Key published decision applying Section 22(a) FOI Act

JM and Queensland Police Service (1995) 2 QAR 516

Note: this decision considers the former sections 22(a) and (b) of the FOI Act before amendment in 2005.

The Queensland Police Service (QPS) refused the applicant access to four documents on the basis that they were 'reasonably available for purchase under arrangements' made by QPS. Specifically, the documents in issue included the applicant's criminal history, a court brief, Fine Option Orders and a copy of the applicant's trial transcript.

Is the relevant matter reasonably available for purchase by a member of the community?

As the relevant matter could be accessed under the administrative arrangements made by QPS for the purchase of documents, the Information Commissioner was satisfied the relevant matter was 'reasonably available for purchase by a member of the community'. [37]

The Information Commissioner considered other specialised schemes of access include arrangements: [31, 33 and 37]

• for access to information from the register of land titles
• for obtaining records from the register of births, deaths and marriages o for obtaining information about driver's licence and traffic history
• for access to records of proceedings under the Justices Act 1886 (Qld)
• for the purchase of personal criminal history documents from QPS.

Is the alternative access reasonably available?

Rather than listing relevant factors which may affect the 'reasonableness' of access, the Information Commissioner provided the following illustrative examples: [38, 40 and 41]

• if a document can be purchased, the reasonableness of access may depend on the availability of stock;
• if a document can be accessed by inspection, the reasonableness of access may depend on the physical location of the document available;
• if a charging regime has been prescribed by an Act or statutory instrument, the reasonableness of the value is not ordinarily open to question; and
• if a charging regime has been set up under an administrative arrangement, the reasonableness of the price may be scrutinised.

Consideration of section 22(a) of the FOI Act

While the Information Commissioner did not apply section 22(a) of the FOI Act to the relevant matter, he considered the provision's application generally.

The use of the word 'may' in section 22 of the FOI Act means that an agency or Minister has discretion whether to refuse access to documents reasonably available under an enactment or arrangement of an agency. [21]

An agency or Minister can only refuse access under section 22 of the FOI Act where the enactment or agency arrangements allow the applicant to obtain full access to the document in issue. Where the relevant administrative scheme gives the agency or Minister discretion to refuse access to particular applicants or to withhold parts of the particular document in issue, the FOI decision maker should seek assurances that the applicant is entitled to full access on payment of any applicable charge before making a determination under section 22 of the FOI Act. [42]

If a document is reasonably available under an enactment or under arrangements by an agency, but there is a copy of the document with handwritten annotations, then access to the annotated copy could not be refused under section 22 of the FOI Act because it would not be the same document as that reasonably available. [43]