Key published decisions applying Section 39(1)(a) FOI Act
The applicant sought access to matter relating to a review, report and funding conditions concerning Q Squash Ltd (Q Squash). The Department of Local Government, Sport and Recreation (Department) refused access to some of the relevant matter, relying on various exemptions under the FOI Act. Q Squash sought external review and informed the Information Commissioner that, as a result of a complaint made to the Queensland Ombudsman (Ombudsman), the Ombudsman was investigating the following issues:
- whether the review conducted by the Department into Q Squash, which was used as the basis for the decision to terminate the funding arrangement was biased and unfair; and
- whether the decision by the Department to terminate the funding agreement with Q Squash was improper and unfair.
The Information Commissioner considered the exemption in section 39(1)(a) of the FOI Act would be established where: 
- an investigation was currently being conducted by the Ombudsman
- there was a reasonable basis to expect that disclosure of the matter in issue could prejudice the conduct of that investigation; and
- disclosure would not, on balance, be in the public interest.
Is it reasonable to expect that disclosing the relevant matter could prejudice the conduct of the investigation?
The Ombudsman asserted that disclosing the relevant matter would prejudice the conduct of its investigation because:
- claims of bias and unfairness were made in relation to the Department's review and the contents of the review report
- the Ombudsman would consider claims of bias and unfairness in conducting its investigation relating to the Department's review into Q Squash and the content of the review report; and
- if Q Squash's complaint was sustained, action may be taken with respect to further distribution of the document including the matter in issue.
The Information Commissioner was satisfied that disclosing the relevant matter relating to the review report could reasonably be expected to prejudice the conduct of the investigation by the Ombudsman, particularly because the investigation concerned claims of bias and unfairness in the process which led to the creation of the relevant matter. 
With regard to further distribution of the document, the Information Commissioner found that disclosing the relevant matter prior to the finalisation of the Ombudsman's investigation could reasonably be expected to prejudice the conduct of the investigation, in that the recommendations remaining available to the Ombudsman would be limited and ineffectual. 
Would disclosure, on balance, be in the public interest?
In balancing the public interest, the Information Commissioner was satisfied that protecting the privacy of individuals and limiting the distribution of government review matter, currently under review by the Ombudsman, sufficiently outweighed public interest factors favouring disclosure.
Accordingly, the relevant matter was exempt under section 39(1)(a) of the FOI Act.
Last updated: April 19, 2012