Key published decisions applying Section 30(3)(c)

Higgins and Education Queensland (Unreported, Queensland Information Commissioner, 31 March 1999)

Note:
this decision was made before the insertion of section 101C(1)(f) of the FOI Act, which operates to remove the Information Commissioner's jurisdiction where access in the form requested by the applicant would involve an infringement of the copyright of a person other than the State.

The applicant sought access to matter relating to aspects of Dr Higgins' employment with Education Queensland (Department). The Department decided to disclose some of the relevant matter and Dr Higgins sought external review. In the reverse FOI application, Dr Higgins asserted that disclosing to some of the relevant matter would infringe his copyright under section 30(3)(c) of the FOI Act.

Would disclosing copies of the relevant matter infringe the copyright of a person other than the State?

The Information Commissioner considered that a claim of copyright cannot defeat the general right of access to any information contained in a particular document because a copyright infringement is not a ground of exemption under the FOI Act. [32] Rather, if disclosing documents by way of creating copies of the relevant matter would involve an infringement of the copyright of a person other than the State, then access must be given in another form. Generally, access would be given by way of inspection. [33]

In this case, the Department was satisfied a valid claim of copyright existed in relation to number of relevant documents. Accordingly, the Information Commissioner was satisfied under section 30(3)(c) of the FOI Act that disclosing copies of the relevant matter would infringe a person's copyright and access should be provided in another form.