLAS System and the key role of the international products distribution system and any refusal by the Corporation and Jim Kennedy to accept the establishment of a new system to be managed/operated by the ATC [which I take to mean the Australian Tourism Commission]. 29. Mr Brown has noted in his statutory declaration that a number of other requested categories of documents referred to documents associated with the development, use, retailing, licensing, management and sale of the ATLAS System. At paragraph 26 of his statutory declaration, Mr Brown described the ATLAS System, which, in brief terms was a computer program developed by a number of employees of the QTTC in the early 1980's which constituted a computer reservation system capable of use in the travel industry. From 1983 onwards, the ATLAS System was licensed to a number of other governments and tourism bodies, both within and outside Australia, and in 1994 the ATLAS System was acquired by the Telstra Corporation. At paragraphs 32-34 of his statutory declaration, Mr Brown continued:The request relating to the ATLAS System would alone involve tens of thousands of separate pieces of documentation and correspondence regarding the system. Aside from the many thousands of pages of computer printouts and associated documents, the ATLAS System is the base booking system that the QTTC's commercial operations use to arrange travel accommodation. This is one of the primary functions of the QTTC and an extraordinarily large number of booking confirmations, ticket copies, payment advices, itinerary details and invoices [would be involved].By way of example, in an action commenced in the Supreme Court of Queensland by QTTC in 1992, QTTC sued (amongst others) the Western Australian Tourism Commission for an alleged breach of copyright and/or confidence in respect of the ATLAS system. Further, various documents relating to the ATLAS system (the system being the operating system by which the QTTC operates its commercial operations) would be extremely difficult to identify, locate and collate, as documentation would be held in all of the offices under the control of the QTTC both in Australia and overseas.Some of the documents relating to those proceedings, presently held by QTTC's solicitors, Allen Allen & Hemsley (only a fraction of the total documents relating to the ATLAS system) take up 42 boxes of documents held at the offices of Allen Allen & Hemsley. All of these documents would need to be considered in order to identify, locate or collate a fraction of one of the numerous requests made by Ms Allanson in one of her two letters.30. In the category numbered (1)(g) in her FOI access application dated 7 June 1996, the applicant sought access to:Documents related to revenue earnings to the QTTC from the use of the ATLAS System from 1989 in terms of fees and sales - commissions from sales and bookings.31. At paragraph 51 of his statutory declaration, Mr Brown stated that, for the period 1989 to 1996, the ATLAS System generated total sales in the sum of almost $843,000,000, and commission earned by the QTTC through the use of the ATLAS System during that time amounted to almost $140,000,000. At paragraph 53 of his statutory declaration, Mr Brown stated:Although the scale of this request prevents the QTTC from accurately determining precisely how many documents will be involved in complying with such a request, I would anticipate that, at a minimum, tens of thousands of documents would be involved. These documents would be located in almost every office and different department of the QTTC commercial divisions, Sunlover Holidays, the Queensland Government Travel Centre, along with the Finance and Administration Department.32. It is clear to me that the applicant's FOI access applications utilise the method contemplated by s.28(2)(a), that is, in relation to each category set out in the relevant FOI access applications, the applicant seeks access to documents by reference to a specified class, or information of a specified kind or relating to a specified subject matter. I am satisfied that the s.28(2)(a) precondition to the exercise of the discretion conferred by s.28(2) of the FOI Act is satisfied in respect of each of the applicant's relevant FOI access applications.33. In relation to the s.28(2)(b) precondition to the exercise of the discretion conferred by s.28(2) of the FOI Act, the QTTC submits that the work involved in dealing with either of the two relevant FOI access applications would substantially and unreasonably divert the resources of the QTTC from their use by the QTTC in the performance of the QTTC's functions. The functions of the QTTC are set out in sections 13(1) and 13(2) of the Queensland Tourist and Travel Corporation Act 1979 Qld as follows:Functions of Corporation 13(1) The functions of the Corporation are: (a) to promote and market, both domestically and internationally, tourism and travel; (b) to make tourism and travel arrangements; (c) to provide tourism and travel information services; (d) to encourage the development of the tourist and travel industry; (e) to prepare a State tourist industry strategy plan; (f) to advise the Minister on matters relating to paragraphs (a) to (e) that are referred to the Corporation by the Minister for advice. (2) In carrying out its functions under this Act the primary responsibility of the Corporation shall be to promote, market, develop and arrange tourism and travel to and within Queensland.34. The applicant's FOI access applications dated 5 June and 7 June 1996 have been put on such a far-reaching scale and such a level of complexity, that it is virtually self-evident that to require an agency operating on a full commercial footing, such as the QTTC, to identify, locate and collate all of the requested documents would significantly affect its operations for a considerable period of time. There is no doubt that the work involved in processing the applicant's FOI access applications would involve a substantial diversion of the QTTC's resources from their use in the performance of the QTTC's functions.35. The QTTC plays an integral role in one of the most important income-generating industries in Queensland, and any substantial diversion of the QTTC from its normal operations could have significant consequences for tourism operators (and their clients), large and small.I cannot see any basis on which I could properly find that the substantial diversion of the resources of the QTTC that would be involved in dealing with the applicant's relevant FOI access applications would be a reasonable diversion of resources, in all the circumstances of this case. The access applications are not, for example, directed to information the disclosure of which would clearly be in the wider public interest. It is apparent from the material submitted to me by the applicant that the applicant is pursuing an alleged personal pecuniary interest. In its written submissions, the QTTC described the nature of the applicant's claims in the following terms:It is apparent from Ms Allanson's requests that the basis for her requests is her misconception that (amongst others) QTTC and/or the Department of Tourism, Small Business and Industry, have engaged in a conspiracy of some nature whereby QTTC and/or the Department has somehow breached copyright and/or breach of confidence in some manner of concept allegedly created by Ms Allanson. It is this alleged infringement of intellectual property which is the subject matter providing the common link to all of Ms Allanson's requests.Although it is difficult to ascertain precisely what Ms Allanson believes has occurred, the parties to the alleged conspiracy are stated to include (amongst others) QTTC, the Department, various Ministers, various Chief Executives of QTTC and QIDC. In subsequent correspondence to the Information Commissioner (see letter ... dated 15 February 1997) Ms Allanson also suggests that the Premier and the Police Minister have been involved in the purported conspiracy by using s183 of the Copyright Act. The allegations suggest that the conspiracy extended as far as the enactment of legislation to amend the QTTC Act and the obtaining of s183 approvals under the Copyright Act.All of the assertions made by Ms Allanson are, of course, without any basis in fact or law and are entirely misconceived.36. I have no jurisdiction to rule on the merits of the applicant's claims in respect of alleged infringement of intellectual property. (I note that the applicant has commenced some kind of proceeding in the Copyright Tribunal, where at least her use of Tribunal procedures to seek access to documents held by Queensland government agencies can be regulated by reference to their relevance to the issues for determination in the proceeding.) Nevertheless, the applicant has placed before me a considerable volume of material said to evidence her claims.That material comprises unverified assertions by the applicant, including assertions of admissions made to her by named officials concerning the theft of her intellectual property - none of them supported by evidence on oath from the named officials. I have seen nothing by way of credible evidence on oath from independent witnesses that supports the applicant's claims.37. In the circumstances, I am satisfied that the work involved in dealing with the applicant's FOI access applications dated 5 June and 7 June 1996 would, if carried out, substantially and unreasonably divert the resources of the QTTC from their use by the QTTC in the performance of its functions, having regard only to the number and volume of the documents requested, and to the difficulties that would exist in identifying, locating or collating the documents within the filing system of the QTTC, and I find that, pursuant to s.28(2) of the FOI Act, the QTTC should refuse to deal with the applicant's FOI access applications dated 5 June and 7 June 1996.38. I note that the applicant has submitted that s.28(4) applies (the terms of which are set out at paragraph 21 above), so that the QTTC must not refuse to give access to a document by applying s.28(2) without first giving the applicant a reasonable opportunity of consultation with a view to making an application in a form which would remove the grounds for refusal.The QTTC addressed the application of s.28(4) in its written submissions. In a segment of those submissions headed "Background", the QTTC outlined the relevant history. I am satisfied, from the material before me, that the facts in that segment of the QTTC's written submission are correct, and that they (in particular the letter dated 16 July 1996 from the Minister for Tourism, to the applicant's then solicitors - see paragraph 2 above) establish that the applicant was given a reasonable opportunity of consultation with a view to lodging her FOI access applications in a form which complied with the requirements of the FOI Act, and which removed the grounds for a refusal to deal with the applications, pursuant to s.28(2) of the FOI Act.Conclusion39. It is appropriate that I set aside the decision under review, being the decision the respondent was deemed to have made under s.79(1) of the FOI Act, refusing to grant access to documents requested in the applicant's FOI access applications dated 5 June and 7 June 1996. In substitution for it, I decide that the respondent should refuse to deal with the applicant's FOI access applications dated 5 June 1996 and 7 June 1996, pursuant to s.28(2) of the FOI Act.............................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Australian Broadcasting Corporation and Department of Education (Office of Industrial Relations); A Stone Cutting Business (Third Party) [2021] QICmr 14 (23 March 2021)

Australian Broadcasting Corporation and Department of Education (Office of Industrial Relations); A Stone Cutting Business (Third Party) [2021] QICmr 14 (23 March 2021) Last Updated: 19 August 2021 Decision and Reasons for Decision Citation: Australian Broadcasting Corporation and Department of Education (Office of Industrial Relations); A Stone Cutting Business (Third Party) [2021] QICmr 14 (23 March 2021) Application Number: 314786 Applicant: Australian Broadcasting Corporation Respondent: Department of Education (Office of Industrial Relations) Third Party: A Stonecutting Business Decision Date: 23 March 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - documents relating to audit, regulation and investigation of stonecutting businesses and silica dust exposure - accountability of regulatory agency in investigating health and safety issues - personal information and privacy - prejudice to business affairs, flow of information, ongoing prosecution and investigative processes - 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) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - OTHER ACCESS AVAILABLE -organisational search results - whether documents are commercially available - whether access may be refused under sections 47(3)(f) and 53(d) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary 1. The applicant applied to the Office of Industrial Relations (OIR)[1] under the Right to Information Act 2009 (Qld) (RTI Act) seeking access to information about stonecutting businesses in a particular location, including correspondence between the businesses and Workplace Health and Safety Queensland (WHSQ) regarding respirable silica dust exposure to workers, complaints regarding cutting engineered stone, investigation documents and any related workplace audit/scientific documents.[2] 2. OIR identified 1924 responsive pages and consulted with seven third parties about disclosure of certain information.[3] OIR decided to disclose 402 pages comprising information concerning certain WHSQ’s stone benchtop campaign audits and associated notices issued by WHSQ but decided to refuse access to 1227 pages and parts of 295 pages.[4] The applicant then applied[5] to the Office of the Information Commissioner (OIC) for external review of OIR’s decision to refuse access to information.[6] 3. During the review, OIC consulted the Third Party about disclosure of certain information regarding their stonecutting business.[7] The Third Party objected to disclosure and provided submissions in support of their case, particularly relying on prejudice to their commercial/business affairs and an ongoing prosecution commenced by the Office of the Work Health and Safety Prosecutor (OWHSP). 4. As part of OIC’s informal resolution process, OIR released some further information to the applicant about WHSQ’s stone benchtop campaign audits, and the applicant elected not to pursue certain categories of information.[8] However, the applicant maintains that access should be granted to the remaining information due to the strong public interest in enhancing the accountability and transparency of the regulatory framework associated with respirable silica dust exposure audits and investigations. OIR also maintains its position that disclosure of the remaining information would, on balance, be contrary to the public interest.[9] 5. For the reasons set out below, and having considered all the submissions made by the parties, I vary OIR’s decision and find that access may be refused to the remaining information, on the grounds that disclosure would, on balance, be contrary to the public interest and because other access is available.[10] Background 6. In 2017, WHSQ[11] conducted compliance audits at certain workplaces in Queensland to assess health risks from respirable crystalline silica in the stone benchtop industry. To address identified risks, a safety warning was issued in 2018 for workers and employers in Queensland’s engineered stone benchtop manufacturing industry[12] and a Code of Practice for managing respirable silica dust exposure in the industry commenced in October 2019.[13] 7. The decision under review is OIR’s decision dated 16 August 2019. 8. Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix).[14] 9. Significant procedural steps in the review are set out in the Appendix. Issues for determination 10. The remaining refused information appears on 911 pages[15] (Information in Issue). As the information is claimed to be contrary to the public interest to disclose, the RTI Act limits my ability to describe it,[16] however, I can confirm that it includes: personal information of private sector employees, including medical information and health monitoring reports (Personal Information)[17] information obtained by OIR relating to the processes/systems of a private sector businesses (Business Information)[18] information provided to or obtained by OIR in its investigation of notified safety incidents (Investigation Information)[19] information generally associated with WHSQ audits of stone benchtop fabrication businesses and occupational hygiene surveys (Audit and Survey Information);[20] and Australian Securities and Investments Commission organisational search results (ASIC Information).[21] 11. The issues for determination[22] are whether access may be refused to the: Personal Information, Business Information, Investigation Information and Audit and Survey Information on the basis that disclosure would, on balance, be contrary to the public interest;[23] and ASIC Information in the ground that other access is available.[24] Delays 12. The access application was made in November 2018 and OIR issued the reviewable decision in August 2019.[25] The applicant raised concerns with OIC about the time taken by OIR to process the access application. Under the RTI Act, OIC has jurisdiction to review decisions made by government agencies about access to information. The legislation does not give OIC jurisdiction to investigate complaints about an agency’s conduct or processes, or the way it has handled a particular application. Therefore, I cannot consider the applicant’s concerns in this regard. 13. The applicant also raised concerns about OIR’s delays in providing information and responses to OIC during the review process. In particular, the applicant is concerned that OIR failed to notify OIC of a key piece of evidence, namely, that a prosecution against the Third Party had commenced in early 2020. 14. The RTI Act provides that the procedure to be taken on external review is, subject to the RTI Act, at the discretion of the Information Commissioner.[26] I accept that the time taken to complete this review has not met the applicant’s expectations. I also must acknowledge that there were significant delays in OIC receiving requested information from OIR and that OIR failed to provide OIC with key evidence relevant to the review in a timely way. Some of those delays can be attributed to the deployment of OIR’s business continuity plan during 2020, in response to COVID-19, the altered agency working environment and internal resourcing issues at OIR. OIC was mindful of these circumstances when issuing requests to OIR and afforded OIR multiple extensions of time to respond to OIC. However, as demonstrated in the Appendix, there were significant periods of time when OIC could not progress the review due to outstanding responses from OIR, which consequently impeded the expeditious conduct of the review. Relevant law 15. Section 23 of the RTI Act gives a right to access documents of an agency, however, this right of access is subject to limitations, including the grounds on which access to information may be refused.[27] 16. One ground of refusal is where disclosing information would, on balance, be contrary to the public interest.[28] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[29] 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. 17. Schedule 4 (parts 2 to 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. Submissions 18. The applicant submits that disclosure of the Information in Issue will provide openness and transparency in relation to silicosis and regulation of the stonecutting industry. In particular, the applicant submits that: There can be few higher public interest factors favouring release that [sic] a government’s failure to protect citizens from illness and death in the workplace. The failure to release these documents has the opposite impact – it protects the workplace and the government departments from public scrutiny. We submit that this has not been adequately considered and weighed in the decision. The cost to these families [of people with silicosis] is immense with the workers unable to continue in their employment, some unable to work in other professions and unable to provide financially for their families. It also has a dramatic impact on their quality of life. The cost of treating these workers in the years to come will be a significant burden on the taxpayer, particularly for workers who undergo lung transplantation or develop terminal illness. [30] Quite simply, the public is footing the bill for the regulatory failure by QLD authorities to protect stonemasons and that of employers to meet their legal requirements to maintain a safe workplace.[31] 19. OIR has relied on nondisclosure factors concerning the protection of personal and private business information as the basis for its position that disclosure would, on balance, be contrary to the public interest.[32] 20. The Third Party submitted that disclosure of Information in Issue which relates to their stonecutting business could potentially prejudice their business affairs and their ability to receive a fair and impartial hearing in the prosecution proceedings which have been commenced against it by OWHSP.[33] Findings 21. As set out below, I have considered the relevant public interest factors favouring disclosure, the RTI Act’s pro-disclosure bias and Parliament’s intention that grounds for refusing access are to be interpreted narrowly.[34] I have also taken into account relevant nondisclosure factors, including public interest harm factors where relevant. I have had no regard to any irrelevant factors in making my decision. Disclosure factors 22. Respirable silica dust exposure and silicosis are matters of serious public interest.[35] It is reasonable to expect that OIR and WHSQ are accountable and transparent in relation to: identifying and managing workplace risks which have the potential to expose workers to a risk of silicosis[36] the measures which the government has put in place to address those workplace risks[37]; and how WHSQ performs its regulatory functions for improving work health and safety in Queensland, and reducing workplace risks.[38] 23. The information which OIR has already disclosed includes information about how WHSQ’s audit process identified and monitored worker health risks; certain outcomes from that audit process; and some of the health and safety measures that were taken by WHSQ. I consider disclosure of this information has served to enhance OIR’s accountability and transparency and enable scrutiny of OIR’s performance of its regulatory functions, to a significant degree. 24. As set out at paragraph 10 above, the information which is subject to the public interest balancing test, includes: Personal Information about private sector employees, including health monitoring reports and medical information Business Information obtained by OIR relating to the processes/systems of private sector entities Investigation Information provided to or obtained by OIR in its investigation of notified safety incidents; and Audit and Survey Information associated with WHSQ audits of stone benchtop fabrication businesses and occupational hygiene surveys. 25. Given the particular nature of the Personal and Business Information, ie. it is about private sector employees and the operations of private sector businesses, I do not consider its disclosure would further advance the government accountability and transparency factors at paragraph 22 in any significant way. I afford low weight to those factors as they apply to that information. However, I consider disclosure of the Investigation Information would reveal actions taken by WHSQ in performing its regulatory functions, including the manner in which WHSQ investigates notified safety incidents. Also, I am satisfied that disclosure of the Audit and Survey Information would to some extent, further advance OIR’s accountability and transparency, by providing the applicant with a more complete picture of the conducted audit processes and resulting outcomes. I afford those factors moderate weight in relation to those categories of information. 26. A public interest factor favouring disclosure will also arise where disclosing information could reasonably be expected to ensure oversight of expenditure of public funds.[39] To some degree, the Information in Issue demonstrates the way that OIR performs its taxpayer funded functions. However, to the extent disclosure would allow oversight of public fund expenditure, I do not consider the Personal or Business Information would achieve this purpose. The Investigation and Audit and Survey Information however, demonstrates actions of OIR and therefore, I afford some weight to this factor in relation to those categories. 27. The public interest will favour disclosure where it could reasonably be expected to allow or assist inquiry into, or reveal or substantiate, deficiencies in the conduct of an agency or its officers.[40] The applicant asserts that these factors apply because the Government has failed in its obligation to ensure Queensland workplaces are safe and that this failure has potentially resulted in workers contracting a fatal disease.[41] I accept that there is information in the public domain concerning the nationwide focus on silicosis risks to workers in the stone benchtop industry. Given that the Personal and Business Information concern private sector employees and the operations of private sector business, I do not consider these factors apply in relation to that information. However, I afford some weight to the factor in schedule 4, part 2, item 5 in relation to the Investigation Information and Audit and Survey Information given that it would reveal how WHSQ has conducted investigations and audits of stonecutting businesses, and allow ‘inquiry’ into ‘possible deficiencies’ in agency conduct.[42] 28. The applicant also submits that disclosure will contribute to innovation and research.[43] I accept that there is a public interest in conducting further research into silica dust exposure and also in relation to methods of innovation that could be made in the stonecutting industry to minimise the risks to workers. I have had regard to the particular nature of the Information in Issue, and whether it could reasonably be expected to contribute to innovation and research and I afford low weight to this factor. 29. I have had regard to all other factors in schedule 4, part 2 of the RTI Act and I am unable to identify any other factors favouring disclosure of the Information in Issue.[44] Nondisclosure factors 30. The Personal Information largely comprises sensitive personal information[45] of private individuals, including health reports and medical information OIR obtained from various individuals as part of its investigation of notified safety incidents. 31. 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.[46] 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’.[47] The RTI Act also recognises that disclosing personal information of a person could reasonably be expected to cause a public interest harm.[48] I am satisfied that these factors apply to the Personal Information. 32. The applicant does not seek to access the names of private individuals. However, I consider that the identities of some of the individuals could be ascertained using information which is already in the public domain. The applicant has expressed a particular interest in accessing health monitoring reports of workers on a de-identified basis, as the applicant believes they will reveal ‘the extent of suffering and disease caused by unsafe use of artificial stone products which is at the core of the public interest in the silicosis outbreak’ and this will directly inform the public about these health issues.[49] The applicant argues that it is possible to de‐identify this information and provide adequate protection for the identity of people and their privacy.[50] 33. Taking into account the content and form of the information that has been released to the applicant and the availability and relevance of statistical information about silicosis,[51] I do not consider that it is possible to de-identify any health information within the Personal Information in a manner which would adequately protect the identities and privacy of the individuals involved. I find that the intrusion into the privacy of these individuals and public interest harm that would result from disclosure of the Personal Information would be significant, taking into account the highly sensitive nature of this information and the context in which it appears. On this basis, I afford significant weight to the factors at paragraph 31 favouring nondisclosure of the Personal Information. 34. 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] It is generally recognised that there is a strong public interest in protecting the free flow of information to law enforcement and regulatory agencies.[53] 35. The applicant submits that OIR has significant enforcement options available to it where a business refuses to co-operate and provide information. I acknowledge that OIR has a range of powers available to it to compel the provision of information.[54] However, regulatory agencies such as OIR also rely on information being provided by the public to be alerted to, and to pursue, potential safety issues. I consider the efficient and effective use of public resources is facilitated by regulatory agencies being able to seek and obtain information, including from members of the community (whether they are complainants, witnesses, informers or the subjects of complaint), with as much cooperation as possible.[55] On this basis, I am satisfied that disclosing the Personal and Business Information would tend to discourage individuals and entities from coming forward with relevant information and cooperating with OIR. This, in turn, could reasonably be expected to negatively impact OIR’s ability to obtain information in discharging its regulatory functions and accordingly, I afford this nondisclosure factor significant weight. 36. The public interest will favour nondisclosure of information where disclosure could reasonably be expected to: prejudice the private, business, professional, commercial or financial affairs of entities[56] prejudice business affairs of an agency or person;[57] and 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.[58] 37. The Business and Investigation Information was obtained by WHSQ in performing its regulatory functions and concerns the business and commercial affairs of certain entities, primarily the Third Party stonecutting business. The applicant submits that this information should be released if it pertains to an organisation’s compliance with its legal obligation to provide a safe working environment for its employees.[59] 38. The RTI Act precludes me from confirming whether or not the Business and Investigation Information is of the character submitted by the applicant,[60] however, I consider its disclosure could reasonably be expected to prejudice or adversely affect the business and commercial affairs of the entities about which it relates and, given the nature of this information and the context in which it appears, I afford moderate weight to these factors favouring nondisclosure.[61] 39. The applicant also submits that ‘any attempted secrecy fails to recognise what is already in the public arena’.[62] Although there is information in the public domain about work practice concerns and the prevalence of silicosis in the stone benchtop industry, I am satisfied that this, of itself, does not justify disclosure of the Business or Investigation Information under the RTI Act, where there can be no restriction on its use, dissemination or republication. 40. The Investigation Information also includes certain information about OIR’s investigative procedures and methods, which does not appear to be publicly known. In the particular circumstances of this case, I consider that revealing these investigative procedures and methods could reasonably be expected to enable individuals/entities to use that information to modify their activities so as to avoid detection, thereby compromising the ongoing effectiveness of OIR procedures and methods, and detrimentally effecting OIR’s ability to effectively discharge its functions.[63] Additionally, the OWHSP has commenced proceedings against one of the stonecutting businesses. In circumstances where those proceedings have not yet been finalised, I am satisfied that disclosure of the Investigation Information could result in prejudice to the impartial adjudication of the commenced proceedings and could reasonably be expected to impede the administration of justice.[64] I find that these factors carry significant weight against disclosure. 41. The Third Party has raised concerns about the accuracy of certain information within the Audit and Survey Information.[65] To the extent this information may be relevant to the ongoing OWHSP prosecution, the Third Party may seek to raise those concerns within the context of the legal proceedings. However, the ability of the Third Party to do this effectively may be prejudiced by disclosure of the Audit and Survey Information under the RTI Act, as there is no control over its use or dissemination once disclosed. As the OWHSP proceedings have not yet been finalised, I am satisfied that disclosure of the Audit and Survey Information could impede the administration of justice.[66] I find that this is a significant factor weighing against disclosure of the Audit and Survey Information. Balancing the public interest 42. Respirable silica dust exposure and silicosis are matters of serious interest and OIR and WHSQ must be accountable and transparent in how they conduct regulatory activities in relation to the stonecutting industry. I have found that disclosure of the Investigation and Audit and Survey Information would moderately advance the relevant disclosure factors, and to some extent, allow inquiry into possible agency deficiencies and oversight of public funds expenditure. The public interest also favours disclosure of the Personal and Business Information, but to a lesser degree, given it concerns private sector employees and private sector businesses, rather than government operations. 43. On the other hand, I am satisfied that the public interest factors favouring nondisclosure deserve moderate to significant weight, in terms of protecting the privacy and personal information of individuals (particularly medical and health information), limiting prejudice to the flow of information to OIR and WHSQ and their investigative methods, preventing prejudice to the commercial and business affairs of entities and ensuring the administration of justice is not impeded in terms of the ongoing prosecution against the Third Party. On balance, I consider the weight of these nondisclosure factors is determinative to support a finding of nondisclosure. 44. For these reasons, I find that access may be refused to the Personal, Business, Investigation and Audit and Safety Information on the ground that disclosure would, on balance, be contrary to the public interest.[67] Other access available 45. Access may be refused to a document that is commercially available.[68] 46. The ASIC Information (ie. organisational search results) can be accessed through the Australian Securities and Investments Commission website, upon payment of the required fee. I find that the ASIC Information is therefore, commercially available under section 53(d) of the RTI Act and access to it may be refused on that basis.[69] DECISION 47. For the reasons set out above, I vary OIR’s decision and find that access to the Information in Issue may be refused on the basis that disclosure would, on balance, be contrary to the public interest and because other access is available.[70] 48. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.K ShepherdAssistant Information Commissioner Date: 23 March 2021 APPENDIX Significant procedural steps Date Event 22 August 2019 OIC received the external review application. 4 September 2019 OIC notified the applicant and OIR that the external review application was accepted and requested information from OIR. 19 and 20 September 2019 OIC received the requested information from OIR. 11 October 2019 The applicant confirmed, in a conversation with OIC, that access was not sought to certain additional types of refused information. 28 November 3019 OIC provided an update to the applicant. 28 January 2020 OIC conveyed a preliminary view to OIR and requested further information. OIR requested an extension of time to respond to OIC. OIC conveyed a preliminary view to the applicant and invited the applicant to provide submissions if they did not accept the preliminary view. 6 February 2020 OIC received the applicant’s submissions. 20 February 2020 OIR requested a further extension of time to respond to OIC. 10 and 12 March 2020 OIC contacted OIR regarding its overdue response. 12 March 2020 OIC received certain requested information from OIR and its estimated timeline for provision of the outstanding response to OIC. 13 March 2020 OIC provided an update to the applicant. 20 March 2020 OIC contacted OIR regarding its overdue response. 27 April 2020 OIC requested a further extension of time to respond to OIC. 30 April 2020 OIC requested, and received, further details from OIR about the basis for the further requested extension. 1 May 2020 OIC provided an update to the applicant. 18 June 2020, 15 and 18 July 2020, 26 and 27 August 2020 OIC contacted OIR regarding its overdue response. 27 August 2020 OIC provided an update to the applicant. 28 August 2020 and 2 September 2020 OIC contacted OIR regarding its overdue response. 3 September 2020 OIC requested provision of OIR’s outstanding response by no later than 7 September 2020. 7 September 2020 OIC received OIR’s submissions responding to the preliminary view conveyed in January 2020. 10 and 11 September 2020 OIC provided an update to the applicant. 14 September 2020 OIR released further information it had agreed to disclose to the applicant. 19 November 2020 OIC conveyed a further preliminary view to the applicant and invited the applicant to provide submissions if they did not accept the preliminary view. OIC conveyed a further preliminary view to OIR about additional information identified for disclosure and invited OIR to provide final submissions if it objected to disclosure of that information. In consulting a third party, OIC conveyed a preliminary view and asked the third party to notify OIC if they wished to participate in the review. 26 November 2020 OIC received the applicant’s further submissions. 27 November 2020 OIC asked OIR to provide submissions addressing matters raised in the applicant’s submissions. 6 December 2020 OIR confirmed its acceptance of OIC’s further preliminary view but did not provide submissions addressing matters raised in the applicant’s submissions. 11 December 2020 OIC received the third party’s disclosure objection. OIC provided an update to the applicant. 16 December 2020 OIC invited the third party to provide submissions supporting its disclosure objection. 4 January 2021 OIC received the third party’s submissions. 5 January 2021 OIC requested further information from OIR. 12 January 2021 OIC received information from OIR. 2 February 2021 OIC requested further information from the third party. 9 February 2021 OIC received the requested information from the third party. 11 February 2021 In a conversation with the third party’s legal representative, OIC conveyed a revised preliminary view about the documents which the third party was consulted about. 16 February 2021 OIC conveyed a revised preliminary view to the applicant and invited the applicant to provide submissions if they did not accept the preliminary view. OIC received the applicant’s request for further information. 22 February 2021 The applicant informed OIC of information they had received from OIR. 23 February 2021 The applicant confirmed that they required a formal decision to be issued to finalise the review. 5 March 2021 The third party confirmed it did not wish to participate in the external review. [1] OIR joined the Department of Education in December 2017 (refer to <https://www.oir.qld.gov.au/about-us>). While the Department of Education is the respondent agency to this review, I refer to OIR throughout as that is the organisational unit which handled the application and review.[2] Application dated 13 November 2018. For the date range 1 January 2017 to 13 November 2018. [3] Under section 37 of the RTI Act. Six of those third parties raised objections to disclosure which OIR did not accept and made decisions adverse to those third parties.[4] On 16 August 2019. [5] On 22 August 2019. In the external review application, the applicant confirmed it did not seek access to certain categories of the refused information (being the names, signatures, contact details and images of private individuals and the signatures and mobile telephone numbers of OIR employees). [6] None of the six objecting third parties applied for review and therefore, any documents to which access was deferred were released to the applicant by OIR and are not in issue in this review. [7] Under section 37 of the RTI Act. OIR did not complete its consultation with that party. As this third party did not wish to participate in the external review, their identity is not disclosed in this decision. [8] As confirmed in OIC’s letters to the applicant dated 24 January 2020 and 19 November 2020 and OIC’s email to the applicant dated 16 February 2021, the applicant excluded personal information of private individuals (such as names, signatures/initials, contact details, images and other identifying information); signatures/initials and mobile telephone numbers of OIR staff; communications with legal advisers; and information deleted as irrelevant from disclosed documents. [9] OIR withdrew its reliance on the ground of refusal for exempt information in schedule 3, section 10 of the RTI Act. [10] Sections 47(3)(b), 47(3)(f), 49 and 53 of the RTI Act. [11] A business unit of OIR with responsibility for improving work health and safety in Queensland. Refer to <https://www.oir.qld.gov.au/worksafe/workplace-health-and-safety>. [12] Refer to <https://statements.qld.gov.au/statements/88396>. [13] Refer to <https://statements.qld.gov.au/statements/88396>. [14] The application was made on behalf of a corporation and as such, it may not appear necessary to consider the application of the Human Rights Act 2019 (Qld) (HR Act) which only affords human rights to individuals in Queensland. 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. To the extent that it is necessary to observe relevant rights under section 58(1) of the HR Act, I am satisfied that I have done so (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] Being 820 pages in File A and 91 pages in Files B, F, G and H. File A relates exclusively to the Third Party Stonecutting Business which is currently the subject of the OWHSP prosecution.[16] Section 108 of the RTI Act, which relevantly prevents OIC from revealing information claimed to be contrary to the public interest information. [17] In Files A, B and H. [18] In Files A, F and G. [19] In File A. [20] In File A. [21] 13 pages within File A. [22] OIR accepted that certain Information in Issue did not comprise exempt information and relied instead on public interest grounds.[23] Sections 47(3)(b) and 49 of the RTI Act. [24] Sections 47(3)(f) and 53 of the RTI Act. [25] The processing period for an application is usually 25 business days, but this can be extended for various reasons, e.g. agreement with an applicant, consultation with third parties, and negotiations about charges.[26] Section 95(1)(a) of the RTI Act. [27] The grounds on which an agency may refuse access are set out in section 47(3) of the RTI Act. [28] Section 47(3)(b) of the RTI Act. The phrase ‘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 merely private or personal interests, although 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. [29] Section 49(3) of the RTI Act.[30] External review application. The applicant made similar submissions on 6 February 2020 and 26 November 2020. [31] Submissions dated 26 November 2020. Additionally, the applicant submitted on 6 February 2020 that: ‘Releasing this documentation will also help inform important legal and governmental work that is underway to protect workers into the future.’[32] Submissions dated 7 September 2020. [33] Submissions dated 4 January 2021. [34] Sections 44 and 47(2) of the RTI Act.[35] Schedule 4, part 2, item 2 of the RTI Act. [36] Schedule 4, part 2, item 1 of the RTI Act. [37] Schedule 4, part 2, item 14 of the RTI Act. [38] Schedule 4, part 2, item 3 and 11 of the RTI Act. [39] Schedule 4, part 2, item 4 of the RTI Act. [40] Schedule 4, part 2, items 5 and 6 of the RTI Act. [41] External review application. The applicant’s submissions dated 26 November 2020 raise similar arguments. [42] A lower threshold is required to establish this factor as compared with schedule 4, part 2, item 6 of the RTI Act which requires a reasonable expectation of revealing or substantiating agency misconduct/improper conduct. I find item 6 cannot be established in relation to any Information in Issue.[43] Schedule 4, part 2, item 19 of the RTI Act. [44] In the event that further relevant factors exist in favour of disclosure, I am satisfied that there is no evidence before me to suggest that any would carry sufficient weight to outweigh the weight I have afforded to the public interest factors that favour nondisclosure.[45] ‘Personal information’ is defined in section 12 of the Information Privacy Act 2009 (Qld) as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. [46] Schedule 4, part 3, item 3 of the RTI Act.[47] 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].[48] Schedule 4, part 4, section 6(1) of the RTI Act.[49] External review applicant and submissions dated 26 November 2020. [50] Submissions dated 6 February 2020. In submissions dated 26 November 2020, the applicant submitted that, if the Information in Issue was disclosed, they would take care to protect the identity of these individuals and that ‘de‐identified medical histories of people with particular conditions is used regularly as a technique to inform public debate and improve care to patients by medical journals where significant hurdles in relation to personal information and privacy concerns are overcome for the public good’. [51] Reflecting on the considerations 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. [52] Schedule 4, part 3, item 13 of the RTI Act. [53] See for example: Marshall and Department of the Police (Unreported, Queensland Information Commissioner, 25 February 2011) (Marshall); 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). [54] For example, OIR has wide ranging powers under section 155 of the Work Health and Safety Act 2011 to obtain information in relation to a possible contravention of the Act or which would assist OIR to monitor or enforce compliance with the Act. Section 155(6) of that Act states that a person must not, without reasonable excuse, refuse or fail to comply with formal written notices issued by OIR for that purpose. [55] Marshall at [29]. [56] Schedule 4, part 3, item 2 of the RTI Act. [57] Schedule 4, part 3, item 15 of the RTI Act. [58] Schedule 4, part 4, section 7(1)(c) of the RTI Act. [59] Submissions dated 26 November 2020. [60] Section 108(3) of the RTI Act. [61] Schedule 4, part 3, items 2 and 15 and schedule 4, part 4, section 7(1)(c) of the RTI Act. [62] External review application. [63] Schedule 4 of the RTI Act does not comprise an exhaustive list of public interest factors. I consider this is an additional factor relevant in this particular case.[64] Schedule 4, part 3, item 8 of the RTI Act.[65] I do not consider these concerns give rise to the factor in schedule 4, part 2, item 12 of the RTI Act. [66] Schedule 4, part 3, item 8 of the RTI Act.[67] Sections 47(3)(b) and 49 of the RTI Act. [68] Section 47(3)(f) and section 53(d) of the RTI Act.[69] Section 47(3)(f) of the RTI Act.[70] Sections 47(3)(b) and (f) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Stiller and Department of Transport and Main Roads [2012] QICmr 4 (4 January 2012)

