Application of Section 39(1)(a) FOI Act

Relevant considerations

1. Is an investigation currently being conducted by the Ombudsman?

This exemption applies if disclosure would prejudice the conduct of an investigation. Accordingly, the relevant investigation must be on foot. The exemption will not apply if the relevant investigation is finalised.¹

2. Is it reasonable to expect that disclosing the relevant matter could prejudice the conduct of the investigation?

The expectation must be reasonably based.

See ‘Could reasonably be expected to' Annotation.

The Information Commissioner considered that disclosing relevant matter could reasonably be expected to prejudice the conduct of an investigation by the Ombudsman in the following circumstances:

• the investigation on foot concerned claims of bias and unfairness in government processes leading to the creation of the matter;²
• disclosing the relevant matter prior to the finalisation of the Ombudsman's findings could have the effect that recommendations available to the Ombudsman would be limited and ineffectual.³

3. Would disclosure, on balance, be in the public interest?

The Information Commissioner previously considered the following public interest factors favouring disclosure and nondisclosure in applying section 39(a) of the FOI Act:⁴

• openness and transparency in government decision making
• increased public understanding of government processes
• protecting individual's privacy
• limiting the distribution of government review matter, currently under review by the ombudsman.

¹ Q Squash Ltd and Department of Local Government, Sport and Recreation; Fraser (Third Party) (Unreported, Queensland Information Commissioner, 30 June 2008) at paragraph 35.
²Q Squash Ltd and Department of Local Government, Sport and Recreation; Fraser (Third Party) (Unreported, Queensland Information Commissioner, 30 June 2008) at paragraph 42.
³Q Squash Ltd and Department of Local Government, Sport and Recreation; Fraser (Third Party) (Unreported, Queensland Information Commissioner, 30 June 2008) at paragraph 43.
⁴ Q Squash Ltd and Department of Local Government, Sport and Recreation; Fraser (Third Party) (Unreported, Queensland Information Commissioner, 30 June 2008) at paragraph 57.