Key published decisions applying Section 9 FOI Act

Price and The Local Government Association of Queensland Inc (2000) 5 QAR 417

This decision was affirmed in subsequent proceeding under the Judicial Review Act 1991 (Qld) in Local Government Association Queensland Inc v Information Commissioner & Anor [2001] QSC 052; (2001) 113 LGERA 1.

Note:
This decision was made before the 2005 amendments inserting the words 'whether or not the public purpose is stated in the enactment' into section 9(1)(a)(ii) of the FOI Act.

The applicant sought access to all documents concerning him, his family and property. The Local Government Association of Queensland Inc (LGAQ) refused access to the relevant matter on the basis that it was not an 'agency' subject to the FOI Act. The Information Commissioner considered whether LGAQ was a 'public authority' subject to the application of the FOI Act.

Is the entity a body?

The Information Commissioner was satisfied that an association of local governments is a 'body' for the purpose of the FOI Act.

Is the body established for a public purpose by an enactment?

Under section 9(1)(a)(i) of the FOI Act, a body is a 'public authority' if it is established by an enactment for a public purpose. The Information Commissioner was satisfied that, giving the words their ordinary and natural meaning, the word 'established' means that the body must be: [19]

• established by an enactment; and
• established for a public purpose.

Established by an enactment

The Information Commissioner was satisfied LGAQ was 'established by an enactment' because section 1194(1) of the Local Government Act 1993 (Qld) (Local Government Act) provided: [10]

The Local Government Association of Queensland (Incorporated) is established under this Act.

Even though a LGAQ had existed for decades previously, the present form of the LGAQ was established as a legal entity by section 1194 of the Local Government Act 1993 (Qld). [11]

Established for a public purpose

LGAQ submitted that the proper interpretation of section 9(1)(a)(i) of the FOI Act requires the public purpose of the entity to be specified in the enactment that established the organisation. [15] The Information Commissioner rejected this submission and found it consistent with the purpose of the FOI Act that a body established by an enactment, which performs functions for the benefit of the public or a substantial segment of the public, to be subject to the application of the FOI Act irrespective of whether the public purpose is specified in the enactment which established the body.³⁵ [21]

Having regard to the objects and rules of the Local Government Act 1993 (Qld), the organisation was formed by members to pursue the facilitation of more effective and efficient discharge of local government responsibilities. In the Information Commissioner's view, the organisation was clearly established for a public purpose. [14]

LGAQ was a 'public authority' under section 9(1)(a)(i) of the FOI Act because it was established by an enactment and established for a public purpose.

Tedesco and Mt Gravatt District Community Support Inc (2005) 7 QAR 33

The applicant sought access to information relating to him. The Mt Gravatt District Community Support Inc (Association) did not respond to the access application on the basis that it was not an 'agency' under the FOI Act.

Is the Association an 'agency' for the purpose of the FOI Act?

Section 8(1) of the FOI Act defines 'agency' as a 'department, local authority or public authority'. The Information Commissioner was satisfied that the Association was not a department or a local authority. Accordingly, the issue for determination was whether the Association was a 'public authority' and subject to the FOI Act. [12]

Is the entity a body?

Is the body established by an enactment for a public purpose?

The Information Commissioner was satisfied that the word 'by' in the phrase 'established by an enactment' means the body 'must be effected by, ie, directly provided for in, an enactment'. As no enactment provided for or effected the Association, the association was not established by an enactment and was not a 'public authority' under section 9(1)(a)(i) of the FOI Act. [15]

Is the body established by government under an enactment for a public purpose?

For the Association to be a public authority under section 9(1)(a)(ii) of the FOI Act, the Information Commissioner considered³⁶ that the word 'established' required that the body be: [16]

• established by government;
• established under an enactment; and
• established for a public purpose.

The Information Commissioner was satisfied the Association was established for a 'public purpose'; it was established to assist people in certain Brisbane suburbs to fulfil their quality of life. The Information Commissioner was also satisfied the Association was 'established under an enactment', namely the under the provisions of the Associations Incorporation Act 1981 (Qld).³⁷ However, the Association was established by a group of citizens and was not 'established by government'. Accordingly, the Association was not a 'public authority' under section 9(1)(a)(ii) of the FOI Act. [17-19]

Is the body created by the Governor in Council or a Minister?

The body was not a 'public authority'under section 9(1)(b) of the FOI Act, as the Association was created by a group of citizens, and not by the Governor in Council or a Minister. [20]

Is the body declared by regulation to be a public authority and supported by government funds or assistance?

The body was not a 'public authority' under section 9(1)(c) of the FOI Act because the Association was not a body declared by regulation to be a public authority for the purposes of the FOI Act. [21] The mere fact that the Association received some funding from the Department did not mean that it was a public authority under section 9(1)(c). [14]

Is the entity a person?