Stiller and Department of Transport and Main Roads [2012] QICmr 4 (4 January 2012) Last Updated: 28 May 2013 Decision and Reasons for Decision Application Number: 310524 Applicant: Stiller Respondent: Department of Transport and Main Roads Decision Date: 4 January 2012 Catchwords: RIGHT TO INFORMATION – APPLICATION FOR ACCESS TO INFORMATION – REFUSAL OF ACCESS – DOCUMENTS NOT IN POSSESSION – applicant contended photos should be in the agency’s possession – whether agency has taken all reasonable steps to locate the photos – whether access to the photos can be refused under section 47(3)(e) of the Right to Information Act 2009 (Qld) on the ground set out in section 52(1)(b) of the Right to Information Act 2009 (Qld) RIGHT TO INFORMATION – APPLICATION FOR ACCESS TO INFORMATION – INFORMATION COMMISSIONER MAY DECIDE NOT TO REVIEW – applicant requested that the agency create affidavits and source and provide information not in the agency’s possession – whether part of the application for external review is misconceived on the ground set out in section 94(1)(a) of the Right to Information Act 2009 (Qld) Contents REASONS FOR DECISION Summary On 6 September 2010, the applicant made an application to the Department of Transport and Main Roads (Department) primarily requesting the production of multiple affidavits relating to the issuing of a Queensland motor vehicle modification approval, cancellation of the approval and the applicant’s subsequent attempts to have the modification re-validated, and also seeking access to certain specified documents (Access Application). By correspondence dated 10 September 2010, the Department advised the applicant that affidavits would not be provided and confirmed the scope of the Access Application as follows: Part 1 – The issuing of Queensland motor vehicle modification approval No. ..., the cancellation of same and my subsequent attempts to have the original modification re-validated and other matters relating to this modification approval/cancellation. Part 2 – Please provide certified copies of 1929 or 1930 road registration of this vehicle, to establish the type and passenger carrying capacity. The applicant agreed to this scope in his application for internal review. Following the Department’s Internal Review Decision, the applicant applied to this Office for external review. As a result of informal resolution processes conducted by the Office during the course of the external review, the Department agreed that photos of Dodge Brother motor vehicle/s shown to the applicant at a meeting in 2008 by officers of the Department (Photos) are within the scope of the Access Application. The issues remaining for determination relate to the Photos and further documents raised by the applicant on external review. After carefully considering all of the evidence and submissions before me, I am satisfied that: access to the Photos may be refused on the basis that they cannot be found;[1] other documents of the Department sought by the applicant on external review are not within the scope of his Access Application; and the applicant’s external review application is misconceived insofar as it requests that the Department make and provide certain affidavits and source and provide factory production details regarding his vehicle. Reviewable decision The decision under review is the Department’s Internal Review Decision dated 20 December 2010. Background Significant procedural steps relating to the application are set out in the appendix to this decision. Evidence considered In making this decision, I have taken into account the following: the applicant’s access application, application for internal review, application for external review and supporting material the Department’s Decision and Internal Review Decision submissions provided by the applicant submissions provided by the Department file notes of telephone conversations between OIC staff and the applicant file notes of telephone conversations between OIC staff and the Department 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. Remaining issues in this external review As a result of informal negotiations conducted by this Office during the course of the external review, the Department agreed[2] that the Photos are within the scope of the Access Application. The applicant was advised of the Office’s preliminary view that the Department was entitled to refuse access to: parts of 2 pages and all of 57 pages as disclosure of the information would infringe the privileges of Parliament[3] parts of 2 pages and all of 3 pages as the information is irrelevant to or outside the scope of his access application[4] all of 1 page on the basis that the information is subject to legal professional privilege[5] the following documents on the basis that they should be in the Department’s possession and all reasonable steps have been taken to find the document but they cannot be found: ○ the 1929 or 1930 road registration; and ○ the Photos. The applicant was advised that if he did not make submissions by a specified date, he would be taken to accept the preliminary view in resolution of the external review. The applicant made submissions in response to the preliminary view. However, the submissions only contested the preliminary view insofar as it related to the Photos,[6] and therefore the applicant is taken to accept the preliminary view insofar as it addressed the other issues listed at paragraph 10. above in resolution of those aspects of the external review. Otherwise, the applicant’s submissions stated that this Office should: initiate specified criminal charges against specified persons regarding non-provision of the Photos require that the Department search for and provide other documents of the Department sought by the applicant on external review require Department staff to make and provide affidavits addressing specified issues, and to locate, obtain and provide factory production details regarding his vehicle. In relation to the first of these three submissions, I am satisfied that the criminal charges suggested by the applicant do not appear relevant in the circumstances, nor does the Information Commissioner have jurisdiction to initiate them. Accordingly, the issues remaining for determination in this review are: whether the Department is entitled to refuse access to the Photos on the basis that they cannot be found whether certain documents sought by the applicant on external review are within the scope of his Access Application; and whether the Department should make and provide certain affidavits or source and provide factory production details regarding his vehicle. The Photos Relevant law The RTI Act provides that access to a document may be refused if the document is nonexistent or unlocatable.[7] A document is nonexistent if there are reasonable grounds for the agency or Minister dealing with the access application to be satisfied that the document does not exist.[8] The RTI Act is silent on how an agency or Minister can be satisfied that a document does not exist. However in PDE and the University of Queensland[9] (PDE), the Information Commissioner explained that, to be satisfied that a document does not exist, an agency must rely on its particular knowledge and experience, having regard to various key factors including: the administrative arrangements of government the agency structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including: ○ the nature and age of the requested document/s; and ○ the nature of the government activity the request relates to. Alternatively, an agency may rely on searches to satisfy itself that a document does not exist. In such cases the Information Commissioner indicated in PDE that in order to substantiate a conclusion that there are reasonable grounds to be satisfied that the document does not exist, it may be necessary for the agency or Minister to take all reasonable steps to locate the document sought. To ensure all reasonable steps have been taken to locate documents, a decision-maker should make enquiries and undertake searches of all relevant locations, having regard to the key factors listed above.[10] Has the Department taken all reasonable steps? The Photos were produced by two departmental officers during a meeting with the applicant in 2008 regarding why the Department would not revalidate approval of modifications to the applicant’s vehicle. In response to queries regarding the searches for the Photos conducted by the Department, the Department advised as follows:[11] I made enquiries with the officers of the department, [..........] and [..........]. They advise that the photos were randomly obtained from the internet and copies were not retained. Therefore the particular photos shown to Mr Stiller cannot be provided. The Department was able to provide this Office with internet addresses that contain pictures which the two departmental officers say are very similar to those shown to the applicant. However, the Department was not able to confirm that these were the photos shown to the applicant in 2008. The internet addresses were subsequently provided to the applicant by this Office. In response, the applicant submitted:[12] As [the Department] chose to produce these two photos as evidence relating to a matter in dispute, they would have been well aware that it was necessary to keep hard copies of same in their files. There is the very real possibility that [the Department] have access to these photos but are not prepared to produce copies of them. Conclusion On careful consideration of all the information before me, I am satisfied that: the Photos should be in the Department’s possession the Department has undertaken searches for the Photos sought by the applicant in all relevant locations, having regard to the Department’s practices and procedures in relation to information management and other administrative practices, and therefore has taken all reasonable steps to locate the Photos there are reasonable grounds for the Department to be satisfied that the Photos cannot be found; and access may be refused on the basis that the Photos cannot be found.[13] The document sought on external review The applicant’s submissions stated that this Office should seek copies of specified types of documents from the Department: ... QT records of my complaints to them regarding their falsification of records and documentation of their response. ... ... I hand delivered a letter each week to security at 85 George Street. Forty six letters in total. Some were addressed to the Minister for Transport, some to the Director-General of QT, and several to various other members of QT staff. ... Will you please ask QT to provide me with copies of these missing letters and internal comment generated by them? ... On careful consideration of all the information before me, I am satisfied that the documents specified by the applicant do not fall within the scope of the Access Application as confirmed by the Department and agreed to by the applicant in his application for internal review. Affidavits and factory production details The applicant’s submissions stated that this Office should require Department staff to make and provide affidavits addressing specified issues, and to locate, obtain and provide factory production details regarding his vehicle. On careful consideration of all the information before me, I am satisfied that: the Department is not required to make and provide the affidavits sought by the applicant, nor to locate, obtain and provide the factory production details regarding his vehicle, by section 68(1)(e) or any other provision of the RTI Act; and accordingly, the applicant’s external review application is misconceived insofar as it seeks the affidavits and factory production details on this basis, I may refuse to deal with this part of the applicant’s external review application under section 94(1)(a) of the RTI Act. DECISION I vary the Internal Review Decision by finding that: the Department is entitled to refuse access to the Photos under sections 47(3)(e) and 52(1)(b) of the RTI Act the documents sought by the applicant from the Department on external review are outside the scope of his Access Application; and the applicant’s external review application insofar as it requests that the Department create and provide affidavits and source and provide factory production details is misconceived and will not be further dealt with under section 94(1)(a) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ Jenny Mead Right to Information Commissioner Date: 4 January 2012APPENDIX Significant procedural steps Date Event 8 September 2010 The Department receives the applicant’s RTI application dated 6 September 2010. 10 September 2010 The Department confirms the scope of the Access Application. 27 October 2010 The Department locates 2,324 pages and decides (Decision) to: in relation to Part 1 of the Access Application: grant full access to 2,256 pages refuse access to 2 pages on the basis that the information is subject to legal professional privilege refuse access to 62 pages on the basis that disclosure of the information would infringe the privileges of parliament; and in relation to Part 2 of the Access Application: refuse access on the basis that the Department does not hold any documents responsive to the applicant’s request. 22 November 2010 The applicant applies to the Department for an internal review. In his application, he requests that the Department supply him with copies of the Photos. 20 December 2010 The Department decides (Internal Review Decision) to affirm the Decision and advises the applicant that the Photos were not within the scope of the Access Application and therefore could not be considered. 15 January 2011 The applicant applies to OIC for external review. 9 February 2011 OIC informs the Department and the applicant that the external review application has been accepted. 10 February 2011 The Department provides OIC with copies of relevant documents. 15 February 2011 The applicant provides a submission in support of his case. 17 October 2011 OIC seeks the Department’s clarification regarding the relevant documents and requests copies of certain pages released to the applicant. 18 October 2011 The Department provides OIC with clarification about the relevant documents and provides a copy of the requested pages. 2 November 2011 OIC writes to the Department requesting further information and conveys a written preliminary view on some of the issues in the external review. OIC invites the Department to provide a response to the requests for further information and, if it contests the preliminary view, to provide a submission in support of its case by 16 November 2011. 15 November 2011 The Department provides the requested information and a submission. The Department agrees to release some additional information to the applicant and agrees that the Photos are within scope of the Access Application. 23 November 2011 OIC advises the applicant that the Department has agreed to release some additional information and conveys a written preliminary view. OIC invites the applicant to provide submissions in support of his case by 7 December 2011 if he contests the preliminary view. OIC requests that the Department release the additional information to the applicant. 6 December 2011 The applicant provides a submission. [1] Pursuant to sections 47(3)(e) and 52(1)(b) of the RTI Act.[2] Contrary to its Internal Review Decision dated 20 December 2010.[3] Under section 47(3)(a) and schedule 3, section 6(c) of the RTI Act.[4] The Department previously refused access to this information on the basis that the information was exempt on the ground that disclosure of the information would infringe the privileges of Parliament under sections 47(3)(a) and 48 and schedule 3, section 6(c) of the RTI Act.[5] Under section 47(3)(a) and schedule 3, section 7 of the RTI Act.[6] While the applicant also raised concerns that additional documents should have been located by the Department, I am satisfied that the documents do not fall within the scope of the Access Application.[7] Sections 47(3)(e) and 52 of the RTI Act.[8] Section 52(1)(a) of the RTI Act.[9] Unreported, Queensland Information Commissioner, 9 February 2009. Note — Although PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld), the requirements of that section are replicated in section 52 of the RTI Act. [10] See PDE at paragraph 49.[11] By correspondence dated 14 November 2011.[12] By correspondence dated 6 December 2011.[13] Pursuant to sections 47(3)(e) and 52(1)(b) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Cardwell Properties P_L & Williams and Department of the Premier, Economic & Trade Development [1995] QICmr 19; (1995) 2 QAR 671 (29 June 1995)

Cardwell Properties P/L & Williams and Department of the Premier, Economic & Trade Development [1995] QICmr 19; (1995) 2 QAR 671 (29 June 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 6 of 1995COMMISSIONER (QLD) ) (Decision No. 95019) Participants: CARDWELL PROPERTIES PTY LTD AND KEITH WILLIAMS Applicants - and - DEPARTMENT OF THE PREMIER, ECONOMIC AND TRADE DEVELOPMENT Respondent - and - NORTH QUEENSLAND CONSERVATION COUNCIL INC Third Party DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - "reverse-FOI" application - documents in issue comprising letters from the applicants to various agencies and ministers concerning permits and approvals required by the applicants in respect of a major coastal development project - whether the matter in issue is exempt under s.45(1)(c) of the Freedom of Information Act 1992 Qld - whether disclosure of the matter in issue could reasonably be expected to have an adverse effect on the applicants' business, commercial or financial affairs or to prejudice the future supply of such information to government - whether disclosure of the matter in issue would, on balance, be in the public interest.FREEDOM OF INFORMATION - whether matter in issue is exempt under s.46(1)(a) of the Freedom of Information Act 1992 Qld - whether disclosure of the matter in issue would found an action for breach of confidence - consideration of the public interest exception to obligations of confidence which are claimed to apply to information about the affairs of public authorities.FREEDOM OF INFORMATION - whether matter in issue is exempt under 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 - whether disclosure of the matter in issue would, on balance, be in the public interest.Freedom of Information Act 1992 Qld s.5(1), s.45(1)(c), s.46(1)(a), s.46(1)(b), s.51, s.78, s.81Local Government Act 1936 QldLocal Government (Planning and Environment) Act 1990 QldQueensland Heritage Act 1992 QldWet Tropics World Heritage Protection and Management Act 1993 QldAttorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86; 75 ALR 353"B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279British Steel Corporation v Granada Television Ltd [1981] AC 1096Cannon and Australian Quality Egg Farms Limited, Re (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported)Commonwealth of Australia v John Fairfax & Sons Ltd & Ors [1980] HCA 44; (1981) 147 CLR 39; [1980] HCA 44; 55 ALJR 45Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Re (1993) [1993] QICmr 2; 1 QAR 60Esso Australia Resources Ltd & Ors v Plowman (Minister for Energy and Minerals) & Ors (1995) 69 ALJR 404, 128 ALR 391Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; 32 ALJR 395Lion Laboratories v Evans [1985] QB 526Public Interest Advocacy Centre and Department of Community Services and Health and Schering Pty Ltd, Re [1991] AATA 188; (1991) 23 ALD 714Smith Kline & French Laboratories (Aust) Limited and Ors v Secretary, Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291; 99 ALR 679 DECISIONThe decision under review (being the decision of Ms L Harris, on behalf of the respondent, dated 16 December 1994) is affirmed.Date of Decision: 29 June 1995...........................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS PageBackground 1External review process 2Documents in issue 4Section 45(1)(c) of the FOI Act 6Section 46 of the FOI Act 13 Section 46(1)(a) 13 Section 46(1)(b) 24Conclusion 25OFFICE OF THE INFORMATION ) S 6 of 1995COMMISSIONER (QLD) ) (Decision No. 95019) Participants: CARDWELL PROPERTIES PTY LTD AND KEITH WILLIAMS Applicants - and - DEPARTMENT OF THE PREMIER, ECONOMIC AND TRADE DEVELOPMENT Respondent - and - NORTH QUEENSLAND CONSERVATION COUNCIL INC Third Party REASONS FOR DECISIONBackground1. This is a "reverse-FOI" application. The applicants seek review of the respondent's decision to give the North Queensland Conservation Council Inc (the Conservation Council) access under the Freedom of Information Act 1992 Qld (the FOI Act) to the respondent's copies of a number of documents sent by the applicants to Ministers of the Crown and officers of a number of government departments. The documents in issue are facsimile messages and letters despatched by the applicants between 4 July 1994 and 29 September 1994 in the course of negotiations over various permits and approvals which the applicants required in respect of a proposed tourist development, involving a marina and resort village, at Oyster Point near Cardwell in north Queensland. On 29 September 1994, a Deed of Agreement (which I shall refer to as the Tripartite Deed) was entered into between the State of Queensland, Cardwell Properties Pty Ltd and the Cardwell Shire Council, governing the relationship between the parties in respect of the development project. Paragraphs A-F of the Recitals to the Tripartite Deed record the permits and approvals for the development project already obtained by Cardwell Properties Pty Ltd, and the purpose of the Deed is conveyed in paragraphs G and H of the Recitals: G. The State and the Council have considered further requests and applications by the Company for the purpose of the development. H. The State and the Council require as a condition of the granting of the said further permits and approvals that the Company comply with certain requirements of the Co-ordinator General, the Department [of Environment and Heritage] and the Council for the protection of the environment, for the proper planning of the development and to satisfy the statutory duties of the State and the Council in relation to the further permits and approvals.It is stated in the decision under review (being the internal review decision made on behalf of the respondent by Ms L Harris on 16 December 1994) that the Tripartite Deed was released into the public domain by the Office of the Premier on 11 November 1994.2. By letter dated 27 September 1994, the Conservation Council made an FOI access application to the Department of the Premier, Economic and Trade Development (the Premier's Department), seeking access to numerous documents relating to the Oyster Point development project. In accordance with s.51 of the FOI Act, Ms L Doblo, FOI and Judicial Review Co-ordinator of the Premier's Department, wrote to Mr Williams of Cardwell Properties Pty Ltd seeking his views on the possible grant of access to the documents now in issue, and one other document dated 6 July 1994 which is not in issue in this review. By letter dated 29 November 1994, Messrs Mortimore & Associates, Solicitors, acting on behalf of the applicants, responded by saying that the applicants objected to release of all documents referred to in Ms Doblo's letter on the following grounds: Firstly, our clients consider that the correspondence contains matters communicated in confidence in accordance with Section 46(1)(a) and (b) of the Freedom of Information Act. In particular our clients were advised that any correspondence labelled "Private and Confidential" would not be subject to disclosure to third parties. Our clients reserve their contractual rights to damages in the event of disclosure of correspondence marked private and confidential. Secondly our clients rely upon Section 45(1)(c) of the Freedom of Information Act in that the disclosure of the said documents would disclose information concerning the business, professional and commercial or financial affairs of our client which could reasonably be expected to have an adverse effect on those affairs and further prejudice future supply of such information to the Government.3. Ms Doblo made her initial decision in relation to the Conservation Council's FOI access application on 29 November 1994. Her decision was to grant access to a large volume of documents (some 2,228 folios) including most of the documents in relation to which she had consulted the applicants. Of those documents in relation to which she had consulted the applicants, Ms Doblo determined that the document dated 6 July 1994 (referred to in paragraph 2 above) was wholly exempt and that two other documents (documents 8 and 15 described in paragraph 12 below) were exempt in part, in each instance under s.45(1)(c) of the FOI Act, but that the Conservation Council should be granted access to all other matter. The Conservation Council has not challenged the correctness of Ms Doblo's decision in relation to those documents or parts of documents found to be exempt, and they are not in issue in this review.4. By letter dated 30 November 1994, the solicitor for the applicants was notified of Ms Doblo's decision. An application for internal review of that decision was made on behalf of the applicants by letter dated 9 December 1994. No grounds for review, or further elaboration of the applicants' position, was provided with that application for internal review.5. Internal review was undertaken by Ms L Harris of the Premier's Department, who communicated her decision to the solicitor for the applicants by letter dated 16 December 1994. Ms Harris affirmed Ms Doblo's initial decision that no part of the matter in issue was exempt under s.45(1)(c), s.46(1)(a) or s.46(1)(b) of the FOI Act. I will refer further to the reasons for decision of Ms Harris as I deal with each of those exemptions below. By letter dated 5 January 1995, the applicants, through their solicitor, applied for review under Part 5 of the FOI Act in respect of Ms Harris's decision.External Review Process6. I wrote to the Conservation Council advising that an external review application had been lodged and advising of the terms of s.78 of the FOI Act, which provides that any person affected by a decision the subject of review may apply to become a participant in the review. The Conservation Council subsequently applied to become a participant in this review and I granted that application.7. The respondent has supplied me with copies of the documents in issue. After a preliminary examination of those documents, I wrote to the applicants' solicitor with the object of inviting the applicants to re-assess precisely which documents and parts of documents they claimed to be exempt, and to then provide evidence and/or written submissions in support of their claims for exemption. The relevant parts of my letter dated 30 January 1995 are as follows: I note that in her internal review decision Ms Harris referred to two decisions made by me in 1994, Re "B" and Brisbane North Regional Health Authority [(1994) [1994] QICmr 1; 1 QAR 279] and Re Cannon and Australian Quality Egg Farm Limited (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported). I attach copies of both decisions for your consideration. I should also make it clear that I do not regard the presence of a small amount of exempt matter in a document as qualifying the whole document for exemption. If it is established that matter is exempt, this does not preclude the release of other matter in the document, or on the same page, which is not exempt. With regard to the claim that the documents are exempt under section 45(1)(c) of the Freedom of Information Act 1992 (the FOI Act), a preliminary appraisal of the documents suggests that while at least some of the information contained in them may concern the business, professional, commercial or financial affairs of your clients, there is little likelihood that release of the information would have an adverse effect on their affairs or would prejudice the future supply of such information to government. With respect to the claim that the matter is exempt under section 46(1) of the FOI Act, I note that many of the documents in question bear no specific reference to communication in confidence, which is a requirement of both paragraphs of section 46(1). While I accept that an obligation of confidence may be implied in certain circumstances, it seems clear from the documents in issue that Mr Williams is familiar with the idea of expressly stating a requirement of confidence when he considers that confidentiality is necessary. In these circumstances the absence of an express indication that Mr Williams required confidentiality would be a significant factor in my determination of whether the matter has been communicated in confidence. As a first step in the course of this application, I would ask that your clients reconsider their position in respect of each document and advise me whether there are any documents or parts of documents to the release of which they do not object. I attach a complete set of the documents in issue to facilitate discussion of possible release. I note that copies of documents identical to folios F3939-30 and loose folios 29, 30, 32 and 33 have already been released to the applicant or another person. In the circumstances of this application I consider that it is appropriate to proceed by way of written submissions and evidence rather than by proceeding to an oral hearing. To that end, I now invite you to provide evidence and/or any written submission you may care to make in relation to documents or parts of documents which you continue to claim are exempt under the FOI Act. Any evidence should be in the form of sworn affidavits or statutory declarations which annex as exhibits any relevant documentary evidence. Any written submission should set out the material facts and circumstances, and the legal arguments, on which you rely to contend that the documents (or parts of documents) in issue are exempt under the FOI Act.8. In that letter, I directed that the applicants provide any written submission or evidence no later than 6 March 1995. When no response had been received by that date, a member of my staff contacted the solicitor for the applicants who subsequently confirmed that his clients did not intend to make any further submissions, but still objected to the release of all the documents in issue.9. By letters dated 24 March 1995, I provided the Premier's Department and the Conservation Council with the opportunity to lodge submissions and evidence in support of their respective positions. Mr Haigh, on behalf of the Conservation Council, indicated that in the circumstances he did not intend to make further submissions or lodge evidence. The Premier's Department responded by a letter dated 12 April 1995, providing a copy of the Tripartite Deed (which I had requested) and indicating that it relied on the reasons set out in the internal review decision of Ms Harris. My attention was also drawn to a file note dated 29 November 1994 (the terms of which are reproduced at paragraph 40 below) recording relevant information obtained by Ms Doblo from Ms J Bimrose of the Office of the Co-ordinator General (an organisational unit within the Premier's Department). Ms Bimrose was the officer who had the conduct of the project to co-ordinate the applicants' proposed development at Oyster Point. Her recorded statements contradicted the first contention made on behalf of the applicants in the passage quoted at paragraph 2 above.10. By letter dated 3 May 1995, the applicants' solicitor was provided with a copy of that file note, and was invited to provide evidence and/or a written submission in reply to it, and to other material forwarded with my letter of 3 May 1995. A direction was given that any material in reply be lodged no later than 19 May 1995. No material has been lodged on behalf of the applicants.11. Section 81 of the FOI Act provides that in a review under Part 5 of the FOI Act, the agency which made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant. While the formal onus in this case remains on the respondent to justify its decision that the documents in issue are not exempt documents under the FOI Act, it can discharge this onus by demonstrating that any one of the necessary elements which must be established, to attract the application of each of the exemption provisions relied on by the applicants, cannot be made out. Consequently, the applicants must fail if I am satisfied that an element necessary to found the application of each exemption provision which they rely upon, cannot be established. The applicant in a "reverse-FOI" case, while carrying no formal legal onus, should nevertheless, in practical terms, be careful to ensure that there is material before the Information Commissioner sufficient to enable the Information Commissioner to be satisfied that all elements of the exemption provisions relied upon are established. The applicants in this case, however, have declined to take advantage of the opportunity extended to them in this regard.Documents in issue12. The documents in issue were identified in the respondent's decision by rather complex codes (no doubt due to the large volume of documents which fell within the terms of the Conservation Council's FOI access application) as listed in the second column below (i.e. in parentheses). However, I have listed them below in chronological order and I will refer to them by the document number listed in the first column below. The documents, which are all communications from the applicants, are:1. (F3939X 162) 4/7/94 One page letter to the Minister for Tourism, Sport and Racing2. (F3939X 157-161) 4/7/94 Five page letter to the Minister for Tourism, Sport and Racing3. (Loose folio 295) 4/7/94 Facsimile transmission advice to Ms J Bimrose, Office of the Co-ordinator General4. (Loose folios 290-294) 4/7/94 Copy of document 25. (Loose folios 655-656) 7/7/94 Letter to the Premier6. (F3939Y 15-16) 19/7/94 Letter to J Beumer, Department of Primary Industries7. (F3939Y 18-19) 19/7/94 Letter to I Anders, Department of Lands8. (F3939Y 38-41) 21/7/94 Letter to Mr J Down, Office of the Co-ordinator General9. (Loose folios 14-15) 22/7/94 Letter to Mr J Down10. (Loose folios 20, 21, 23) 25/7/94 Letter to Mr J Down11. (Loose folios 29-33 26/7/94 Letter to Mr J Down F3939AA 107)12. (Loose folio 34) 27/7/94 Letter to the Premier13. (F3939Z 43-44) 3/8/94 Letter to Mr J Down14. (F3939Z 47-48) 3/8/94 Letter to the Premier, including page 7 of a 12 (Loose folio 59) page attachment15. (Loose folios 342-3) 12/8/94 Letter to Mr J Down16. (Loose folios 1034-1035) 20/9/94 Letter to the Minister for Housing, Local Government and Planning17. (F3939 30) 29/9/94 Letter to Mr J Down 13. The information in issue is similar in character throughout the above documents. In general terms, it may be characterised as falling into these categories:? details of the history of negotiations between the applicants and government agencies or officials relating to the proposed development at Oyster Point.? reiteration of the applicants' position in relation to a number of draft clauses of the Tripartite Deed, and conditions proposed to be attached to various permits and approvals, the substance of which had been previously discussed with government agencies and officials.? complaints by the applicants about delays in the approvals process and the approach taken by government agencies and officials to negotiations.? requests for urgent action to resolve matters.? Mr Williams' opinions as to the attitude of Cardwell residents to the development and to the delays in obtaining approval.14. There is no information in the matter remaining in issue which I consider to be sensitive commercial information, or financial details, concerning the business operations of the applicants. The applicants have not drawn to my attention any information which they may regard as particularly sensitive.Section 45(1)(c) of the FOI Act15. The applicants have claimed that the documents in issue are exempt under s.45(1)(c) of the FOI Act, but have provided no evidence or argument in support of this claim other than the assertion in the letter of 29 November 1994 to Ms Doblo (see paragraph 2 above).16. 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.17. The elements of s.45(1)(c) were analysed and explained at paragraphs 66-88 of my reasons for decision in Re Cannon and Australian Quality Egg Farms Limited (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported). Matter will be exempt from disclosure, by virtue of 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 those business, professional, commercial or financial affairs of the agency or other person, which the information in issue concerns; or (ii) prejudice to the future supply of such information to government; unless I am also satisfied that disclosure of the matter in issue would, on balance, be in the public interest.18. In the decision under review, Ms Harris rejected the applicants' contentions that the matter in issue was exempt under s.45(1)(c) of the FOI Act for the following reasons: ... I consider that the information contained in the documents in issue is about the business, commercial, or financial affairs of the project proponent, Cardwell Properties Pty Ltd. This satisfies the first requirement under s.45(1)(c)(i) of the Act. As to the second requirement in s.45(1)(c)(ii) of the Act, the Information Commissioner [has] adopted the [following] meaning of the phrase "could reasonably be expected to": "...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 Information Commissioner observed in [Re Cannon] that where the information in issue is already in the public domain, or is common knowledge in the relevant industry, it would be difficult to show that disclosure of information could reasonably be expected to have an adverse effect on the business, professional, commercial or financial affairs of the "person" whom the information concerns. The Information Commissioner continued (at p.24): "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." I am strongly swayed by the facts that the necessary permits for allowing the development to commence have been issued, that the Tripartite Deed has been signed and released in the public domain and that the development scenario in this instance involves development of property already in the possession of the project proponent. I do not therefore consider that there are real and substantial grounds to expect that release of the documents in issue could have an adverse effect on the business, professional, commercial or financial affairs of the project proponent, Cardwell Properties Pty Ltd. In relation to the second kind of prejudice contemplated by s.45(1)(c)(ii) of the Act, I have considered the fact that disclosure of the information could reasonably be expected to prejudice the future supply of such information to government. However, in view of the Information Commissioner's comments regarding prejudice to the future supply of information to government in both [Re "B" (for citation see paragraph 34 below) and Re Cannon], I conclude that disclosure of such information would not prejudice the future supply of information. ... [Ms Harris then referred to the principles set out in paragraph 85 of Re Cannon which is quoted at paragraph 21 below] Although I do not consider that real and substantial grounds exist for either prejudice contemplated by s.45(1)(c)(ii) of the Act, I consider that public interest arguments in favour of disclosure are of sufficient weight to displace the public interest in favour of non-disclosure in any event. As the documents in issue outline in part, the processes and negotiations involved with the finalisation of the Tripartite Deed and the granting of permits, I consider that the public interest would be advanced by informing the public as to the negotiations that have occurred between the Government and the project proponent. In this case, I have placed some weight on a commercial project proponent's ability to communicate freely with government in respect of sensitive commercial negotiations, but I have placed more weight on the public interest consideration in favour of enhancing government's accountability by informing public debate on environmental and economic development issues. On balance, I conclude that disclosure of the documents in issue is in the public interest. Accordingly, the documents in issue are not exempt under s.45(1)(c) of the Act except those partially exempt documents identified as F3939Y 38-39 and Loose Folio 342.19. In essence, while finding that the requirements of s.45(1)(c)(i) were established, Ms Harris found that disclosure of the matter in issue could not reasonably be expected to have either of the prejudicial effects contemplated by s.45(1)(c)(ii), and that, even if it could, disclosure of the matter in issue would, on balance, be in the public interest. Having examined the matter in issue, I agree with and endorse Ms Harris' findings in respect of the application of s.45(1)(c)(ii) and the application of the public interest balancing test incorporated within s.45(1)(c). 20. As Ms Harris found, the fact that the necessary permits and approvals for the development to commence have been issued (at least so far as Queensland government agencies and the Cardwell Shire Council are concerned; the Federal Minister for the Environment has, however, taken action under Commonwealth legislation which impacts on some aspects of the proposed development), the fact that the Tripartite Deed has been signed and released into the public domain, and the fact that the property to be developed is already in the possession of the applicants, make it difficult to find any reasonable basis for an expectation that disclosure of the information in issue could have an adverse effect on those business, commercial or financial affairs of the applicants which the information in issue concerns. The applicants have no commercial competitor in respect of the development of the project site, and no competitive harm in respect of the process of developing the project site could reasonably be expected to follow from disclosure of the matter in issue. I cannot see, and the applicants have not taken the opportunity to draw my attention to, any adverse effects to the applicants' relevant business interests that could reasonably be expected to follow from disclosure of the matter in issue.21. As to the second kind of prejudice contemplated by s.45(1)(c)(ii) of the FOI Act, I made the following remarks in Re Cannon at paragraphs 85-86: 85. 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 (including those functions identified in paragraph 28 above). 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 ... 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. 86. I note in this regard the comments made by the Commonwealth AAT in Schering's case [Re Public Interest Advocacy Centre and Department of Community Services and Health and Schering Pty Ltd [1991] AATA 188; (1991) 23 ALD 714] when applying s.43(1)(c)(ii) of the Commonwealth FOI Act (at p.726-7): We are of the view in considering whether it is "reasonable" to expect that the future supply of information will be prejudiced, that a factor to be taken into account is the context in which such information is supplied, including whether it may be compulsorily required. ... ... This is not a situation where information is supplied to the Commonwealth in a purely voluntary fashion, for example by informants in the law enforcement area. Here companies themselves are seeking approval from the Commonwealth to market a particular product in Australia. As Dr Riisfeldt acknowledged in answer to a question by Dr Cashman, the company would go out of business if it was not prepared to submit information to the Department of Health. The information which is required to be submitted is set out in detail in NDF4. Thus we do not consider that prejudice to the future supply of information arises in these circumstances.22. The kinds of information here in issue are characterised in broad terms at paragraph 13 above. For the most part, the information in issue comprises complaints about delays in the development approvals process, and objections to proposed clauses of the Tripartite Deed and to conditions in respect of other permits and approvals. There is nothing in the matter remaining in issue that touches on sensitive financial information. The business information contained in the matter in issue concerns negotiations in respect of the Tripartite Deed, which has now been executed and released into the public domain, and in respect of various permits and approvals, which have now been issued. I can see no reasonable basis for an expectation that any developer in a position similar to the applicants would decline to provide government agencies with information of the kind in issue, if the matter now in issue were to be disclosed under the FOI Act. The position is akin to that of the company in Schering's case which would go out of business if it was not prepared to submit information to the relevant regulatory authority. Developers, particularly coastal developers, must obtain approvals from, and negotiate with, various regulatory authorities at state and local government level, and in some instances at federal government level. 23. The applicants believed that their opportunity to create a significant development was being hampered and perhaps jeopardised by delays in the government approvals process. They were also concerned that some conditions of the proposed Tripartite Deed involved unreasonable demands. I do not accept that a developer in such a position would fail to put a case in relation to such matters just as forcefully and in as much detail as the applicants have done, even if certain that the information would be disclosed. Of course, there may be cases where information needs to be placed before a government agency, in order to obtain approvals, which is sensitive commercial information which a developer would be reluctant to disclose if it might be released publicly. However, this is not such a case. I do not accept that developers in a similar position to the applicants will, in future, be dissuaded from negotiating with government regulatory authorities, or complaining about perceived problems in the approvals process, if the matter in issue is disclosed under the FOI Act (especially given that, in the present case, disclosure is to occur after the conclusion of negotiations and after relevant approvals have been issued).24. Even if the requirements of s.45(1)(c)(ii) were satisfied in this case, I consider that disclosure of the matter in issue would, on balance, be in the public interest. The Oyster Point project is a significant development of substantial size. It will no doubt have major effects on the social, economic and physical environment of the Cardwell region. The changes that it makes to the region will be long-term and in some respects probably irreversible. There will no doubt be many benefits for sections of the Cardwell community, but it is just as likely that there will be some who will find negative aspects of the development.25. The Queensland Parliament has for many years recognised that private owners of land should have restrictions placed on their development of that land in the public interest, e.g. Local Government Act 1936. The extent of those restrictions and the number of statutes imposing restrictions has increased dramatically in recent times, e.g. Local Government (Planning and Environment) Act 1990, Queensland Heritage Act 1992, Wet Tropics World Heritage Protection and Management Act 1993. Parliament has recognised that the effects of development are often not limited to the particular borders of private land owned by a developer and that there is a public interest in regulating land use.26. In this particular case, the applicants have had to obtain approvals under legislation administered by the Department of Environment and Heritage, the Department of Housing, Local Government and Planning, the Department of Primary Industries and the Cardwell Shire Council. In addition, because part of the land on which the project is proposed to be built is Crown Land and is subject to special leases, the applicants have found it necessary to obtain approvals from the Department of Lands. The progress of the approvals process has been overseen by the Office of the Co-ordinator General. While Parliament has set down broad parameters for regulation of land use in Queensland, it is necessary that much of the detail of conditions to be placed on development, in the wider public interest, be settled on a case-by-case basis. The process of this case-by-case negotiation has been entrusted to State Ministers, relevant government departments and to local authorities.27. It is important to remember that government agencies and officials act in the approvals process on behalf of the people of Queensland. In Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60, I stated (at pp.73-74; paragraphs 37-39): 37. The information which public officials, both elected and appointed, acquire or generate in office is not acquired or generated for their own benefit, but for purposes related to the legitimate discharge of their duties of office, and ultimately for the service of the public for whose benefit the institutions of government exist, and who ultimately (through one kind of impost or another) fund the institutions of government and the salaries of officials. 38. These considerations are reflected in the Attorney-General's second reading speech to the Queensland Legislative Assembly on the introduction of the Freedom of Information Bill (Parliamentary Debates [Hansard], 5 December 1991, at p.3850): "In conclusion, this Bill will effect a major philosophical and cultural shift in the institutions of Government in this State. The assumption that information held by Government is secret unless there are reasons to the contrary is to be replaced by the assumption that information held by Government is available unless there are reasons to the contrary. The perception that Government is something remote from the citizen and entitled to keep its processes secret will be replaced by the perception that Government is merely the agent of its citizens, keeping no secrets other than those necessary to perform its functions as an agent. Information, which in a modern society is power, is being democratised. I commend the Bill to the House." 39. Thus notions of the public interest constitute the basic rationale for the enactment of, as well as the unifying thread running through the provisions of, the FOI Act. Section 21 of the FOI Act reverses the general legal position which (apart from the power of a court to order the disclosure of government-held information for use as relevant evidence in legal proceedings) accorded governments an unfettered discretion in the dissemination of information about its own actions and operations, merely informing the public of these as and when it felt the need to do so. The reversal of the general legal position is justified, inter alia, by public interest factors of the kind given explicit recognition by Parliament in s.5(1) of the FOI Act.28. Section 5(1) of the FOI Act provides: 5.(1) Parliament recognises that, in a free and democratic society - (a) the public interest is served by promoting open discussion of public affairs and enhancing government's accountability; and (b) the community should be kept informed of government's operations, including, in particular, the rules and practices followed by government in its dealings with members of the community; and (c) members of the community should have access to information held by government in relation to their personal affairs and should be given the ways to ensure that information of that kind is accurate, complete, up-to-date and not misleading.29. I consider that there is a significant public interest in enhancing the accountability of government agencies and officials in respect of the performance of their functions in dealing with a proposal for a large scale development which is likely to have substantial social, economic and environmental effects on the region surrounding the development, by providing access to documents relating to the development. I consider that the public interest in disclosure extends not only to reports of experts about the possible effects of such a development but also to the factors which may have influenced government agencies and officials in deciding whether to approve a particular land use and what conditions should apply to that land use. In my view this will usually extend to disclosure of communications from the developer to government agencies and officials. This will be necessary in order to fully appreciate the inputs on which government agencies and officials have based their decisions. The emphasis is therefore on the scrutiny of government agencies and officials in the performance of their functions on behalf of the people of Queensland, but there is also a public interest which lies in the community simply being able to obtain access to details of a development project of this scale, and information about its projected impacts on the surrounding region.30. Much of the matter in issue comprises material voicing the applicants' criticism of the complexity of the development approvals process, which is said by them to pose such a formidable series of hurdles to coastal development that enterprise is being stifled. The applicants' views are doubtless shared by a significant sector of the Queensland public, and there is also a valid public interest in disclosure which enables scrutiny of how government agencies are serving the needs of the business community, and the interests of the Queensland public generally, in fostering appropriate economic development.31. Of course, where the requirements of s.45(1)(c)(i) and (ii) have been satisfied, 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. Depending on the gravity of commercial harm that can be expected from disclosure of particular segments of information, the public interest considerations favouring disclosure may be outweighed and particular segments of information found to be exempt. (I note that where the respondent in the present case found that some segments of matter in the documents in issue satisfied the requirements of s.45(1)(c)(i) and (ii), the public interest in non-disclosure was considered sufficient to outweigh the competing public interest considerations favouring disclosure identified in Ms Harris' decision. As noted in paragraph 3 above, those segments are not in issue in this case.) In respect of the matter in issue before me, however, I consider that even if the requirements of s.45(1)(c)(ii) were satisfied, the public interest considerations favouring disclosure which I have outlined above are of such weight that disclosure would, on balance, be in the public interest.32. I therefore find that the matter in issue is not exempt matter under s.45(1)(c) of the FOI Act.Section 46 of the FOI Act33. The applicants have also claimed reliance on s.46(1)(a) and s.46(1)(b) of the FOI Act. 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.Section 46(1)(a)34. In Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279, I considered in detail the elements which must be established in order for matter to qualify for exemption under s.46(1)(a) of the FOI Act. The test 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 Re "B" at pp.296-297; paragraph 44). I am satisfied that, in the circumstances of this case, there are identifiable plaintiffs (the applicants) who would have standing to bring an action for breach of confidence.35. The only arguments which have been advanced on behalf of the applicants in support of a claim for exemption under s.46(1)(a) are those contained in the first paragraph of the extract from the letter to Ms Doblo which is set out at paragraph 2 above. The final sentence of that paragraph refers to contractual rights to damages in the event of disclosure of correspondence marked private and confidential. However, there is no evidence to support the existence of a relevant contractual obligation of confidence. I explain below at paragraphs 41-42 my findings in respect of representations claimed to have been made to the applicants as to the labelling of correspondence as "Private and Confidential". Those representations could not, in my opinion, have been relied upon as founding any contractual obligation of confidence. At the time the applicants forwarded the documents in issue to various agencies and Ministers of the Queensland government, the applicants were not in an existing contractual relationship with the State of Queensland or any agency thereof, vis-à-vis the Oyster Point development project. My point is that there was no existing contractual relationship which imposed express obligations of confidence, or in respect of which a contractual obligation of confidence could be implied. Moreover, the information in issue did not comprise anything in the nature of trade secrets or otherwise commercially valuable information of a kind that has sometimes justified a court in constructing an implied contract around a confidential disclosure between parties who did not stand in a subsisting contractual relationship (see Re "B" at p.298, paragraph 48, and the cases there cited).36. I can see no basis in the present case for a suggestion of the existence of a contractual obligation of confidence arising in the circumstances of the communication of the information in issue from the applicants to the various recipients of it. 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 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).37. As explained at paragraph 11 above, the respondent can discharge its onus under s.81 of the FOI Act by satisfying me that at least one of the elements which must be established to found exemption under s.46(1)(a) cannot be made out. In her internal review decision, Ms Harris stated her reasons for finding that s.46(1)(a) did not apply to the matter in issue, as follows: In light of the Information Commissioner's detailed decision in [Re "B"], I am not satisfied that the information claimed to be confidential can be identified with specificity nor has it the requisite degree of secrecy to invest it with the "necessary quality of confidence". For example, much of the information contained in the documents in issue (such as details of the draft Tripartite Deed) is likely to be common knowledge or publicly available information. Any quality of confidence attached to the documents in issue may also have been lost with the passage of time and the subsequent occurrence of events. In this case, the commercial-in-confidence character of the information is diminished by the fact that the Tripartite Deed has been finalised and signed and is now in the public domain and the necessary permits to proceed with the development have been granted. Furthermore, it is only arguable that receipt of the documents in issue imported an obligation of confidence and that detriment would be occasioned if the documents in issue were released. I do not consider that disclosure of the documents in issue would found a legal cause of action for breach of an equitable duty of confidence. It is not suggested that the Department owes an express contractual obligation of confidence to Cardwell Properties Pty Ltd in respect of communication of the documents in issue nor a duty of confidence as a fiduciary. In particular, I draw your attention to the Information Commissioner's comments in [Re "B"] (at p.35:) "...merely labelling information as "confidential" will not confer it with the necessary quality of confidence, if it in fact lacks the requisite degree of secrecy or inaccessibility." For information to be the subject of an implied contractual obligation of confidence, it must also possess the requisite degree of secrecy or inaccessibility as required in equity. As I do not consider that the documents in issue possess such degree of secrecy or inaccessibility, I must conclude that disclosure of the documents in issue would not constitute a breach of a contractual obligation of confidence. In consideration of all the facts and circumstances available to me in conjunction with the Information Commissioner's decision in [Re "B"], I am not satisfied that disclosure of the documents in issue would found a legal action for breach of confidence. Accordingly, I do not find that the documents in issue qualify for exemption under s.46(1)(a) of the Act. 38. Ms Harris was mainly concerned that the first and second elements identified in paragraph 36 above were not satisfied. She also doubted that the third and fifth elements were established. Ms Harris is correct when she says that the applicants have failed to identify with specificity the information claimed to be confidential. The applicants insist that all of the matter in issue is exempt, but I think Ms Harris is correct (for the reasons which she gives) when she says that much of the information in issue does not have the necessary quality of confidence. Moreover, large segments of the matter in issue merely recount factual details (typically, steps or events or problems which have previously occurred in the process of obtaining approvals), usually as a prelude to a plea by the applicants for expedition. This factual material was already well known to relevant officers of the respondent, with no apparent restriction on its dissemination. I do not think that an obligation of confidence can be imposed on the respondent by the applicants' recounting such information in letters marked confidential (see R. Dean, The Law of Trade Secrets, Law Book Co, 1990 at pp.171-172, and the cases there cited).39. I will confine my observations, however, to the third element identified in paragraph 36 above, which I am satisfied cannot be established in respect of the matter in issue. This will give me the opportunity to address a significant development in the general law relating to breach of confidence which has occurred since my detailed consideration of the subject in Re "B" (see paragraphs 51-60 below).40. The applicants have declined to take advantage of the opportunity to provide evidence and/or written submissions to me. The only material from the applicants which I have available to me is the bare assertion made in the letter from the applicants' solicitors dated 29 November 1994 (see paragraph 2 above). The terms of that letter single out correspondence labelled "Private and Confidential", claiming that the applicants were advised that any correspondence so labelled would not be subject to disclosure to third parties. (Documents 3, 6, 7, 9-12, 15 and 17 are not labelled with any express reference to confidentiality, but the applicants' solicitor has stated to my staff during the course of this review that his clients object to disclosure of all of the matter in issue). This claim on behalf of the applicants prompted Ms Doblo to make inquiries of Ms J Bimrose of the Office of the Co-ordinator General (see paragraph 9 above). Ms Doblo's record of those inquiries states: Given the assertion in the Mortimore and Associates fax of today's date that Mr Williams was advised any correspondence labelled "Private and Confidential" would not be disclosed to third parties, I phoned Jan Bimrose to check if this was the case with documents given to the OCG. She said she had told Mr Williams to use a Private and Confidential stamp to help OCG focus on any sensitive material. She also told him she would try to protect from disclosure any commercial-in-confidence information, such as details about his finances. However, she gave no agreement to "keeping confidential" information that was simply labelled as Private and Confidential or Commercial-in-Confidence.41. As noted at paragraph 10 above, a copy of this file note was provided to the applicants' solicitor, who was afforded the opportunity to lodge evidence and submissions in reply. Given the fact that the applicants have not replied, I consider that I am entitled to infer that there is no evidence which the applicants wish to provide to me that would be any more favourable to their case than Ms Bimrose's account of the advice given to the applicants concerning the labelling of correspondence as "Private and Confidential" or "Commercial-in-Confidence" (cf. Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Cross on Evidence, (4th Aust. Ed. 1991), at p.37, para.1215). Accordingly, I am not satisfied that there was any agreement on the part of the respondent to "keep confidential" correspondence labelled as "Private and Confidential" or "Commercial-in-Confidence", but rather there was an indication that such labels should be used by the applicants to alert the respondent to any material which the applicants considered to be sensitive. There was also an indication that the respondent would try to protect from disclosure any commercially sensitive confidential information, such as details about the applicants' finances.42. Having regard to the nature of the exercise in which the Office of the Co-ordinator General was engaged, I consider the logical inference to be that labelling of the kind referred to above was intended to be a means for the applicants to flag letters considered to contain some commercially sensitive information, so as to differentiate them from other letters which the recipients must have been expected to disclose to a range of people in the course of communications relating to the development approvals process and the negotiation of the Tripartite Deed. This position accords with common sense. Given that the Oyster Point development project was one obviously likely to engender public debate and controversy, it was hardly likely that the government would (or should) agree to any restrictions on its ability to discuss, and account to the public for, its performance of its regulatory role in respect of the development project (except perhaps in respect of information that had a genuine commercial sensitivity to the applicants, beyond the conclusion of negotiations, such that disclosure might do them competitive harm or damage their financial position). I note that the government considered it appropriate to disclose to the public the terms of the Tripartite Deed, many of which bear on the regulatory roles of the Queensland government and the Cardwell Shire Council in respect of the development project.43. As indicated in the third and fourth paragraphs of the extract from my letter dated 30 January 1995 to the applicants' solicitors which is set out at paragraph 7 above, I considered at one stage that there was probably a pattern to the applicants' practice of marking some letters "Private and Confidential" or "Commercial-in-Confidence", but not others. I considered that the applicants were probably familiar with the idea of expressly stating a requirement of confidence only when confidentiality was considered necessary. However, after a close examination of the documents in issue, I can see no semblance of a pattern to the applicants' use of such markings. Large segments of identical (or substantially identical) material appear in documents that are marked "Confidential" and in documents with no such markings. Document 5, for instance, is marked "Strictly Confidential" and "Commercial-in-Confidence", but it consists largely of a recitation of facts already known to the Minister's relevant Departmental officers and a plea for assistance and fair treatment from the government. It contains no information of a commercially sensitive nature, the disclosure of which might cause competitive harm, or damage the applicants' financial position. In my opinion, this is now true of all the matter in issue (the small amount of matter that might be thought to fall into the categories mentioned in the previous sentence has been found exempt under s.45(1)(c) and that decision is not in issue before me). I use the words "now true" because some of the matter in issue may have been considered commercially sensitive during the course of negotiations over conditions that might be attached to some permits or approvals, and over terms of the Tripartite Deed. However, I consider that, in general terms, any expectation or understanding of confidentiality that may have existed in relation to information supplied by the applicants concerning negotiation of the Tripartite Deed and conditions to be attached to permits and approvals they required, could not have survived beyond, and would not be enforced as an equitable obligation of confidence following, the public disclosure of the Tripartite Deed, and the obtaining by the applicants of the permits and approvals required for their project.44. Document 1 is slightly different in character to the other documents in issue. Document 1 is a covering letter (described in its first paragraph as a "personal note") forwarded to the Minister for Tourism, Sport and Racing with document 2. The first paragraph of document 1 indicates that, whereas the accompanying letter (document 2) may be subject to "Freedom of Information", "this personal note can be destroyed". There is also an indication by Mr Williams, in a postscript to the letter, that he will not retain a copy of it. There are certainly strong indications on the face of the letter that its author intended it to be confidential as between himself and the Minister, even suggesting that the Minister may wish to destroy it. The Minister obviously did not destroy the letter. Since three of its five short paragraphs relate to the Minister's official duties, it was, in my opinion, proper to have regarded it as an official document of the Minister rather than a personal note, and in due course a copy was conveyed to the Office of the Co-ordinator General, along with document 2. 45. Having examined the document in the context of all the documents in issue, the emphasis by Mr Williams on secrecy for this document is somewhat baffling. The probable explanation may be that, at the time it was written, this was one of the first occasions on which Mr Williams voiced some criticism of parties to the approvals process, and voiced his need for urgent action. The same concerns, however, were later expressed (in more forthright terms) to several other parties, with no explicit suggestion of a requirement of confidentiality. 46. The first paragraph of document 1 is merely introductory and the second paragraph is merely an exchange of pleasantries, containing nothing of any significance. Those two paragraphs comprise material too trivial in nature to qualify for protection in equity as confidential information (see Re "B" at p.305; paragraphs 67-69). In my opinion, the third, fourth and fifth paragraphs of document 1, which relate to the approvals process for the Oyster Point development project, fall into the same category as the other documents in issue and should be treated accordingly. I am satisfied that document 1, like the other documents in issue, does not qualify for exemption under s.46(1)(a) of the FOI Act.47. A further aspect of this case which deserves emphasis is the special position (in the context of the imposition of enforceable obligations of confidence) of information relating to the discharge by government agencies of functions intended to be performed in the wider public interest. In Re "B" at p.316, I made the following comments about the third criterion identified in paragraph 36 above: 84. What the judgments in Smith Kline & French primarily emphasise is that 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 of the kind referred to in the third paragraph in the passage from the judgment of the Full Court in Smith Kline & French which is set out at paragraph 82 above.The last-mentioned reference is to the following passage from the judgment of the Full Court of the Federal Court of Australia in Smith Kline & French Laboratories (Aust) Limited and Ors v Secretary, Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291 at pp.302-303: To determine the existence of confidentiality and its scope, it may be relevant to consider whether the information was supplied gratuitously or for a consideration; whether there is any past practice of such a kind as to give rise to an understanding; how sensitive the information is; whether the confider has any interest in the purpose for which the information is to be used; whether the confider expressly warned the confidee against a particular disclosure or use of the information - and, no doubt, many other matters. ...48. It is also worth repeating the following comments of the Full Court in Smith Kline and French (at p.304): ... In considering these problems, and indeed the whole question, it is necessary not to lose sight of the basis of the obligation to respect confidences: "It lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained." This is quoted from Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414 at 438, per Deane J, with whom the other members of the court agreed ... . ... Similar expressions recur in other cases: see Seager v Copydex Ltd [1967] RPC 349 at 368: "The law on this subject ... depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it." To avoid taking unfair advantage of information does not necessarily mean that the confidee must not use it except for the confider's limited purpose. Whether one adopts the 'reasonable man' test suggested by Megarry J or some other, there can be no breach of the equitable obligation unless the court concludes that a confidence reposed has been abused, that unconscientious use had been made of the information. ... ... We would add that, in our opinion, courts exercising equitable jurisdiction should not be too ready to import an equitable obligation of confidence in a marginal case. There is the distinction between use of confidential information in a way of which many people might disapprove, on the one hand, and illegal use on the other. Not only the administration of business and government, but ordinary communication between people, might be unduly obstructed by use of too narrow a test, such as that which the appellants put forward here.49. In Re "B" at p.316 (paragraph 83), I remarked that the Full Court in Smith Kline and French had drawn attention to important considerations that arise in, and may be peculiar to, the situation where persons outside government seek to repose confidences in a government agency - which are the kind of confidences to the protection of which s.46(1) of the FOI Act is primarily directed. At p.319 of Re "B", I went on to say: 92. Another principle of importance for government agencies was the Federal Court's acceptance in Smith Kline & French that it is a relevant factor in determining whether a duty of confidence should be imposed that the imposition of a duty of confidence would inhibit or interfere with a government agency's discharge of functions carried on for the benefit of the public. The Full Court in effect held that the restraint sought by the applicants on the Department's use of the applicant's confidential information would go well beyond any obligation which ought to be imposed on the Department, because it would amount to a substantial interference with vital functions of government in protecting the health and safety of the community. (This finding could also have followed from an application of Lord Denning's statement of principle set out at paragraph 85 above). 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. ... 50. In Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86, McHugh JA also suggested that special considerations apply where persons outside government seek to repose confidences in a government agency, but did not explore the issue further because it did not arise on the facts of the particular case before him. McHugh JA said (at pp.190-191): ... when ... a question arises as to whether a government or one of its departments or agencies owes an obligation of confidentiality to a citizen or employee, the equitable rules worked out in cases concerned with private relationships must be used with caution. ... ... governments act, or at all events are constitutionally required to act, in the public interest. Information is held, received and imparted by governments, their departments and agencies to further the public interest.51. The recent decision of the High Court of Australia in Esso Australia Resources Ltd & Ors v Plowman (Minister for Energy and Minerals) & Ors (1995) 69 ALJR 404, 128 ALR 391 marks a significant development in this aspect of the law of breach of confidence. It has been well understood since the decision of Mason J of the High Court of Australia in Commonwealth of Australia v John Fairfax & Sons Ltd & Ors [1980] HCA 44; (1980) 147 CLR 39 that, where a government is the plaintiff in an equitable action for breach of confidence seeking to protect government information, it must establish that disclosure of the allegedly confidential information would be detrimental to the public interest. (In an equitable action for breach of confidence by a non-government plaintiff, detriment to the plaintiff, rather than to the public interest, is generally accepted as an element to be established: see Re "B" at pp.325-327; paragraphs 107-112.) The Esso case establishes that public interest considerations may affect the question of whether enforceable obligations of confidence should be imposed on government agencies, in respect of information relevant to the performance of their functions, at the suit of parties outside government who have purported to disclose the information to government agencies in confidence.52. The Esso case related to an arbitration between the appellants and two Victorian statutory authorities (the Gas and Fuel Corporation of Victoria and the State Electricity Commission of Victoria) over the pricing of gas supplied to them by the appellants. The issue was whether a term was to be implied in the contractual agreements between the parties to the effect that documents disclosed by the appellants for the purpose of the arbitration were to be treated in confidence as between the parties to the arbitration. Mason CJ referred to evidence given on behalf of the appellants as to the kind of information they were concerned to protect from disclosure (at 69 ALJR p.408): [Mr Bloking, on behalf of the appellants] says, without being exact, the following categories of information are likely to be revealed: "Cost information relating to the production of all petroleum products. Price, volume and revenue information relating to the sale of all petroleum products. Accounting and financial information relating to [Esso/BHP's] accounts of the Bass Strait operations. Technical operating information relating to [Esso/BHP's] gas producing operations. Reserves information relating to gas supplies in Bass Strait hydrocarbon reservoirs. Marketing information relating to contract negotiations and settlements concerning [Esso/BHP] and their customers." Mr Bloking also claims that each of these categories contains numerous sub-categories, many of which contain information of a private, confidential or commercially sensitive nature. Other categories, he says, include proprietary technical information relating to operations of the Bass Strait Project. Further, it is claimed that the compilation of this information in meaningful form, at the cost of time, money and employment of expertise, has provided the producers with "a significant competitive advantage" which would be lost if it were disclosed publicly because comparable information on competitors would not be available to the producers.53. There were differences in the approaches taken by Mason CJ (with whom Dawson J and McHugh J agreed), Brennan J and Toohey J to the question of whether an obligation of confidence with respect to documents disclosed for the purpose of the arbitration was to be implied in the contractual agreements between the parties. Mason CJ found (at p.412) that the appellants' case for an implied term must be rejected because there was no basis for the implication of such a term as a matter of necessity. His Honour did accept (at pp.413-414) that documents disclosed by a party for the purpose of an arbitration were subject to implied undertakings as to confidentiality of a like kind to those which apply in respect of documents disclosed following discovery between parties in litigation before the courts. However, Mason CJ stipulated (at p.414) that "the obligation is necessarily subject to the public's legitimate interest in obtaining information about the affairs of public authorities".54. Mason CJ had earlier explained his views in this regard (at p.413): The courts have consistently viewed governmental secrets differently from personal and commercial secrets. As I stated in The Commonwealth v John Fairfax & Sons Ltd, the judiciary must view the disclosure of governmental information "through different spectacles". This involves a reversal of the onus of proof: the government must prove that the public interest demands non-disclosure. This approach was not adopted by the majority of the House of Lords in British Steel Corporation v Granada Television Ltd, where the confidential documents in question revealed the internal mismanagement of a statutory authority. In passing, the majority attributed to the public interest exception a very narrow scope, stating that, although disclosure was of public interest, it was not in the public interest. I would not accept this view. The approach outlined in John Fairfax should be adopted when the information relates to statutory authorities or public utilities because, as Professor Finn notes, in the public sector "[t]he need is for compelled openness, not for burgeoning secrecy". The present case is a striking illustration of this principle. Why should the consumers and the public of Victoria be denied knowledge of what happens in these arbitrations, the outcome of which will affect, in all probability, the prices chargeable to consumers by the public utilities? [In a footnote to his reference to the British Steel Corporation case, Mason CJ referred to Lord Salmon's dissent with implicit approval: Lord Salmon, in a strong dissent, highlighted the sharp distinction between a statutory authority and a private company: "there are no shareholders, and [the authority's] losses are borne by the public which does not have anything like the same safeguards as shareholders" (at 1185). His Lordship concluded that the public was "morally entitled" to know why the statutory authority was in such a parlous condition.] 55. Brennan J's approach was to imply an obligation of qualified confidentiality in the agreements between the parties, which "substantially equates the contractual obligation of a party under an arbitration agreement with the obligation of a party who impliedly gives an undertaking of confidentiality to the court when obtaining an order for discovery in an action". Of importance for present purposes is one of the qualifications to the implied obligation of confidence that was stipulated by Brennan J. At p.415, His Honour said: "Nor could a party be taken to have intended that it would keep confidential documents or information when the party has an obligation, albeit not a legal obligation, to satisfy a public interest - more than mere curiosity - in knowing what is contained in the documents or information." Brennan J expanded on these comments at pp.416-417: Further, the Gas and Fuel Corporation of Victoria (GFC) and [the State Electricity Commission of Victoria] SECV are public authorities. They are engaged in the supply of energy in the State of Victoria. The award to be made in the respective arbitrations will affect the price of the energy supplied by the appellants to GFC and SECV and by them to the public. The public generally has a real interest in the outcome, and perhaps in the progress, of each arbitration which the relevant public authority has a duty to satisfy. GFC and SECV have a duty - possibly a legal duty in the case of SECV but at least a moral duty in the case of both public authorities - to account to the public for the manner in which they perform their functions. Public authorities are not to be taken, prima facie, to have bound themselves to refrain from giving an account of their functions in an appropriate way: sometimes by giving information to the public directly, sometimes by giving information to a Minister, to a government department or to some other public authority. The duty to convey information to the public may not operate uniformly upon each document or piece of information which is given to GFC or SECV for the purpose of the particular arbitration. Performance of the duty to the public is unlikely to require the revelation of every document or piece of information. It may be possible to respect the commercial sensitivity of information contained in particular documents while discharging the duty to the public and, where that is possible, the general obligation of confidentiality must be respected.56. Toohey J held (at p.422) that: "There must be an underlying principle ... that a party to an arbitration is under a duty not to disclose to a third party documents and information obtained by reason of the arbitration". However, Toohey J stated briefly, at p.422, that he agreed with Mason CJ that there is a "public interest" exception to the principle. 57. Thus, Dawson J and McHugh J have endorsed Mason CJ's view that the approach outlined in Commonwealth of Australia v John Fairfax should be applied when persons outside government bring an action to enforce obligations of confidence in respect of information which relates to statutory authorities or public utilities, and presumably, by logical extension, to any public sector agency or official performing functions which affect a significant segment of the public or affect the wider public interest. The quoted passages from Brennan J's judgment substantially accord with Mason CJ's approach, and Toohey J accepted in principle the existence of a "public interest exception". 58. The approach outlined by Mason J in John Fairfax (when considering an equitable action for breach of confidence by a government as plaintiff) was this (at CLR pp.51-52): The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles. ... It is unacceptable, in our democratic society, that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action. ... The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public's interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality.59. Unfortunately (for the interests of conceptual clarity), Mason CJ did not explain in the Esso case precisely where the so-called public interest exception fits among the elements of an action for breach of confidence. Is it a defence to an action for breach of confidence, or an exception that forestalls recognition by the courts of an enforceable obligation of confidence? The possibilities seem to me to be as follows:(a) public interest considerations relating to public scrutiny and accountability of government are to be taken into account in considering a public interest defence to an action (whether in equity or contract) for breach of confidence. (Mason CJ's reference to the English case of British Steel Corporation v Granada Television Ltd [1981] AC 1096 suggests a possible acceptance in Australia of the principle accepted in English law that there is a defence to an action for breach of confidence of "just cause or excuse" for using or disclosing confidential information, where it is in the public interest to use or disclose the information in that way: see Lion Laboratories v Evans [1985] QB 526; and Re "B" at pp.331-332; paragraphs 123-125. It would be unwise to presume this, however, as no clear indication has been given. I also note that this English line of authority has been criticised by Gummow J: see Re "B" at pp.330-331; paragraphs 120-121.)(b) a non-government plaintiff, in an action in equity to restrain disclosure of information relating to the performance by a public sector agency of its functions, also now has to establish that disclosure of the allegedly confidential information would be detrimental to the public interest; or(c) public interest considerations relating to public scrutiny and accountability of government affect the court's assessment of - (i) whether an obligation of confidence should be implied in an existing contractual relationship, and if so, the nature of any qualifications to the obligation (cf. Brennan J's approach in the Esso case); or (ii) (in an equitable action for breach of confidence) what conscionable behaviour demands of government agencies or officials, as defendants, in the use they may make of allegedly confidential information.60. Clarification may come through further judicial decisions. In the case under consideration, I do not think that the application of any of the possibilities canvassed above would make any difference to the outcome. The public interest considerations discussed at paragraphs 24-31 above are also relevant in this context. The agencies which have regulatory functions to perform in respect of the applicants' development project at Oyster Point (and the Office of the Co-ordinator General whose function it is to guide and co-ordinate major economic development projects in terms of necessary government inputs and approvals) have a duty to perform their functions in a manner which serves the public interest, and a duty to account to the public for the manner in which they have performed their functions. This duty can be reconciled with the protection of commercially sensitive information supplied by the applicants, but as I have stated above, I do not consider that the information remaining in issue has any continuing commercial sensitivity. Certainly, there is nothing of comparable sensitivity to the kinds of confidential information in issue in the Esso case, described at paragraph 52 above, which the High Court contemplated that the public may have a legitimate interest in knowing.61. In all the circumstances, I consider that equity would not regard disclosure by the respondent of the matter in issue as an unconscionable use of the information, and hence disclosure would not found an action in equity for breach of confidence.62. I find that the matter in issue is not exempt matter under s.46(1)(a) of the FOI Act.Section 46(1)(b)63. At paragraph 146 of my decision in Re "B", I indicated that, in order to establish the prima facie ground of exemption under s.46(1)(b) of the FOI Act, three cumulative requirements must be satisfied: (a) the matter in issue must consist of information of a confidential nature; (b) that was communicated in confidence; (c) the disclosure of which could reasonably be expected to prejudice the future supply of such information.If the prima facie ground of exemption is established, it must then be determined whether the prima facie ground is displaced by the weight of identifiable public interest considerations which favour the disclosure of the particular information in issue.64. After referring in her internal review decision to the three requirements set out above, Ms Harris stated: The first requirement calls for consideration of the same matters as required in equity, that is whether the documents in issue have the requisite degree of relative secrecy or inaccessibility. Consistent with my reasoning in respect of s.46(1)(a) and s.45(1)(c) above, I do not consider that the documents in issue are invested with the necessary quality of confidence nor do I accept that disclosure of the documents could reasonably be expected to prejudice the future supply of such information. Further, the Information Commissioner suggested [in Re "B"] in respect of the second requirement that consideration of whether the information was communicated in confidence may involve an assessment as to whether the information would have been disclosed but for the existence of a confidential relationship. Finally, even assuming prima facie exemption under s.46(1)(b) of the Act, I refer to my analysis of public interest considerations as stated under s.45(1)(c) above and conclude, on balance, that disclosure of the documents in issue would be in the public interest.65. I can see no error in the manner in which Ms Harris has applied s.46(1)(b) of the FOI Act to the matter in issue. For the same reasons given in paragraphs 22-23 above, I am satisfied that disclosure of the information in issue could not reasonably be expected to prejudice the future supply of such information. This is sufficient in itself to negative the application of s.46(1)(b). Furthermore, for the reasons outlined in paragraphs 24-31 above, the same public interest considerations discussed in relation to s.45(1)(c) satisfy me that disclosure of the information in issue would, on balance, be in the public interest.66. I therefore find that the matter in issue is not exempt matter under s.46(1)(b) of the FOI Act.Conclusion67. For the foregoing reasons, I affirm the decision under review.F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Castley-Wright and Mareeba Shire Council [2018] QICmr 25 (22 May 2018)

