Judicial Reviews

External review decisions of the Information Commissioner can be appealed to the Supreme Court on a question of law, under the Judicial Review Act 1991 (Qld).

The following decisions of the Information Commissioner made under the Freedom of Information Act 1992 (Qld) (FOI Act) have been the subject of judicial review.

Scott and Queensland Corrective Services (2005 F0667, 29 June 2007)

The applicant sought access to audio intercom recordings of the Maximum Security Unit (MSU) within the Arthur Gorrie Correctional Centre (AGCC). Queensland Corrective Services (QCS) objected to the disclosure of the audio tapes to the applicant under section 44(1) of the FOI Act on the grounds that they involved shared personal affairs of the applicant and other prisoners of the MSU which cannot be severed.

The decision on external review was that the shared personal affairs of other prisoners could not be severed and as such the recordings were prima facie exempt from disclosure under section 44(1) of the FOI Act. Further, that public interest considerations favouring disclosure were insufficient to outweigh the public interest considerations against disclosure of the recordings and as such found the recordings were exempt from disclosure under section 44(1) of the FOI Act.

During the Court proceedings QCS reviewed the tapes again to see whether any part of the tape could be isolated as relating to the prisoner applicant. With the assistance of correctional officers, QCS and were able to identify the prisoner’s voice in some conversations contained on one of the tapes in issue.

Justice Atkinson of the Supreme Court of Queensland subsequently issued an order on 1 November 2007 that QCS:

comply with the request for the information requested by Mr Scott to access information relating to him to obtain audio recordings from the maximum security unit on the 22, 25, 26, 27, 28 and 29 October 2004 and 1 November 2004.

No written judgment was issued in relation to this judicial review.

Whittaker and Queensland Audit Office (2000) 6 QAR 78, 16 June 2001

Mr Whittaker sought judicial review of the Information Commissioner's decision, challenging the Commissioner's interpretation of the words 'unless disclosure is required by compelling reason in the public interest', in section 39(2) of the FOI Act, which relates to information obtained by auditors under the Financial Administration and Audit Act 1977 (Qld). In his decision of 7 September 2001, Justice Moynihan of the Supreme Court of Queensland held that the Commissioner did not err in law in construing section 39(2) to require 'one or more identifiable public interest considerations favouring disclosure which are so compelling (in the sense of forceful or overpowering) as to require (in the sense of demand and necessitate) disclosure in the public interest'.

Justice Moynihan also held that the Commissioner did not err by taking into account an irrelevant consideration or by failing to take into account a relevant consideration.

Whittaker v Information Commissioner and Auditor General of Queensland [2001] QSC 325; [2002] 2 Qd R 557; (2001) 6 QAR 90

Price and Local Government Association of Queensland (2000) 5 QAR 417,
8 December 2000

The LGAQ sought judicial review of the Information Commissioner's finding that it is subject to the FOI Act, as a body that is established for a public purpose by an enactment within the meaning of section 9(1)(a)(i) of the FOI Act.

In a decision dated 1 March 2001, Justice Atkinson of the Supreme Court of Queensland dismissed the LGAQ's application. In her decision, Justice Atkinson held that '[t]he Local Government Association was established both by an enactment and for a public purpose. …The association was therefore established for a public purpose by an enactment and is a public authority subject to the FOI Act.'

Local Government Association Queensland Inc v Information Commissioner & Anor [2001] QSC 052; (2001) 113 LGERA 1; (2001) 6 QAR 18

Santoro MLA and Brisbane City Council (2000) 5 QAR 405, 24 October 2000

The Brisbane City Council sought judicial review of the Information Commissioner's decision which allowed access to documents comprising communications between the Council and the State government concerning funding arrangements for the City-Valley Bypass, a major road infrastructure project. The grounds for review asserted by the Council were:

an error of law in finding that the Council is not another 'government' according to the meaning of that term in the context of section 38 of the FOI Act;
an error of law in finding that disclosure of the documents in issue could not reasonably be expected to cause damage to relations between the State and the Council, and that disclosure would on balance, be in the public interest; and
an error of law in not considering claims for exemption under sections 45(1)(c) and 49 of the FOI Act, that had not been abandoned even though they were not argued in the Council's submissions to the Information Commissioner.

The application for JR was dismissed by Justice Wilson of the Supreme Court of Queensland, in her judgment published 17 May 2001.

Brisbane City Council v Albietz [2001] QSC 160; [2002] 2 Qd R 1; (2001) 6 QAR 10

Mentink and Queensland Corrective Services Commission (1998) 4 QAR 545, 1 December 1997

Mr Mentink sought judicial review of the Information Commissioner's finding that portions of matter contained in the Professional Management File concerning him, held by the Queensland Corrective Services Commission, were exempt matter under section 44(1) or section 46(1)(a) of the FOI Act.

In a judgment delivered on 28 January 1999, Justice Muir of the Supreme Court of Queensland dismissed Mr Mentink's application.

Mentink v Albietz & Qld Corrective Services Commission [1999] QSC 9; (1999) 4 QAR 565

Queensland Law Society Inc. (1998) 4 QAR 328, 24 June 1998

The Society sought judicial review of the Information Commissioner's finding that a legal opinion, obtained for the purposes of an investigation by its Professional Standards Committee, was not exempt from disclosure under section 43(1) of the FOI Act.

In a judgment delivered on 29 October 1998, Justice Williams of the Supreme Court of Queensland dismissed the Society's application. In his decision, Justice Williams held that the Society had made such use of the legal opinion that it would be unfair or misleading to allow it to maintain a claim of legal professional privilege for the opinion.

Queensland Law Society Inc v Albietz & Anor [1998] QSC 231; [2000] 1 Qd R 621; (1998) 4 QAR 387

Murphy and Queensland Law Society Inc (1998) 4 QAR 446, 24 July 1998

Queensland Treasury sought judicial review of the Information Commissioner's decision, alleging that the Commissioner had:

failed to afford procedural fairness, in making his determination on the applicability of section 40(a);
erred in interpreting the phrase 'could reasonably be expected to' in section 42(1)(c); and
erred in finding that names of departmental officers, in the context of performance of their work duties, were ordinarily incapable of being properly characterised as information concerning the 'personal affairs' of those persons, within the meaning of section 44(1).

All three grounds of the respondent's challenge were rejected by Justice de Jersey of the Supreme Court of Queensland (as he then was), in his decision dated 6 October 1995.

State of Queensland v Albietz [1996] 1 Qd R 215

English and Queensland Law Society Inc (1995) 2 QAR 714, 4 August 1995

The Society sought judicial review of the Information Commissioner's finding that it is subject to the FOI Act, as a 'body that is established for a public purpose by an enactment', and hence a 'public authority' within the meaning of section 9(1)(a) of the FOI Act.

In a decision dated 1 March 1996, Justice Derrington of the Supreme Court of Queensland dismissed the Society's application. In his decision, Justice Derrington held that 'the overwhelming weight of factors indicated that the Society does come within the description of a "public authority" within the definition [in section 9(1)(a)(i) of the FOI Act] so that the provisions of the Act apply to it.'

Queensland Law Society Inc v The Information Commissioner [1996] 2 Qd R 580