Application of Section 40(a) FOI Act

Relevant considerations

1. Is there an identifiable method or procedure for the conduct of tests, examinations or audits conducted by the agency?

The Information Commissioner considered the meaning of the similar phrase 'prejudice the effectiveness of a lawful method or procedure‚Ķ' (as used section 42(1)(e) of the FOI Act) in some detail in 'T' and Queensland Health,1 and subsequently adopted that reasoning for the purposes of interpreting section 40(a) of the FOI Act.2 The Information Commissioner was satisfied that methods and procedures are adopted and refined by agencies to assist in the performance of their functions.3  For example, in Murphy and Treasury4 Department the Information Commissioner found that gathering information from informal sources when conducing audits was a method or procedure used by the Office of State Revenue.

The words 'test', 'examination' and 'audit' should be interpreted according to their ordinary and natural meaning.5

The Information Commissioner and delegates have previously considered that:

  • a multiple choice exam conducted by an agency is an 'exam'6
  • the word 'test' is broad enough to include the public service recruitment and selection process and model answers to interview questions7
  • operations of the Office of State Revenue (OSR) in determining whether a company has complied with its statutory land tax and stamp duty obligations comprised an audit8
  • a Queensland Law Society (QLS) audit into a solicitor's trust account comprised an audit.9
  • an agency's investigation into a complaint does not amount to a 'test, examination or audit'.10

2. Is there a reasonable expectation that disclosing the relevant matter could prejudice the effectiveness of the method or procedure for the conduct of the test, examination or audit?

a) Whether there exists and expectation of prejudice to the effectiveness of the method or procedure

The agency or Minister must identify the precise nature of the prejudice to the effectiveness of the method or procedure.11 Often the disclosing the nature of the method or procedure itself may prejudice the effectiveness of the method or procedure.12

The effectiveness of a method or procedure may depend upon maintaining the secrecy of:13

  • the existence of the method or procedure
  • the nature of the method or procedure
  • the personnel that carry out the method or procedure
  • the results of the method or procedure.

b) Is the expectation reasonable?

See 'Could reasonably be expected to' Annotation.

In Murphy and Treasury Department14 the Information Commissioner was satisfied there could be no reasonable expectation that the effectiveness of the agency's method or procedure of gathering information from informal sources would be prejudiced by the disclosing the names of agency officers involved.

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

In the application of section 40(a) the Information Commissioner has previously attributed significant weight to the following public interest factors:15

  • enhancing the accountability of the QPS in conducting investigations
  • enhancing the accountability of the Auditor-General in performing its statutory functions.

1 Re 'T' and Queensland Health (1994) 1 QAR 386 at paragraphs 24-35
2Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 97.
3 Re 'T' and Queensland Health (1994) 1 QAR 386 at paragraphs 25.
4Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 102.
5 Queensland Law Society Inc. and Legal Ombudsman; Hewitt (Third Party) (1998) 4 QAR 328 at paragraph 158.
6 (Unpublished OIC Preliminary View).
7 (Unpublished OIC Preliminary View).
8 Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 96.
9Queensland Law Society Inc. and Legal Ombudsman; Hewitt (Third Party) (1998) 4 QAR 328 at paragraph 158.
10Gresham and Queensland Principal Club (Unreported, Queensland Information Commissioner, 13 August 2001) at paragraph 35; (Unpublished OIC Preliminary View); (Unpublished OIC Preliminary View).
11 Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 96, referring to Re 'T' and Queensland Health (1994) 1 QAR 386 at paragraphs 24.
12 Re 'T' and Queensland Health (1994) 1 QAR 386 at paragraphs 25.
13 Re 'T' and Queensland Health (1994) 1 QAR 386 at paragraph 23.
14 Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 103.
15Gresham and Queensland Principal Club (Unreported, Queensland Information Commissioner,13 August 2001) at paragraph 36.

Last updated: March 1, 2012