Castley-Wright and Mareeba Shire Council [2018] QICmr 25 (22 May 2018) Last Updated: 12 June 2018 Decision and Reasons for Decision Citation: Castley-Wright and Mareeba Shire Council [2018] QICmr 25 (22 May 2018) Application Number: 313442 Applicant: Castley-Wright Respondent: Mareeba Shire Council Decision Date: 22 May 2018 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST - records relating to a complaint process initiated by the applicant - accountability and transparency of a local council - administration of justice - assist inquiry into possible deficiencies in conduct and administration - right to privacy of other individuals - personal information of other individuals - whether disclosure of information 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 to Mareeba Shire Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to information broadly relating to flying fox management and dispersal, Council’s communications with an animal expert,[1] and any emails containing the applicant’s name.[2] Council located 40 pages in response to the application, granted full access to four pages and decided to refuse access to parts of 36 pages on the basis that disclosure of information would, on balance, be contrary to the public interest.[3] The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s refusal of access decision and also submitted that Council had not located all relevant documents. During the external review, Council conducted further searches which resulted in more information being released to the applicant.[4] In addition, following negotiations with OIC, Council and the animal expert agreed to release certain information to the applicant, to which access had originally been refused.[5] However, the applicant elected not to accept this information in resolution of the issue in this review. For the reasons set out below, I affirm Council’s decision to refuse access to the information remaining 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. On 16 February 2017, the applicant was present at a scheduled attempt to disperse flying foxes, coordinated by Council. The applicant alleged that while he was attempting to take video footage of conversations between Council staff and the animal expert, he was assaulted by a Councillor (Incident). The applicant subsequently made a complaint to Council against the Councillor about the Incident, which was found to be lacking substance. Reviewable decision The decision under review is Council’s decision dated 16 June 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 information that remains in issue in this review[7] is limited to the following: Description Appears on pages References to the subject of the applicant’s complaint and information provided by that individual to Council in response to the allegations 6,8,10,11,13,14,16,18,20,21 Names and contact details of Council officers who provided statements in relation to the Incident, and personal information appearing in their statements 8,9,10,11,12,13,14,15,16 Mobile telephone numbers of Council officers and Council Chief Executive Officer (CEO) 4,6,9,11,15,18,20,24 Names and contact details of other individuals (external to Council) incidentally referred to in correspondence 5,17,22,24,27,29,30,32,33,34, 37,38,40 In these reasons, I have collectively referred to the above information as Third Party Personal Information. Issue for determination The only issue for determination is whether access to the Third Party Personal 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.[8] Relevant law The RTI Act provides a right of access to information in the possession or under the control of a Queensland government agency, including local councils.[9] The RTI Act operates with a ‘pro-disclosure bias’[10] meaning that it is Parliament’s intention for an agency to give access to information, unless the public interest favours nondisclosure.[11] Various factors may be relevant to deciding where the balance of the public interest lies[12] and a decision-maker is required to take specific steps in reaching a decision.[13] Findings No irrelevant factors arise in the circumstances of this case and I have not taken any into account in making my decision.Factors favouring disclosure The public interest will favour disclosure of information held by Government about an individual.[14] Council has however, already disclosed the applicant’s personal information[15] which appears throughout the located documents, to him. In my view, Council adopted a pro-disclosure approach in redacting as minimal information as possible to ensure the applicant could have access to documents containing his personal information. Therefore, the public interest factor which would generally apply to favour disclosure of an applicant’s personal information does not apply given the nature of the Third Party Personal Information. I am satisfied that disclosure of the Third Party Personal Information would provide the applicant with a more comprehensive (to the extent that it would be unredacted) record of Council’s communications following the Incident, and would disclose some further background and contextual information that informed Council’s decision on the applicant’s complaint.[17] In determining the weight to be afforded to these factors, it is relevant that Council has provided the applicant with an outcome letter in relation to his complaint, advising that it was found to lack substance, and that the remaining pages in issue have all been partially released to the applicant, subject only to redaction of the Third Party Personal Information. I have also taken in to account that the Third Party Personal Information is limited to the names and personal information of Council officers and other external individuals and does not reveal any deliberations or discussions which preceded Council’s decision. For these reasons, I afford these factors low weight in favour of disclosure. The applicant has submitted that he reserves his ‘right to civil action’[18] and has ‘the right to challenge any perjury and have it removed or corrected’.[19] In view of these submissions, I have considered whether disclosing the Third Party Personal Information could reasonably be expected to contribute to the administration of justice, generally, or for a person, including procedural fairness.[20] In Willsford and Brisbane City Council[21] the Information Commissioner found that the administration of justice factor will arise if an applicant can demonstrate that: they have suffered loss or damage of 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.[22] The applicant has referred to having ‘proof of defamation’ and appears to be generally concerned about information about him being incorrectly recorded.[23] Again, I observe that the substance of the documents, particularly the written statements given by Council officers who witnessed the Incident, has already been released to the applicant. The only information that remains redacted comprises the names and contact details of the officers, personal pronouns, descriptions of their emotions and opinions with respect to the Incident and extraneous actions of the Council officers. In the circumstances, I am not satisfied that the personal information of those officers would assist the applicant to pursue a remedy, or to evaluate whether a remedy is available or worth pursuing. Accordingly, I find that the public interest factors referred to in paragraph 16 do not apply to the Third Party Personal Information. The applicant further submitted that full disclosure of the Third Party Personal Information would demonstrate Council officers ‘have lied’ in their statements regarding the Incident as their accounts are not consistent with the video and audio evidence which the applicant obtained.[24] The applicant argued that ‘this is a serious misconduct, which requires dismissal and the obstruction of justice is not in the public interest’.[25] In view of these submissions, I have considered whether disclosing the Third Party Personal Information could reasonably be expected to: allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official;[26] or reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.[27] The Third Party Personal Information which has been redacted from the officers’ statements is minimal, comprising their names and contact details, references to other involved persons, personal pronouns and descriptions of the officers’ feelings about the Incident. The Third Party Personal Information does not record anything about Council’s actions or processes in dealing with the complaint. In my view, Council’s actions and processes have already been made apparent to the applicant by virtue of the significant volume of information that has been disclosed to him. As noted above, all documents located by Council have been at least partially disclosed to the applicant, subject only to minimal redaction. For these reasons, I am unable to see how disclosure of the Third Party Personal Information could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of Council and 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 18 do not apply in favour of disclosure.[28] Factors favouring nondisclosure Protection of the right to privacy The RTI Act recognises that where disclosure of information could reasonably be expected to prejudice the protection of an individual’s right to privacy, the public interest will favour nondisclosure.[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] The applicant submits that given the subject of his complaint, and witnesses to the Incident are public servants, they therefore do not have the same rights to privacy as a private individual. The applicant also considers there is reduced privacy in their statements as they were provided by way of a work email address. He contends: [31] the statements made are not as private persons disclosing accounts of what they witnessed and are material generated under routine work. It is a formal response to an enquiry of an alleged misconduct and assault ... presenting himself as a representative of the government performing his public duty and not as an individual. I acknowledge the statements were given by the Councillor and officers in an employment context. However, I do not consider it comprises their routine work information.[32] The information forms part of personal accounts of an incident involving serious allegations against a Councillor, made by a member of the public. I also observe that this case involves a rather unique set of circumstances which cannot be described as part of the routine day-to-day activities of a public servant. In my view, the context in which the information appears attracts a level of sensitivity which takes it beyond a routine day-to-day category.[33] I acknowledge the applicant’s submission that he is aware of the individuals’ identities given his involvement in the Incident, however, I consider this serves only to slightly reduce the weight of the privacy nondisclosure factor. I am satisfied that the witnesses and subject of the complaint are entitled to some protection of their right to privacy in terms of their connection with the Incident, their personally held views, and the aspects of their statements that remain redacted. Accordingly, I afford the privacy factor moderate weight in favour of nondisclosure of this information. The CEO and certain Council officers are provided with mobile telephones to perform work associated with their employment. I consider that a mobile telephone number which allows an individual to be contacted directly or potentially outside of working hours, also falls outside the realm of routine work information and attracts a level of privacy.[34] Similarly, I consider disclosing the names of other individuals, external to Council, who are incidentally referred to in the information (and may not even be aware of such references) could reasonably be expected to prejudice the protection of those individuals’ right to privacy. I afford the privacy factor moderate weight in favour of nondisclosure of those categories of information. Disclosure of personal information The RTI Act also recognises that disclosure of another individual’s ‘personal information’ is a factor favouring nondisclosure which could reasonably be expected to lead to a public interest harm (Harm Factor).[35] The concept of ‘disclosure’ as used in the Harm Factor apprehends the giving of information to a person or entity not otherwise possessed of knowledge of that information.[36] Where releasing personal information would involve conveying to any person or entity information that they already know, it cannot be said such release would ‘disclose’ personal information within the meaning of the Harm Factor, and therefore, the factor will not apply In this case, as the applicant was present at the flying fox dispersal attempt, I accept that certain aspects of the Third Party Personal Information will already be known him, for example, the names of other individuals involved. Therefore, the Harm Factor will not apply to such information. However, I am satisfied that the redacted contents of the statements given by other individuals about the Incident, and the exact words they used in describing their personal feelings and opinions are not already known to the applicant and therefore, the Harm Factor applies to such information. I find that the extent of harm that could flow from disclosure is moderate as it would reveal the personal feelings of individuals involved in a sensitive matter involving serious allegations. This, in turn, could prejudice the ability of Council to obtain fulsome statements from its officers in any future complaint processes. Balancing the public interest In addition to the pro-disclosure bias, there is low weight to be afforded to enhancing Council’s accountability, and revealing contextual and background information that was before Council in making a decision on the applicant’s complaint. Balanced against this is the moderate weight I have afforded to protecting the right to privacy of other individuals, including the subject Councillor, and Council officers who provided statements about the Incident. The Harm Factor also carries moderate weight in terms of safeguarding the personal information of those individuals. I am satisfied that the weight of the nondisclosure factors that apply in this case is determinative. I find that disclosure of the Third Party Personal Information would, on balance, be contrary to the public interest and that therefore, access to it may be refused under section 47(3)(b) of the RTI Act. DECISION I affirm Council’s decision to refuse access to the Third Party Personal 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: 22 May 2018 APPENDIX Significant procedural steps Date Event 7 August 2017 OIC received the external review application. 8 August 2017 OIC spoke to Council about third parties who were consulted when considering the access application. 9 August 2017 OIC asked Council to provide relevant procedural documents and received the requested procedural documents from Council. 25 August 2017 OIC notified Council and the applicant that the external review application had been accepted and asked Council to provide the documents located in response to the access application and a copy of any records of the searches conducted by Council. 5 September 2017 OIC received a copy of the located documents and search records from Council. 18 September 2017 OIC provided the applicant with an update on the status of the external review and the applicant provided oral submissions in support of his application. 16 February 2018 OIC conveyed a written preliminary view to Council that some further information could be released to the applicant on the basis its disclosure would not, on balance, be contrary to the public interest. OIC also asked Council to undertake further third party consultation and conduct additional searches for emails identified the applicant as missing. 20 February 2018 Council sought clarification from OIC about the request to conduct further searches. 21 February 2018 OIC received a copy of search records from Council and additional located documents. Council also confirmed that the consulted third party (animal expert) had raised no objection to disclosure of their correspondence with Council. 13 March 2018 OIC wrote to the applicant advising Council had agreed to release some further information to him, including the newly located documents. OIC also conveyed a written preliminary view that access to the remaining information in issue may be refused as its disclosure would, on balance, be contrary to the public interest. OIC also conveyed a view that Council had taken all reasonable steps to locate information in response to the application. OIC asked Council to send the applicant the further information it had agreed to release, including the documents which were subject to third party consultation. 14 March 2018 Council notified OIC that the additional documents had been sent to the applicant. The applicant advised OIC that he did not accept OIC’s preliminary view and provided submissions to OIC in support of his right of access. 6 April 2018 OIC provided the applicant and Council with an update on the status of the external review. [1] An individual contracted by Council to provide expert advice in relation to flying fox management and dispersal. [2] Access application dated 2 May 2017.[3] Under section 47(3)(b) of the Right to Information Act 2009 (Qld) (RTI Act). Decision dated 16 June 2017. [4] Emails between the applicant and Council (Further Emails). [5] On 23 pages. [6] Under sections 47(3)(b) and 49 of the RTI Act. [7] The Further Emails and information which was released to the applicant during the course of the review are not in issue and therefore will not be considered in these reasons. [8] The issue of sufficiency of search was resolved during the review by virtue of Council locating the Further Emails. As the applicant did not raise any further concerns about missing documents, OIC proceeded on the basis that his sufficiency of search concerns had been addressed. [9] Section 3 of the RTI Act. [10] Section 44 of the RTI Act. [11] 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. [12] 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. [13] 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. [14] Schedule 4, part 2, item 7 of the RTI Act. [15] Schedule 5 of the RTI Act adopts section 12 of the IP Act which 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 material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.16[17] Schedule 4, part 2, items 1 and 11 of the RTI Act. [18] External review application dated 7 August 2017. [19] Written submissions dated 14 March 2018. [20] Schedule 4, part 2, items 16 and 17 of the RTI Act. [21] [1996] QICmr 17; (1996) 3 QAR 368 (Willsford). [22] Willsford at [17]. This approach was affirmed by the Information Commissioner in 10S3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011). [23] Submissions supporting external review application dated 7 August 2017. [24] Written submissions dated 14 March 2018.[25] Ibid.[26] Schedule 4, part 2, item 5 of the RTI Act. [27] Schedule 4, part 2, item 6 of the RTI Act. [28] I have had regard to all of the factors listed in schedule 4, part 2 of the RTI Act, and in the circumstances of this review, I find that no other public interest factors apply to favour disclosure of the Third Party Personal Information. [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] Written submissions dated 14 March 2018. [32] Generally, information relating to the day-to-day work duties of a public servant 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: see Gapsa and Department of Transport and Main Roads (Unreported, Queensland Information Commissioner, 12 April 2013) at [71]. [33] Foot and Valuers Registration Board of Queensland [2017] QICmr 59 (19 December 2017) at [33].[34] See Kiepe and the University of Queensland (Unreported, Queensland Information Commissioner, 1 August 2012 at [20]. [35] Schedule 4, part 4, section 6 of the RTI Act. [36] While ‘disclose’ as used in the Harm Factor is not defined in the RTI Act, the word is defined in section 23 of the IP Act as it relates to the application of the Information Privacy Principles – to ‘disclose personal information’ relevantly means to give that information to an entity who does not otherwise know the information and is not in a position to find it out. This accords with the ordinary dictionary definition of ‘disclose’: relevantly, to ‘make known; reveal’: Macquarie Dictionary Online: www.macquariedictionary.com.au/ (accessed 11 May 2018).

queensland

court_judgement

Queensland Information Commissioner 1993-

F14 and Queensland Corrective Services [2023] QICmr 1 (17 January 2023)

