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Application of Section 38 FOI Act

Relevant considerations

1. Is there an expectation that disclosing the relevant matter would cause damage to relations between the Queensland State government and another government?

a) Another government

Section 7 of the FOI Act defines 'government' to include an agency and a Minister.

The Information Commissioner considered the phrase 'another government' includes the Commonwealth government, a State or Territory government or a foreign government.1 The term does not, however, include a local government Council.2

b) State

The Information Commissioner considered the word 'State' in section 38 of the FOI Act refers to the State of Queensland.3

c) Damage to relations

The nature of the anticipated 'damage to relations' is likely to be a loss of confidence or trust between governments.4 Disclosing matter which reveals acts that would generally offend the fundamental principles and standards on which sovereign states agree and which allow for relatively smooth international relations could reasonably be expected to cause damage between Australian and foreign governments. These principles include:

  • the sovereign equality of countries;
  • the immunities of diplomatic and consular agents;
  • non-intervention in the internal or external affairs of other countries;
  • peaceful settlements of dispute;
  • prohibition of the threat or use of force; and
  • respect for human rights.5

d) Is the expectation reasonably based?

See 'Could reasonably be expected to' Annotation.

The Information Commissioner previously found it was not reasonable to expect that disclosure would cause damage to relations between governments where the relevant matter was routine in nature and eighteen years had passed since the interactions discussed in the matter took place.6

2. Is there an expectation that disclosing the relevant matter would divulge information of a confidential nature, communicated in confidence by or on behalf of another government?

a) Another government

Section 7 of the FOI Act defines 'government' to include an agency and a Minister.

The Information Commissioner considered the phrase 'another government' includes the Commonwealth government, a State or Territory government or a foreign government.7 The term does not, however, include a local government Council.8

b) Confidential nature

Generally available information may be confidential in nature when it is shared in a particular context in which the parties know that a special significance attaches to the information.9

Disclosure of information to a limited number of persons will not of itself destroy the confidential nature of information.10 Matter communicated 18 years after the relevant events has been found not to retain the necessary quality of confidence.11

c) Communicated in confidence

See 'Breach of confidence at common law' Annotation.

It is not necessary that there be any express promise of confidential treatment, as an obligation of confidence can be inferred from the circumstances.12 However, a confider cannot unilaterally impose an obligation of confidence on the confidant (for example, by merely labelling information as confidential) if the information lacks the requisite degree of secrecy.13

d) Communicated by or on behalf of another government

In Haneef,14 the Information Commissioner considered the Indian Consul General, performing official duties (communicating with a national in custody) communicated information 'by or on behalf of another government', as he was a representative of the Indian government while in Australia.15 The words of the Indian Consul-General were also communicated in confidence.16

e) Is the expectation reasonably based?

See 'Could reasonably be expected to' Annotation.

3. Would disclosing the relevant matter be in the public interest?

The exemptions in sections 38(a) and (b) of the FOI Act do not apply if disclosing the relevant matter is in the public interest.

The Information Commissioner considered the following public interest factors favouring disclosure may arise in relation to these exemptions:

  • transparency, accountability, the proper enforcement of the criminal law and the maintenance of public confidence in the police services17
  • public scrutiny and discussion of details of funding arrangements between the State government and local government Council relating to major infrastructure projects18
  • the public interest in the applicant having access to matter which relates to their personal affairs.19

Public interest factors favouring nondisclosure of this type of matter may include any damage to relations between the State and the Commonwealth or foreign government as a result of disclosure.20

1Santoro, MLA and Department of Main Roads; Brisbane City Council (Third Party) (2000) 5 QAR 405 at paragraph 25.
2Santoro, MLA and Department of Main Roads; Brisbane City Council (Third Party) (2000) 5 QAR 405 at paragraph 25.
3Haneef and Department of Police (Unreported, Queensland Information Commissioner, 24 August 2010) at paragraphs 39, 40, 47 and 49; Ferrier and Queensland Police Service (1996) 3 QAR 350 at paragraph 47.
4Haneef and Department of Police (Unreported, Queensland Information Commissioner, 24 August 2010) at paragraph 48.
5Haneef and Department of Police (Unreported, Queensland Information Commissioner, 24 August 2010) at paragraph 47.
6Ferrier and Queensland Police Service (1996) 3 QAR 350 at paragraph 41.
7Santoro, MLA and Department of Main Roads; Brisbane City Council (Third Party) (2000) 5 QAR 405 at paragraph 25.
8Santoro, MLA and Department of Main Roads; Brisbane City Council (Third Party) (2000) 5 QAR 405 at paragraph 25.
9Haneef and Department of Police (Unreported, Queensland Information Commissioner, 24 August 2010) at paragraph 75.
10Haneef and Department of Police (Unreported, Queensland Information Commissioner, 24 August 2010) at paragraph 77.
11Ferrier and Queensland Police Service (1996) 3 QAR 350 at paragraph 41.
12B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at paragraph 90.
13B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at paragraph 91.
14Haneef and Department of Police (Unreported, Queensland Information Commissioner, 24 August 2010)
15Haneef and Department of Police (Unreported, Queensland Information Commissioner, 24 August 2010) at paragraph 39.
16Haneef and Department of Police (Unreported, Queensland Information Commissioner, 24 August 2010) at paragraph 71.
17Haneef and Department of Police (Unreported, Queensland Information Commissioner, 24 August 2010) at paragraph 82.
18Santoro, MLA and Department of Main Roads; Brisbane City Council (Third Party) (2000) 5 QAR 405.
19Ferrier and Queensland Police Service (1996) 3 QAR 350 at paragraph 42.
20Haneef and Department of Police (Unreported, Queensland Information Commissioner, 24 August 2010) at paragraph 86.

Last updated: March 1, 2012