The Information Commissioner expressed the view that the word 'person' means natural persons rather than corporations. [13]

The Information Commissioner was satisfied that Association was not a 'public authority' and accordingly not subject to the FOI Act. [22]

Barker and World Firefighters Games, Brisbane, 2002 (2001) 6 QAR 149

Note:
this decision was made before the 2005 amendments inserting the words 'whether or not the public purpose is stated in the enactment' into section 9(1)(a)(ii) of the FOI Act.

The Information Commissioner considered whether the World Firefighters Games, Brisbane (WFG) was a 'public authority' for the purpose of the FOI Act.

Is the entity a body?

Is the body established by government under an enactment for a public purpose?

WFG submitted that the wording of section 9(1)(a)(ii) of the FOI Act required the public purpose of the body in question to be identified under the relevant enactment. WFG also submitted that the previous consideration of section 9(1)(a)(i) of the FOI Act by the Information Commissioner in Price ³⁸ and by Atkinson J on judicial review, was too broad and not relevant to the consideration of section 9(1)(a)(ii) of the FOI Act. [16-17]

The Information Commissioner rejected the submissions of WFG that the interpretation of section 9(1)(a)(ii) of the FOI Act was too broad. The wording of the provision required the body in question to be established by government, which means that privately established bodies cannot be public authorities. [27] The Information Commissioner also considered the ordinary meaning of the provision does not require the public purpose to be specified in the enactment under which the body was established.

Giving the words their natural and ordinary meaning, the Information Commissioner was satisfied the word 'established' requires the body to be: [18]

• established by government
• established under an enactment; and
• established for a public purpose.

WFG was established:

• by the Queensland Fire and Rescue Authority, as an 'agency' of the government;
• under the Corporations Law; and
• for a public purpose (to raise money for the Royal Children's Hospital burns unit and to promote the skills of fire fighters). [28-31]

Accordingly, the Information Commissioner was satisfied WFG was a 'public authority' under section 9(1)(a)(ii) of the FOI Act. [33]

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

The applicant sought access to various documents from the Queensland Law Society Inc (QLS). QLS refused to deal with the application on the basis that it was not an 'agency' for the purposes of the FOI Act.

Is the entity a body?

The Information Commissioner was satisfied that QLS was a 'body (whether or not incorporated)' by virtue of its status as a body corporate. [54]

Is the body established by an enactment for a public purpose?

The Information Commissioner considered the definition of 'public authority' in section 9(1)(a)(i) of the FOI Act contained a number of separate elements, which need to be satisfied; the body must be established by an enactment and established for a public purpose. [53]

Established by an enactment

In determining that the QLS was 'established by an enactment', the Information Commissioner considered the reasoning advanced in Re Brennan and the Law Society of the Australian Capital Territory:³⁹ [68]

In my view, therefore, when the Law Society was 'constituted a body corporate' pursuant to section 6(1) of the Legal Practitioners Ordinance it was "established" as a body corporate within the ordinary meaning of that word. It matters not, in my opinion, that the Law Society was previously an unincorporated body established as such in 1933. For the purposes of the definition of "prescribed authority", the question is whether the Law Society is a body corporate "established by an enactment". In my view, the Law Society clearly satisfies this requirement. It owes its existence as a body corporate to the 1972 Ordinance. It was that Ordinance that established the Society as such.

The word 'by' in the phrase, 'a body that … is established … by an enactment', means that the establishment of the body in question must be effected by an enactment. [69]

The Information Commissioner also considered that the present tense verb 'is' as used in 'is established' had no temporal connotation, but rather was merely descriptive of the purpose for establishment of the body in question. [62]

Established for a public purpose

In interpreting the meaning of 'public purpose', the Information Commissioner was of the view that the word 'purpose' directs attention to the objects or aims for which a body has been established as evidence by the relevant powers, functions or duties conferred on it by Parliament. The word 'public' imposes a requirement that the purpose be one for the benefit of members of the community generally. [74]

When determining whether a body is established for a public purpose, the Information Commissioner considered the correct test is whether at least one of the major purposes for its establishment (as distinct from minor or ancillary purposes) is a public purpose. [78]

The major purpose for the incorporation of the QLS was to bring into existence a statutory framework for the effective regulation of the legal profession in Queensland, for the ultimate benefit of the people of Queensland. [90] The Information Commissioner was satisfied the protection of members of the public who deal with solicitors qualified as a public purpose within the meaning of section 9(1)(a) of the FOI Act. [75]

Accordingly, the QLS was a 'public authority' under section 9(1)(a)(i) of the FOI Act. [96]

³⁵Section 9(1)(a)(i) of the FOI Act was subsequently amended to reflect the Information Commissioner's position.
³⁶Referring to Barker and World Firefighters Games, Brisbane (2002) 6 QAR 149, where the Information Commissioner considered the ordinary and natural meaning of the word 'established' in the context of section 9(1)(a)(ii) of the FOI Act.
³⁷Tedesco and Mt Gravatt District Community Support Inc (2005) 7 QAR 33 at paragraph 17.
³⁸Price and the Local Government Association of Queensland Inc (2000) 5 QAR 417.
³⁹Re Brennan and the Law Society of the Australian Capital Territory (1984) 6 ALD 428 at paragraphs 435-437.