F14 and Queensland Corrective Services [2023] QICmr 1 (17 January 2023) Last Updated: 19 September 2023 Decision and Reasons for Decision Citation: F14 and Queensland Corrective Services [2023] QICmr 1 (17 January 2023) Application Number: 316625 Applicant: F14 Respondent: Queensland Corrective Services Decision Date: 17 January 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST INFORMATION - personal information of other individuals - personal information and privacy - whether disclosure of information would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to Queensland Corrective Services (QCS) under the Right to Information Act 2009 (Qld) (RTI Act) for access to the following information:[2] Minutes from Prisoner Advisory Committee (PAC) at Borallon Training and Correctional Centre (BTCC) from 13 September 2018 to 6 December 2021 for what was recorded from the PAC at all meeting with management at BTCC; and What units did these prisoners from PAC that attended these meetings were accommodated. [sic] QCS located 351 responsive pages and gave the applicant partial access.[3] It refused access to some personal information of QCS officers and prisoners. It also refused access to the information requested in item 2 of the access application, that is, accommodation information for those prisoners who attended PAC meetings with management (as recorded in PAC meeting minutes). By application dated 20 March 2022, the applicant applied to the Office of the Information Commissioner (OIC) for review of QCS’s decision insofar as it refused access to prisoner accommodation information.[4] During the course of the review, QCS agreed to give the applicant access to accommodation block letters, but continued to object to disclosure of accommodation unit numbers.[5] For the reasons explained below, I find that the disclosure of the accommodation unit numbers remaining in issue would, on balance, be contrary to the public interest and that access to that information may therefore be refused under the RTI Act. Reviewable decision The decision under review is QCS’s decision dated 14 March 2022. Evidence considered Significant procedural steps relating to the external review are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). I have taken account of the applicant’s submissions to the extent that they are relevant to the issues for determination in this review. 9. I have also 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 RTI Act and the Information Privacy Act 2009 (Qld).[7] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[8] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[9] Information in issue The information in issue comprises references in PAC meeting minutes to the accommodation unit number in which the prisoners who attended the relevant PAC meetings were housed (Information in Issue).[10] Issue for determination The issue for determination is whether access to the Information in Issue may be refused because disclosure would, on balance, be contrary to the public interest. Relevant law The RTI Act’s primary object is to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give access.[11] The Act must be applied and interpreted to further this primary object,[12] and is to be administered with a pro-disclosure bias.[13] 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,[14] including grounds on which access may be refused.[15] One of these grounds (which are to be interpreted narrowly)[16] 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.[17] The steps to be followed in determining whether disclosure of information would, on balance, be contrary to the public interest,[18] are prescribed in section 49 of the RTI Act. In summary, a decision-maker must: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. Schedule 4 of the RTI Act contains non-exhaustive lists of factors that may be relevant in determining where the balance of the public interest lies in a particular case. I have had regard to these factors,[19] and the applicant’s submissions,[20] in reaching my decision. Submissions of the parties In its submission of 15 September 2022, QCS argued as follows: QCS maintains that the block information of prisoners who attended the PAC meetings is considered to be their personal information for the following reasons: where a prisoner is accommodated whilst incarcerated is personal to that individual. Prisoners are assessed and allocated to accommodation compatible with their assessed risks and needs to ensure their safety and security and good order of the facility. Specific units (block information) identify prisoners who have been assessed as vulnerable such as: prisoners with mental health issues, transgender, protection, sex offenders. Therefore, the release of the block accommodation would identify these prisoners as being accommodated from a particular unit. QCS considers the accommodation of a prisoner whilst in custody to be unique to a particular individual and therefore may establish a link to a particular person, therefore, they could be identified from this information. Further, QCS considers that as the applicant was incarcerated during the time period relating to his application, he would have knowledge of other prisoners who were incarcerated at the same time, and potentially the prisoners who attended these meetings, thereby being able to identify the individual prisoners who attended the PAC meetings. You will also note that on many occasions the same prisoners attended multiple PAC meetings. Notwithstanding the above, it is QCS’s view that as the applicant has been released from prison, his reasoning for wanting access to this information is more for his own personal interests rather than the broader public interest. I refer to: the comment in Re in Re Eccleston that “... a matter which is of interest to the public does not necessarily equate to a matter of public interest”. ... the comment made regarding public interest in the OIC decision 310227 – Seven Network & Redland City Council – 30 June 2011 .... “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”. It is an accepted fact that matter relating to personal information has a very strong public interest bias in favour of maintaining the privacy of individuals and this was the decision taken and still held by QCS. In this review, the onus is on the applicant to establish why it is in the public interest for private information about other persons to be disclosed to him. QCS, however, has not been provided with any reasons why the release of this information is in the public interest. In his email of 28 June 2022, the applicant had submitted: ... I originally requested if these prisoners from PAC where accommodated in high or low B block units and residental [sic] meaning units from 10 to 14 are high B block units and units below unit 10 are low B block units so therefore by providing me the information I've requested if these PAC prisoners were from low or high B block units does not disclose their personal information of which unit they were accommodated at and does not prejudice their right to it to privacy The terms of the access application are set out in paragraph 1 above. They indicate that the applicant requested access to accommodation information for prisoners attending PAC meetings with management. As noted, each prisoner who attended the PAC meeting is identified in the meeting minutes by their accommodation block letter and individual unit number, and not simply by whether the unit number is high or low. Information in that latter format does not exist in QCS’s records. Furthermore, an agency is not required to create a document under the RTI Act in order to respond to an access application, and nor is it required to answer questions asked by an applicant. The purpose of the RTI Act is to give a right of access to documents that exist in the agency’s possession or under its control at the time the application is made.[21] Accordingly, while the applicant indicates that he would be satisfied with knowing simply whether each prisoner was accommodated in a high (10 or above) or low (below 10) unit number, that information does not exist in that format in the responsive documents. Subsequent to these submissions, OIC requested that QCS consider the disclosure of the accommodation block letter for each prisoner on the grounds that disclosure of that information alone could not reasonably be expected to identify an individual prisoner. QCS agreed, and this information was released to the applicant. However, QCS maintained that disclosing the accommodation unit number (in conjunction with the block number and other contextual information available to the applicant) could reasonably be expected to identify an individual prisoner. The applicant continued to pursue access to this information, submitting as follows:[22] ...I am providing further submissions to be provided the original information I requested dated the 28th of June 2022 stating I originally requested in my rights [sic] to information application of these prisoners from PAC, where [sic] accommodated in high or low B block units and residential meaning units from 10 to 14 are high B block units below unit 10 are low B block units so therefore Queensland corrective services rights to information legal and privacy have not provided the information oh [sic] I have originally requested that would not breach the privacy of the prisoners in PAC if they were from High or low units from b block I also originally requested a list of what units did the prisoners from PAC attend the preliminary PAC meetings at C block to discuss the issues of concerns [sic] before the mane [sic] PAC meetings with management, so therefore if these prisoners came from high or low B block or from C block that attended these preliminary meetings at C block before the mane [sic] PAC meetings with management So therefore I have not received this information I originally requested ... so therefore I’m entitled to receive this information that would not breache [sic] the privacy of the prisoners under the I P act 2009 section 24 I paid for [sic] Once again, I note the terms of the access application set out at paragraph 1 above, and my comments at paragraph 18 above. The PAC meeting minutes do not record whether prisoners attending the meeting were accommodated in high or low unit numbers - they record the unit number itself. In addition, I do not accept that the applicant requested access to accommodation unit information for those prisoners who attended preliminary ‘prisoner only’ PAC meetings that were ordinarily held a few days before the formal PAC meeting with prison management representatives. His request was for access to minutes for PAC meetings with prison management, and the accommodation information for the prisoners who attended those meetings. Analysis of public interest factors I am unable to identify any public interest factors favouring disclosure of the Information in Issue beyond the general public interest in accessing government-held information, and nor has the applicant identified any such factors in his submissions. I am not satisfied that disclosure could reasonably be expected to enhance the accountability or transparency of QCS in any meaningful way or, for example, contribute to a better understanding of the role or purpose of the PAC or the manner in which it functions. I have considered whether disclosure could provide some insight into prisoner representation at PAC meetings, however, given that accommodation block letters have been released, any insight, if it existed, would be minimal. The applicant simply contends that disclosure of the Information in Issue would not breach the privacy of the relevant prisoners. I do not agree. I am satisfied that the identity of prisoners could reasonably be ascertained through disclosure of the Information in Issue when considered in conjunction with other contextual information available to the applicant, including information already released in this review. Disclosure may reveal the specific accommodation details of identifiable individuals and, therefore, their attendance at PAC meetings. This is the personal information[23] of such persons and a public interest harm in disclosure therefore automatically arises.[24] I am satisfied that disclosure could reasonably be expected to prejudice the protection of the relevant individuals’ right to privacy.[25] I acknowledge that the Information in Issue may be dated, but there is nothing before me to establish that it is no longer relevant. In those circumstances, I consider that these nondisclosure factors remain deserving of moderate weight when balancing the public interest. Finding For the reasons discussed, I afford moderate weight to the personal information/privacy nondisclosure factors. I am unable to identify any public interest factors favouring disclosure that would be of sufficient weight to outweigh the moderate weight of the public interest factors favouring nondisclosure. Accordingly, I find that disclosure of the Information in Issue would, on balance, be contrary to the public interest and access may be refused on that basis. DECISION I affirm the refusal of access decision under review by finding that disclosure of the Information in Issue 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.S Martin Assistant Information Commissioner Date: 17 January 2023 APPENDIX Significant procedural steps Date Event 23 March 2022 OIC received the applicant’s application for external review OIC requested and received preliminary documents from QCS 19 April 2022 OIC advised the parties that the external review application had been accepted and requested further information from QCS regarding responsive documents 9 May 2022 OIC received further information from QCS 16 June 2022 OIC communicated a preliminary view to the applicant 28 June 2022 OIC received submissions from the applicant OIC requested further information from QCS 4 July 2022 QCS provided further information in support of its objection to disclosure 2 August 2022 OIC requested further information from QCS 15 September 2022 OIC received a further submission from QCS 30 September 2022 OIC communicated a preliminary view to QCS 17 October 2022 QCS advised OIC that it agreed to the release of further information 28 October 2022 OIC communicated a preliminary view to the applicant 15 November 2022 and 9 December 2022 The applicant requested extensions of time to provide a submission 21 December 2022 OIC received a submission from the applicant [1] Application dated 15 December 2022. [2] As summarised in QCS’s letter to the applicant dated 22 December 2021. [3] Decision dated 14 March 2022. [4] Confirmed in OIC’s letter to the applicant dated 19 April 2022. [5] Prisoners are identified in the meeting minutes by their name and their accommodation block and unit number. The relevant block is identified by a letter, and the unit within that block, by a number. [6] Section 21(2) 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] Contained on pages 6, 13, 20, 25, 30, 35, 40, 51, 58, 63, 69, 75, 103, 114, 121, 125, 133, 150, 156, 187, 200, 207, 213, 225, 241, 261, 290, 296, 313, 322, 335, 339 and 346. [11] Section 3(1) of the RTI Act.[12] Section 3(2) of the RTI Act.[13] Section 44 of the RTI Act.[14] Section 23(1) of the RTI Act.[15] Section 47 of the RTI Act.[16] Section 47(2)(a) of the RTI Act.[17] Sections 47(3)(b) and 49 of the RTI Act. [18] The ‘public interest’ ‘...is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interests of an individual or individuals’: Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The concept refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests, although there are some recognised public interest considerations that may apply for the benefit of an individual: Chris Wheeler, ‘The Public Interest: We Know It's Important, But Do We Know What It Means’ [2006] AIAdminLawF 2; (2006) 48 AIAL Forum 12, 14.[19] Taking care to disregard irrelevant factors.[20] Contained in his external review application and in correspondence of 28 June 2022 and 21 December 2022. [21] Sections 23, 24 and 27 of the RTI Act. [22] Submission received on 21 December 2022. [23] As defined by section 12 of the Information Privacy Act 2009 (Qld).[24] Schedule 4, part 4, section 6(1) of the RTI Act.[25] Schedule 4, part 3, item 3 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Z60 and Council of the City of Gold Coast [2020] QICmr 27 (3 June 2020)

Z60 and Council of the City of Gold Coast [2020] QICmr 27 (3 June 2020) Last Updated: 19 August 2020 Decision and Reasons for Decision Citation: Z60 and Council of the City of Gold Coast [2020] QICmr 27 (19 May 2020) Application Number: 314635 Applicant: Z60 Respondent: Council of the City of Gold Coast Decision Date: 19 May 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - DOCUMENT NONEXISTENT OR UNLOCATABLE - documents relating to the applicant’s interactions with the agency - applicant contends additional documents exist - whether agency has taken all reasonable steps to locate documents - whether additional documents are nonexistent or unlocatable - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - EXEMPT INFORMATION - LEGAL PROFESSIONAL PRIVILEGE - documents relating to the applicant’s interactions with the agency - whether documents subject to legal professional privilege - 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 - CONFIDENTIAL SOURCE - documents relating to complaints made to the agency about the applicant - whether disclosure would enable a confidential source of information to be ascertained - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48 and schedule 3 section 10(1)(b) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to Gold Coast City Council (Council) under the Information Privacy Act 2009 (Qld) (IP Act) for access to all documents (including emails and text messages) about her ‘matters’ for the period 1 January 2013 to the date of acceptance of the application. Additionally, she specifically sought access to emails and documents involving any police officer, court officer or medical officer, or emails that referred to her dog or the RSPCA. Council located 709 pages and decided[2] to refuse access to 181 pages and parts of 13 pages on the ground that the information comprised exempt information on the basis that it was either subject to legal professional privilege or its disclosure could reasonably be expected to enable the existence of a confidential source of information to be ascertained. The applicant applied[3] to the Office of the Information Commissioner (OIC) for external review of Council’s decision refusing access and raised concerns about the sufficiency of the searches conducted by Council for documents responsive to the scope of the access application. During the external review, Council located an additional 11 pages and released them to the applicant in full. For the reasons set out below, I vary Council’s decision and find that access may be refused to: further documents on the ground that they are nonexistent or unlocatable; and 181 pages and parts of 13 pages on the ground that they are exempt from disclosure on the basis that: the information is subject to legal professional privilege; or disclosure of the information could reasonably be expected to enable the existence of a confidential source of information to be ascertained. Background and evidence considered Significant procedural steps taken during the external review are set out in the Appendix to this decision. Evidence, submissions, 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 had regard to the Human Rights Act 2019 (Qld) (HR Act),[4] 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.[5] I further consider that, having done so when reaching my decision, I have acted compatibly with and given proper consideration to relevant human rights, as required under section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between the Victorian 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.’[6] The applicant provided extensive submissions during the review. I have considered all this material and specifically referred to those parts relevant to the issues to be determined in this external review. Preliminary Issue - Alleged bias The applicant has requested that I be removed from her matters[7] and alleged that I have an undisclosed bias against her.[8] I have issued a previous decision involving the same applicant in which she raised this issue. As I did on that occasion,[9] I have carefully considered these submissions, alongside the High Court’s test for assessing apprehended bias for a decision maker. The High Court’s test requires consideration of ‘if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide’.[10] 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’.[11] 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.[12] In order to ensure procedural fairness (as required by both the IP Act[13] 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[14] a preliminary view to the applicant that access to further documents can be refused on the basis they are nonexistent or unlocatable and access to information can be refused on the grounds that it comprises exempt information. My letter advised the applicant that the purpose of my view was to give her the opportunity to put forward her views, and if she provided additional information supporting her case, this would be considered and could alter the outcome.[15] For this decision, I am the delegate of the Information Commissioner.[16] 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 Council’s decision. I do not consider the fact that the applicant has asked for me to be removed from her matters has altered my conduct of the review or consideration of the issues before me in any way. In these circumstances, paraphrasing the High Court’s test, I am unable to identify any basis for finding that a fair-minded lay observer might reasonably apprehend that I[17] might not bring an impartial and unprejudiced mind to the resolution of this matter. Accordingly, I have proceeded to make this decision. Reviewable decision The decision under review is Council’s decision dated 29 May 2019. Information in issue The information in issue is contained within 181 pages and parts of 13 pages. Issues for determination The issues for determination are whether access can be refused[18] to: (Sufficiency of search) further documents on the basis that they are nonexistent or unlocatable.[19] (Refusal of access) the Information in Issue on the grounds that it is exempt from disclosure as: it is subject to legal professional privilege[20] (Category A Information);[21] or its disclosure could reasonably be expected to enable the existence of a confidential source of information to be ascertained[22] (Category B Information).[23] Sufficiency of search Relevant law Under the IP Act, an individual has the right to access documents of an agency to the extent they contain the individual’s personal information.[24] However this right is subject to certain limitations, including grounds for refusing access.[25] Access to a document may be refused if the document is nonexistent or unlocatable.[26] 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.[27] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[28] Where circumstances that account for nonexistent and unlocatable documents are adequately explained by an agency, it will not be necessary for the agency to conduct additional searches. On external review, if an applicant contends that all relevant documents have not been located, then the applicant must show there are reasonable grounds to believe that the agency or Minister has not searched properly to locate all documents. A mere assertion that more documents should have been created and/or located without any specific information which points to the likely existence of further documents is not sufficient to found a reasonable belief as to the existence of further relevant documents. Findings In Council’s decision, Council stated:[29] I note your advice in your email dated Friday 29 March 2019 that you require we process everything you have requested under IP and then "...pick and choose what [Council will] release and provide these reasons." and you will then seek a review with the Office of the Information Commissioner. However, as previously advised, matters that do not relate to you personally, for example, the investigation by Council of [Officer LS] as a result of your many complaints, will not be dealt with under your Information Privacy application. In seeking an external review, the applicant submitted:[30] I'm not sure why the dog reports and related [investigation] and the ranger responsible [Officer LS] complaints are not included. The applicant further submitted:[31] ...in the documents released I saw a lot of spreading around en masse that I am on a notifiable persons register. Could you see who put me on it and related reasons and incidents and anything showing what it means. I took [Officer LS] to get a DVO for breaking into my house, creeping up the stairs and complained that he was ... a foreigner, and his criminal record in NZ or previous country was unknown, yet he was breaking in to my house without a warrant. I'd like to see texts and emails, especially deleted ones between him, [Officer AC], [Officer JM]. I believe their IT or security guy also created some emails and claimed they were from me, while the large group organised to have my dog killed, all with false allegations - because I made a complaint about a huge islander, unannounced creeping up my stairs and breaking in. This was a ranger. The dog incident was an attack by three islanders. The police officer also was an islander who showed up to the incident. I believe the officer defamed me and got the rest involved to make false allegations. The video showed a brutal attack on me and the dog. They organised to conceal the video and pretend they didn't know it was a brutal attack on us so they could prosecute me and slaughter the innocent dog. The police officer was known as JT. ... The police officer came ready for corruption due to the QPS warnings about me prior to him meeting me. He wanted to arrest me regardless of whether I was victim or any other facts. To address the applicant’s concerns regarding documents about complaint’s made by her, OIC:[32] conveyed a preliminary view to Council that the applicant’s request for documents about complaints she made fell within the scope of her IP Act application, provided the documents contained her personal information; and if Council accepted OIC’s preliminary view, required Council to undertake searches for documents about complaints made by the applicant during the period 1 January 2013 to 2 April 2019. In response, Council stated ‘whilst Council does not agree with the view that the documents fall within the scope of an Information Privacy application, [Council] would accept [OIC’s] view and proceed as requested.’ [33] In relation to the additional searches conducted, Council submitted:[34] an additional 11 pages (Additional Pages) had been located which Council agreed to release in full to the applicant the searches exceeded 8 hours and encompassed both physical and electronic files; and in relation to the searches of the electronic files, search terms used included the applicant’s name, the names of relevant council officers and known matter numbers. Based on the information before OIC, a preliminary view was conveyed[35] to the applicant that all reasonable searches for documents about complaints made by her had been conducted, and that it was not necessary for any further searches to be conducted. In response, the applicant submitted:[36] I was persecuted relentlessly by GCCC starting when police office [sic] JT showed up to an incident a magistrate said I and my dog were assaulted and it was on CCTV. [The police officer] and [Officer LS] paired up as Samoans and began a persecution campaign including trying to criminalise me when I was the victim. Request the CCTV. REQUEST the emails and notes with their alleged VICTIM ... who [the] Magistrate ... asked police to charge with assault. They had [the complainant] pose photos with his foot in a cast. Emails asking him for a doctor report and him not providing one. Following release of the Additional Pages to the applicant by Council,[37] the applicant further submitted:[38] Where are the records of abusive conduct and incident reports, where are the records of alleged vexatious legal proceedings? Where are the complaints by [DM] and staff? Legal officer not wanting her name known indicates she has a file and long history of illegal conduct and her defamation and false allegations are a legal defence tactic against my complaints and anticipated or actual legal action. I applied for an apprehended violence order against [Officer LS]. He and [Officer AC] and police officer ... then sent multiple emails and texts to each other and [a complainant] trumping up false allegations against me and recording plans and acts of violence against me and corrupt use of government powers. Where are these records and [Officer JM] emails? Where are these allegations of my dog being a danger for having its head out the window of a parked car and of me parked at the library for days? Parked at the library using Wi-Fi because I was a law student studying, this was deemed an incident where all staff told to call police. Video of any allegation against me was requested on legal hold. Where is it? I have carefully consider the applicant’s submissions at paragraphs 26 to 27 above. A review of the information rel[39]sed to the applicant39 reveals that Council has released information about complaints made by the applicant about various Council employees, including Officers LS and AC, and complaints made about the applicant, including a matter where her vehicle was parked near a library. The applicant has not provided any specific information which points to the existence of further documents, such as dates and/or detail of the complaints she has made and more particular details about what documents she believes should exist that have not been released to her by Council. She has made a number of assertions about what she believes Council officers did but no submissions that provide information about documents that correlate with those beliefs. However, given the information that has been released and the extent of the searches conducted, I am satisfied that the searches undertaken by Council for documents about complaints made by or about the applicant are reasonable and I cannot identify any additional searches that could reasonably be conducted for responsive documents. In the absence of specific evidence pointing to the existence of further documents, I am satisfied that all reasonable searches for documents about complaints made by the applicant have been conducted, and that it is not necessary for any further searches to be conducted. On this basis, I find that access to further documents responsive to the access application may be refused under sections 67(1) of the IP Act and section 47(3)(e) of the RTI Act on the basis that the documents sought are nonexistent or unlocatable under section 52(1) of the RTI Act. Refusal of access Category A Information: legal professional privilege Relevant law Access to information may be refused where information is exempt.[40] Information will be exempt where it would be privileged from production in a legal proceeding on the basis that it is protected by legal professional privilege (LPP).[41] LPP protects confidential communications between a lawyer and their client, made for the dominant purpose of: seeking or giving legal advice or professional legal assistance (advice privilege), or use in legal proceedings either on foot or reasonably anticipated, at the time of the relevant communication (litigation privilege).[42] LPP can extend to copies of non-privileged documents where they are attached to privileged communications,[43] and to internal client communications repeating legal advice, whether verbatim or in substance, or gathering information necessary in order to seek legal advice.[44] When the requirements at paragraph 31 above are met, legal professional privilege is established. However, qualifications and exceptions t[45]privilege45 may, in particular circumstances, affect the question of whether information attracts or remains subject to it, and therefore is exempt under the RTI Act. Findings In seeking an external review, the applicant submitted:[46] The legal documents were for the purpose of prosecuting me so I think these must be made transparent. During the external review, the applicant submitted:[47] Nothing is confidential or [privileged] and GCCC after my 2013 complaint against [Officer LS] teamed with [a named] police [officer] to start to continuously detain me, break into my house, create false evidence of crime and have me criminally convicted and dog killed. Their staff flagged me to be followed and harassed several times a day. [Their] conduct was in full for an unlawful purpose. I seek to overturn wrongful conviction and pursue legal action against them. You need to see the communications with the police and prosecutor combined. You concealed both. The key witness to convict me has lied by saying I was not on a watchlist when he was the person who placed me on it. I was persecuted relentlessly by GCCC starting when police office JT showed up to an incident a magistrate said I and my dog were assaulted and it was on CCTV. [The police officer] and [Officer LS] paired up as Samoans and began a persecution campaign including trying to criminalise me when I was the victim. I have carefully considered the Category A Information. I am limited by the operation of the IP Act and RTI Act in the extent to which I can describe this information, so my descriptions below are necessarily circumspect.[48] I am satisfied that: the Category A Information comprises communications detailing advice which was sought or received from a suitably qualified and independent legal advisor the communications were between staff of Council and both in-house legal officers and external legal counsel and were for the dominant purpose of seeking and/or providing legal advice; and there is no evidence indicating that the communications were not confidential or that Council has otherwise waived privilege. The applicant’s submissions at paragraph 35 above suggest that the application of LPP to the Category A Information would be in furtherance of an improper purpose (concealing corrupt or criminal actions of Council and other agency officers). For the improper purpose exception to apply a communication must be made in pursuit of an illegal or improper purpose.[49] In summarising an established line of relevant case law the Assistant Information Commissioner in Secher and James Cook University[50] explained that: 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. .... 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.”[51] I have carefully considered the Category A Information and the applicant’s submissions at paragraph 35 above. I am satisfied that the contents of the Category A Information do not evidence the applicant’s view that legal advice was obtained to conceal corrupt or criminal actions of Council and other agency officers. There is no evidence in the information before me that the communications that comprise the Category A Information were made in preparation for, or in furtherance of, an illegal or improper purpose. Accordingly, I find that the improper purpose exception does not apply to preclude the application of LPP to the Category A Information. Based on the above, I find that the Category A Information is subject to LPP and therefore comprises exempt information under schedule 3, section 7 of the RTI Act. Access to the Category A Information may therefore be refused.[52] Where information is found to be exempt, there is no scope under the legislation to consider public interest arguments because Parliament has decided that it would be contrary to the public interest to disclose exempt information. Accordingly, I am unable to consider the applicant’s submission that because the communications were in relation to legal proceedings about her, they should be made transparent. In addition, the Information Commissioner does not have the power to direct that access be given to information that is found to be exempt.[53] Category B Information: confidential source Relevant law Information will be exempt where disclosure could reasonably be expected to enable the existence of a confidential source of information in relation to the enforcement or administration of the law to be ascertained.[54] To satisfy this exemption, there are three requirements which must be met: the source of information is confidential; the information obtained was in relation to the enforcement or administration of the law; and the disclosure of the information could reasonably be expected to enable the existence or identity of the confidential source to be ascertained. Findings In the context of the exemption, a ‘confidential source of information’ is a person who has supplied information on the understanding, express or implied, that their identity will remain confidential.[55] Council’s website states that a complainant’s personal information will remain confidential.[56] OIC has previously recognised that the supply of complaint information to a government agency is done with the implied understanding that the identity of the complainant will not be disclosed.[57] Accordingly, I consider that there was a common implied understanding between Council and the complainants that their identity would remain confidential. On this basis, I am satisfied that the complainant in relation to each complaint is a confidential source of information and, therefore, requirement a) of the exemption is met. The term ‘in relation to the enforcement or administration of the law’ has been interpreted broadly and has been recognised as extending to various government activities in relation to which the relevant agency has regulatory responsibilities. The Information Commissioner has previously found that a complaint to Council relates to the enforcement or administration of Council-by-laws.[58] In the present case, I note that the information supplied in respect to the complaints relate to the Council Local Law No. 12 (Animal Management),[59] which Council administers and/or enforces. Accordingly, I am satisfied that the information provided by the complainants relates to the enforcement or administration of the law for the purposes of the exemption. Therefore, I consider that requirement b) of the exemption is met. The third element of the exemption requires that disclosure of the information could reasonably be expected to enable the existence or identity of a confidential source of information to be ascertained. In the present case, given that the information consists essentially of the personal details of the complainants, including their names and contact details, there is no doubt that its disclosure would enable their identities to be ascertained. Accordingly, I am satisfied that requirement c) of the exemption is met. In evaluating whether the Category B Information is subject to the exemption outlined above, I have considered the exceptions outlined in schedule 3, section 10(2) of the RTI Act, in line with Commissioner of the Police v Shelton & Anor.[60] Her Honour Chief Justice Holmes held that ‘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).’[61] I have closely reviewed the Category B Information to determine this question of fact and am satisfied that the information does not consist of any of the types of specific information referred to in schedule 3, section 10(2) of the RTI Act. For the reasons set out above, I find that the Category B information qualifies for exemption under schedule 3, section 10(1)(b) of the RTI Act. Accordingly, access to the Category B information may be refused.[62] While I acknowledge the applicant’s submissions that ‘[n]othing is confidential’ and that she is seeking to overturn a wrongful conviction, as set out at paragraph 42 above, where information is found to be exempt, there is no scope under the legislation to consider public interest arguments because Parliament has decided that it would be contrary to the public interest to disclose exempt information.DECISION For the reasons set out above, I vary Council’s decision and find that access may be refused to: further documents on the ground that they are nonexistent or unlocatable; and the Category A Information on the ground that it is exempt from disclosure on the basis that it is subject to legal professional privilege; and the Category B Information on the ground that it is exempt from disclosure on the basis that disclosure could reasonably be expected to enable the existence of a confidential source of information to be ascertained. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.Assistant Information Commissioner CorbyDate: 19 May 2020 APPENDIX Significant procedural steps Date Event 29 May 2019 OIC received the applicant’s application for external review. 30 May 2019 OIC received two emailed submissions from the applicant. 3 June 2019 OIC notified the applicant and Council that the application had been received and requested procedural documents from Council. OIC received the requested procedural documents from Council. 5 June 2019 OIC requested and received from Council clearer copies of two pages of the access application. 6 June 2019 OIC advised Council and the applicant that the external review application had been accepted and requested a copy of the documents located from Council. 21 June 2019 Council provided OIC with a copy of the pages containing information to which access had been refused. 25 July 2019 OIC received an emailed submission from the applicant. 13 August 2019 OIC conveyed a preliminary view to Council and, if Council accepted, requested Council undertake searches for additional documents. 23 August 2019 OIC provided clarification to Council about the preliminary view. 27 August 2019 OIC received an emailed submission from the applicant. 28 August 2019 OIC received two emailed submissions from the applicant. 11 September 2019 OIC received four emailed submissions from the applicant. 12 September 2019 OIC received an emailed submission from the applicant. 17 September 2019 OIC received Council’s submission and search records. 18 September 2019 OIC received four emailed submissions from the applicant. 19 September 2019 OIC received two emailed submissions from the applicant. 25 September 2019 OIC wrote to the applicant about her external review. 26 September 2019 OIC received an emailed submission from the applicant. 9 December 2019 OIC received a copy of the additional documents located from Council. 14 January 2020 OIC conveyed a preliminary view to the applicant. OIC received an emailed submission from the applicant. OIC requested Council release the additional documents located to the applicant. 21 January 2020 OIC received notification from Council that the additional documents located had been released to the applicant as requested. OIC received an emailed submission 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 received an emailed submission from the applicant. 12 March 2020 OIC received an emailed submission from the applicant. 14 April 2020 OIC requested Council provide a copy of the documents located as released to the applicant in accordance with Council’s decision. 24 April 2020 OIC received the requested documents released to the applicant in accordance with Council’s decision. [1] Access application dated 28 March 2019.[2] Decision dated 29 May 2019.[3] External review application dated 29 May 2019. [4] Which came into force on 1 January 2020.[5] See XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; and Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [11].[6] XYZ at [573].[7] Emailed submission dated 27 February 2020.[8] Emailed submission dated 12 March 2020.[9] S90 and Veterinary Surgeons Board of Queensland; T38 (Third Party) [2020] QICmr 23 (20 April 2020).[10] 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.[11] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [20] per Kiefel, Bell, Keane and Nettle JJ. [12] Section 108 of the IP Act.[13] Section 110 of the IP Act.[14] Letter to applicant dated 14 January 2020.[15] Footnote 1 of letter to applicant dated 14 January 2020.[16] Section 139 of the IP Act.[17] As a delegate of the Information Commissioner under section 139 of the IP Act.[18] Under section 67(1) of the IP Act.[19] Under sections 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) (RTI Act).[20] Section 67(1) of the IP Act and section 47(3)(a) and schedule 3, section 7 of the RTI Act. [21] Information refused on this basis is contained within 181 pages.[22] Section 67(1) of the IP Act and section 47(3)(a) and schedule 3, section 10(1)(b) of the RTI Act.[23] Information refused on this basis is contained within parts of 13 pages. [24] Section 43 of the IP Act.[25] Section 67(1) of the IP Act and section 47 of the RTI Act.[26] Sections 47(3)(e) and 52 of the RTI Act. [27] Section 52(1)(b) of the RTI Act.[28] Section 52(1)(a) of the RTI Act. [29] At page 3.[30] Received by email dated 29 May 2019.[31] Submission dated 25 July 2019.[32] Letter to Council dated 13 August 2020.[33] Submission to OIC dated 17 September 2019.[34] Submission to OIC dated 17 September 2019.[35] By letter dated 14 January 2020.[36] Submission dated 14 January 2020.[37] By Council on 21 January 2020.[38] Emailed submission dated 21 January 2020.[39] Comprising the Additional Pages and the 709 pages located and dealt with in Council’s decision dated 29 May 2019, a copy of which were provided to OIC by Council on 24 April 2020.[40] Section 47(3)(a) of the RTI Act.[41] Schedule 3, section 7 of the RTI Act. [42] 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.[43] Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. [44] Brambles Holdings v Trade Practices Commission (No. 3) [1981] FCA 83; (1981) 58 FLR 452 at 458-459; Komacha v Orange City Council (Supreme Court of New South Wales, Rath J, 30 August 1979, unreported).[45] Such as waiver or improper purpose.[46] Email dated 29 May 2019.[47] Email dated 14 January 2020.[48] Section 121 of the IP Act and section 108 of the RTI Act. [49] R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141.[50] (Unreported, Queensland Information Commissioner, 6 June 2012).[51] See Shaw and Department of Justice and Attorney-General [2014] QICmr 33 at [16]; see also Commissioner of Australian Federal Police and Another v Propend Finance Limited and Others (1997) 188 CLR 501 at 591-592 and Murphy and Treasury Department [1998] QICmr 9; (1998) 4 QAR 446 at 31-43.[52] Under section 67(1) of the IP Act and section 47(3)(a) of the RTI Act.[53] Section 118(2) pf the IP Act. [54] Schedule 3, section 10(1)(b) of the RTI Act.[55] McEniery and the Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349 at [21]- [22].[56] See http://www.goldcoast.qld.gov.au/complaints-6221.html. [57] Sedlar and Logan City Council [2017] QICmr 52 (7 November 2017) at [76].[58] Bussey and Bowen Shire Council [1994] QICmr 10; (1994) 1 QAR 530 at [28]- [29].[59] See www.goldcoast.qld.gov.au/documents/ll/local-law-no12-2013.pdf. [60] [2020] QCA 96 (Shelton).[61] Shelton at [47] per Holmes CJ.[62] Under section 67(1) of the IP Act and section 47(3)(a) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Maurice Blackburn Lawyers and Queensland Treasury; AAI Limited (Third Party); RACQ Insurance Ltd (Fourth Party) [2020] QICmr 66 (4 November 2020)

