Key published decisions applying Section 38 FOI Act

Haneef and Department of Police (Unreported, Queensland Information Commissioner, 24 August 2010)

The applicant was an Indian national arrested for alleged terrorism offences in Australia. The Indian Consul General met with the applicant while the applicant was in detention. The relevant matter was a transcript of that conversation. The Information Commissioner considered whether the transcript of the conversation between the applicant and the Indian Consul General was exempt under sections 38(a) and (b) of the FOI Act.

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

Damage to relations

The nature of the 'damage to relations' contemplated by section 38 is likely to be a loss of confidence or trust between governments. [48] 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 disputes;
• prohibition of the threat or use of force; and
• respect for human rights. [47]

The Information Commissioner was satisfied the relevant matter was prima facie exempt under section 38(a) of the FOI Act. It was then necessary to determine whether disclosing the transcript was in the public interest. [69]

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

Matter is exempt if its disclosure could reasonably be expected to divulge information of a confidential nature that was communicated in confidence by or on behalf of another government.²¹

Another government

The definition of 'government' in the FOI Act is an inclusive one, including an agency and a Minister as well as any other Australian government (including territory governments) and a non-Australian government. [39]

Communicated by or on behalf of government

The Information Commissioner was satisfied the communications were by and on behalf of another government because the Indian Consul General is the representative of the Indian Government while in Australia. Also, at the relevant time, the Indian Consul General was performing official duties (ie communicating with an Indian national in custody). [39]

Information of a confidential nature

The duties of Consul General should take place in private. [73] Generally available information may be confidential information when it is shared in a particular context in which the parties know that a special significance attaches to the information. [75] While the general rule is that for information to be confidential it must be inaccessible, disclosure to a limited number of persons will not of itself destroy the confidential nature of information. [77]

The Information Commissioner considered parts of the transcript which recorded the words of the Indian Consul General were communicated in confidence by or on behalf of another government and were therefore exempt under section 38(b) of the FOI Act. [71] However, parts of the transcript which recorded the words of the applicant (and do not reveal the nature of the information communicated by the Consul General) were not communicated by or on behalf of another government and are therefore could not satisfy the test for exemption under section 38(b) of the FOI Act.

The Information Commissioner was satisfied that disclosing the relevant matter could reasonably be expected to damage relevant relations given the circumstances in which the matter came into existence and then-current sensitivities in the relationship which heightened the prospect of damage. [67]

Would disclosing the relevant matter be in the public interest?

Matter will not be exempt under section 38 of the FOI Act if disclosing the relevant matter is in the public interest.

The Information Commissioner noted significant issues of public interest including transparency, accountability, the proper enforcement of the criminal law and the maintenance of public confidence in the police services. [82] More specifically these factors include: [84]

• the degree to which current laws and the respondent's procedures explicitly reflected Australia's international obligations and provided police officers with sufficient guidance about implementation
• the degree to which law enforcement agencies balance their obligations to protect the safety of Australians and respect international obligations in the context of new terrorist laws that significantly enhance police powers and reduce public scrutiny; and
• the public interest in the police conducting themselves in a way that does not jeopardise Australians' safety overseas and Australia's reputation.

The weight to be accorded to these factors was reduced by the fact that such considerations are not judicially determined and that these matters can be addressed by means other than disclosing the relevant matter. [85]

The public interest factors in favouring nondisclosure concerned potential damage to relations between the Australian and/or Queensland Governments and the Indian Government. The Information Commissioner was satisfied that disclosing the relevant matter would not be in the public interest. [86]

Accordingly, the transcript was exempt under sections 38(a) and (b) of the FOI Act.

Santoro, MLA and Department of Main Roads; Brisbane City Council (Third Party) (2000) 5 QAR 405

The applicant sought access to matter relating to a road infrastructure project in Brisbane. The Department of Main Roads (Department) submitted some of the relevant matter was exempt under section 38(a) of the FOI Act.

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

a) Another government

The phrase 'another government' in the context of section 38 of the FOI Act refers to the Commonwealth government, the governments of other Australian States and territories, and the governments of foreign states. [25] The term does not extend to local government Councils because the legislature intended to protect relations between the government of Queensland and other autonomous governments of similar status, not relations between the two levels of government within Queensland. [25]

The Information Commissioner was satisfied the relevant matter was not exempt on the basis of apprehended damage to relations between the Queensland State Government and Brisbane City Council (Council), as Council is not within the sphere of application of section 38(a) of the FOI Act. [26]

Nonetheless, the Information Commissioner considered the 'damage to relations' and 'public interest considerations' for discussion.

Damage to relations

Council submitted that disclosing the relevant matter could reasonably be expected to inhibit full and frank discussions and negotiations about funding for major public infrastructure projects and that it would inhibit adequate documentation of such discussions and negotiations, and therefore cause damage to relations between the State and the Council.

The Information Commissioner found disclosing the relevant matter would not cause damage to relations between the State government and the Council because funding pressures mean that local councils must fully discuss, and vigorously negotiate, funding arrangements for major public infrastructure projects. They must also document the negotiations and their outcomes in sufficient detail for their own administrative and audit purposes. [32]

Public interest considerations

This case involved a major infrastructure project and considerable amounts of public funds were expended. There was a strong public interest favouring public scrutiny and discussion of funding arrangements and details, including issues of whether the contributions of the State government and the Council, on behalf of its taxpayers and ratepayers, were realistic and equitable given the segments of the public likely to benefit from the project. [39]

The Information Commissioner considered that even if Council was within the application of section 38(a), the public interest considerations favouring disclosure of the matter were strong enough to outweigh those favouring nondisclosure.

Ferrier and Queensland Police Service (1996) 3 QAR 350

The applicant sought access to documents created by the former Special Branch of the Queensland Police Service (QPS), relating to her. The Information Commissioner considered whether such information was exempt under section 38(a) of the FOI Act.

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

The Information Commissioner considered it was not reasonable to expect that disclosing the relevant matter would cause damage of the type referred to in section 38(a) of the FOI Act, given the routine nature of the information contained in the documents and the lapse of time since the recorded interactions took place; namely 18 years. [41]

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

The Information Commissioner considered that matter communicated 18 years ago did not retain the necessary quality of confidence and the exemption in section 38(b) of the FOI Act could not apply. [41]

However the Information Commissioner did not rule out the possibility that sections 38(a) or 38(b) of the FOI Act could apply in relation to more recent or more sensitive information of the general kind in issue. [41]

Would disclosing the relevant matter be in the public interest?

In any event, the Information Commissioner considered there was a public interest in the applicant having access to matter relating to her personal affairs and that interest was sufficient to outweigh any slight prejudice which could possibly flow from disclosure of the matter. [42]

²¹ Section 38(b) of the FOI Act.