Maurice Blackburn Lawyers and Queensland Treasury; AAI Limited (Third Party); RACQ Insurance Ltd (Fourth Party) [2020] QICmr 66 (4 November 2020) Last Updated: 25 March 2021 Decision and Reasons for Decision Citation: Maurice Blackburn Lawyers and Queensland Treasury; AAI Limited (Third Party); RACQ Insurance Ltd (Fourth Party) [2020] QICmr 66 (4 November 2020) Application Number: 315425 Applicant: Maurice Blackburn Lawyers ABN 21 105 657 949 Respondent: Queensland Treasury Third Party: AAI Limited ABN 48 005 297 807 Fourth Party: RACQ Insurance Ltd ABN 50 009 704 152 Decision Date: 4 November 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST - actuarial studies of compulsory third party insurance profitability - accountability and transparency - whether disclosure could reasonably be expected to prejudice/adversely affect business affairs - whether disclosure would on balance be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to Queensland Treasury (QT) under the Right to Information Act 2009 (RTI Act) seeking access to documents concerning compulsory third party (CTP) profits earned by RACQ Insurance Ltd (RACQ) and AAI Limited trading as Suncorp Insurance (Suncorp).[2] QT identified various documents. Relevantly, QT decided to refuse access to eight actuarial studies (Studies), on the grounds their disclosure would, on balance, be contrary to the public interest.[3] The applicant applied[4] to the Office of the Information Commissioner (OIC) for external review of QT’s decision to refuse access to the Studies. Having considered the Studies in issue, QT’s decision, and the submissions of the applicant and the Insurers, I have decided disclosure of the Studies would, on balance, be contrary to the public interest. I affirm QT’s decision. Background Significant procedural steps in the review are set out in the Appendix. Reviewable decision The decision under review is QT’s decision dated 1 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).[5] Information in issue The information in issue comprises the Studies, particulars of which are as follows:[6] Study no. RTI pages 1 36-59 2 62-121 3 187-210 4 265-287 5 11-33 6 124-184 7 213-236 8 239-262 Issue for determination The issue for determination is whether disclosure of the Studies would, on balance, be contrary to the public interest. Relevant law The RTI Act gives people a right to access documents of government agencies such as the Department.[7] This right is subject to other provisions of the RTI Act, including grounds on which access may be refused.[8] One of these grounds is where disclosure of information would, on balance, be contrary to the public interest.[9] The RTI Act requires a decision-maker to take the following steps in deciding the public interest:[10] 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. 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,[11] and disregarded irrelevant factors stated in schedule 4, part 1 of the RTI Act. I have also kept in mind the RTI Act’s pro-disclosure bias,[12] and Parliament’s intention that grounds for refusing access to information be interpreted narrowly.[13] Findings Factors favouring disclosure I agree with both QT’s decision and the applicant’s submissions that disclosure of the information in issue could reasonably be expected[14] to promote open discussion of public affairs and enhance the Government’s accountability.[15] I also accept the applicant’s submission that disclosure of the Studies could, to some extent, reasonably be expected to contribute to positive and informed debate on important issues or matters of serious interest.[16] Further relevant is the general public interest in promoting access to government held information.[17] In submissions accompanying its application for external review, the applicant argued that additional factors also operate to favour disclosure, namely that disclosure of the Studies could reasonably be expected to: advance fair treatment of individuals and other entities in accordance with the law in their dealings with agencies,[18] reveal environmental or health risks or measures relating to public health and safety;[19] and contribute to the administration of justice generally, including procedural fairness.[20] By letter dated 27 August 2020, I explained to the applicant my view that the above factors do not apply. The applicant has not contested that view. For the sake of completeness, I have briefly re-stated the reasoning for my view below. Fair treatment in dealings with agencies The Studies concern the financial affairs of private entities, not public agencies. The only potentially relevant agencies in this context appear to comprise QT and the Motor Accident Insurance Commission (MAIC), and I can identify no individuals or entities dealing with either, let alone in a manner involving questions of fair treatment that might stand to be advanced by disclosure of financial particulars concerning private corporations. This factor does not apply to favour disclosure. Reveal environmental or health risks or measures relating to public health and safety Nothing in the Studies reveals any environmental or health risk, nor any measure relating to public safety that I can identify. It might be argued that the CTP insurance scheme is a measure relating to public health in a global way. I cannot see, however, that disclosure of the specific analysis in issue before me, relating to the financial affairs of two private insurance companies, could reasonably be expected to ‘reveal’ that measure (which information would seem to be ‘revealed’ by way of the Motor Accident Insurance Act 1994 (Qld) (MAI Act) itself, and information published by the MAIC). My view then is that this factor does not apply to favour disclosure. Alternatively, if the factor did apply, I consider it would warrant only minimal weight, given any ‘revelation’ would, in view of the nature of the information in issue, be indirect at best. Contribute to the administration of justice generally, including procedural fairness The ‘administration of justice’ is a broad concept, bearing different meanings depending on the context in which it is used. Given the context in which it appears in this case – information access legislation, adjacent to an express reference to procedural fairness – I consider that it embodies the important public interest in ensuring that all ‘relevant and material evidence’[21] is available to persons or entities engaged in litigation or other adjudicative or determinative processes (or the courts, tribunals or officeholders entertaining that litigation or other processes). There is nothing before me suggesting the Studies themselves comprise material evidence relevant to specific current or proposed proceedings involving the administration of justice, nor that their disclosure is required to ensure procedural fairness to any person or entity. Accordingly, this factor does not apply to favour disclosure of the Studies. Factors favouring nondisclosure QT identified two factors favouring nondisclosure – that disclosure of the Studies could reasonably be expected to: prejudice the private, business, professional, commercial or financial affairs of entities;[22] and cause a public interest harm because it would disclose information concerning 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 (Business Affairs Harm Factor).[23] My view is that each applies in this case, as does: the closely related nondisclosure factor stated in schedule 4, part 3, item 15 of the RTI Act;[24] and schedule 4, part 3, item 22, providing for a factor favouring nondisclosure where disclosure of information is prohibited by an Act. I have discussed relevant nondisclosure factors below.[25] Business Affairs Harm and Prejudice Factors For the Business Affairs Harm Factor to apply, I must be satisfied that given information: concerns the business, professional, commercial or financial affairs of an agency or another person; and, relevantly, that its disclosure could reasonably be expected to have an adverse effect on those affairs.[26] I must then be satisfied that the consequent public interest harm would be of weight sufficient to outweigh applicable public interest factors favouring disclosure of the information.[27] The adverse effect required by the Business Affairs Harm Factor will almost invariably be financial in nature, whether directly or indirectly. 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 – i.e., the Insurers.[28] Although safeguarding against ‘prejudice[29] to’ rather than ‘adverse effect on’, the Information Commissioner has noted that the two Business Affairs Prejudice Factors require a reasonable expectation of similar harm.[30] I am satisfied that the Studies comprise information concerning the Insurers’ business, commercial or financial affairs (and do not understand the applicant to be arguing to the contrary). Whose affairs? In submissions accompanying its application for external review, the applicant argued that QT misdirected itself in applying the Business Affairs Harm Factor – that the harm factor operates not by reference to adverse effect on the Insurers’ commercial, business or financial affairs, but those of the CTP insurance scheme: The correct question is whether any adverse effect would occur to the CTP Scheme due to the release of the requested information. This cannot be the case. Transparency regarding profitability of the scheme for the approved insurers can only lead to better consumer outcomes. Queensland Treasury agrees with the proposition in their own reasons for decision. As noted above, the Business Affairs Harm Factor safeguards the commercial or business affairs of the entity to whose affairs that information relates. As the Information Commissioner, analysing the near-identical predecessor provision in the former FOI Act, explained in Cannon: [27] Section 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. ... [30] ...the Queensland Parliament has explicitly recognised 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 the business affairs of members of the community in respect of whom information is collected and held by government. ... [34] At the risk of over-simplification, the basic object of s.45(1) of the Queensland FOI Act is to provide a means by which the general right of access to documents in the possession or control of government agencies can be prevented from causing unwarranted commercial disadvantage to: (a) persons carrying on commercial activity who supply information to government, or about whom government collects information ... In this case, the Business Affairs Harm Factor will, as noted above, be enlivened if I am satisfied that the Studies concern the Insurers’ business, commercial or financial affairs, and the Studies’ disclosure could reasonably be expected to have an adverse effect on those affairs. I am satisfied the Studies concern relevant affairs of each Insurer. Contrary to the applicant’s alternative submissions on the point,[31] I also find that disclosure of the Studies could reasonably be expected to adversely affect and/or prejudice those affairs. Adverse effect/prejudice The applicant’s general position is that the regulated nature of the compulsory third party insurance market, the fact each Insurer apparently sets premiums at maximum permissible levels and the volume of other information already in the public domain, together operate so as to make it unreasonable to expect that disclosure of the Studies could adversely affect or prejudice the Insurers’ business, professional, commercial or financial affairs. I acknowledge the points made by the applicant. As, however, Suncorp has submitted:[32] (a) the CTP premium charged by Suncorp does not reveal the profitability of Suncorp's CTP business; and (b) it is precisely the granularity and specificity of the commercial undertakings of Suncorp contained in the Documents which are commercially sensitive. 3.3 The Documents [ie, the information in issue] contain detailed commercially sensitive material about the drivers of Suncorp profitability, including claim frequency, average claim size, vehicle class mix, and expenses. ... 3.4 Suncorp submits that, contrary to the assertions made by Maurice Blackburn Lawyers, CTP is a competitive market. While premiums are set within a range, which restricts competition on the basis of price, there is competition in the market on other important elements, such as new customer acquisition, claims management, costs and risk selection. The customer and risk profile of Suncorp's CTP business describes its core commercially sensitive features. It is this information that is analysed in the Documents. 3.5 Although CTP insurance is compulsory when registering a vehicle, this does not detract from the competition as between CTP insurance providers in Queensland.... 3.9 In the hands of a competitor to Suncorp, even one that does not offer CTP insurance, the information in the Documents would provide insights into the operation of Suncorp's Queensland CTP business that are not publicly available. This could enable a competitor to: (a) identify and specifically target motorists in the CTP market held by Suncorp; (b) change its pricing on other insurance products (e.g. home, contents, vehicle) to undercut anticipated price increases from Suncorp in these markets, based on an understanding of Suncorp's commercial circumstances in the CTP market; and (c) where the competitor does not currently offer CTP insurance in Queensland, form conclusions and make decisions about market entry from a position of greater competitive advantage than would otherwise be the case if the Documents are not disclosed. 3.10 Having regard to the specific content of the Documents, Suncorp submits that disclosure would ...plainly provide its competitors with an unfair competitive advantage. ... The information contained in the Documents would provide a clear competitive advantage to a competitor of Suncorp – they do not replicate information in the public domain nor record Suncorp's views in relation to the CTP scheme. The Documents contain specific and commercially sensitive information about Suncorp's profitability, risk profile and customer base which is not public knowledge. The content goes to the bases upon which CTP insurers compete. It would enable a competitor to target Suncorp's customers and to price its own insurance products to undercut Suncorp. In a competitive market, insurers use all available information to improve their own profitability, as is the expectation of their owners. This would lead to a loss of customers and income for Suncorp, ie. an 'adverse effect'. Similarly, RACQ submits:[33] ... the CTP Insurance market is a competitive one and each approved CTP insurer determines the premiums within the range between the minimum and maximum rates set by MAIC. RACQI does not consult with the other approved CTP Insurers when setting its yearly premium and as is evident from the Applicant's own submission, insurers historically have set different premiums at different points in time. Further, insurers compete by offering different incentives that may appeal to different consumers. In a competitive market where RACQI is one of four approved CTP insurers and the overwhelming majority of consumers are advised of their ability to switch CTP insurers, it necessarily follows, that information regarding RACQI's profit margins per policy (and other financial information) which is contained in the Documents is commercially sensitive in nature. Such commercially sensitive information could be used by competitors of RACQI to increase their market share to the detriment of RACQI as well as ultimately leading to a decrease in competition in the market for CTP Insurance. ... Whilst RACQI acknowledges that it discloses some financial information through its annual reports (in compliance with its obligations to do so) that information does not include details regarding its vehicle class mix, profit margins associated with its CTP product, the drivers of profitability, (frequency, claim size, severity mix and average claim size by severity), insurer expenses and comparisons of performance at a granular level compared to market. I accept the above submissions, which concisely and cogently explain the nature of what is detailed commercial information, and the consequences that might reasonably be expected to follow that information’s disclosure. As the Insurers submit, the Studies contain extremely specific or ‘granular’ detail about their commercial, business and financial affairs. I do not think it irrational, absurd or ridiculous to expect that disclosure of such information could reasonably be expected to advantage competitors and cause a corresponding disadvantage to the Insurers in the manner each submits, resulting in an adverse effect and/or prejudice within the meaning of the relevant nondisclosure factors. I am therefore satisfied that the Business Affairs Harm Factor and each of the Business Affairs Prejudice Factors apply to favour nondisclosure. Disclosure prohibited by an Act Section 92(1) of the MAI Act provides for a general prohibition against the divulging of confidential or private information acquired by a person engaged in work related to the administration of the CTP scheme. From my examination, it appears to me that the Studies are comprised of information falling within the scope of this general prohibition. This gives rise to the factor favouring nondisclosure stated in schedule 4, part 3, item 22 of the RTI Act. Applicant’s submissions I conveyed the reasoning at paragraphs 13-41 to the applicant in my 27 August 2020 letter. In brief submissions in[34]eply, the applicant:34 questioned the existence or extent of any prejudice or adverse effect, given the age of the information in issue contained in the Studies;[35] and contested the application of schedule 4, part 3, item 22 of the RTI Act, on the basis that the prohibition stated in section 92(1) of the MAI Act is subject to an exception where disclosure is ‘...authorised or required...by law’ (ie, the RTI Act). On the first point, the information in issue is not particularly dated – spanning the last four years prior to the current year – and even the oldest of those studies is not, in my view, especially aged. The Insurers – the entities to who the Studies relate – have stated that their disclosure could reasonably be expected to adversely affect and/or prejudice their affairs: submissions which, as noted, I accept. I do not think it unreasonable to expect that disclosure of sensitive commercial information, for each and/or any of the four most recent calendar years, could arm competitors (including, presumably, each of the Insurers, vis a vis one another) with a comprehensive insight into the particulars and pattern of the Insurers’ CTP operations, so as to prejudice and/or adversely affect those operations in the manner discussed above. As for the relevance of schedule 4, part 3, item 22, I consider that this nondisclosure factor is applicable. The RTI Act does not ‘require’ disclosure of the Studies, and in the absence of a decision under the RTI Act to disclose that information (or a proper exercise of the discretion to release information, a discretion denied OIC on external review),[36] any disclosure would not be ‘authorised’ under that Act. Balancing the public interest I have identified three factors or considerations favouring disclosure of the Studies, and four favouring nondisclosure. While I acknowledge the importance of those factors favouring disclosure, relevant public interests are substantially met by the relatively significant amount of information concerning the operation of the CTP scheme published by the MAIC.[37] I therefore afford these considerations modest weight. As against this, I recognise the public interest in avoiding prejudice to legitimate business, commercial and financial affairs, and in ensuring public interest harm does not result from the disclosure of information concerning those affairs. These are significant public interests, which I consider warrant substantial weight. There is also a strong public interest in respecting Parliamentary proscriptions against disclosure. I afford this consideration, too, substantial weight. Balancing competing public interest considerations against one another, I consider that the Business Affairs Harm and Prejudice factors discussed above are, in the context of this case, of themselves sufficient to displace any considerations telling in favour of release of the Studies,[38] with the result that disclosure of the Studies would, on balance, be contrary to the public interest. Taking the schedule 4, part 3, item 22 nondisclosure factor into account further tips the balance of the public interest in favour of nondisclosure. I am satisfied that disclosure of the Studies would, on balance, be contrary to the public interest. Access to the Studies may therefore be refused, under section 47(3)(b) of the RTI Act.DECISION I affirm the decision under review, to the extent it refused access to the Studies. 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: 4 November 2020 APPENDIX Significant procedural steps Date Event 20 May 2020 OIC received the application for external review. 27 May 2020 QT provided the initial documents to OIC. 10 June 2020 OIC notified the applicant and QT that the external review application had been accepted, and requested the information in issue from QT. 11 June 2020 QT provided the information in issue to OIC. 15 July 2020 OIC sent consultation letters to the Insurers. 29 July 2020 RACQ provided written submissions to OIC. 12 August 2020 Suncorp provided written submissions to OIC. 27 August 2020 OIC conveyed a preliminary view to the applicant. 8 September 2020 The applicant provided OIC with written submissions. 10 September 2020 OIC reiterated its preliminary view to the applicant, and queried whether it wished to proceed to a written decision. The applicant requested a written decision. 16 September 2020 OIC invited the Insurers to apply to participate in the external review. 22 September 2020 Suncorp applied to participate in the external review. 25 September 2020 RACQ applied to participate in the external review. 2 October 2020 OIC notified the Insurers their applications to participate in the external review had been accepted. [1] QT reference ARU0001124.[2] I will refer to RACQ and Suncorp as the ‘Insurers.’[3] In its decision dated 1 May 2020, QT also decided to delete as irrelevant a limited amount of personal information appearing across 24 pages other than the Studies; the applicant does not seek of QT’s decision in this regard and that information is not in issue.[4] Application dated 20 May 2020.[5] The application in this matter was made on behalf of an entity, and all other participants are also corporations or an agency, such that at face value it may not appear necessary to consider the application of the Human Rights Act 2019 (Qld) (HR Act), which only affords human rights to individuals in Queensland. 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. 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. 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.’[6] Adopting QT’s page numbering, as reflected in the column ‘RTI pages’. Studies 1-4 relate to RACQ, 5-8 to Suncorp.[7] Section 23 of the RTI Act.[8] Section 47 of the RTI Act.[9] 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, 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.[10] Section 49 of the RTI Act.[11] Ie, considerations beyond the factors expressly prescribed in the lists stated in Schedule 4 of the RTI Act.[12] Section 44 of the RTI Act.[13] Section 47(2)(a) of the RTI Act.[14] The phrase ‘could reasonably be expected to’ calls for a decision-maker to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (eg merely speculative/conjectural ‘expectations’) and expectations which are reasonably based, ie, expectations for the occurrence of which real and substantial grounds exist: B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at [155] to [160] (B and BNRHA). A reasonable expectation is one that is reasonably based, and not irrational, absurd or ridiculous: Sheridan and South Burnett Regional Council and Others (Unreported, Queensland Information Commissioner, 9 April 2009) at [189]-[193], referring to Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97.[15] Schedule 4, part 2, item 1 of the RTI Act. For completeness, I note that the Insurers queried the application of certain pro-disclosure factors (see each party’s submissions – RACQ’s dated 29 July 2020, Suncorp’s dated 12 August 2020). I do not consider it unreasonable to expect that the disclosure of Studies describing the operations of two key participants in the CTP market could, to some extent, have outcomes of the kind described in this and the following paragraph.[16] Schedule 4, part 2, item 2 of the RTI Act.[17] As reflected, for example, in the object to the RTI Act. [18] Schedule 4, part 2, item 10 of the RTI Act.[19] Schedule 4, part 2, item 14 of the RTI Act.[20] Schedule 4, part 2, item 16 of the RTI Act.[21] Sankey v Whitlam [1978] HCA 43, Mason J at [40], His Honour in a case concerning release of information noting that the ‘administration of justice that requires that the parties be given a fair trial on all the relevant and material evidence’. See also Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60, [116].[22] Schedule 4, part 3, item 2 of the RTI Act.[23] Schedule 4, part 4, section 7(1)(c) of the RTI Act.[24] Disclosure could reasonably be expected to prejudice, relevantly, business affairs of a person. I will refer to this and the factor stated in schedule 4, part 3, item 2 together as the ‘Business Affairs Prejudice Factors’.[25] In its 12 August 2020 submissions, Suncorp also argued that disclosure could reasonably be expected to prejudice the flow of information to a regulatory agency, ie MAIC (schedule 4, part 3, item 13 of the RTI Act). In view of my findings as to the balance of the public interest, it is not necessary make a finding on the application of this provision, although a submission as to its application would likely have to overcome reservations of the kind stated by the Information Commissioner in B and BNRHA, at [161].[26] I have limited my consideration to the question of adverse effect, rather than prejudice to future supply of information; as I am satisfied the former could reasonably be expected to follow disclosure, it is unnecessary to consider the possibility of the latter.[27] In accordance with the public interest balancing exercise prescribed in section 49 of the RTI Act.[28] Cannon and Australian Quality Egg Farms Ltd [1994] QICmr 9; (1994) 1 QAR 491 (Cannon), at [82]-[84]. Relevant passages concern section 45(1)(c) of the repealed Freedom of Information Act 1992 (Qld) (FOI Act), but provide useful guidance on the interpretation of schedule 4, part 4, item 7(1)(c) of the RTI Act, drafted in substantially similar form. I have discussed this issue in further detail below.[29] Adopting the ordinary meaning of the word ‘prejudice’: Daw and Queensland Rail (Unreported, Queensland Information Commissioner, 24 November 2010) at [16].[30] 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).[31] Submissions accompanying application for external review, arguing that if the Harm Factor is taken to relate to the Insurers’ business etc affairs, disclosure of the Studies could not reasonably be expected to adversely affect those affairs.[32] Submissions dated 12 August 2020.[33] Submissions dated 29 July 2020.[34] Submissions dated 8 September 2020.[35] The applicant submitting that ‘...any decision on the information access application needs to consider the data for each of these years [2016-2019] separately, rather than a holistic dispensation of the application. In that regard, historical data cannot have the adverse effects or prejudice suggested by [the Insurers] ...’.[36] Section 105(2) of the RTI Act.[37] See https://maic.qld.gov.au/ctp-scheme/.[38] Including any of those contended for by the applicant and discussed at paragraphs 15-23, in the event I am incorrect as to their non-application.

queensland

court_judgement

Queensland Information Commissioner 1993-

Hearl and Queensland Police Service [1995] QICmr 2; (1995) 2 QAR 423 (3 March 1995)

Hearl and Queensland Police Service [1995] QICmr 2; (1995) 2 QAR 423 (3 March 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 193 of 1993COMMISSIONER (QLD) ) (Decision No. 95002) Participants: WENDELL RUBEN HEARL Applicant - and - QUEENSLAND POLICE SERVICE Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access - applicant challenging sufficiency of search for documents falling within the terms of his FOI access application, specifically a letter and map relating to a prosecution involving the applicant - whether respondent has satisfied the obligation inherent in the Freedom of Information Act 1992 Qld to locate and deal with all documents falling within the terms of a valid FOI access application.Freedom of Information Act 1992 Qld s.7Cannon and Australian Quality Eggs Farms Limited, Re (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported)Hearl and Mulgrave Shire Council, Re (Information Commissioner Qld, Decision No. 94012, 27 June 1994, unreported)Shepherd and Department of Housing, Local Government & Planning, Re (Information Commissioner Qld, Decision No. 94007, 18 April 1994, unreported)Smith and Administrative Services Department, Re [1993] QICmr 3; (1993) 1 QAR 22 DECISIONI affirm the decision under review, being the internal review decision made on behalf of the respondent by Acting Assistant Commissioner P J Freestone on 10 September 1993.Date of Decision : 3 March 1995......................................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) S 193 of 1993COMMISSIONER (QLD) ) (Decision No. 95002) Participants: WENDELL RUBEN HEARL Applicant - and - QUEENSLAND POLICE SERVICE Respondent REASONS FOR DECISIONBackground1. The applicant seeks review of a decision made on behalf of the Queensland Police Service (the QPS), under the Freedom of Information Act 1992 Qld (the FOI Act), because he claims that the QPS has failed to locate and deal with all documents falling within the terms of his FOI access application dated 11 December 1992. 2. The applicant is the same Mr Hearl whose application for access to documents of the Mulgrave Shire Council was dealt with in my reasons for decision in Re Hearl and Mulgrave Shire Council (Information Commissioner Qld, Decision No. 94012, 27 June 1994, unreported). The background information contained in paragraphs 7-13 of that decision is also helpful in understanding the context of the present case, in which Mr Hearl is particularly concerned to obtain documents held by the QPS relating to a prosecution brought against him in the Magistrates Court at Cairns in 1987 on a charge of assault: see paragraph 9 of my reasons for decision in Re Hearl and Mulgrave Shire Council. Mr Hearl's FOI access application to the QPS manifests the same error as his FOI access application to the Mulgrave Shire Council, in that it is, for the most part, framed as a series of questions. As I indicated at paragraph 30 of my decision in Re Hearl and Mulgrave Shire Council: 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.Fortunately, it is not necessary to pursue this problem further since Mr Hearl's application for review under Part 5 of the FOI Act seeks review only in respect of the "sufficiency of search" by the QPS for two documents.3. The initial decision-maker on behalf of the QPS, Senior Sergeant D R Wright, was able to distil, from the terms of Mr Hearl's letter of 11 December 1992, a valid application for access to: (a) a letter, allegedly held by Constable Dave Scott of the QPS, authorising the removal of fences on property alleged by Mr Hearl to be his property; and (b) a map, which Mr Robert George Ford (the person whom Mr Hearl was charged with assaulting) claimed to have received from the Mulgrave Shire Council, and which shows that the place at which the assault is alleged to have occurred is not Mr Hearl's freehold property but is a Fish Habitat Reserve.In his initial decision, Senior Sergeant Wright located documents he considered relevant to Mr Hearl's FOI access application and decided that those documents should be released to Mr Hearl, subject to a number of deletions of matter considered to be exempt under s.44(1) of the FOI Act.4. There then followed an exchange of correspondence and a number of telephone calls between Mr Hearl and the QPS FOI Unit regarding the documents that Mr Hearl sought. This process resulted in Mr Hearl's concerns being refined to a request to obtain two specific documents: (a) a letter from the former Department of Harbours and Marine to Constable Scott, received by Constable Scott on 28 August 1987; and (b) the map described at point (b) in paragraph 3 above.5. An internal review decision was made on 10 September 1993 by Acting Assistant Commissioner P J Freestone, who decided to grant Mr Hearl full access to the documents which had been previously released with deletions made pursuant to s.44(1) of the FOI Act. Acting Assistant Commissioner Freestone also described the searches that had been made for the two documents specified in the preceding paragraph, but stated that those searches had been unsuccessful, and the documents could not be located. Mr Freestone determined that, as those documents could not be located, access to them could not be granted.6. In his application for review under Part 5 of the FOI Act, Mr Hearl attached a copy of the internal review decision and said: I request an external review to supply the letter and maps referred to in the enclosed correspondence. You will notice in the letter from the Police Service that Sergeant Scott advises he has no knowledge of the present location of the letter. I trust you will have success in locating the letter and maps.Principles governing "sufficiency of search" cases7. As I indicated in paragraphs 12-61 of my decision in Re Smith and Administrative Services Department [1993] QICmr 3; (1993) 1 QAR 22 and in paragraphs 14-15 of my decision in Re Cannon and Australian Quality Egg Farms Limited (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported), I have jurisdiction to conduct an external review where an applicant who applies to an agency for access to documents complains that the searches and inquiries undertaken by the agency to locate requested documents have been inadequate. As I indicated in Re Smith and Re Cannon, I have jurisdiction to conduct an external review on the question of the "sufficiency of search" conducted by an agency, even if there are no other issues raised (e.g. claims that requested documents are exempt under Part 3, Division 2 of the FOI Act).8. I explained the principles applicable to "sufficiency of search" cases in my decision in Re Shepherd and Department of Housing, Local Government and Planning (Information Commissioner Qld, Decision No. 94007, 18 April 1994, unreported) at paragraphs 18 and 19, as follows: 18. It is my view that in an external review application involving 'sufficiency of search' issues, the basic issue for determination is whether the respondent agency has discharged the obligation, which is implicit in the FOI Act, to locate and deal with (in accordance with Part 3, Division 1 of the FOI Act) all documents of the agency (as that term is defined in s.7 of the FOI Act) to which access has been requested. It is provided in s.7 of the FOI Act that: "'document of an agency' or 'document of the agency' means a document in the possession or under the control of an agency, or the agency concerned, whether created or received in the agency, and includes - (a) a document to which the agency is entitled to access; and (b) a document in the possession or under the control of an officer of the agency in the officer's official capacity;" 19. In dealing with the basic issue referred to in paragraph 18, there are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined in s.7 of the FOI Act); and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.9. The following account details the searches and inquiries that have been undertaken to locate the two documents to which Mr Hearl is particularly concerned to obtain access, and in respect of which the principles set out above are to be applied.External review process10. With his application for review under Part 5 of the FOI Act, Mr Hearl enclosed a number of documents which, he submitted, demonstrate the existence of documents (a) and (b) referred to in paragraph 3 above (and hereinafter referred to, respectively, as document (a) and document (b)). As to the existence of document (a), Mr Hearl supplied a copy of an internal QPS report (apparently obtained by Mr Hearl under the FOI Act). The report is by Constable Scott to the District Officer of the Cairns Police District. It is dated 16 January 1988 and displays a QPS reference no. 3153/87. So far as relevant, this report states: On the 28th August 1987, I received a letter from the Department of Harbours and Marine in Brisbane in respect of the flood mitigation drain situated on Reed Road at Trinity Park.11. As to the existence of document (b), Mr Hearl supplied a copy of a report by Constable Scott to the District Officer at Cairns, which is dated 21 October 1987 and displays a QPS reference no. 2698/87. (The copy of the report has been stamped to indicate that it was released to Mr Hearl by the Criminal Justice Commission under the FOI Act). So far as relevant, this report states: ... FORD produced a sketch of the area in fact showing the land to be Fisheries Habitat land. I have included this sketch on to this file for further information.12. An addendum made on that report by Constable Scott's senior officer says: The position shown on the attached sketch map indicates where FORD claims the assault took place. 13. Mr Hearl also supplied a copy of a letter to Mr Hearl from District Officer F C Wagner of the Cairns District Office, which is dated 11 November 1987 and displays a QPS reference no. 87/5408. (The document bears a marking which indicates that it was an exhibit tendered before the Land Court of Queensland sitting at Cairns.) The relevant part of the District Officer's letter to Mr Hearl is the following: I am in possession of documentation presented to Police by FORD at the time that FORD made a complaint of assault against you, which complaint resulted in the court proceedings on 23 September 1987. The documentation includes a photostat enlargement of a portion of a map. Ford had indicated on the map the position where the assault occurred. That position is on Fisheries Habitat Reserve.14. Finally, Mr Hearl also provided me with a page of the transcript of his trial on the charge of assault, where Mr Ford gave evidence as follows: I went to Mulgrave Shire Council and picked up a copy of the maps that showed that where we were in fact was Fisheries Habitat Reserve.15. Since the two reports by Constable Scott, referred to in paragraphs 10 and 11 above, displayed references to particular QPS file numbers, the QPS FOI Unit was requested to make inquiries as to the whereabouts of those files, and whether the documents sought by Mr Hearl were contained on those files. Further, since the report by Constable Scott dated 21 October 1987 (see paragraph 11 above) was obviously in the possession of the Criminal Justice Commission (the CJC), the QPS FOI Unit was requested to make inquiries of the CJC as to whether document (b) was in the physical possession of the CJC.16. The QPS FOI Unit responded to this request in a letter dated 30 November 1993 from the QPS FOI Co-Ordinator, Superintendent J B Doyle. Superintendent Doyle stated that inquiries had been made of Sergeant Scott (formerly Constable Scott) now stationed at Roma Police Station, and further inquiries had been made of the Cairns District Office and Smithfield Police Station, where Constable Scott was stationed when he wrote the report dated 16 January 1988.17. In relation to document (a), Superintendent Doyle indicated that the inquiries had revealed that:? Cairns District Office is not in possession of a copy of the file for which the reference is 3153/87.? Smithfield Police Station located a copy of file 3153/87 which consisted only of the report of Constable Scott (i.e. the same report, a copy of which had been obtained by Mr Hearl and forwarded to me). The letter from the former Department of Harbours and Marine was not attached or located.? Sergeant Scott stated that he was not in possession of any of the documents sought nor could he offer any further assistance.18. As to document (b), Superintendent Doyle indicated that:? File reference 2698/87 is a Smithfield Police Station reference. This file does not contain a copy of either the map (document (b)) or letter (document (a)).? The Cairns District Office file which has the reference number 87/5408 (see paragraph 13 above) does not contain a copy of the letter or map.? The FOI Co-ordinator of the CJC stated that he had never sighted a copy of the map during his dealings with the Hearl file.? The original file held by the Central Registry of the QPS had been searched, but no copy of the map or letter was attached or could be located.19. Superintendent Doyle stated that the map referred to by Mr Ford in the transcript of trial is believed to be a map that Mr Ford obtained for himself. Superintendent Doyle informed me that, following inquiries with the Clerk of the Magistrates Court at Cairns, it was ascertained that the map was not tendered in evidence during the trial. Superintendent Doyle forwarded to me a copy of a letter from Mr Hearl to Inspector Wagner dated 13 November 1987, in which Mr Hearl acknowledged that the map was not produced in court during the trial.20. In respect of the map referred to by Inspector Wagner in his letter to Mr Hearl dated 11 November 1987 (see paragraph 13 above), Superintendent Doyle indicated that inquiries were made with Superintendent Wagner (now of the Sunshine Coast District Office) and a Sergeant Moran. Superintendent Doyle indicated that both of those Officers were involved with the relevant file in November 1987, and had advised that the map referred to in Inspector Wagner's letter to Mr Hearl dated 11 November 1989 was a map, or copy of a map, obtained from the Department of Lands, as a means of reference. Sergeant Moran stated that he later returned the map to the Department of Lands. Superintendent Doyle stated that it was not known if a copy of that map was made, but in any event it was not in the custody or possession of the QPS. 21. Superintendent Doyle enclosed a copy of three cadastral maps (maps which delineate land ownership) of the subject land which had been located during the course of inquiries made in response to Mr Hearl's FOI access application. Mr Hearl had advised the QPS that none of those was the map that he required. Superintendent Doyle submitted that: From our inquiries at the Land Court it is evident that countless hours have been spent in dealing with Mr Hearl's numerous letters, requests, subpoenas and applications. The letter and map he requests are not in the custody or possession of the Queensland Police Service.22. Following further examination of the available relevant matter, I forwarded a letter to the QPS dated 8 December 1993 requesting further inquiries in respect of the indication contained in Constable Scott's report of 21 October 1987 (see paragraph 11 above) that Mr Ford had produced a sketch of the area, when Ford first made the complaint of assault. I requested that the following specific inquiries be made:(a) whether a Criminal Offence Report, containing the sketch/map made by Mr Ford, was made into a file with a specific Criminal Office Report number under either Mr Ford's name as complainant, Mr Hearl's name as the offender, or the name of Constable Scott as the investigating officer; and(b) whether either of documents (a) and (b) was contained in a prosecution brief prepared for the police prosecutor who appeared at Mr Hearl's trial.23. Superintendent Doyle responded by a letter dated 9 February 1994. Superintendent Doyle forwarded to me a copy of a letter dated 27 April 1989 written by Mr Hearl to the then Minister for Police, Mr R Cooper MLA, and directed my attention to the final paragraph on page 1 of that letter, which states: Please find enclosed: (1) Copy of the Mulgrave Shire Council map. This map referred to by Ford was not allowed to be produced in court as your Police Officers arranged for photographs to be taken by the Police as they intended from the beginning to have this false evidence presented to the court.24. Superintendent Doyle informed me that this letter of complaint was referred to the (now defunct) Police Complaints Tribunal. Superintendent Doyle stated that he had inspected the file created by the Police Complaints Tribunal in response to Mr Hearl's complaint, which file was in the possession of the CJC. A copy of the map referred to in Mr Hearl's letter dated 27 April 1989 to the Minister for Police was attached to that file. That map is different from the three cadastral maps earlier located, and had an area shown as "Fisheries Habitat Reserve". Superintendent Doyle observed that Mr Hearl had had access to this map since at least 1989. Superintendent Doyle also informed me that Mr Hearl had not sought access to document (a) from the Department of Transport, which had absorbed the former Department of Harbours and Marine.25. On 7 March 1994, I wrote to Mr Hearl informing him of the results of the further inquiries made by the QPS. In respect of document (a), I informed Mr Hearl that it may be possible for him to obtain access to that letter from the Department of Transport. In respect of document (b), I explained the inquiries made by the QPS and noted that if the map he sought is a copy of the Mulgrave Shire Council map referred to in his letter dated 27 April 1989 to the Minister for Police, then it appeared that the map was not in the possession of the QPS, but in the possession of the CJC in its capacity as custodian of the files of the former Police Complaints Tribunal. I noted that Mr Hearl was entitled to make a fresh FOI access application to the CJC for that map. 26. I explained the principles applicable to "sufficiency of search" cases (see paragraph 8 above) and asked Mr Hearl if he was prepared to withdraw his application for external review, on the basis that he was satisfied as to the searches made by the QPS and the inquiries undertaken at the behest of my office. In the alternative, I invited Mr Hearl to provide additional evidence or submissions which would indicate what further reasonable searches and inquiries might be undertaken in order to establish whether documents (a) and (b) could be located in the possession or control of the QPS.27. Mr Hearl did not withdraw his application for external review, but responded by letter dated 14 March 1994 enclosing a copy of documents that he had already forwarded to me, apparently for the purpose of again demonstrating the existence of the documents in issue. Mr Hearl also said: My complaint to the Police Complaints Tribunal covered the matter of the map and letter from the Department of Harbours and Marine. The Police Complaints and subsequently C.J.C. both found the Maps and letter were correct and I was wrong. The Map and Letter were both available for the investigation by both these bodies and no mention was made after a thorough investigation of these not being able to be located. I should also make it clear that the Police Pilot and Photographer must have been shown these Maps so they could take aerial photos of the correct property.28. A number of additional inquiries were then undertaken by my office, commencing with a telephone interview with Sergeant Scott of the Roma Police Station.29. In relation to document (a), Sergeant Scott indicated that the purpose of the letter which he received from the former Department of Harbours and Marine on 28 August 1987 was to clarify ownership of the land in question. He said that he forwarded a copy of that letter to the District Officer, Cairns, with his report dated 16 January 1988 (see paragraph 10 above) and expected that the letter would have remained in the Cairns District Office. (I note, however, that the report of 16 January 1988 does not contain any words which indicate that the letter from the former Department of Harbours and Marine was attached to that report). Sergeant Scott said that he would have kept a copy of the letter from Harbours and Marine for his own purposes, but since that time he had been transferred to three other centres throughout Queensland, and that at each move he had culled documents which he no longer required or which he considered to have no continuing relevance. He said that he had earlier searched his own records for a copy of the letter from Harbours and Marine, following a request by the QPS FOI Unit, but could not find a copy of it. Sergeant Scott considered that it was most likely that he had destroyed his copy of the letter. Sergeant Scott said that he could only surmise that it was possible that the District Office at Cairns may have retained a copy of the letter.30. In relation to document (b), Sergeant Scott stated that he was involved in the investigation and preparation of the prosecution case against Mr Hearl for the charge of assault upon Mr Ford, although he could not claim a perfect recollection of events given the length of time that had passed since the prosecution. Sergeant Scott's recollection was that he would have completed a Criminal Offence Report upon receiving Mr Ford's complaint, and attached to it the map produced by Mr Ford. He said that the map should subsequently have been sent with the court brief to the police prosecutions staff in Cairns. He said that, as far as he was aware, the map was not tendered in evidence at the trial, although he was not present at the trial. He said that, after the trial, the most likely scenario was that the original map would have been returned to him as surplus material from the prosecution brief, along with other statements and surplus material. He said that Mr Hearl had subsequently made a complaint that Mr Ford had perjured himself during the course of the trial. He said that he was asked to prepare a report on this complaint, resulting in the report dated 21 October 1987 (see paragraph 11 above). He said that it was obvious to him from the text of that report that he had kept the original map, or at least had it at that time, and then attached the original map to his report of 21 October 1987. He said that he was aware of the significance, for the purposes of the laws of evidence, of the difference between an original and a copy of a document, and that if he had been forwarding a copy of the map with his report of 21 October 1987, he would have described the document being attached to his report as a copy. Sergeant Scott therefore considered that he must have forwarded the original map to the District Office at Cairns, where he expected it would have remained.31. The QPS was subsequently asked to forward to my office the Smithfield Police Station files 3153/87 and 2698/87, and Cairns District Office file 87/5408. On 11 August 1994, the QPS forwarded to me Cairns District Office file 87/5408 together with a Smithfield Police Station file (contained in a manila folder). The officer in charge of Smithfield Police Station advised that a thorough search of the files held at Smithfield had failed to disclose files numbered 3153/87 and 2698/87. Instead, the file forwarded was a copy of all correspondence held at Smithfield Police Station concerning Mr Hearl. After examination of the files, it was clear that neither document (a) nor document (b) was contained within the files forwarded to me. However, those files did contain clues as to the whereabouts of those two documents. 32. The report by Constable Scott dated 16 January 1988 (see paragraph 10 above) was not located on the Cairns District Office file 87/5408, although perusal of that file did seem to indicate that it is a general District Office file concerning Mr Hearl and his complaints. In a letter to the QPS FOI Unit dated 29 August 1994, the QPS was asked to make inquiries as to whether Constable Scott's report of 16 January 1988 could have been placed on some other Cairns District Office file. 33. As to document (b), several documents in the Cairns District Office file 87/5408 indicated that this map was in the original brief prepared for the police prosecutor in respect of Mr Hearl's trial. A memorandum by Acting District Officer Wagner of 15 May 1992 to the Assistant Commissioner, Far Northern Region, indicates that such a map was attached to the original brief. Also contained in that file was an affidavit sworn by Inspector Wagner on 8 December 1989 (for the purposes of a response to a subpoena to produce documents to the Land Court) which at paragraph 5 states that Inspector Wagner had: ... perused the Police Brief including a map prepared by Mr Ford which indicated where the assault occurred.34. The QPS was requested to make inquiries as to where the police prosecution brief may be located, in view of the possibility that the original map was still contained on that brief. It was indicated that, given the complaints made by Mr Hearl, it was possible that the prosecution brief was held by the CJC. The QPS asked for an extension of time to make these further inquiries, since the initial decision-maker, Inspector Wright (formerly Senior Sergeant Wright), was to visit Cairns during the period 16-21 October 1994. An extension of time was given accordingly. By letter dated 9 November 1994, Superintendent Doyle informed me of the results of the additional inquiries made by the QPS, as follows:(a) The possibility of Constable Scott's report of 16 January 1988 being placed on some other Cairns District Office file.35. During the period 16-21 October 1994, Inspector Wright visited the Cairns District Office, the far Northern Regional Office and the Smithfield Police Station. Inspector Wright personally perused all remaining files held at all three locations concerning Mr Hearl and discussed with QPS staff the likelihood of Constable Scott's report having been placed on another file. The QPS informed me that the relevant indices were again checked to seek to identify any associated files, however no other relevant documents were located.(b) The whereabouts of the police prosecution brief36. The outcome of inquiries was that the whereabouts of the original, and any copy, of the police prosecution brief was unknown. Copies of the brief were not held at any of the three locations referred to in paragraph 35 above, nor at the prosecutions section at Cairns. The QPS informed me that it is not a policy or procedure for the prosecutions section at Cairns to retain such a copy.37. Superintendent Doyle's letter informed me that the original court brief would ordinarily have been forwarded to the Police Information Centre (previously called the Information Bureau and Information Management Bureau). Superintendent Doyle stated that a copy of a Form QP9 (which is a pro-forma document containing blank spaces to be completed so as to identify a particular offender, details of the alleged offence, and the results of proceedings in court) concerning the assault charge against Mr Hearl was forwarded to the Police Information Centre. Superintendent Doyle provided me with a copy of that QP9 form. 38. Superintendent Doyle referred to earlier inquiries conducted with the prosecutions section, Cairns Police Station, which established that there was no prosecution brief, as such, prepared for the proceedings against Mr Hearl, rather the original of the police file was used for that purpose. (I note that one is then left with an initially contradictory position being presented by the QPS that no prosecutor's brief was prepared for the charge against Mr Hearl, but District Officer Wagner refers to perusing a "Police Brief" concerning the prosecution of Mr Hearl. I consider that the best explanation is that what District Officer Wagner was referring to as a "Police Brief" was the QP9 form, together with the original police file that was used for the purpose of prosecuting Mr Hearl. Superintendent Doyle indicated that the procedure used by the police prosecutor's office was to use the file provided to them, and that upon the completion of any proceedings, the file was forwarded to the Information Management Bureau for filing.)39. Superintendent Doyle informed me that he had personally inspected the microfilm record at the Police Information Centre and that, apart from the QP9, no copies of statements, maps or other notes are recorded. Superintendent Doyle expressed the view that, given the formal complaints made by Mr Hearl, it was possible that the brief was diverted, or taken possession of, by an investigator. It is my conclusion that examination of the Cairns District Office file would certainly indicate this to have been the case, given the comments by District Officer Wagner that he was able to inspect the "Police Brief" as late as 1989, and document (b) was located on that file at that time. Superintendent Doyle indicated that it is not QPS policy to retain original copies of court briefs. Generally, copies of selected documents are microfilmed, and originals are destroyed, and this has occurred with original documents from the 1987 period. 40. Superintendent Doyle was subsequently questioned as to the utility of pursuing inquiries as to the existence of any Criminal Offence Report prepared as a result of Mr Ford's initial complaint of assault by Mr Hearl. Superintendent Doyle indicated that, in 1987, the practice was to prepare a single document (a QP9), where an offender in relation to a criminal offence was able to be identified and had been charged. In effect, the QP9 had absorbed within it all the information required of a Criminal Offence Report, and in fact made completion of a Criminal Offence Report redundant. In cases where the offender was unknown at the time the QPS received the complaint, only a Criminal Offence Report was created, with a QP9 produced if an offender was subsequently identified. The two documents would then be cross-referenced.41. The copy of the QP9 (concerning the charge of assault against Mr Hearl) provided to me by the QPS contains a blank space in the section provided for cross-reference to any previous Criminal Offence Report. Taking that fact, together with the date of the QP9 (19 August 1987), compared to the date of the offence (9 August 1987), I find that it is more probable than not that only a QP9 was prepared for the assault charge against Mr Hearl, and that a separate Criminal Offence Report was not prepared. Further, Superintendent Doyle advised that the records system of the QPS was such that any documents prepared in relation to any Criminal Offence Report (assuming such a separate document existed) would have been forwarded to the Police Information Centre, and held with the QP9. Superintendent Doyle had in fact conducted such a search, without locating the documents in issue.42. Superintendent Doyle advised that he had again visited the CJC on 7 November 1994, and apart from the copy of the QP9, no copies of the police prosecution brief are on file at that location, nor is there any evidence to suggest that this was ever the case.(c) Smithfield files 3153/87 and 2698/8743. Superintendent Doyle informed me that even though the original files could not now be located for forwarding to me, his records indicate that both those files consisted of one page reports, copies of which had already been released to Mr Hearl (and which would appear to be the documents referred to in paragraphs 10 and 11 above).44. By letter dated 5 December 1994, I informed Mr Hearl of the additional inquiries undertaken by the QPS by forwarding to him a copy of Superintendent Doyle's letter of 9 November 1994. I conveyed to Mr Hearl my preliminary view that there were reasonable grounds to believe that documents (a) and (b) did exist but that neither of those documents could be found in the possession or under the control of the QPS at the present time, despite reasonable searches and inquiries being made to locate those documents. I also conveyed to Mr Hearl my preliminary view that the searches undertaken by the QPS for the documents in issue had been reasonable, and indeed exhaustive. I asked Mr Hearl to indicate, by 16 December 1994, whether or not he wished to withdraw his application for external review. No response was received to that letter.Conclusion45. Having detailed the nature and extent of the searches and inquiries undertaken by the QPS, and by my staff, in respect of the documents in issue, I turn to the consideration of the principles applicable to "sufficiency of search" cases as set out in Re Shepherd (see paragraph 8 above). In answer to the first question posed in paragraph 19 of Re Shepherd, I consider that the evidence establishes that the documents in issue did, at one time, exist within the possession or control of the QPS, but that it is most likely that they have since been destroyed or lost. In any event, in respect of the second question posed in paragraph 19 of Re Shepherd, I am satisfied that the search efforts made by the QPS to locate the documents in issue have been reasonable in all the circumstances of this case; indeed they may be described as exhaustive, but they have ultimately been unsuccessful. I am unable to suggest any other avenues of search and inquiry within the QPS that might have reasonable prospects of success.46. Given these conclusions, I affirm the decision made on behalf of the QPS by Acting Assistant Commissioner P J Freestone on 10 September 1993............................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

I6XD0H and Department of Community Safety [2012] QICmr 33 (26 June 2012)

I6XD0H and Department of Community Safety [2012] QICmr 33 (26 June 2012) I6XD0H and Department of Community Safety [2012] QICmr 33 (26 June 2012) Last Updated: 10 September 2012 Decision and Reasons for Decision Application Number: 310820 Applicant: l6XD0H  Respondent: Department of Community Safety Decision Date: 26 June 2012 Catchwords: ADMINISTRATIVE LAW – INFORMATION PRIVACY ACT – QUEENSLAND – REFUSAL OF ACCESS – 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 Right to Information Act 2009 (Qld) were the document to be the subject of an access application under that Act – section 67(1) of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION ACT – QUEENSLAND – REFUSAL OF ACCESS – CONTRARY TO THE PUBLIC INTEREST – application for information relating to a workplace investigation including transcripts of witness interviews – 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 made an application to the Department of Community Safety (Department) under the Information Privacy Act 2009 (Qld) (IP Act) for access to information relating to a workplace investigation including transcripts of witness interviews. The investigation related to allegations about the applicant. The Department granted full access to the applicant’s transcript of interview[1] and refused access to the following information (Information in Issue) on the basis that its disclosure would, on balance, be contrary to the public interest: the transcripts of interviews of other witnesses two letters from individuals to the Department; and two emails with file notes. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision to refuse access to the Information in Issue. As the applicant has received the body of the investigation report (including a summary of the evidence provided, an analysis of the evidence and the findings made) and has participated in the investigation process which is complete, the public interest in ensuring accountability of the Department for properly investigating workplace disputes should be afforded limited weight. The Information in Issue is the personal information of the applicant and significant weight is given to this factor favouring disclosure. However this factor must be balanced against other relevant factors favouring nondisclosure of the Information in Issue. The Information in Issue also comprises the personal information of other individuals. Given the nature of the Information in Issue and the context in which it appears, the extent of the public interest harm that could be anticipated from disclosing the personal information of other individuals is quite significant and would also be a significant intrusion into their privacy, particularly in respect of the witnesses who did not consent to disclosure. It is reasonable to expect that disclosing the details of conversations between management and staff in which staff conveyed concerns of a sensitive nature may make staff reluctant to raise these concerns in the future. Although it is reasonable to expect staff to cooperate with investigation processes in the course of their employment, disclosing the transcripts of interviews of other witnesses when it is not required for the investigation and discipline process and after the matter has been finalised would also make staff reluctant to fully participate in future workplace investigations of this nature. This would likely have a detrimental effect on the Department’s management of its staff and significant weight should be attributed to this factor in relation to the emails with file notes and transcripts of interviews. For these reasons, disclosing the Information in Issue would, on balance, be contrary to the public interest. Background Significant procedural steps relating to the application and external review process are set out in the appendix to this decision. Reviewable decision The decision under review is the decision the Department was taken to have made refusing access to the Information in Issue.[2] Evidence considered The evidence, submissions, legislation and other material I have considered in reaching my decision are as disclosed in these reasons (including footnotes and appendix). Information in issue The Information in Issue is identified at paragraph 2 above. 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 section 67 of the IP Act, which provides that an agency may refuse access to information in the same way and to the same extent as under section 47 of the Right to Information Act 2009 (RTI Act). Relevantly, access may be refused where disclosure would, on balance, be contrary to the public interest.[3] The term public interest refers to considerations affecting the good order and functioning of the community and government affairs, for the well-being of citizens generally. This means that ordinarily, a public interest consideration is one which is common to all members of, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest. It also explains the steps that a decision-maker must take in deciding the public interest. To determine the balance of the public interest a decision-maker must:[4] 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 relevant information would, on balance, be contrary to the public interest. Findings No irrelevant factors arise in this matter.[5] Personal information and privacy If disclosing information could reasonably be expected to[6] disclose the personal information of the individual applying for that information, a public interest factor favouring disclosure arises.[7] The Information in Issue includes references to events involving the applicant and is therefore the applicant’s personal information. Accordingly, this factor is relevant. The Information in Issue is also the personal information of others. 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 others. In other words, the relevant information cannot be disclosed to the applicant without disclosing personal information of other individuals. The RTI Act provides that it is reasonable to expect that disclosing an individual’s personal information to another person will cause a public interest harm.[8] It is therefore relevant to consider the extent of the harm that would flow from disclosing the Information in Issue. The Information in Issue identifies a number of individuals and contains sensitive information about them including their personal accounts of events, emotional reactions to the events they were questioned about and concerns of a sensitive nature which were conveyed to management. Given the nature of this information, I am satisfied that the extent of the public interest harm that could be anticipated from disclosure is quite significant. If disclosing the Information in Issue could reasonably be expected to prejudice[9] the protection of an individual’s right to privacy, a factor favouring nondisclosure arises.[10] Given the sensitive nature of the Information in Issue, it is reasonable to expect that disclosing this information would be a significant intrusion into those individuals’ privacy. During the external review, the applicant contacted a number of the individuals interviewed to seek their consent for the Department to disclose their interview transcripts to him and provided OIC with a number of email responses to support his case for releasing the Information in Issue. Although a witnesses’ consent to disclosure significantly reduces the privacy interest regarding information about them, the Information in Issue comprises not only the applicant’s personal information and that of the interviewee, but also the personal information of other individuals involved in the events being investigated. It is not possible to separate the personal information of the interviewee from the personal information of other individuals. As a result, obtaining consent from individuals who provided witness statements would not entirely alleviate the harm that would result from releasing the Information in Issue. It is noted that only a small number of witnesses consented to disclosure. With respect to the witnesses who did not consent to disclosure, the privacy interest is significant. The applicant submits that he has signed an agreement which prevents him from discussing or divulging certain information and which, in his view, would also prevent him from revealing the Information in Issue. The applicant submits that this mitigates to a great degree the concern that damage may be caused by releasing the Information in Issue to him. In OKP and Department of Communities[11] the Information Commissioner considered the decision of the Victorian Court of Appeal in Victoria Police v Marke (Marke)[12] and relevantly decided that: Marke supported the proposition 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;[13] and this proposition correctly stated the position in Queensland and, as a result, the now repealed Freedom of Information Act 1992 (Qld) did not support the long held and widely utilised assumption that release of documents to an applicant is necessarily release to the world at large.[14] I acknowledge the applicant does not intend to disclose the Information in Issue and I consider the likelihood of the applicant disseminating the Information in Issue is relatively low given the personal nature of his interest in the information. Notwithstanding this, the IP Act imposes no restraint on the dissemination of information once it is released. Further, I do not accept the applicant’s submission that disclosing the Information in Issue only to him would mitigate the harm that may flow from disclosure. As set out above, disclosing the Information in Issue under the IP Act (including disclosing it to the applicant) would (in respect of most of the Information in Issue) be a significant intrusion into those individuals’ privacy and could reasonably be expected to cause a public interest harm. In my view, the obligations imposed on the applicant as a result of the agreement would not significantly lessen the harm that would result from disclosing the Information in Issue. Administration of justice If disclosing information could reasonably be expected to contribute to the administration of justice generally or to the administration of justice for a person, including procedural fairness, it is relevant to consider this public interest factor favouring disclosure.[15] In his external review application, the applicant explained that he required the interview transcripts to fully understand the nature of the allegations against him, and to allow him to respond more adequately and comprehensively. During the external review, the applicant indicated that he was denied access to certain information about the investigation which made it difficult for him to defend himself against the allegations. During the external review, the Department advised OIC that: the allegations were put to the applicant during the investigation and the applicant was given an opportunity to respond to the allegations the applicant was provided with the body of the investigation report (excluding the attachments to the report);[16] and the disciplinary process has been finalised. I accept the Department’s submissions on this issue. The Department also provided OIC with a copy of the investigation report which was provided to the applicant. The body of the investigation report sets out: an executive summary, the terms of reference and background to the investigation and a description of the relevant policy and procedure a list of the individuals interviewed as part of the investigation a summary of the allegations made about the applicant and the evidence provided by the individuals who were interviewed; and an analysis of the evidence, findings and recommendations. As the investigation is complete, the disciplinary process finalised and the applicant has received considerable information about the investigation, no procedural fairness issues arise for consideration in the circumstances. The applicant also says that he requires the Information in Issue to make a complaint to the Queensland Ombudsman. There are no formal requirements when making a complaint to the Ombudsman and the Ombudsman has wide ranging powers under the Ombudsman Act 2001 (Qld), including the power to require a person to give the Ombudsman any document relevant to an investigation. For these reasons, this public interest factor is not relevant in the circumstances of this case. Accountability of the Department in properly carrying out investigations The applicant submits that: he needs the Information in Issue to show a conspiracy by stakeholders in the investigation to suppress evidence that would have afforded him a much stronger position when stating his case; and one of the witnesses has provided him with a statutory declaration indicating that, in their view, the investigation was flawed and this supports the applicant’s view that the investigation was biased. A public interest factor favouring disclosure will arise if disclosing the Information in Issue could reasonably be expected to advance the public interest in government agencies being accountable for properly investigating workplace disputes.[17] In this case, receiving a copy of the Information in Issue would enhance the accountability of the Department’s investigation process to some degree, as it would enable the applicant to assess the body of the report against the evidence relied on by the investigator. However, as I noted above, the applicant has already received a significant amount of information about the investigation (including a summary of the evidence provided, an analysis of the evidence and the findings made). The information which remains is predominantly individuals’ personal accounts of events. Having considered the Information in Issue, I do not consider that disclosing the Information in Issue to the applicant could reasonably be expected to advance to any significant degree the public interest in ensuring the accountability of the Department for properly investigating workplace disputes. Prejudice management function In this instance it is reasonable to expect that disclosing the transcripts of interviews of other witnesses and the emails with file notes would have a detrimental effect on the Department’s management of its staff. [18] The emails with file notes contain records of conversations between staff and management in which staff conveyed concerns of a sensitive nature to management. In my view it is reasonable to expect that disclosing such concerns of a sensitive nature to other individuals may make staff reluctant to raise these concerns in the future. This in turn could reasonably be expected to prejudice the ability of managers to effectively address issues within their work group. In workplace investigations such as this, information is usually provided by witnesses on the understanding that the information will be used for the purposes of the investigation and any subsequent disciplinary action only. Information received is ordinarily treated confidentially, except to the extent that procedural fairness and discipline processes require otherwise. In this instance, witnesses were asked to provide their account of relatively sensitive circumstances. Although it is reasonable to expect staff to cooperate with investigation processes in the course of their employment, I consider that disclosing the transcripts of interviews of other witnesses when this is not required for the investigation and discipline process and after the matter has been finalised would likely make staff reluctant to fully participate in future workplace investigations of this nature. That is, they may provide a less detailed account of their experience and observations. This, in turn, would significantly impact the effectiveness of future investigations. Balancing the relevant public interest factors As the applicant has received the body of the investigation report (including a summary of the evidence provided, an analysis of the evidence and the findings made) and has participated in the investigation process which is complete, I am satisfied that the public interest in ensuring accountability of the Department for properly investigating workplace disputes should be afforded limited weight. I acknowledge that the Information in Issue is the personal information of the applicant and I give significant weight to this factor favouring disclosure. However this factor must be balanced against other relevant factors favouring nondisclosure of the Information in Issue. The Information in Issue also comprises the personal information of other individuals. Given the nature of the Information in Issue and the context in which it appears, I am satisfied that the extent of the public interest harm that could be anticipated from disclosing the personal information of other individuals is quite significant and would also be a significant intrusion into their privacy, particularly in respect of the witnesses who did not consent to disclosure. It is reasonable to expect that disclosing the details of conversations between management and staff in which staff conveyed concerns of a sensitive nature may make staff reluctant to raise these concerns in the future. Although it is reasonable to expect staff to cooperate with investigation processes in the course of their employment, I consider that disclosing the transcripts of interviews of other witnesses when it is not required for the investigation and discipline process and after the matter has been finalised would also make staff reluctant to fully participate in future workplace investigations of this nature. I am of the view that this would likely have a detrimental effect on the Department’s management of its staff and I attribute significant weight to this factor in relation to the emails with file notes and transcripts of interviews. For these reasons, I am 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 to refuse access to the Information in Issue under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act by finding that disclosure of the Information in Issue 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. ________________________ Suzette Jefferies Assistant Information Commissioner Date: 26 June 2012 APPENDIX Significant procedural steps Date Event 31 August 2011 The Department received the access application. 13 October 2011 It appears that the Department did not issue a decision within the required timeframe and was taken to have made a decision refusing access to the Information in Issue. However, the Department continued to process the access application and issued a decision to the applicant. 8 November 2011 OIC received the external review application. 9 November 2011 OIC requested that the Department provide a number of procedural documents by 14 November 2011. 10 November 2011 The applicant provided further information supporting his application. 17 November 2011 The Department provided the relevant procedural documents. 29 November 2011 OIC notified the applicant and the Department that the external review application had been accepted and asked the Department to provide a copy of the Information in Issue and any details of third party consultation by 13 December 2011. The applicant and the applicant’s representative provided further information supporting the application including emails from three individuals. 2 December 2011 OIC received the Information in Issue from the Department. 15 December 2011 The applicant provided further information supporting his application. 7 February 2012 The applicant provided further information supporting his application. 10 February 2012 OIC asked the Department for further information about the investigation and subsequent disciplinary process. 13 February 2012 The Department provided the requested information to OIC. 10 April 2012 OIC conveyed a preliminary view to the applicant and invited him to provide submissions supporting his case by 26 April 2012 if he did not accept the preliminary view. 24 April 2012 OIC received submissions from the applicant. The applicant requested further time to provide final submissions in support of his case. OIC agreed to the requested extension of time. OIC asked the Department for a copy of the investigation report and other correspondence provided to the applicant in the course of the disciplinary process. 16 May 2012 The Department provided the requested information to OIC. 18 May 2012 The Department provided the requested information to OIC. 21 May 2012 OIC received the applicant’s final submissions. 25 June 2012 OIC asked the Department to confirm that it provided the applicant with a copy of the investigation report. The Department provided the requested confirmation. Date Event 26 June 2012 OIC asked the Department whether it would agree to release additional information (i.e. the names of the interviewees as they appear on the first page of each transcript of interview) to the applicant. The Department agreed to release the additional information. [1] Together with one page comprising an email footer and the first pages of the transcripts of other witnesses’ interviews. [2] The background to this issue is set out in the appendix. [3] Section 47(3)(b) of the RTI Act. [4] Section 49(3) of the RTI Act. [5] I have examined the irrelevant factors in schedule 4, part 1 of the RTI Act and do not consider that arise here, nor do I consider any additional irrelevant factors arise in this matter. [6] 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. [7] 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.[8] Schedule 4, part 4, section 6 of the RTI Act.[9] As the word prejudice is not defined in the RTI Act or the Acts Interpretation Act 1954 (Qld) it is appropriate to consider its ordinary meaning. The Macquarie Dictionary contains a number of definitions for the word prejudice, the most relevant of which are resulting injury or detriment and to affect disadvantageously or detrimentally. [10] Schedule 4, part 3, item 3 of the RTI Act. [11] [2009] QICmr 38 (9 July 2009). [12] [2008] VSCA 218.[13] At paragraph 128. [14] At paragraph 129. [15] Schedule 4, part 2, items 16 and 17 of the RTI Act. [16] The applicant confirmed in his submissions of 24 April 2012 that he had received a copy of the investigation report. [17] Schedule 4, part 2, item 1 of the RTI Act. [18] Schedule 4, part 3, item 19 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

U5OR8D and Department of Housing and Public Works [2018] QICmr 19 (2 May 2018)

U5OR8D and Department of Housing and Public Works [2018] QICmr 19 (2 May 2018) Last Updated: 10 May 2018 Decision and Reasons for Decision Citation: U5OR8D and Department of Housing and Public Works [2018] QICmr 19 (2 May 2018) Application Number: 313465, 313521, 313605 and 313678 Applicant: U5OR8D Respondent: Department of Housing and Public Works Decision Date: 2 May 2018 Catchwords: ADMINISTRATIVE LAW - AMENDMENT OF PERSONAL INFORMATION - applications to amend information contained in Public Information Documents and letters and a correspondence brief authored by officers of the agency - information relating to issues arising under the Retirement Villages Act 1999 (Qld) about the management and operation of a Retirement Village - whether the information sought to be amended is contained within a document of the agency - section 13 of the Information Privacy Act 2009 (Qld) - whether information is the personal information of the applicant - section 12 of the Information Privacy Act 2009 (Qld) - whether information is inaccurate, incomplete, out of date or misleading - section 72(1)(a) of the Information Privacy Act 2009 (Qld) REASONS FOR DECISION Summary The applicant is concerned about a range of issues relating to a retirement village operated by the Retirement Village Operator.[1] The applicant applied,[2] by separate applications, to the Department of Housing and Public Works (Department) under the Information Privacy Act 2009 (Qld) (IP Act) for amendment of information contained in: the applicant’s Public Information Document (PID) letters the applicant received from the DirectorGeneral of the Department dated 18 August 2015[3] (2015 Letter) and 28 June 2017[4] (2017 Letter) a correspondence brief prepared by an officer of the Department (Correspondence Brief); and the Retirement Village PID. The Department decided to refuse the requested amendments in accordance with section 72(1) of the IP Act on the basis that: the applicant’s PID is not a document of the Agency[5] the information sought to be amended in the 2015 Letter, 2017 Letter, paragraphs [7] and [9] of the Correspondence Brief and the Retirement Village PID is not personal information of the applicant;[6] and the information sought to be amended in paragraph [10] of the Correspondence Brief is not inaccurate, incomplete, out of date or misleading.[7] The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decisions.[8] For the reasons set out below, I affirm the Department’s decisions to refuse the applicant’s requested amendments. Background The Appendix to these reasons for decision sets out the significant procedural steps taken during the external reviews. Reviewable decisions The decisions under review are the Department’s decisions dated 18 August 2017[9] (external review 313465), 29 September 2017[10] (external review 313521), 10 November 2017[11] (external review 313605) and 20 December 2017[12] (external review 313678). Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). During the reviews the applicant provided a number of submissions as well as documents (including professional advice and media articles) relating to her concerns regarding the operation of the retirement village. I have considered all of this material and have only extracted those parts which I consider to have relevance to the issues to be determined in these reviews. Issues in the reviews The following issues arise for determination in these external reviews. That is, whether: the applicant’s PID is a document of the Department the information the applicant seeks to have amended in the 2015 Letter, 2017 Letter, paragraphs [7] and [9] of the Correspondence Brief and the Retirement Village PID is the personal information of the applicant the applicant has demonstrated that the information she seeks to have amended in paragraph [10] of the Correspondence Brief is inaccurate, incomplete, out of date or misleading; and if it is, whether under section 72(1), amendment of the information may still be refused. Relevant law Under the IP Act, an individual has a right to apply for amendment of a document of an agency containing the individual’s personal information where the following requirements are satisfied:[13] a) the applicant has previously obtained access to the document said to contain the applicant’s personal information b) the information which the applicant seeks to amend is the applicant’s personal information; and c) the personal information is inaccurate, incomplete, out of date or misleading. Satisfaction of the preceding requirements does not itself entitle an applicant to amendment. Due to the opening words of section 72(1) of the IP Act—‘[w]ithout limiting the grounds on which the agency or Minister may refuse to amend the document’, a decision-maker may still refuse to amend a relevant document—this provision confers on a decision-maker discretion whether to grant or refuse an amendment application. While the section sets out specific grounds on which amendment may be refused, the decision-maker is not limited solely to those grounds. Consequently, even where an applicant has satisfied each of the requirements noted above, discretion is retained to refuse to amend a relevant document. While an agency has the onus of establishing that its decision was justified,[14] in an external review of a decision to refuse to amend information:[15] ... a practical or evidentiary onus shifts to [an applicant] to provide evidence to support [their] entitlement to relief under [the IP Act] on the basis that the documents in issue contain information that is inaccurate, incomplete, out-of-date or misleading. Findings The applicant has applied to amend information contained within Parts 5.1.2 and 5.1.8 of the applicant’s PID, contending that the information is inaccurate or misleading. Further, that the document is out of date or incomplete, stating ‘every year it is necessary to update my PID showing my Capital Depreciation on my Ingoing Contribution’. The right of amendment under the IP Act applies only to documents of an agency or Minister. Is the applicant’s PID a document of the Department? No, for the reasons that follow. A document of an agency is a document in the possession, or under the control, of the agency.[16] The Department’s decision states that enquiries with its Residential Services Unit revealed that the Department does not hold a copy of the applicant’s PID. In seeking an external review, the applicant submitted:[17] Please be advised there is no Public Interest Document. My Public Information Document S74 Retirement Villages Act 1999 includes and forms part of my Residential Contract with [the Retirement Village Operator]. Changes in Parts 2 & 5 are regarded as material changes that should be notified under S36 of the Act. Part 5 Ch 1 Funds Information Capital Replacement Fund 8 March 2012 omits in 5.1.2 the Capital Replacement Reserve >$1M declared annually in forming the CRF Budget in the approved form from quantity surveying. In Part 4 Retirement Villages Act 1999 Other documents relating to retirement village schemes S78 prescribes in my PID Funds information, only funds details, end of previous financial year 2011 balance and 5.1.5 my capital replacement fund annual contribution and details of the quantity surveyor's report used to decide the percentage of my ingoing contribution to be applied towards the capital replacement fund. 5.1.5 The scheme operator applies the following calculations based on my ingoing contribution to the capital replacement fund is about my ingoing contribution and connects the PID to about me 1-6% contributing to the annual capital replacement reserve. I acknowledge that the applicant’s PID forms part of the applicant’s residence contract and that the Retirement Villages Act 1999 (Qld) (RV Act) requires notification of certain changes.[18] However, this is not relevant to the question of whether the document the applicant seeks to amend is a document of the Department. During the course of the external review, the applicant submitted:[19] I believe I am the subject of the letter and my misleading Public information Document which as I have enclosed is under the department’s control. I am subject to no conciliation by the Department of Housing regarding [the Retirement Village Operator] budgets not in the approved form consistent with quantity surveying for the fixing of my fees. The connection of the information to me is my increased fees for reduced standards of service not tenuous with the ongoing non-compliance by [the Retirement Village Operator] of the relevant provisions of the RV Act for the Capital Replacement and Maintenance Reserve Trust Funds. And:[20] My Public Information Document discrepancies. Please find enclosed DHPW documents on my personal file relevant to my PID lack of disclosure to determine my annual general service fees and lack of [the Retirement Village Operator] obligations in implementing annual [Retirement Village] budgets to restrict my annual capital gain on my ingoing contribution 2012. In support of these submissions, the applicant provided OIC with page 1 of a Retirement Village Form 1 (RV Form 1) for the Retirement Village which states ‘This Public Information Document was given to the chief executive of the Department administering the Retirement Villages Act 1999 on 8 March 2012 under section 36 of the Act.’ A public information document gives prospective residents information about a specific retirement village.[21] The document must be in the approved form and include certain categories of information, such as residents’ contributions information, residents’ rights and obligations information and dispute resolution information.[22] To register a retirement village scheme, the application must be accompanied by a copy of the public information document for the retirement village.[23] The RV Act also specifies circumstances in which any inaccuracies in the public information document must be notified to the Department’s chief executive and effected residents.[24] The approved form for the purposes of section 74 of the RV Act is the RV Form 1, which comprises five parts as follows: Part 1 – Generic Information Part 2 – Village and accommodation information Part 3 – Your accommodation unit details Part 4 – Available accommodation units information; and Part 5 – General information for this village. Section 35 of the RV Act requires the Department’s chief executive to keep a register for retirement village schemes. The register must include the public information documents and notices about inaccuracies in public information documents given under section 36 of the RV Act. After receiving the applicant’s submission at paragraphs 20 and 21 above, OIC sought further information from the Department. The Department submitted[25] that while the Department holds the Retirement Village PID, it does not hold a copy of the applicant’s PID which would contain details in Part 3 specific to the applicant. The applicant’s PID would be held by the applicant, having been provided to her prior to entering into her residence contract, and by the Retirement Village Operator. I acknowledge the applicant’s submission at paragraph 18 above that the extracted statement forms part of the RV Form 1 and reflects requirements of the RV Act previously noted. However, I am satisfied that the Retirement Village PID held by the Department comprises those parts of the RV Form 1 which relate to the retirement village as a whole and does not include information specific to the applicant in Part 3 of the RV Form 1, the latter being held by the applicant and the Retirement Village Operator. I accept the Department’s submission at paragraph 27 that the Department does not hold the applicant’s PID. On the basis of the above, I am satisfied that the applicant’s PID is not a document of the Department as the Department is not in possession of the document and there is no information before me to indicate that it is under the Department’s control. Accordingly, the applicant is not entitled to apply to have this document amended because the information sought to be amended is not contained within a document of an agency, and therefore the amendment request can be refused. The applicant has also applied to amend certain paragraphs in a number of Department documents, copies of which were attached to the applicant’s amendment applications.[26] The right of amendment under the IP Act can only be considered if the information the applicant seeks to amend comprises their personal information.[27] Is the information the applicant seeks to amend in the Letters, paragraphs [7] and [9] of the Correspondence Brief and the Retirement Village PID the applicant’s personal information? No, for the reasons that follow. In external review 313521 the applicant requests amendment of the following paragraphs in the 2015 Letter, wherein the author stated: I have been advised that the [Retirement Village Operators] have provided the department with copies of the 2015-2016 financial year capital replacement fund and maintenance reserve fund budgets. ... Retirement village operators are required to set a capital replacement fund budget each financial year, having regard to the quantity surveyor's report. The documents provided by the [the Retirement Village Operators] indicate that an estimated $1,245,000 (plus interest earned by the fund) will be held as the capital replacement fund reserve for costs expected to be incurred during the 2015-2016 financial year. ... In support of the request, the applicant states:[28] HPW01664/15 S78 Funds Information. My Public Information Document Retirement Villages Act 1999 is inaccurate and misleads in Part 5. 1. 2. & 5. 1. 8 with closing balances CRF & MRF not determined by quantity surveying nor 9 year budgets voids. Ref QCAT ... It reveals my fee contributions to [the Retirement Village Operator’s] operations result in capital depreciation of my ingoing contribution. ... Every year it is necessary to update my Public Information Document showing my Capital Depreciation on my Ingoing Contribution. In external review 313465 the applicant requests amendment of the following paragraphs in the 2017 Letter, wherein the author stated: I have been advised that a retirement village scheme operator must keep a Capital Replacement Fund and hold amounts standing to the credit of that fund in a separate bank account. The scheme operator is solely responsible for contributing to the fund and that the Retirement Villages Act 1999 (the RV Act) specifies how amounts standing to the credit of the fund can be spent. ... I have also been advised that it is up to the scheme operator to decide the amount to be held in the fund (the capital replacement reserve) and that this decision must be made regarding the fund's purpose, the quantity surveyor's report and any amounts transferred to the fund when it was established, including the balance transferred from any Capital Replacement Fund established prior to the enactment of the RV Act. ... In instances where the balance of the fund is not sufficient to cover the costs incurred by the scheme operator when replacing capital items, the operator must pay the difference between the actual amount to be spent and the amount held in the capital replacement fund. ... In support of this amendment request, the applicant states:[29] The [Retirement Village Operator] is solely responsible in accordance with the Public Information document for contributing to make the capital replacement reserve on behalf of residents at the rate of 1-6% of [my] ingoing contribution for more than 5 years. Without the capital replacement fund contribution from [me] the exit fee is 24% of [my] ingoing contribution. The costs incurred by [the Retirement Village Operator] in replacing capital items out of the CRF Budget have shown a shortfall of 20% below the Annual Reserve. ... To complete my personal information about my contribution to the capital replacement fund by [the Retirement Village Operator], the Public Information document information 1-6% of my ingoing contribution must be included. In external review 313605 the applicant requests amendment of information contained in the following paragraphs of the Correspondence Brief: [7] ...[30] [The applicant] made application to have this matter heard through QCAT ...[31] and a decision was handed down 8 January 2014 wherein the application was dismissed. The Tribunal found that [the Retirement Village Operator] has used its best endeavours in deciding the amount to be held in the MRF and that there is no evidence to suggest that [the Retirement Village Operator] has deliberately ignored the recommendations of the quantity surveyor's report in a significant way. The Tribunal further found that [the Retirement Village Operator] was not in breach of section 98(4) of the Act. [9] [The Retirement Village Operator] pay the discounted rates and water accounts and pass on the rebate amounts directly to the eligible individual residents within the village. [The Retirement Village Operator] apply the entire rates and water charges (before the rebate) to the general services expenditure to cover the costs of paying these accounts. [10] [The applicant] believes the practice whereby [the Retirement Village Operator] recoup the pensioner rebate amounts paid to residents, through the general services account, results in a significant overcharge to residents. In seeking to amend the above information, the applicant states:[32] [7] No evidence to suggest that [the Retirement Village Operator] ignores quantity surveying because [the Retirement Village Operator] lied to the tribunal & MRF budgets are still not in the approved form ...[33] meaning no 9 year plan for the surplus >$1 M. [9] [The Retirement Village Operator] is allowed by auditing not to divulge the total gross credit income amount within residents' contributions in the annual financial accounts to balance altering quarterly bills back to gross bills according to my expert advice Pontings cpa Accountants & auditors. ... [10] DHPW has sought no External Consultation expert advice. So the Pontings cpa expert advice prevails that the significant total credit amount including my pensioner rebate amount is withheld from village income & allowed by Director-Generals. The applicant also states:[34] I am seeking to have my personal information i.e. the annual fees my residential contract contained in my public information document states I am obligated to pay accurate, complete, not out of date and not misleading. In external review 313678 the applicant requests amendment of certain paragraphs within the Retirement Village PID appearing under the headings: Maintenance Reserve Fund [paragraph 1.1.19] Facilities Details [paragraph 2.8] Accommodation Details [paragraph 2.11] Insurance Information [paragraph 2.13] Capital Replacement Fund [paragraph 5.1.2] Maintenance Reserve Fund [paragraph 5.1.7 and 5.1.8] The applicant seeks to amend these paragraphs as follows:[35] 1.1.19. insert 'as calculated by 10year MRF budget’. omit the amount of contributions' 5.1.2 omit 'balance projections 'as inconsistent with S78[b] RV Act. 5.1.8 omit 'balance projections' as inconsistent with S78[b]. ... 2.8 Facilities Details omit ' hydrotherapy pool' 2.11 Accommodation Details update redevelopment total to 295. 2.13 Insurance Information Building omit $35M & update. In support of this application, the applicant states:[36] It became my PID manual materially connected to me when I signed it 14/05/12 as my residence contract. 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 be reasonably ascertained, from the information or opinion. Determining whether information is the personal information of an individual for the purposes of the IP Act requires consideration of whether the individual can reasonably be identified from the information and if so, whether the information is ‘about’ that individual.[37] With the exception of paragraph [10] of the Correspondence Brief, which I am satisfied does comprise the applicant’s personal information[38] and have addressed in paragraphs 52 to 66 below, the information the applicant seeks to amend does not include her name, however, the information appears in documents which reference her. Due to my conclusion that the information the applicant seeks to amend is not about her, I consider that nothing turns on this point. If the individual is the subject matter of the information, the information will be about them.[39] Where information is not clearly about an individual, it is necessary to consider the context in which the information appears. In doing so, the key question is whether there is a sufficient connection between the fact or opinion and the individual to reveal something about the individual. To demonstrate a sufficient connection between the individual and the information, the link cannot be so tenuous that the information is not about the individual, but about something else.[40] During the external reviews, the applicant made a number of submissions and provided various documents to OIC[41] contending that the information she seeks to amend is her personal information. She submits that the connection between the Letters, Correspondence Brief and the Retirement Village PID and herself is the capital depreciation of her ingoing contribution and her increased fees for reduced standards of service: in relation to the Letters, I understand the applicant’s submissions[42] to be that the fact that the calculations applied by the operator are based upon the applicant’s ingoing contribution to the capital replacement fund means that this information is about the applicant’s ingoing contribution and that this connects the PID to the applicant as she contributes to the annual capital replacement reserve in relation to the information the applicant seeks to amend in paragraphs [7] and [9] of the Correspondence Brief, I understand the applicant’s submission[43] to be that the fact that she is the subject of the Correspondence Brief and the increase in the annual general service fees and maintenance reserve fund fees the applicant pays means that the information is about the applicant; and in relation to the Retirement Village PID, I understand the applicant’s submission[44] to be that it became ‘materially connected’ to her when she signed it as her residence contract and that the increase in the annual general service fees and maintenance reserve fund fees the applicant pays means that the information is about the applicant. Although the Letters were addressed to the applicant, the Correspondence Brief discusses letters received from the applicant and issues regarding the management of the Retirement Village and the PID for the Retirement Village forms part of a contract signed by the applicant, the applicant is not the subject of the information sought to be amended. Rather, the information the applicant seeks to amend: in relation to the 2015 Letter, identifies documentation provided to the Department by the Retirement Village Operator, an estimate of the funds held in the Capital Replacement Fund reserve and information about calculating the Maintenance Reserve Fund budget (external review 313521) in relation to the 2017 Letter, sets out an interpretation of provisions of the RV Act and their operation (external review 313465) in relation to the information the applicant seeks to amend in paragraphs [7] and [9] of the Correspondence Brief, is a summary of the findings of a QCAT decision and information about how the Retirement Village Operator manages and pays rates which was provided to the Department by the Retirement Village Operator (external review 313605); and in relation to the Retirement Village PID, provides details about the retirement village scheme, including specific details about the Retirement Village relating to the Maintenance Reserve and Capital Replacement Funds projections over ten years (2011 to 2021) and generic information relevant to all retirement villages (external review 313678). This information is general in nature or concerns the operation of the Retirement Village as a whole. There is not a sufficient connection between the applicant and the information such that would make the information about the applicant for the purposes of the amendment provisions of the IP Act. I am satisfied that the information sought to be amended by the applicant discloses nothing about the applicant and the link the applicant is seeking to draw is far too tenuous. On the basis of the above, I am satisfied that the information sought to be amended in the 2015 and 2017 Letters, paragraphs [7] and [9] of the Correspondence Brief and the Retirement Village PID is not about the applicant and therefore does not comprise her personal information. Therefore, the Department was entitled to refuse amendment of this information under section 72(1) of the IP Act. In view of my finding at paragraph 50 above, it is not necessary for me to consider the amendment requests for this information further. However, for completeness, I have addressed the discretion to amend information at paragraphs 61 to 66 below. Is the information sought to be amended within paragraph [10] of the Correspondence Brief inaccurate, incomplete, out of date or misleading? No, for the reasons that follow. As previously noted, paragraph [10] of the Correspondence Brief comprises the applicant’s personal information. This information appears in a document of the Department and therefore, I must consider whether the Department was entitled to refuse amendment of this information. The applicant disputes paragraph [10] of the Correspondence Brief, wherein the author states: [10] [The applicant] believes the practice whereby [the Retirement Village Operator] recoup the pensioner rebate amounts paid to residents, through the general services account, results in a significant overcharge to residents. In the amendment application to the Department, the applicant stated the following:[45] [10] DHPW has sought no External Consultation expert advice. So the Pontings cpa expert advice prevails that the significant total credit amount including my pensioner rebate amount is withheld from village income & allowed by Directors- Generals. In support of her request to amend the Correspondence Brief, the applicant stated: I am seeking to have my personal information ie annual fees my residential contract contained in my public information document states I am obliged to pay accurate, complete, not out of date & not misleading. I have carefully considered the information the applicant seeks to have amended and the applicant’s statements at paragraphs 55 and 56 above. The applicant appears to contend that the information in paragraph [10] of the Correspondence Brief is out of date or incomplete because it does not include information which she considers relevant to the issues then in dispute between her and the Retirement Village Operator. Amendment provisions such as those found in the IP Act 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. It is concerned that the third persons reading the personal information do not get the wrong impression ...[46] At paragraph [10] of the Correspondence Brief the document’s author has simply recorded their understanding of concerns raised by the applicant. As the document details matters in contention between the applicant and the Retirement Village Operator, it is not surprising that the applicant disagrees with issues covered in the Correspondence Brief, however, this does not mean that the paragraph the applicant seeks to amend is incomplete as contemplated by the amendment provisions of the IP Act. On the contrary, the author’s statement seems generally consistent with the applicant’s concerns, and in any event, is an accurate recording of the understanding of the author.[47] I do not consider that the statement made by the author at paragraph [10] of the Correspondence Brief could reasonably be said to cause any of the detriments described in paragraph 58 above. I am further satisfied that inclusion of the applicant’s statement at paragraph 55 above is not necessary to ensure that paragraph [10] is up to date and complete. I do not consider the applicant has provided objective evidence which would demonstrate, on the balance of probabilities, that the statement contained in this paragraph is inaccurate, incomplete, out of date or misleading. I therefore find that the information the applicant seeks to amend, that is, paragraph [10] of the Correspondence Brief is not inaccurate, incomplete, out of date or misleading, and amendment may be refused. As stated at paragraphs 12 and 13 above, even where there is evidence to support an applicant’s contention that information is inaccurate, incomplete, out of date or misleading, this would merely enliven my discretion to consider the requested amendment. There are a number of considerations a decision-maker may appropriately take into account in determining whether or not to exercise the discretion to amend a record of information. In 3DT2GH I noted that the Information Commissioner has previously recognised the relevance of the following criteria when considering whether the discretion should be exercised:[48] (a) the character of the record, in particular whether it purports to be an objective recording of purely factual material or whether it merely purports to be the record of an opinion/report of one person; (b) whether the record serves a continuing purpose; (c) whether retention of the record in unamended form may serve a historic purpose; (d) whether the record is dated; (e) whether amendment is being sought as a de facto means of reviewing another administrative decision; (f) the extent to which access to the record is restricted; (g) whether creation of the record or any of its contents was induced by malice (h) whether the record is part of a group of records and, if so, whether the other records modify the impact of the record in dispute. Further, previous decisions of OIC and other Australian jurisdictions[49] establish that in considering whether to exercise the discretion to refuse to amend information, a decision-maker may take into account that it is not the purpose of the amendment provisions to:[50] re-write history, 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; re-write a document in words other than the author’s; review the merits or validity of official action; correct any perceived deficiencies in the work undertaken by agencies or reinvestigating matters. Even if all of the requirements for amendment of the 2015 and 2017 Letters, paragraphs [7], [9] and [10] of the Correspondence Brief and the Retirement Village PID in accordance with the applicant’s application were otherwise met, I am satisfied that the discretion to refuse amendment could be exercised in this case. I acknowledge that the applicant disputes various matters relevant to the financial and service provision arrangements under her contract with the Retirement Village Operator and their obligations under the RV Act. However, the amendments the applicant would seek to make would have the effect of altering the record of matters then in dispute, including the views and understandings relevant to issues in dispute put forward by both the Department’s officers and the Retirement Village Operator. The purpose of the amendment provisions of the IP Act is not to allow the Department’s record of contentious issues to be distorted by artificially overlaying the views of an individual on the views genuinely held, recorded and conveyed by Departmental officers and other individuals. Permitting the requested amendments in this circumstance would, in my view, destroy the integrity of the relevant public records and amount to a re-writing of history. Specifically in relation to the Retirement Village PID, I acknowledge that the applicant disputes certain information contained within it. However, the amendments that the applicant would seek to make would have the effect of altering the Retirement Village PID, which contains information relevant to the Retirement Village as a whole. The Retirement Village PID, and in particular, notifiable changes to that document, are specified in the RV Act, together with processes for dealing with disputes. As stated in paragraph 65, I consider the purpose of the amendment provisions of the IP Act is not to allow a public information document provided to the Department by a retirement village operator to be changed by artificially overlaying the views of an individual on the information contained within that document. Conclusion I am satisfied, for the reasons stated above, that each of the applicant’s amendment requests can be refused under section 72(1)(a) of the IP Act. DECISION For the reasons set out above, I affirm the Department’s decisions to refuse to amend the 2015 Letter, 2017 Letter, paragraphs [7], [9] and [10] of the Correspondence Brief, the applicant’s PID and the Retirement Village PID under section 72(1)(a) of the IP Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. Suzette JefferiesActing Assistant Information CommissionerDate: 2 May 2018 APPENDIX Significant procedural steps Date Event 21 August 2017 OIC received the applicant’s application for external review 313465. 30 August 2017 OIC received information relevant to the application from the Department in relation to external review 313465. 31 August 2017 OIC accepted external review 313465 and conveyed a preliminary view to the applicant, inviting the applicant to provide submissions by 14 September 2017. 1 September 2017 OIC received a submission from the applicant in relation to external review 313465. 25 September 2017 OIC received a submission from the applicant in relation to external review 313465. 30 September 2017 OIC received the applicant’s application for external review 313521. 12 October 2017 OIC received information relevant to the application from the Department in relation to external review 313521. 27 October 2017 OIC accepted external review 313521 and conveyed a preliminary view to the applicant, inviting the applicant to provide submissions by 10 November 2017. 3 November 2017 OIC received a submission from the applicant in relation to external review 313521. 14 November 2017 OIC received the applicant’s application for external review 313605. 17 November 2017 OIC received information relevant to the application from the Department in relation to external review 313605. 23 November 2017 OIC accepted external review 313605 and conveyed a preliminary view to the applicant, inviting the applicant to provide submissions by 7 December 2017. 1 December 2017 OIC received a submission from the applicant in relation to external review 313521 and 313605. 4 December 2017 OIC received a submission from the applicant in relation to external review 313521. 7 December 2017 OIC wrote to the Department putting forward an informal resolution option in relation to external reviews 313465 and 313605. 8 December 2017 OIC wrote to the Department on external review 313521 seeking confirmation of OIC’s understanding of the applicant’s Public Information Document. 13 December 2017 OIC received the Department’s response on external reviews 313465 and 313605. The Department proposed an alternate informal resolution option. 13 December 2017 OIC received the Department’s response on external review 313521 regarding the applicant’s Public Information Document. 15 December 2017 OIC conveyed a second preliminary view to the applicant on the issues in external reviews 313465, 313521 and 313605 inviting the applicant to provide submissions by 12 January 2018. OIC also put the Department’s informal resolution proposal to the applicant. 16 December 2017 OIC received a submission from the applicant in relation to external reviews 313465, 313521 and 313605. 21 December 2017 OIC received the applicant’s application for external review 313678. 22 December 2017 OIC received information relevant to the application from the Department in relation to external review 313678. 12 January 2018 OIC accepted external review 313678 and conveyed a preliminary view to the applicant, inviting the applicant to provide submissions by 29 January 2018. 17 January 2018 OIC received a submission from the applicant in relation to external review 313678. 27 January 2018 OIC received a submission from the applicant in relation to external review 313678. [1] Both the applicant and Retirement Village Operator have been de-identified in this decision. [2] Amendment applications dated 5 July 2017 (external review 313465), 25 August 2017 (external review 313521), 12 October 2017 (external review 313605) and 4 December 2017 (external review 313678).[3] Reference HPW01664/15.[4] Reference HS 01343-2017.[5] Decision dated 29 September 2017 (external review 313521).[6] Decisions dated 18 August 2017 (external review 313465), 29 September 2017 (external review 313521), 10 November 2017 (external review 313605) and 20 December 2017 (external review 313678).[7] Decision dated 10 November 2017 (external review 313605).[8] External review applications received on 21 August 2017 (external review 313465), 30 September 2017 (external review 313521), 14 September 2017 (external review 313605) and 21 December 2017 (external review 313678).[9] Amendment application dated 5 July 2017.[10] Amendment application dated 25 August 2017.[11] Amendment application dated 12 October 2017.[12] Amendment application dated 4 December 2017.[13] See sections 41 and 44 of the IP Act.[14] Section 100(1) of the IP Act.[15] Doelle and Legal Aid Office (Qld) [1993] QICmr 5; (1993) 1 QAR 207 at paragraph [18], where the Information Commissioner considered the issue of onus in an equivalent context under the now repealed Freedom of Information Act 1992 (Qld). In 3DT2GH and Department of Housing and Public Works (Unreported, Queensland Information Commissioner, 26 November 2012) (3DT2GH) at paragraph [9] I found this reasoning to be applicable to the provisions of the IP Act, and also referred to section 44(4)(e) of the IP Act - which requires an applicant to state both the way in which the applicant claims the information to be inaccurate etc. and the grounds for the applicant’s claim - and sections 44(4)(f) and (g) of the IP Act, which require the applicant to state the amendments or other information claimed to be necessary for the information to be accurate or not misleading or to complete the information or bring it up to date.[16] Section 13 of the IP Act and section 12 of the Right to Information Act 2009 (Qld) (RTI Act).[17] Application for external review dated 30 September 2017.[18] Section 37(1) of the RV Act. I note that section 95 of the Housing Legislation (Building Better Futures) Amendment Act 2017 (Amendment Act), which received assent on 10 November 2017, omits sections 36 and 37 from the RV Act. However, as at the date of this decision, section 95 of the Amendment Act had not commenced (section 2 of the Amendment Act).[19] Submission dated 3 November 2017. In subsequent correspondence the applicant re-stated the above, referring to section 35 of the RV Act (submission to OIC dated 1 December 2017).[20] Submission to OIC dated 27 January 2018. The applicant attached to this submission a letter and attachments from the Retirement Village Operator dated 15 August 2014, page 3 of a report prepared by a quantity surveying firm for the Retirement Village, an article titled ‘Fair cop: spotlight on laws’ from Active Living dated 25 October 2017, and a draft letter from the applicant’s accountant dated 18 November 2014.[21] Section 13 of the RV Act. See also https://www.business.qld.gov.au/industries/service-industries-professionals/service-industries/operating-retirement-village/documents-contracts. [22] Sections 13 and 74 of the RV Act. [23] Section 27(2)(b) of the RV Act. [24] Section 36 of the RV Act.[25] Correspondence to OIC dated 13 December 2017.[26] It is unclear if the applicant has had access to the Retirement Village PID. However, this issue is not determinative given my findings.[27] Section 44(1) of the IP Act provides: 44 Making amendment application (1) An individual who has had access to a document of an agency or a document of a Minister, whether or not under this Act, may apply to the agency or Minister for amendment of any part of the individual’s personal information contained in the document that the individual claims is inaccurate, incomplete, out of date or misleading. [my emphasis] [Notes omitted] [28] Application dated 25 August 2017.[29] Application dated 5 July 2017.[30] The first sentence of this paragraph refers to the applicant’s application to have the matter heard in QCAT, noting that the application was dismissed. This sentence comprises personal information of the applicant, but I note that the applicant’s amendment requests do not relate to this information. This is also noted in the Department’s decision. [31] QCAT reference omitted.[32] Application dated 12 October 2017.[33] QCAT reference omitted.[34] Application dated 12 October 2017.[35] Application dated 4 December 2017.[36] Application dated 4 December 2017.[37] Mahoney and Ipswich City Council (Unreported, Queensland Information Commissioner, 17 June 2011) at paragraph 19.[38] In its decision dated 10 November 2017 (external review 313605), the Department determined that the information contained within paragraph [10] of the Correspondence Brief is the applicant’s personal information.[39] See Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4 (19 January 2017) at paragraph 63.[40] See Telstra Corporation Limited and Privacy Commissioner [2015] AATA 991 (18 December 2015) at paragraph 99.[41] Dated 1 September 2017 (external review 313465), 25 September 2017 (external review 313465), 3 November 2017 (external review 313521), 1 December 2017 (external reviews 313521 and 313605), 4 December 2017 (external review 313521), 16 December 2017 (external reviews 313465, 313521 and 313605) and 27 January 2018 (external review 313678).[42] As set out in the applicant’s submission dated 1 September 2017 (external review 313465), application for external review dated 30 September 2017 (external review 313521) and submission dated 3 November 2017 (external review 313521).[43] As set out in the applicant’s submission dated 1 December 2017 (external review 313605).[44] As set out in the applicant’s access application dated 4 December 2017, application for external review dated 21 December 2017 and submission dated 27 January 2018 (external review 313678).[45] The applicant indicated in her amendment application that paragraph [10] of the Correspondence Brief was out of date or incomplete.[46] Buhagiar and Victoria Police (1989) 2 VAR 530, per Jones J.[47] See A4STL6K and Queensland Health (Unreported, Queensland Information Commissioner, 6 September 2013) at paragraphs [25] to [27], paraphrasing the relevant principle as stated in Crewdson v Central Sydney AHS [2002] NSWCA 345 at paragraph [34].[48] As noted in, for example, Shaw and Medical Board of Queensland (Unreported, Queensland Information Commissioner, 3 July 2008), at paragraph [41], quoting with approval the decision of Deputy President Todd of the Administrative AppealsTribunal in Re Cox and Department of Defence (1990) 20 ALD 499 at 502-503.[49] Applying substantially similar legislative provisions. [50] 3DT2GH at paragraph [18]. Footnotes omitted.

queensland

court_judgement

Queensland Information Commissioner 1993-

E41 and Queensland Police Service [2022] QICmr 13 (17 March 2022)

E41 and Queensland Police Service [2022] QICmr 13 (17 March 2022) Last Updated: 31 August 2022 Decision and Reasons for Decision Citation: E41 and Queensland Police Service [2022] QICmr 13 (17 March 2022) Application Number: 316192 Applicant: E41 Respondent: Queensland Police Service Decision Date: 17 March 2022 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST - access to response to allegations provided by third party in law enforcement investigation - transparency and accountability of police - administration of justice and procedural fairness for the applicant - prejudice another individual’s right to privacy - public interest harm through disclosure of third party’s personal information - prejudice to flow of information to law enforcement - whether disclosure would, on balance, be contrary to the public interest - whether access to information may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and section 47(3)(b) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to a third party’s correspondence to QPS. QPS did not make a decision within the relevant processing period[2] and instead issued a deemed decision.[3] The applicant applied[4] to the Office of the Information Commissioner (OIC) for external review of the deemed decision. For the reasons set out below, I vary QPS’s deemed decision refusing access[5] to the third party’s correspondence, and find that disclosure would, on balance, be contrary to the public interest and access may be refused on this basis.[6] Background The applicant was the director of multiple companies which appointed the third party as an administrator to oversee liquidation. The third party was later a witness in the applicant’s criminal trial regarding his directorship of the companies. QPS was provided with a brief of evidence to support an allegation that the third party committed perjury. QPS sought the third party’s response to the allegation. QPS advised the applicant it would not prosecute the third party for perjury after considering legal advice and the third party’s response.[7] The applicant seeks access to the third party’s response to understand the reasons for QPS’s decision not to prosecute[8] and to assist the applicant in achieving ‘a fair and proper outcome to an ongoing legal matter.’[9] Reviewable decision The decision under review is QPS’s deemed decision of 7 July 2021. Evidence considered Significant procedural steps taken during the external review are set out in the Appendix. In reaching my decision, I have considered the factual background set out in the applicant’s submissions,[10] as well as all other submissions, evidence, legislation, and other material referred to throughout these reasons (including in footnotes and the Appendix). I have had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[11] 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.[12] 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:[13] ‘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] Information in issue and issue for determination The information in issue comprises correspondence from a third party to QPS in response to perjury allegations and contains information about individuals other than the applicant (information in issue). The issue for determination is whether disclosure of the information in issue would, on balance, be contrary to the public interest. Relevant law Under the IP Act, an individual has a right to be given access to documents of an agency to the extent they contain the individual’s personal information.[15] However, this right is subject to the provisions of the IP Act including the grounds on which an agency may refuse access to documents access to documents may be refused to the extent they comprise information the disclosure of which would, on balance, be contrary to the public interest.[16] An agency may refuse access to exempt information[17] or to information the disclosure of which would, on balance, be contrary to the public interest.[18] 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 considered these lists, together with all other relevant information, in reaching my decision. I have kept in mind the IP Act’s pro-disclosure bias[20] and Parliament’s requirement that grounds for refusing access to information be interpreted narrowly.[21]Applicant’s submissions The applicant made submissions throughout the external review,[22] all of which I have carefully considered to the extent they are relevant to the issue for determination. The applicant asserts that there would be no public interest harm in disclosure of the information in issue.[23] The applicant contends that release of this information ‘is of critical importance in the execution of a fair and proper outcome to an ongoing legal matter’[24] and will ‘assist [the applicant] in understanding the QPS’ actions.’[25] I have taken these arguments into account as factors favouring disclosure, being to improve the accountability and transparency of QPS, and improve the administration of justice and procedural fairness.[26] The applicant submits that the third party ‘was under no obligation to provide any response, but chose to freely.’ For this reason, ‘release of [the] response would have zero effect on the public’s perception of the sanctity of personal privacy.’[27] I have taken this submission into account as a factor favouring nondisclosure and discuss this further below. Finally, the applicant raises his limited resources to pursue access to the information in issue outside of the right to information process.[28] However, whether the applicant can afford other processes to access the information does not raise any factors favouring disclosure. Findings Contrary to the public interest Irrelevant factors No irrelevant factors[29] arise in the circumstances of this case and I have not taken any into account in making my decision.Factors favouring disclosure Some of the information in issue comprises the applicant’s personal information,[30] which is a factor favouring disclosure that I afford significant weight.[31] However, the applicant’s personal information appears in the context of the third party’s response to QPS and is intertwined in such a way that it cannot be disclosed without disclosing the personal information of the third party (which raises nondisclosure factors discussed below).[32] The applicant submits that disclosure of the information in issue would enable him to evaluate his legal options,[33] which I understand relate to his allegation of perjury by the third party.[34] In determining whether the disclosure of the information in issue could reasonably be expected to contribute to the administration of justice for the applicant,[35] I must consider whether:[36] the applicant has suffered loss, or damage, or some kind of wrong, in respect of which a remedy is, or may be, available under the law the applicant has a reasonable basis for seeking to pursue the remedy; and disclosing the information held by an agency would assist the applicant to pursue the remedy or evaluate whether a remedy is available or worth pursuing. I acknowledge that access to the information in issue may improve the applicant’s evaluation of whether a remedy is available or worth pursuing. However, the right to information process is not an adjunct to other legal processes. It is evident that the applicant has sufficient knowledge of the circumstances to commence legal proceedings without the disclosure of the information in issue through the right to information process. For this reason, I afford this factor favouring disclosure moderate weight. The fundamental requirements of procedural fairness[37]—that is, an unbiased decision-maker and a fair hearing—should be afforded to a person who is the subject of an investigation or decision.[38] Although the applicant has raised general fairness arguments, he has not enunciated how disclosure of the information in issue would contribute to his fair treatment or procedural fairness. It is my understanding that the applicant was afforded an opportunity to respond to the charges against him in his criminal trial which is now finalised. In these circumstances, I am not satisfied that there is a reasonable expectation that disclosure of the information in issue would, in any meaningful way, advance the applicant’s fair treatment or contribute to the general administration of justice, including procedural fairness. On this basis, while these factors may apply,[39] I afford them only moderate weight. QPS must be transparent and accountable when dealing with allegations of a possible contravention of the law. The applicant submits that disclosure of the information in issue would assist his understanding of QPS’s actions, including the decision not to continue the perjury charges.[40] This enlivens factors favouring disclosure including to improve the accountability and transparency of QPS’ actions.[41] QPS advised the applicant that it was not pursuing the perjury allegations.[42] As the applicant has received an outcome to his allegation, this has discharged some of QPS’s accountability and transparency. I accept that disclosure of the third party’s correspondence would provide the applicant with a more complete picture of the information relied on by QPS in its decision not to pursue the allegation of perjury. However, the information in issue is limited to a third party’s correspondence with QPS in response to the allegation, and not QPS’s investigation or actions. Therefore, disclosure could only minimally improve the accountability and transparency of QPS’s actions. For this reason, I afford the transparency and accountability factors moderate weight. Factors favouring nondisclosure The RTI Act recognises that disclosing an individual’s personal information to someone else can reasonably be expected to cause a public interest harm[43] and that disclosing information that could reasonably be expected to prejudice the protection of an individual’s right to privacy gives rise to a public interest factor favouring nondisclosure.[44] The information in issue contains the observations and perspectives of an individual other than the applicant (their personal information).[45] This information appears in the context of the third party’s response to serious allegations of a possible contravention of the law which was found to be unsubstantiated. I consider that disclosing other individuals’ highly sensitive personal information would be a significant intrusion into their privacy and the extent of the harm that would arise from its disclosure would be significant. The expected harm would include loss of public confidence in the law enforcement system and reduced effectiveness and efficiency in investigation process, as the public may limit the information they give to QPS if concerned that their personal information will be disclosed to others without their consent. While the applicant may be aware of the third party’s identity, this does not reduce the weight of these nondisclosure factors to any significant degree, as the IP Act does not have protections or controls on the dissemination of documents once released in this process. As noted above, parts of the information in issue contain the applicant’s personal information. However, the applicant’s personal information is unable to be disclosed, without disclosing the personal information of a third party due to the context in which the information in issue was provided. That is, the applicant made allegations of perjury against the third party and the relevant information appears in the context of the third party’s response to such allegations. The applicant provided a letter of authority signed by a person whom he believed may be mentioned within the information in issue. However, this authority does not serve to reduce the weight of the personal information and privacy protection factors in relation to the information in issue. Accordingly, I afford those factors significant weight in favour of nondisclosure. Finally, the release of third party personal information which has been provided to and treated by QPS as confidential could reasonably be expected to prejudice the future flow of information.[46] The routine disclosure of third party personal information could reasonably be expected to discourage the public from providing comprehensive statements, negatively impacting QPS’s ability to obtain information required to perform its investigative functions. On the information available to me the third party’s response was provided voluntarily to QPS, which I consider heightens the risk of prejudice to the flow of information. In the circumstances, I afford significant weight to this factor favouring nondisclosure. Balancing the public interest I have applied the pro-disclosure bias intended by Parliament[47] and with respect to the factors favouring disclosure, I give moderate weight to the public interest factors favouring disclosure as the information in issue could reasonably be expected to contribute to the administration of justice, including procedural fairness and enhance QPS’s accountability and transparency.[48] I also consider that significant weight should be afforded to the public interest factor favouring disclosure of the applicant’s personal information.[49] The information in issue comprises the thoughts and recollections of a third party, against whom serious allegations were made and found to be unsubstantiated. The information in issue does not disclose the actions taken by QPS and the information was, as I understand, voluntarily provided to QPS by the third party. Further, the applicant’s personal information cannot be separated to allow access without also revealing the personal information of the third party. Consequently, I have attributed significant weight to each of the public interest factors and public interest harm factor favouring nondisclosure of the information in issue relating to the third party’s personal information and the reasonable expectation that disclosure would prejudice the flow of information to QPS and may impact on the ability for QPS to obtain similar information in the future.[50] I consider that the significant weight of the public interest factors which favour nondisclosure of the information in issue, in this case, outweighs the public interest factors favouring disclosure. For these reasons, 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 and access to it may be refused on that basis. DECISION I vary QPS’s deemed decision[51] and find 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 as its disclosure would, on balance, be contrary to the public interest. I have made this decision under section 123 of the IP Act, as a delegate of the Information Commissioner, under section 139 of the IP Act.Shiv MartinAssistant Information CommissionerDate: 17 March 2022 Appendix Significant procedural steps Date Event 8 July 2021 OIC received the application for external review. 9 July 2021 OIC notified QPS that it had received the application for external review and requested preliminary documents from QPS. 29 July 2021 OIC received the preliminary documents from QPS. 2 August 2021 OIC notified the applicant that the external review application had been accepted. 3 August 2021 OIC notified QPS that the application for external review had been accepted and requested the information in issue and submissions from QPS. 2 September 2021 QPS requested an extension to provide the information in issue. OIC granted the extension request to QPS. 13 September 2021 20 September 2021 OIC received submissions from the applicant. 13 October 2021 OIC received the information in issue from QPS. 19 October 2021 OIC issued a preliminary view to the applicant. 20 October 2021 OIC issued a preliminary view to QPS. 26 October 2021 OIC received submissions from the applicant. 28 October 2021 OIC received a response from QPS. 12 November 2021 OIC issued a further preliminary view to the applicant. 26 November 2021 OIC received further submissions from the applicant. OIC issued a response to the applicant. 27 November 2021 OIC received further submissions from the applicant. 1 December 2021 OIC issued a response to the applicant. 12 February 2022 OIC received further submissions from the applicant. [1] Application dated 8 April 2021.[2] If the applicant is not given a written notice of decision by the end of the processing period then the principal officer of the agency is taken to have made a decision refusing access to the documents (deemed decision) as per section 66 of the IP Act.[3] Deemed decision dated 7 July 2021.[4] Application dated 8 July 2021.[5] Under section 67 of the IP Act, an agency may refuse access to a document in the same way and to the same extent as under section 47 of the Right to Information Act 2009 (Qld) (RTI Act). [6] Sections 47(3)(b) and 49 of the RTI Act.[7] As outlined in the applicant’s submission dated 26 October 2021.[8] Applicant’s submission received 26 October 2021.[9] Applicant’s submission received 8 July 2021.[10] As outlined in the Appendix of this decision.[11] Section 21(2) of the HR Act.[12] 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].[13] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic).[14] XYZ at [573].[15] Section 40 of the IP Act.[16] Section 47(3)(b) of the RTI Act.[17] Schedule 3 of the RTI Act specifies the types of information that Parliament has determined are exempt because release would be contrary to the public interest. [18] Section 67(1) of the IP Act and section 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.[19] Section 49(3) of the RTI Act. [20] Section 64 of the IP Act.[21] Section 67(2) of the IP Act and section 47(2) of the RTI Act.[22] As outlined in the Appendix of this decision.[23] Applicant’s submissions received 8 July 2021, 13 September 2021, 26 October 2021 and 27 November 2021.[24] Including evaluating the applicant’s ability to pursue legal action. Applicant submissions 8 July 2021[25] Applicant’s submission received 26 October 2021.[26] Schedule 4, part 2, items 1, 3, 11, 16 and 17 of the RTI Act. [27] Applicant’s submission received 26 October 2021.[28] Applicant’s submission received 26 October 2021.[29] As outlined in schedule 4, part 1 of the RTI Act.[30] 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.’ [31] Schedule 4, part 2, item 7 of the RTI Act.[32] And is incapable of being severed from the personal information of third parties.[33] Applicant’s submissions received 8 July 2021[34] Applicant’s submission received 26 October 2021.[35] Schedule 4, part 2, item 16 and 17 of the RTI Act.[36] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 at [17] and confirmed in 1OS3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011) at [16].[37] Schedule 4, part 2, item 16 of the RTI Act. [38] The fair hearing aspect of procedural fairness requires that, before a decision that will deprive a person of some right, interest or legitimate expectation is made, the person is entitled to know the case against them and to be given the opportunity of replying to it (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at [584] per Mason J).[39] Schedule 4, part 2, items 10 and 16 of the RTI Act. [40] Applicant’s submission received 26 October 2021. [41] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act.[42] Applicant’s submission 26 October 2021.[43] Schedule 4, part 4, item 6 of the RTI Act. [44] Schedule 4, part 3, item 3 of the RTI Act.[45] Section 12 of the IP Act.[46] Schedule 4, part 3, items 13, 16 and schedule 4, part 4, item 8 of the RTI Act.[47] Section 64 of the IP Act. [48] Schedule 4, part 2, items 1, 3, 10, 11 and 16 of the RTI Act[49] Schedule 4, part, 2, item 7 of the RTI Act.[50] Schedule 4, part 3, items 13, 16 and schedule 4, part 4, item 8 of the RTI Act.[51] I.e., the decision taken to have been made under section 46 of the RTI Act, refusing access to all information requested in the access application.

queensland

court_judgement

Queensland Information Commissioner 1993-

I69VLS and Sunshine Coast Regional Council [2013] QICmr 21 (3 September 2013)

I69VLS and Sunshine Coast Regional Council [2013] QICmr 21 (3 September 2013) Last Updated: 27 August 2018 Decision and Reasons for Decision Application Number: 311518 Applicant: I69VLS Respondent: Sunshine Coast Regional Council Decision Date: 3 September 2013 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – CONTRARY TO PUBLIC INTEREST – applicant seeks access to letter of 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 sought access[1] from the Sunshine Coast Regional Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) to a letter of complaint received by Council from a recruitment agency about herself (Letter). Council neither confirmed nor denied the existence of the Letter sought by the applicant.[2] On external review Council agreed that, in the circumstances, it was not appropriate for Council to maintain the position of neither confirming nor denying the existence of the Letter. Council’s decision is varied by finding that disclosure of the Letter is, on balance, contrary to the public interest. Background Significant procedural steps relating to the application and external review are set out in the appendix. Reviewable decision The decision under review is Council’s decision dated 11 April 2013. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and appendix). Information in issue The information under consideration in this external review is the Letter, which consists of one page. Relevant law Right to access information Under section 23 of the RTI Act, a person has a right to be given access to documents of an agency. However, this right is subject to a number of exclusions and limitations, including grounds for refusal of access. These grounds are contained in section 47 of the RTI Act. Findings Does the Information in Issue comprise information the disclosure of which would, on balance, be contrary to the public interest? Yes, for the reasons that follow. An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[3] 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. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[4] and explains the steps that a decision-maker must take[5] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information in issue would, on balance, be contrary to the public interest.[6] Irrelevant factors No irrelevant factors arise on the information before me. Factors favouring disclosure and nondisclosure Some of the information contained within the Letter is the applicant’s personal information.[7] This creates a public interest factor favouring disclosure.[8] Disclosure is also favoured where disclosure could reasonably be expected to contribute to the administration of justice generally, including procedural fairness.[9] The public interest factors favouring nondisclosure include that disclosure of the Letter could reasonably be expected to: prejudice the protection of an individual’s right to privacy[10] or cause a public interest harm if disclosure would disclose personal information of a person[11] prejudice an agency’s ability to obtain confidential information;[12] and prejudice the management function of an agency.[13] Balancing the public interest The Letter comprises the applicant’s personal information as well as the personal information of a third party including the third party’s emotional responses to particular situations.[14] I am satisfied that the disclosure of the Letter could reasonably be expected to cause a public interest harm by revealing the personal information of the third party and prejudicing that person’s privacy. Given the nature of the information, I consider that significant weight should be given to these factors favouring nondisclosure. The applicant submits[15] that the whole entirety of the Letter is directed at her and it is therefore relevant to her. While some of the information in the Letter can be said to be the applicant’s personal information, that information is interwoven with the personal information of the third party 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 the third party. Therefore this factor favouring disclosure should be given minimal weight. Council submits[16] that revealing complainant identities will affect the willingness of people to make complaints or report concerns to Council in the future. This raises the factor in favour of nondisclosure relating to an agencies ability to obtain confidential information.[17] Individuals who raise concerns about the conduct of others in the workplace usually only do so on the understanding that it will only be used for an investigation or any subsequent disciplinary action and that it will be held in confidence. The applicant submits[18] that the Letter is not confidential as she has read the entire contents and that if she were to receive a copy of the Letter, this would not have any effect on the willingness of others to make complaints or report concerns to Council in the future. While I acknowledge that the contents of the Letter have been discussed[19] with the applicant and that she was given an opportunity to read it, Council’s Complaints Management Process[20] states that details of complaints ‘...will be treated with appropriate respect for the confidentiality and privacy of the complainant...’[21] In addition, the material before me evidences that the third party was of the understanding that the material they provided would remain confidential. The third party has also expressed concern that given Council have discussed the contents of the Letter with the applicant, they have no confidence that Council will not disclose confidential information again in the future. The third party’s reaction to the disclosure of the contents of the Letter by Council to the applicant is in my view indicative of the reaction that members of the broader community would have to such a situation. On this basis, I am satisfied that it is reasonable to expect that Council’s ability to obtain confidential complaint information in the future would be prejudiced if the Letter is disclosed under RTI. Therefore, I consider that significant weight should be given to this factor favouring nondisclosure. The complaint information contained within the Letter arose in the context of the workplace. Council submits that disclosure of the Letter would prejudice Council’s ability to manage staff and obtain confidential complaints regarding staff conduct. This raises the factor in favour of nondisclosure relating to the management functions of an agency.[22] When Council receives complaint information regarding staff conduct, Council commences an investigation in accordance with Council’s Complaints Management Process to identify whether any disciplinary action is warranted. Given that details of complaints are to be treated confidentially by Council, I am satisfied that if the Letter is disclosed under RTI, it is reasonable to expect that receipt of confidential complaint information would be diminished as the third party’s reaction to the disclosure of the contents of the Letter by Council is indicative of the broader community response. The flow-on effect of the broader community being discouraged from providing information of a confidential nature to Council is that Council may not receive information about the conduct of its staff. On this basis, it is reasonable to expect that Council’s ability to manage its staff would be prejudiced. Therefore, I consider that significant weight should be given to this factor favouring nondisclosure. The applicant’s submission raises the public interest in ensuring that procedural fairness requirements are met in a grievance process.[23] I consider that this public interest was satisfied by Council when it provided the applicant with an opportunity to read the Letter and respond to any allegations it contained. Thus, the public interest in the facilitation of the administration of justice, which includes procedural fairness, will not be advanced by providing the applicant with a copy of the Letter. Therefore this factor favouring disclosure should be given minimal weight. Given the above, I am satisfied that in the circumstances of this review, the public interest factors favouring nondisclosure of the Letter outweigh the public interest factors favouring disclosure and accordingly, disclosure would, on balance, be contrary to the public interest.DECISION I vary Council’s decision dated 11 April 2013 by finding that Council is entitled to refuse access to the Letter pursuant to sections 47(3)(b) and 49 of the RTI Act. I have made this decision as a delegate of the Acting Information Commissioner, under section 145 of the RTI Act. ________________________ Assistant Information Commissioner Corby Date: 3 September 2013 APPENDIX Significant procedural steps Date Event 4 March 2013 Council receives the applicant’s application for access. 14 March 2013 The access application becomes valid. 11 April 2013 Council neither confirms nor denies the existence of the Letter. 16 May 2013 OIC receives the applicant’s request for external review. 4 June 2013 OIC informs the applicant and Council that the external review application has been accepted. 17 June 2013 Council provides a submission. 20 June 2013 OIC conveys a view to Council that, in the present circumstances, it is not appropriate for Council to maintain that it neither confirms nor denies the existence of the Letter. 2 July 2013 Council provides a copy of the Letter to OIC and submits that its disclosure would, on balance, be contrary to the public interest. 3 July 2013 OIC conveys a view to the applicant that disclosure of the Letter would, on balance, be contrary to the public interest. 4 July 2013 The applicant provides a submission. 22 July 2013 The applicant provides an oral submission. [1] By access application dated 4 March 2013.[2] By decision dated 11 April 2013.[3] Sections 47(3)(b) and 49 of the RTI Act. [4] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant in a particular case. [5] Section 49(3) of the RTI Act.[6] As to the correctness of this approach, see Gordon Resources Pty Ltd v State of Queensland [2012] QCATA 135.[7] Personal information is defined in section 12 of the Information Privacy Act 2009 as “information or an opinion... whether true or not... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion”.[8] Schedule 4, part 2, item 7 of the RTI Act. [9] Schedule 4, part 2, items 16 of the RTI Act.[10] Schedule 4, part 3, item 3 of the RTI Act.[11] Schedule 4, part 4, section 6(1) of the RTI Act.[12] Schedule 4, part 3, item 16 of the RTI Act.[13] Schedule 4, part 3, item 19 of the RTI Act.[14] I am unable to discuss the content of the information in detail without revealing information the disclosure of which is claimed to be contrary to the public interest – see section 108(1) of the RTI Act. [15] Submission dated 4 July 2013.[16] By correspondence to OIC dated 2 July 2013.[17] Schedule 4, part 3, item 16 of the RTI Act.[18] Submission dated 4 July 2013.[19] In a meeting with relevant Council staff on 14 December 2012.[20] Available at http://www.sunshinecoast.qld.gov.au/addfiles/documents/policies/complaints_man_process.pdf [21] Council’s Complaints Management Process at page 8.[22] Schedule 4, part 3, item 19 of the RTI Act.[23] Schedule 4, part 2, item 16 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

T27 and Queensland Police Service [2022] QICmr 14 (18 March 2022)

T27 and Queensland Police Service [2022] QICmr 14 (18 March 2022) Last Updated: 19 September 2022 Decision and Reasons for Decision Citation: T27 and Queensland Police Service [2022] QICmr 14 (18 March 2022) Application Number: 316267 Applicant: T27 Respondent: Queensland Police Service Decision Date: 18 March 2022 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO DEAL - EXEMPT INFORMATION - applicant seeking information about access to his personal information within the QPRIME system - whether application is expressed to relate to all documents containing information of a stated kind - whether all documents to which the application relates comprise exempt information - whether section 59 of the Information Privacy Act 2009 (Qld) applies ADMINISTRATIVE LAW - RIGHT TO INFORMATION - EXEMPT INFORMATION - LAW ENFORCEMENT AND PUBLIC SAFETY INFORMATION - whether disclosure of information about access to applicant’s personal information within the QPRIME system 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 consists of matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law - whether information is exempt under schedule 3, section 10(1)(f) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Queensland Police Service (QPS)[1] under the Information Privacy Act 2009 (Qld) (IP Act) for access to information that shows how many times his information within the Queensland Police Records and Information Management Exchange (QPRIME) had been accessed and the reasons for any access (Access Application).[2] QPS’s purported decision, refusing to deal with the Access Application under section 59 of the IP Act, was made outside the prescribed timeframe. QPS was therefore taken to have made a deemed decision refusing access to the requested information.[3] The applicant applied to the Office of the Information Commissioner (OIC) for an external review of QPS’s decision.[4] For the reasons set out below, I vary QPS’s decision and find that QPS may refuse to deal with the Access Application under section 59 of the IP Act. Background During the review, OIC conveyed a preliminary view[5] to the applicant in an attempt to achieve the early resolution, and to promote settlement, of the external review.[6] This procedural step, as well as other significant procedural steps relating to this review, are set out in the Appendix. Reviewable decision The decision under review is the deemed decision QPS is taken to have made under section 66 of the IP Act. Evidence considered The evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). I have taken QPS’s purported decision, that it was entitled to refuse to deal with the Access Application, as its submission on external review. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[7] I consider a decision-maker will be ‘respecting, and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the IP Act.[8] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act.[9] Issue for determination The issue for determination in this review is whether section 59 of the IP Act applies in the circumstances and therefore whether QPS may refuse to deal with the Access Application. 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.[10] This is known as the pro-disclosure bias in deciding to deal with applications. One of the few circumstances where it is not in the public interest to deal with an access application is set out in section 59 of the IP Act as follows: Exempt Information (1) This section applies if— (a) an access application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and (b) it appears to the agency or Minister that all of the documents to which the application relates are comprised of exempt information. (2) The agency or Minister may refuse to deal with the application without having identified any or all of the documents. Schedule 3 to the Right to Information Act 2009 (Qld) (RTI Act) identifies the types of information which will comprise exempt information for the purposes of the IP Act.[11] Relevantly, under schedule 3, section 10(1)(f) of the RTI Act, 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 (Method or Procedure Exemption). However, schedule 3, section 10(2) sets out certain circumstances where the exemption will not apply. Relevantly, information will not be exempt if it consists of matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law.[12] Findings To enliven section 59 of the IP Act, the following criteria must be met: the Access Application must be 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 all of the documents to which the Access Application relates comprise exempt information. Documents containing information of a stated kind or subject matter To determine whether the first criteria of section 59 of the IP Act is met, it is necessary to examine the terms of the Access Application. The Access Application states: I would like to see how many times my Queensland Police Records and Information Management Exchange (QPRIME) file has been accessed. As well as a reason each time my personal file has been accessed. On an objective reading of the Access Application, I am satisfied that it is framed as a request which relates to all documents that contain information of a stated kind, that is, information about access to the applicant’s personal information within the QPRIME database. Accordingly, I find that this limb of section 59 of the IP Act is satisfied. Exempt information In relation to the second criteria, I must be satisfied that all of the documents to which the Access Application relates comprise exempt information. As noted above, the Access Application seeks QPRIME access information for a period of approximately 12 years. The document which responds to the Access Application is a QPRIME Activity Report and it is QPS’s position that it is comprised of exempt information under the Method or Procedure Exemption. The QPRIME database has previously been described as:[13] ...a database kept by [QPS] of the information obtained by the QPS in its law enforcement functions. It is a dynamic and constantly updated central record for the QPS. The QPS would describe it is as an intelligence tool, which allows police to record information about criminal activity, the circumstances in which criminal activity is likely to occur or has occurred, the identity of those involved or suspected to be involved in criminal activities and the identities of their associates. But it also records information obtained by police officers in the course of their investigations and records criminal intelligence which has been obtained. The QPRIME system also maintains activity reports, whereby a record is kept of the access to particular QPRIME records by, amongst others, serving police officers. I am constrained in describing the QPRIME Activity Report responding to the Access application in any detail,[14] but as noted in the paragraph above, QPRIME activity reports generally reveal the amount of activity and the number of occasions on which QPS officers have accessed QPRIME in relation to an individual and the badge number of the inquiring officer. I am satisfied that accessing the QPRIME database is an integral part of QPS’s lawful methods and procedures for preventing, detecting or investigating contraventions, or possible contraventions, of the law. As QPS noted in its purported decision:[15] When dealing with contraventions, or possible contraventions, of the law, QPS officers record information about individuals on QPRIME, and such information may relate to intelligence or surveillance operations, or other investigations. Further, QPS officers also access information recorded in QPRIME both during and after such activities, for example, to obtain background information and inform decisions. In his application for external review, the applicant submitted that while he accepts the QPRIME database is an integral part of QPS’s lawful methods and procedures for preventing, detecting or investigating contraventions, or possible contraventions, of the law, he does not consider that disclosure of the requested information would prejudice the effectiveness of those methods or procedures. In support of this view, the applicant submitted:[16] to disclose either that police keep information in a computerised database or that police officers access the information held in that database reveals nothing which is novel, covert or clandestine disclosure of methods or procedures which are “obvious and well known to the community” is not likely to prejudice their effectiveness some, but not all of, QPRIME officer information might be exempt under other specific provisions in schedule 3, section 10 of the RTI Act which would ‘otherwise have no work to do’ if Parliament had intended that keeping documents in the QPRIME database be regarded as an integral part of QPS methods and procedures ... then it would have been unnecessary for the Parliament to have enacted the[se] specific provisions the logical result of finding that the QPRIME Access Information may be refused under schedule 3, section 10(1)(f) of the RTI Act is that QPS may circumvent the disclosure regimes in the RTI Act and IP Act by claiming that ‘information held by it in a computer database which may be searched and accessed by police officers form an integral part of its lawful methods or procedures’ and ‘that effectively would operate to exempt the QPS from the disclosure regimes’; and the characterisation of QPRIME as an integral part of QPS’s lawful methods and procedures etc. ... may have the absurd result of some information in QPRIME being deemed not to be exempt information by virtue of schedule 3, [section] 10(6) because it had been used by a specialist intelligence or security unit of the QPS, but other information continuing to be exempt as it was used by ordinary members of the QPS. I note that these submissions replicate the submissions extracted in the Information Commissioner’s decision in the matter of Cutts and Queensland Police Service (Cutts).[17] While the particular information sought in Cutts differs from the information I am considering in this matter, the following findings of the Assistant Information Commissioner in that decision are nonetheless relevant to the matters before me in this matter: 22. The existence of QPRIME as a database used by QPS, and the manner in which QPS Officers use QPRIME—namely recording information obtained by them and accessing previously recorded information—are commonly known. Consequently, I accept the applicant’s submission that “to disclose either that the police keep information in a computerised database or that police officers access the information held in that database reveals nothing which is novel, covert or clandestine”. 23. The applicant further submits that “disclosure of methods or procedures which are ‘obvious and well known to the community’ is not likely to prejudice their effectiveness”. In my view, this submission conflates information confirming the existence of QPRIME with the QPRIME officer information.[18] It suggests that, because QPS’s use of QPRIME is obvious or known to the community, it follows that disclosure of particular information from that database—that is, the QPRIME officer information—is not likely to prejudice the effectiveness of QPS’s use of QPRIME. 24. However, the prejudice does not, in my view, arise insofar as the QPRIME officer information reveals the existence of QPRIME, how it works or its use by QPS officers. Rather, the prejudice arises in terms of the QPRIME officer information revealing information (or an absence of information) which enables or assists an individual to deduce the level of surveillance they may (or may not) be under. This, in my opinion, reduces the effectiveness of QPRIME as a system for recording and exchanging information within QPS as part of conducting intelligence or surveillance operations, or otherwise dealing with contraventions, or possible contraventions, of the law. I am satisfied that disclosure of QPRIME officer information, for any individual, whether that individual is subject to intelligence or surveillance operations or not, could reasonably be expected to prejudice these lawful methods and procedures as a whole. ... 27. The applicant submits that disclosure of QPRIME officer information might be exempt under other provisions in schedule 3, section 10,[19] that these provisions would “otherwise have no work to do”, and that it would have been unnecessary for Parliament to enact them “if Parliament had intended that keeping documents in the QPRIME database be regarded as an integral part of QPS methods and procedures”. It is my understanding that, in making these submissions, the applicant’s position is that I cannot find that the QPRIME officer information may be refused under schedule 3, section 10(1)(f) of the RTI Act, as to do so would render the other provisions raised by him redundant. In respect of these submissions, I note that the provisions raised by the applicant[20] require that an investigation be on foot,[21] and that the information in issue be given in the course of the investigation, or obtained, used or prepared for it.[22] However, the nature of the information that would be subject to these provisions can be distinguished from the information in issue in this review. Here, the applicant is seeking information about who accessed his records within QPRIME (whether or not such access related to any investigation). He is not seeking his records viewed during any such access, nor is he seeking any documents received or generated during any investigation. Depending on the particular information and circumstances, I consider it feasible that the other exemption provisions in schedule 3, section 10 of the RTI Act raised by the applicant—or indeed schedule 3, section 10(1)(f)—may possibly apply to information of this nature. Accordingly, I cannot accept the applicant’s submissions that, to find that the QPRIME officer information is exempt information under schedule 3, section 10(1)(f) is to, in effect, find that the other provisions raised by him are superfluous. 28. I also do not accept the applicant’s submission that the logical effect of refusing access to the QPRIME officer information is that QPS may circumvent the disclosure regimes in the RTI and IP Acts entirely by claiming that “information held by it in computer databases which may be searched and accessed by police officers form an integral part of its lawful methods or procedures”. This decision relates only to the QPRIME officer information, not all information and documents stored on QPRIME. Each decision on an access application must be considered on its own particular merits, on a case by case basis. 29. Finally, I do not accept the applicant’s submission that finding that the QPRIME officer information may be refused under schedule 3, section 10(1)(f) of the RTI Act “may have the absurd result of some information in QPRIME being deemed not to be exempt information by virtue of schedule 3, [section] 10(6) because it had been used by a specialist intelligence or security unit of the QPS, but other information continuing to be exempt as it was used by ordinary members of the QPS”. In this regard, I note that the relevance of one exemption provision does not necessarily preclude the applicability of others. If there were circumstances where the exemption provisions in schedule 3, section 10(4) or (5) could apply, but for the operation of the exception raised by the applicant, the exemption provision in schedule 3, section 10(1)(f) of the RTI Act may still apply, depending on the particular information and circumstances. [footnotes removed] I agree with the above reasoning in Cutts and consider that the same reasons apply equally to the submissions made by the applicant in this review as noted at paragraph 24. I am satisfied that disclosing a QPRIME activity report (including the document responsive to the Access Application), which shows when and how often QPS officers have accessed the QPRIME database in relation to an individual, could reasonably be expected to prejudice these QPS methods and procedures because it would enable an individual (in this case, the applicant) to deduce the level of surveillance or investigation they may, or may not, be under. Turning then to the circumstances where the Method or Procedure Exemption will not apply, as listed in schedule 3, section 10(2) of the RTI Act. I confirm that I have considered a copy of the QPRIME Activity Report in issue in this review. This is necessary in the circumstances, as was observed by the Court of Appeal in Commissioner of the Police Service v Shelton & Anor (Shelton):[23] ... although s 59(2) extends the discretion to refuse to deal with the application by enabling its exercise without any requirement to identify the relevant documents, the latter dispensation will have no practical content where a provision such as sch 3 s 10(2) makes the actual consideration of those documents a necessary earlier step, in deciding the exemption issue. However, that will not necessarily be the case for other categories of exempt information under sch 3, which may permit the forming of an opinion in relation to the documents subject to a particular application by reference to the kind of information sought, without more. The applicant submitted that he has been the subject of improper surveillance and contended that the requested information ‘when examined in context’ could also reasonably be used to reveal the scope of a law enforcement investigation has exceeded the limits imposed by law.[24] On the other hand, QPS submitted that the responsive document does not consist of information that would reveal that the scope of a law enforcement investigation has exceeded the limits imposed by law.[25] Given these submissions, the provision requiring consideration is schedule 3, section 10(2)(a) of the RTI Act.[26] As noted in Shelton,[27] I must consider whether the actual content of the document in issue meets a particular description – that is, whether the material itself discloses that any law enforcement investigation had exceeded proper bounds. The Access Application seeks access to how many times the applicant’s QPRIME file has been accessed and the reasons for such access. I have carefully reviewed the content of the QPRIME Activity Report in issue and it does not reveal that the scope of any law enforcement investigation has exceeded the limits imposed by law. While the applicant may consider that the requested information could provide him with untested evidence concerning a QPS officer’s authority to access QPRIME, the nature of the QPRIME Activity Report is such that it cannot, of itself, reveal that any lawful investigative limits have been exceeded. Accordingly, while I have considered the applicant’s submissions, I am satisfied that the document responding to the Access Application does not consist of matter which reveals that the scope of a law enforcement investigation has exceeded the limits imposed by law, and therefore schedule 3, section 10(2) of the RTI Act does not operate in the circumstances of this matter to render this document non-exempt under the Method or Procedure Exemption. Conclusion In view of the above, I find that section 59 of the IP Act applies to the Access Application, as it is expressed to relate to all documents that contain information of a stated kind and all of the documents to which the Access Application relates are comprised of exempt information under the Method or Procedure Exemption. DECISION I vary the decision of QPS and find that QPS may refuse to deal with the Access Application under section 59 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 Corby Date: 18 March 2022 APPENDIX Significant procedural steps Date Event 16 August 2021 OIC received the external review application. 9 September 2021 OIC notified the applicant and QPS that the external review application had been accepted and asked QPS to provide further information. 28 September 2021 OIC received the requested information from QPS. 26 October 2021 OIC requested further information from QPS. 4 November 2021 OIC provided an update to the applicant. 3 December 2021 OIC contacted QPS requesting a response to OIC’s letter dated 26 October 2021. 10 December 2021 QPS requested an extension to provide a response to OIC’s letter dated 26 October 2021. 13 December 2021 OIC granted an extension to QPS. 14 December 2021 The applicant requested an update. OIC provided an update to the applicant. 15 December 2021 QPS provided a response to OIC’s letter dated 26 October 2021. 19 January 2022 OIC conveyed a preliminary view to the applicant. 31 January 2022 The applicant provided OIC with submissions in response to the preliminary view. 9 February 2022 OIC informed the applicant that OIC would issue a formal decision to finalise the review. [1] On 28 April 2021, however, the application did not become compliant until 7 July 2021.[2] The Access Application seeks this information for the period January 2009 to 28 April 2021.[3] Under section 66(1) of the IP Act.[4] On 16 August 2021.[5] It is the practice of OIC to convey a preliminary view, based on an assessment of the material before the Information Commissioner or her delegate at that time, to an adversely affected participant. This is to explain the issues under consideration to the participant and affords them the opportunity to put forward any further information they consider relevant to those issues. It also forms part of the Information Commissioner’s processes for early resolution of external reviews.[6] As required under section 103(1) of the IP Act.[7] Section 21 of the HR Act.[8] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[9] I also note the following observations made by Bell J in XYZ at [573], on the interaction between equivalent pieces of Victorian legislation (namely, the Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic)): ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[10] Section 58(1) of the IP Act. Section 58(2) of the IP Act identifies the only circumstances in which Parliament considers it would not be in the public interest to deal with an access application. [11] Refer to the definition of ‘exempt information’ in schedule 5 to the IP Act and section 48(4) of the RTI Act. [12] Schedule 3, section 10(2)(a) of the RTI Act. [13] SJN v Office of the Information Commissioner & Anor [2019] QCATA 115 at [1].[14] Section 121(3) of the IP Act.[15] Dated 12 August 2021 at 3.[16] External review application dated 16 August 2021.[17] [2017] QICmr 39 (31 August 2017) at [20].[18] In Cutts, the access applicant sought access to ‘Documents containing information of all officers who have accessed my name using QPRIME’, which the Assistant Information Commissioner referred to as the ‘QPRIME officer information’. For the purposes of this decision, I consider that Assistant Information Commissioner’s discussion and findings in relation to the ‘QPRIME officer information’ applies equally to the information requested in the Access Application.[19] That is, schedule 3, sections 10(1)(a), 10(3), 10(4), 10(5)(a), 10(5)(b) and 10(5)(c) of the RTI Act.[20] Except schedule 3, section 10(5)(c) of the RTI Act which relates to information received by Crime Stoppers Queensland Ltd.[21] Schedule 3, section 10(1)(a) of the RTI Act.[22] By the relevant law enforcement body for the purposes of schedule 3, sections 10(3), 10(4) and 10(5)(a) and (b) of the RTI Act.[23] [2020] QCA 96 at [48]. [24] Applicant’s email to OIC dated 31 January 2022, which also lists examples of what he considers to be improper surveillance. [25] Letter to OIC dated 15 December 2021.[26] In his external review application, the applicant submitted that he considers that all five provisions set out in schedule 3, section 10(2) applied to the QPRIME Activity Report and rendered it non-exempt. In a letter to the applicant dated 19 January 2022, I conveyed to the applicant my view that the only provision that may have application in this matter is schedule 3, section 10(2)(a) of the RTI Act. The applicant did not object to this view, accordingly I only address the exception in schedule 3, section 10(2)(a) of the RTI Act in this decision.[27] At [45] and [51].

queensland

court_judgement

Queensland Information Commissioner 1993-

LTR and WorkCover Queensland [2006] QICmr 14 (28 March 2007)

LTR and WorkCover Queensland [2006] QICmr 14 (28 March 2007) Office of the Information Commissioner (Qld) Decision and Reasons for Decision (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) Application Number: 2006/F0192 Applicant: LTR Respondent: WorkCover Queensland Decision Date: 28 March 2007 Catchwords: Section 53 and 54E of the FOI Act – Amendment of information – whether information is inaccurate or misleading Contents Background ............................................................................................................. 2 Steps taken in the external review process ............................................................. 2 Sections 53, 54E and 55 of the FOI Act .................................................................. 3 Application of section 53 and 54E of the FOI Act .................................................... 4 Information relates to personal affairs................................................................ 4 The Complaint Summary........................................................................................... 5 Statement One................................................................................................... 5 Statement Two................................................................................................... 8 The Letter.................................................................................................................. 9 Decision ................................................................................................................... 10 Reasons for Decision Background 1. The applicant applied to WorkCover Queensland (WorkCover), by letter dated 27 February 2006, to have two documents held by WorkCover amended pursuant to section 53 of the Freedom of Information Act 1992 (Qld) (FOI Act). 2. The documents the applicant sought to have amended were: • a complaint summary prepared by WorkCover in January 2005 in response to a complaint made by the applicant into the handling of his WorkCover claim (the Complaint Summary) • a letter from WorkCover to a factual investigator dated 10 October 2002 relating to the investigation of the applicant’s WorkCover claim (the Letter). 3. The applicant claimed the following statements contained in the Complaint Summary were inaccurate and misleading: LTR put forward five potential witnesses. Of these five witnesses, three provided statements that did not support LTR’s claims. One declined to provide a statement and one could not be located as he was no longer in the employ of GHR. (Statement One) and WorkCover has spent a significant amount of time investigating LTR’s complaints regarding our investigation of his claim. (Statement Two) 4. The Letter contained a list of five people under a heading ‘Witnesses nominated by the Worker’. The applicant contended that this was incorrect and that he had only nominated three witnesses that would support his claims. 5. WorkCover did not make a decision on the applicant’s application, and in accordance with section 57(2) of the FOI Act, it was taken to have made a decision refusing to amend the information. 6. The applicant applied to this office on 19 April 2006 for external review of WorkCover’s deemed refusal to amend the documents. Steps taken in the external review process 7. Following receipt of the external review application, staff of this office attempted to resolve the matter informally through consultation with both parties. Where appropriate, possible amendments to the documents (including the addition of notations) were submitted by both parties and given due consideration by this office and the other party. 8. On 7 December 2006 I provided the applicant with my preliminary view as to the most appropriate amendments and the form these amendments should take. The applicant provided this office with submissions in response to my preliminary view on 21 December 2006. In addition, staff of this office met with Ms Paula Pyburne of WorkCover to discuss my preliminary view and the applicant’s submissions on 16 January 2007. Ms Pyburne made a number of oral submissions at this time. My preliminary view was further provided to WorkCover by email dated 9 February 2007, and WorkCover submitted a written response by facsimile on 16 February 2007. WorkCover’s written submissions were provided to the applicant who responded by letter dated 19 March 2007. 9. Ultimately, this attempt at an informal resolution was unsuccessful. In making this decision I have taken into account the following information: • the applicant’s initial FOI access application dated 27 February 2006 • the applicant’s application for external review dated 19 April 2006 • the Letter • the Complaint Summary • page 12 of a statement of LTR taken by psychologist, Marie O’Dea dated 23 September 2002 (signed 25 September 2002) • a list of involved persons provided to Marie O’Dea by LTR • WorkCover file notes for LTR’s claim • page 3 of a document entitled ‘Confidential Report’ dated 20 November 2002 regarding LTR’s WorkCover claim • written submissions made by WorkCover to this office dated 7 August 2006 and 16 February 2007 • written submissions made by LTR to this office dated 28 August 2006, 21 December 2006 and 19 March 2007 • verbal submissions made by WorkCover to staff of this office on 1 December 2006, 9 January 2007, 16 January 2007 and 5 February 2007 • the relevant provisions of the FOI Act and previous decisions of the Information Commissioner. Sections 53, 54E and 55 of the FOI Act 10. Section 53 of the FOI Act provides: 53 Person may apply for amendment of information (1) A person who has had access to a document from an agency or Minister (whether or not under this Act) containing information relating to the person’s personal affairs is entitled to apply to the agency or Minister for amendment of any part of the information that the person claims is inaccurate, incomplete, out-of-date or misleading. 11. Section 54E of the FOI Act provides: 54E Discretion to amend information (1) An agency or Minister to whom an application is made under section 53 may decide to amend the information to which the application relates. (2) Without limiting the grounds on which the agency or Minister may refuse to amend the information, the agency or Minister may refuse to amend the information because— (a) the agency or Minister is not satisfied— (i) the information is inaccurate, incomplete, out-of-date or misleading; or (ii) the information sought to be amended is information relating to the personal affairs of the applicant or relating to the personal affairs of a deceased person; or (iii) if the information sought to be amended is information relating to the personal affairs of a deceased person, that the applicant is a person entitled to apply for amendment under section 53(2)(b); or (b) the information is not recorded in a functional record. (3) In this section— functional record, of an agency or Minister, means a record available for use in the day to day or ordinary performance of the agency’s or Minister’s functions. 12. Section 55 of the FOI Act allows an amendment to be made by one of two methods: 55 Amendment of information by alteration or notation If an agency or Minister to whom an application is made under section 53 decides to amend the information to which the application relates, the agency or Minister may make the amendment by— (a) altering the information; or (b) adding an appropriate notation to the information. Application of section 53 and 54E of the FOI Act 13. In this matter the applicant contends that the relevant information in the Complaint Summary and the Letter is inaccurate, incomplete and/or misleading, whereas WorkCover contends that most of the information is not. 14. Relevant for present purposes the combined effect of sections 53 and 54E is that an agency need not amend a document under the FOI Act unless it is satisfied that: a) the person seeking the amendment has previously had access to the document from the agency; b) the information which the applicant seeks to amend is information which relates to the applicant's personal affairs; and c) the information which the applicant seeks to amend is inaccurate, incomplete, out-of-date or misleading. 15. The applicant obtained access to the documents through previous freedom of information (FOI) applications made to WorkCover and requirement a) above is therefore clearly satisfied. I have set out below my consideration of requirements b) and c). Information relates to personal affairs 16. The information the applicant has requested to be amended relates to a WorkCover claim made by the applicant. In Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 (Stewart), 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 pages 256-267, paragraphs 79-114, of 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 • 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. 17. Although a WorkCover claim relates to some extent to the claimant’s employment affairs, I consider that it primarily concerns the health or ill health of the claimant and as such falls into one of the well accepted areas of what constitutes personal affairs, as detailed above. I therefore find that requirement b) set out at paragraph 14 above is satisfied. 18. As for requirement c), I have considered below whether the relevant information is inaccurate or misleading as claimed. The Complaint Summary 19. The applicant sought amendments to Statement One and Statement Two of the Complaint Summary as detailed in paragraph 3 above. Statement One 20. The applicant had complained to WorkCover that the factual investigator had a conflict of interest, and Statement One is part of a ‘dot point’ paragraph that appears to outline the information WorkCover took into account when investigating that complaint. The entire paragraph reads (Statement One in bold): ‘GHR offered statements from A, B and C. LTR put forward five potential witnesses. Of these five witnesses, three provided statements that did not support LTR’s claims. One declined to provide a statement and one could not be located as he was no longer in the employ of GHR.’ 21. In determining whether Statement One is inaccurate, incomplete, out-of-date or misleading I have considered each sentence individually, as set out below, as well as the paragraph as a whole. In addition, I also consider it appropriate to take into account the apparent function of the Complaint Summary in which Statement One appears—it is a record of the factors which WorkCover took into account in addressing the applicant’s complaint about how his claim was handled. 22. In my view a plain reading of the above paragraph from the Complaint Summary leads the reader to the conclusion that the individuals the applicant submitted would support him (ie his witnesses) provided information that did not support his claims. Information contained in documents that have been provided to this office indicates that this interpretation is not correct. As I will explain below, the applicant submitted a list of seven ‘involved persons’ and stated that three would be supportive of his statement. The three the applicant said would be supportive of his claims declined to provide statements to WorkCover. 23. The first sentence of Statement One, ‘LTR put forward five potential witnesses.’ is incorrect and misleading. The applicant provided this office with a copy of his statement dated 23 September 2002 taken by Maria O’Dea, psychologist. An extract of page 12 of this statement is outlined below: MO’D: What witnesses do you have to support your statement? DC: OK. There is a list of witnesses (refers to document). ... MO’D: (Referring to the document titled ‘Details of Involved Persons’) These are the details of the involved persons, but which of these would be supportive of your statement? Off tape LTR named D, E and F.. The document referred to in the above extract, ‘Details of Involved Persons’, was a list of seven names and had been supplied by the applicant. No further evidence has been submitted to this office (other than the letter discussed below) to suggest that a further list of five ‘witnesses’ (or a list of five ‘involved persons’) was ever provided by the applicant. In addition, when the applicant referred to the list of seven people in the extract above, the psychologist clarified that these seven people are ‘involved persons’ and he was again asked to nominate his witnesses. This is a clear indication that the list of involved persons was not perceived as being a list of the applicant’s witnesses, and that the applicant’s witnesses were those he believed would support his claims. As such it is important to distinguish between these two separate classes of people: ‘involved persons’ and ‘witnesses’. 24. To accurately reflect that the applicant submitted a list of involved persons and then nominated his witnesses from that list, the first sentence of Statement One should be amended to read: LTR submitted a list of seven ‘involved persons’. Of these seven involved persons LTR stated that three would have been supportive of his claim. 25. The second sentence of Statement One, ‘Of these five witnesses three provided statements that did not support LTR’s claim.’ is inaccurate and misleading given the applicant never put forward five witnesses. Furthermore, information contained in an extract of the Confidential Report (prepared by the factual investigator dated 21 November 2002) and in WorkCover’s file notes of the applicant’s claim (both provided to this office by WorkCover) indicates that statements were provided by three of the seven involved persons. Those documents also indicate that all three of the applicant’s nominated witnesses refused to provide a written statement and the additional involved person could not be traced. 26. The third sentence of Statement One, ‘One declined to provide a statement and one could not be located, as he was no longer in the employ of GHR.’ is inaccurate and misleading. As indicated in paragraph 25 above, three of the seven involved persons declined to provide a statement. It is also relevant that it was the three involved persons the applicant had submitted as witnesses that would support his claims who did not provide statements. 27. To ensure that all relevant information is included in Statement One—ie. that it is accurate and not misleading—the second and third sentences should be amended to read: The three witnesses that LTR said would be supportive of his claim declined to provide written statements. Of the additional four involved persons, three provided written statements that did not support his claim and one could not be traced as he was no longer in the employ of GHR. 28. WorkCover has indicated in its submissions of 16 February 2007 that it does not object to the amendments set out at paragraphs 24 and 27 above. 29. In addition to the matter addressed above, the applicant has submitted that Statement One should also be amended to record that the applicant’s former employer (GHR) insisted that its representative take the statements from its employees, and that the factual investigator did not take the witness statements, contrary to published WorkCover Guidelines and procedural fairness. 30. The applicant relied on information contained in WorkCover fact sheets and a WorkCover file note dated 23 October 2002. The file note reads as follows: Rtn ph call from BRN today 2:15pm – Adv that employer is organising statement from their workers through their HR Manager who is also a solicitor. – BRN is still trying to track down two of the W’s nominated witnesses to get statements... 31. WorkCover’s ‘Witness fact sheet’ (approved 08/07/05) contained the following information: A WorkCover officer or trained independent interviewer will interview you and get your statement. ... If your employer or the injured worker asks to have a representative at the interview, you should contact us immediately. We can then explain the process to the other parties. It is not appropriate for them to nominate someone to be present at the interview. 32. In a telephone conversation with staff of this office on 9 January 2007, Ms Pyburne of WorkCover advised that the information contained in WorkCover fact sheets were guidelines that did not have to be strictly followed. She stated that it was not uncommon for statements to be provided through an employer, and this was often at the request of the witness. Ms Pyburne referred to the Workers Compensation and Rehabilitation Act 2003 (Qld) and advised that WorkCover did not have power to compel a person to provide a statement or direct the manner in which is could be provided; further, employee witnesses were at times intimidated by the investigation process and felt more comfortable having someone help them through it. WorkCover were unable to provide information about whether statements were ultimately provided through GHR’s Human Resources Manager or not; and if they were, whether this was done at the employer’s insistence. 33. Statement One does not say whether GHR insisted that its representative take the statements, nor does it say whether the factual investigator took the statements. I am of the view however that the absence of this information does not render Statement One inaccurate or misleading. 34. In coming to this view I have taken into account the apparent function of the Complaint Summary (in which Statement One appears)—it is a record of the factors which WorkCover took into account in addressing the applicant’s complaints concerning the way in which his claim was being processed. It would be inappropriate for me to find that Statement One should be re-drafted to include additional information that WorkCover apparently did not take into account. Furthermore, I am unable, on the information that is before me, to verify the truth of the information which the applicant seeks to have added to Statement One. In other words, I am unable to verify who ultimately took the statements, and if they were taken by the employer’s representative, whether this was done at GHR’s insistence. 35. I note the applicant’s submissions, dated 19 March 2007, in which he contends that the manner in which the statements were taken should have been addressed by the investigation, and subsequent Complaint Summary, as this was one of the main issues of his complaint. The applicant has also suggested that WorkCover should now verify how the statements were provided as part of this external review. In my view the amendment provisions of the FOI Act do not provide an appropriate means of re-opening the investigation into the applicant’s complaints regarding the handling of his WorkCover claim. It appears that the circumstances in which the statements were provided was not addressed by the investigation and as such, it would not be appropriate for me to include this information as part of the amendment. 36. Turning now to what form the amendment should take, I note that section 55 of the FOI Act provided that an amendment may be made by altering the information or adding a notation. 37. Statement One of the Complaint Summary appears to be an historical account of the factors WorkCover considered when investigating the applicant’s complaint and reaching its findings. To delete Statement One and replace it with an amended version would produce a Complaint Summary that does not portray an accurate account of how the applicant’s complaint was dealt with. In order to preserve the integrity of the Complaint Summary I consider it appropriate that the amendment to Statement One should be in the form of a notation rather than an alteration. Statement Two 38. Statement Two from the Complaint Summary is as follows: WorkCover has spent a considerable amount of time investigating LTR’s complaint regarding the investigation of his claim. The applicant has requested that a notation be inserted stating that: Even though a considerable amount of time was spent investigating the complaint, it was not carried out in a competent manner, resulting in a complaint summary that was inaccurate, misleading and detrimental to the claimant. 39. By letter dated 7 December 2006 I conveyed to the applicant my preliminary view that Statement Two should not be amended as suggested as it is not inaccurate, incomplete, out-of-date or misleading. 40. In the applicant’s response to my preliminary view, dated 21 December 2006, he provided further submissions as to why Statement Two warranted a notation. In addition, the applicant conceded that if Statement One was amended in the form he had suggested, a notation to Statement Two would not be necessary. As detailed above, I have not accepted the applicant’s proposed amendment to Statement One and therefore presume that the applicant still contends that the above notation should be added to the Complaint Summary with respect to Statement Two. 41. As part of his submissions dated 19 March 2007, the applicant appeared to argue that the fact that the investigation failed to ascertain how witness statements were provided indicated that the investigation was inadequate, and on that basis, Statement Two needed to be amended. 42. I have considered the applicant’s submissions and have not been persuaded to change my preliminary view. Statement Two does not provide comment on whether or not the investigation was carried out in a competent manner and the applicant has not provided sufficient evidence to establish that WorkCover did not invest ‘a significant amount of time’ investigating the complaint, irrespective of how that time was utilised. I consider that Statement Two records the opinion of a particular staff member at WorkCover as to the relative period of time spent investigating the applicant’s complaint. In the matter of Crewsdon v Central Syndey AHS [2002] NSWCA 345, the New South Wales Court of Appeal found that an application for amendment of official records was ‘not a vehicle for the determination of disputed questions of expert or other opinion when the recorded opinion was actually held and accurately entered in the official records.’ (at paragraph 35). I consider Part 4 of the FOI Act is concerned with the accuracy of official records and operates in a similar fashion and therefore the amendment of an opinion would not be appropriate in these circumstances. 43. I find that the notation sought by the applicant should not be added to the Complaint Summary. The Letter 44. The applicant has submitted that a list of five people under the heading ‘Witnesses nominated by the Worker’ contained in the Letter is inaccurate and misleading, and has requested that a notation be added to the Letter stating that the list is incorrect as he only nominated three witnesses. In support of his submissions the applicant referred to page 12 of his statement of 23 September 2002 taken by Maria O’Dea as extracted in paragraph 23 above. 45. In my letter to the applicant of 7 December 2006, I expressed the preliminary view that the following notation should be added to the Letter: Document amended under section 55(b) of the Freedom of Information Act 1992 (Qld) in response to a request contained in an FOI amendment application dated 27 February 2006 made by LTR. The list of ‘Witnesses nominated by the Worker’ is inaccurate and/or misleading because LTR nominated only D, E and F as witnesses that would be supportive of his statement. By letter dated 21 December 2006 the applicant accepted my preliminary view with respect to the Letter. 46. The proposed amendment to the Letter was discussed with WorkCover at a meeting on 16 January 2007, and during a telephone conversation on 5 February 2007, between Ms Pyburne from WorkCover and staff of this office. WorkCover strongly objected to the amendment on the basis that the document was not inaccurate or misleading. It was argued that the Letter did not need to specify whether the witnesses nominated by the applicant were supportive of his claim or not, and that each of the five persons listed in the Letter as ‘Witnesses nominated by the Worker’ was a witness that the applicant had nominated by way of the list of seven involved persons referred to at paragraph 23 above. Ms Pyburne did accept that by taking this view, the Letter was still technically incomplete as the list of the applicant’s nominated witnesses should have included all seven involved persons. 47. WorkCover provided written submissions with respect to the proposed amendment to the Letter by facsimile dated 16 February 2007. These submissions outlined the general procedure that is followed with respect to the type of WorkCover claim made by the applicant. WorkCover said that the worker initially attends an interview with a psychologist, one of the reasons being to ‘assist the injured worker to structure their complaint and to name those persons who should be questioned about the circumstances leading up to the injury.’ WorkCover’s submissions continued: Whilst an injured worker may assume that some of their persons named will support his version of events, this is not always the case. On some occasions a person may give a version of an event from a different perspective than that of the injured worker. On other occasions a person may refuse to give a statement at all, as happened in LTR’s case. In WorkCover’s view to define witnesses as supportive or otherwise of an injured worker’s position suggest that the process of determining a claim is adversarial when it is not. It is merely part of the total evidence-gathering exercise which also includes obtaining medical evidence. 48. Regardless of what WorkCover’s usual processes may be, the Letter clearly identifies two individuals as ‘Employer nominated witnesses’ and five individuals as ‘Witnesses nominated by the Worker’. The structure of the Letter does suggest that the witnesses nominated by the employer and worker respectively, are those witnesses which each party is contending would support their case. If this was not the intention of the Letter there would seem to be little purpose in separating the witnesses into two distinct lists. 49. More importantly however, there is no information before me to suggest that the applicant ever provided WorkCover with a list of five witnesses. As outlined in paragraph 23 above, the applicant did provide a list of seven ‘involved persons’, however during the applicant’s interview with the psychologist, the psychologist has drawn a clear distinction between ‘involved persons’ and ‘witnesses’. Based on this clarification the applicant nominated only three witnesses. 50. Accordingly, I have decided that the information contained in the Letter is inaccurate and misleading and should be amended in the manner expressed in paragraph 45 above. Decision 51. In respect of the application to amend the Complaint Summary, I partially set aside WorkCover’s deemed decision not to amend and decide that the following notation should be added to the Complaint Summary: Document amended under section 55(b) of the Freedom of Information Act 1992 (Qld) in response to a request contained in an FOI amendment application dated 27 February 2006 made by LTR. The following statement is inaccurate and misleading: ‘LTR put forward five potential witnesses, Of these five witnesses, three provided statements that did not support LTR’s claims. One declined to provide a statement and one could not be located as he was no longer in the employ of GHR.’ The statement should more accurately read: ‘LTR submitted a list of seven ‘involved persons’. Of these seven involved persons LTR stated that three would have been supportive of his claim. The three witnesses that LTR said would be supportive of his claim declined to provide written statements. Of the additional four involved persons, three provided written statements that did not support his claim and one could not be traced as he was no longer in the employ of GHR.’ 52. In respect of the application to amend the Letter, I set aside WorkCover’s deemed decision not to amend and decide that the following notation should be added to the Letter: Document amended under section 55(b) of the Freedom of Information Act 1992 (Qld) in response to a request contained in an FOI amendment application dated 27 February 2006 made by LTR. The list of ‘Witnesses nominated by the Worker’ is inaccurate and misleading because LTR nominated only D, E and F as witnesses that would be supportive of his statement. 53. WorkCover is to provide the applicant with a copy of the amended documents within 35 days of the date of this decision. 54. I have made this decision as a delegate of the Information Commissioner, under section 90 of the Freedom of Information Act 1992 (Qld). ________________________ M. Gittins Assistant Commissioner Date: 28 March 2007

queensland

court_judgement

Queensland Information Commissioner 1993-

L25 and Queensland Police Service [2022] QICmr 53 (24 November 2022)

L25 and Queensland Police Service [2022] QICmr 53 (24 November 2022) Last Updated: 27 March 2023 Decision and Reasons for Decision Citation: L25 and Queensland Police Service [2022] QICmr 53 (24 November 2022) Application Number: 316736 Applicant: L25 Respondent: Queensland Police Service Decision Date: 24 November 2022 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - AMENDMENT OF PERSONAL INFORMATION - information contained in a letter from agency - whether agency entitled to exercise discretion to refuse amendment - section 72(1) 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) to amend his personal information contained in a letter addressed to him from QPS dated 23 July 2021 (Letter) on the basis that it is inaccurate and misleading. QPS decided[2] to refuse to amend the Letter on the basis that the information sought to be amended was not inaccurate, incomplete, out of date or misleading.[3] QPS also decided that the Letter was not a ‘functional record’.[4] The applicant sought internal review of QPS’ decision.[5] While QPS acknowledged that the information sought to be amended incorrectly attributed a link to ‘criminal motorcycle gangs’ to the applicant rather than the subjects of the applicant’s complaint, QPS nonetheless decided that amendment of the Letter was not appropriate.[6] However, QPS did arrange for a new letter to be issued which addressed the issues raised in the amendment application and placed a notation on the file, addressing the applicant’s request for a notation pursuant to section 76(1) and (2) of the IP Act. The applicant then applied[7] to the Office of the Information Commissioner (OIC) for external review of QPS’ decision not to amend the Letter. For the reasons set out below, I affirm QPS’ decision and find the applicant’s request to amend the Letter may be refused. Reviewable decision and evidence considered The decision under review is QPS’ internal review decision dated 20 June 2022. Significant procedural steps in this external review are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including the 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.[8] I consider a decision-maker will be ‘respecting, and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the IP Act and the Right to Information Act 2009 (Qld) (RTI Act).[9] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act.[10] Relevant law Under the IP Act,[11] an individual has a right to apply for amendment of an agency’s document containing the individual’s personal information where the following requirements are satisfied: the applicant has previously obtained access to the relevant document the information the applicant seeks to amend is their personal information;[12] and the personal information is inaccurate, incomplete, out of date, or misleading. The terms ‘inaccurate’, ‘incomplete’, ‘out of date’ and ‘misleading’ are not defined in the IP Act, nor the Acts Interpretation Act 1954 (Qld). These terms are therefore used in their ordinary sense and the dictionary definitions[13] of them, as set out below, are relevant: ‘inaccurate’ not accurate. ‘incomplete’ 1. not complete; lacking some part. 2. not to the entire extent: incomplete combustion. ‘out of date’ 1. (of a previous style or fashion) obsolete. 2. (of a ticket, etc.) no longer valid. ‘mislead’ 1. to lead or guide wrongly; lead astray. 2. to lead into error of conduct, thought or judgement. Section 72(1) of the IP Act sets out non-exclusive grounds on which a decision-maker may refuse to amend a document.[14] While an agency has the onus on external review of establishing that its decision was justified,[15] ‘the practical or evidentiary onus shifts to the party challenging the decision to provide evidence in support of the contention that the party is entitled to amendment on the basis that the documents in question contain information which is inaccurate, incomplete, out of date or misleading’.[16] However, even if it is shown that the information an applicant seeks to amend is inaccurate, incomplete, out of date or misleading, the opening words of section 72(1) of the IP Act—‘[w]ithout limiting the grounds on which the agency or Minister may refuse to amend the document’—confer a discretion on the decision-maker to refuse amendment.[17] The exercise of this discretionary refusal may take into account the fact that the purpose of amending a document is not to: re-write history,[18] as this destroys the integrity of the record-keeping process[19] 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] Issues for determination There is no dispute that the applicant has previously obtained access to the Letter or that the Letter contains the applicant’s personal information.[24] I am therefore satisfied the applicant was entitled to apply for amendment under the IP Act. As set out at paragraph 2 above, QPS initially decided that the Letter was not a ‘functional record’. In seeking an internal review, the applicant contended that the Letter was a functio[25]l record.25 QPS did not address the issue of whether or not the Letter comprised a ‘functional record’ in the internal review decision and have not raised it as an issue in this review. Therefore, I am satisfied that QPS no longer considers that the Letter does not comprise a ‘functional record’. Accordingly, I have not considered whether 72(1)(b) of the IP Act cannot be relied on to refuse amendment of the Letter. I am also satisfied that there is no dispute that the information sought to be amended is inaccurate or misleading as QPS’ internal review decision accepted that the Letter incorrectly attributed a link to ‘criminal motorcycle gangs’ to the applicant rather than the subjects of the applicant’s complaint. Therefore, the issue remaining for determination in this review is that notwithstanding that a part of the letter is inaccurate or misleading, whether amendment of the information may still be refused under section 72(1) of the IP Act. Findings The applicant seeks to have amended in the Letter a statement that attributes to him a link to ‘criminal motorcycle gangs’. The applicant submits that he ‘never indicated that [he] had connections with motorcycle gangs’ as suggested in the Letter.[26] QPS has acknowledged that ‘the outcome letter [the applicant was] provided with does state that the link with “bikies” or criminal motorcycle gangs is with [the applicant] as opposed to the suspects in [the applicant’s] matter.’[27] QPS acknowledged this to be inaccurate in its internal review decision and issued the applicant with a new letter and added a notation to its records identifying the inaccuracy in the original letter. In 3DT2GH and Department of Housing and Public Works,[28] a matter in which the applicant sought review of the agency’s decision refusing to amend an agency letter addressed to the applicant, the Assistant Information Commissioner stated that:[29] ...it is not the purpose of the amendment provisions to permit the ‘re-writing of history’, particularly where to do so would violate the integrity of the original record. Yet this is precisely what would occur were the amendments requested by the applicant to be made. To replace words actually used by the authoring officer with the text sought by the applicant would result in a contrived document containing invented contents, essentially putting words into the mouth of the author in a manner that would distort the official historical record. This alone would, in my view, justify an exercise of the discretion to refuse to amend the Letter in terms as requested by the applicant. Further to the above, in Purrer v Office of the Information Commissioner & Anor,[30] His Honour Justice Daubney, then President of the Queensland Civil and Administrative Tribunal, stated: The legal principles to be applied ... are derived from the judgment of Handley JA in Crewdson:[[31]] (a) The IPA is not a vehicle for the determination of disputed questions of expert or other opinion when the recorded opinion was actually held and accurately entered in the official records. (b) The position might be different if an expert whose opinion had been accurately recorded recognised later that it was incorrect at the time and withdrew it. However, the proper course would be to add a notation that the opinion had been withdrawn rather than to remove the original opinion. An amendment in the latter form would falsify the records and attempt to rewrite history. Without the original opinion the records would not tell the whole story and would be misleading. In this matter, while it has been demonstrated that the information was inaccurate or misleading, I consider that it is reasonable for QPS to exercise its discretion to not amend the relevant letter by deleting parts, as requested by the applicant in this case. The letter was written and sent to the applicant using particular words, and to now rewrite how this letter appears in QPS records would impact on the integrity of QPS record keeping[32] and attempt to rewrite history. Consistent with the reasoning in Crewdson, Purrer and 3DT2GH, I consider that QPS has taken appropriate action by acknowledging that the information sought to be amended incorrectly attributed a link to ‘criminal motorcycle gangs’ to the applicant rather than the subjects of the applicant’s complaint, arranging for a new letter to be issued which addressed the issues raised in the amendment application and placing a notation on the file. I do not consider that QPS is then required to go further to delete parts of the original version, where a notation has been included to identify the inaccuracy. For these reasons, I find that the amendments requested by the applicant may be refused under section 72(1)(a) of the IP Act.DECISION As a delegate of the Information Commissioner, under section 139 of the IP Act, I affirm[33] the decision of QPS to refuse the applicant’s requested amendments.Shiv MartinAssistant Information CommissionerDate: 24 November 2022 APPENDIX Significant procedural steps Date Event 1 June 2022 OIC received an application for external review of QPS’ decision dated 17 May 2022. 2 June 2022 OIC requested preliminary documents from QPS. 22 June 2022 OIC received the preliminary documents from QPS. 28 June 2022 OIC received an application for external review of QPS’ internal review decision dated 20 June 2022. 1 July 2022 OIC advised QPS and the applicant that the external review application regarding QPS’ internal review decision had been accepted. 10 August 2022 The applicant requested an update. 11 August 2022 OIC provided the applicant with an update. 9 September 2022 OIC conveyed a preliminary view to the applicant. 26 September 2022 The applicant contested the preliminary view and requested a formal decision. [1] On 9 December 2021.[2] On 17 May 2022. [3] Under section 72(1)(a) of the IP Act.[4] As outlined under section 72(1)(b) of the IP Act.[5] On 23 May 2022. [6] On 20 June 2022. [7] The applicant initially applied for external review on 1 June 2022. However, it later became apparent that the applicant had also sought internal review on or about the same date. The applicant subsequently sought external review of QPS’ internal review decision on 28 June 2022. [8] Section 21(2) of the HR Act. I note that this section may not be relevant to the facts of this matter given the applicant appears not to be a resident of Queensland. [9] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[10] 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’.[11] Sections 41 and 44 of the IP Act.[12] ‘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.’[13] Macquarie Dictionary (7th ed, 2017).[14] These include where an agency is not satisfied the information sought to be amended is personal information of the applicant (section 72(1)(a)(ii) of the IP Act) and where the document does not form part of a functional record (section 72(1)(b) of the IP Act). [15] Section 100(1) of the IP Act.[16] Purrer v Office of the Information Commissioner & Anor [2021] QCATA 92 (Purrer) at [32]. [17] In Purrer, Daubney J observed at [28] that ‘the prefatory words of the section clearly operate to retain in the relevant agency or Minister a general discretion to refuse to amend’. [18] DenHollander and Department of Defence [2002] AATA 866 at [96].[19] To ensure that, in a record keeping context, the document is preserved without any alteration as a public record. [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 in 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] Including the applicant’s name and email address.[25] In his application for internal review, the applicant stated the Letter ‘forms part of a functional record of the QPS as [the Letter] can be accessed by other law enforcement bodies, not just QPS.’[26] Internal review application dated 23 May 2022.[27] Page 3 of the internal review decision.[28] (Unreported, Queensland Information Commissioner, 26 November 2012) (3DT2GH).[29] 3DT2GH at [50-51].[30] Citation at footnote 16 above.[31] Crewdson at [34]-[35].[32] See footnote 17 above.[33] Under section 123(1) of the IP Act.