Key published decisions applying Section 40(a) FOI Act
The applicant sought access to internal memoranda of the Queensland Principal Club (QPC) that arose out of an investigation into the applicant's complaint concerning financial expenses incurred by committee members of the Gold Coast Turf Club (GCTC). Specifically, the relevant matter comprised of two memoranda from the Finance Director to the CEO of the QPC. The QPC refused access to the relevant matter and relied on a number of FOI provisions including section 40(a).
Is there an identifiable 'test, examination or audit' conducted by the agency?
The Information Commissioner was satisfied that the investigation into the applicant's complaint, carried out by QPC, was not a 'test, examination or audit'. While there were provisions in the Racing and Betting Act 1980 (Qld) for the QPS to examine financial statements and for the Auditor-General to conduct an examination of the club's books, the Information Commissioner found that the examination undertaken by the QPC did not amount to an audit. [35]
Is there a reasonable expectation that disclosing the matter could prejudice the effectiveness of the method or procedure for the conduct of the test, examination or audit?
The Information Commissioner noted that even if the QPC investigation amounted to an 'audit', there could be no reasonable expectation that any prejudice could reasonably be expected to follow from disclosing the memoranda. [36]
Would disclosure, on balance, be in the public interest?
The Information Commissioner went on to consider the public interest in disclosing the relevant information. He found that there were strong public interest considerations favouring disclosure. Specifically, disclosure would enhance the accountability of government in conducting investigations and performing statutory functions. [31-32]
The applicant sought access to documents concerning the applicant's complaint to the Queensland Law Society (QLS) about the conduct of a solicitor (first solicitor).
The Lay Observer was a statutory body established by the QLS Act 1952 (Qld) with the function of monitoring and reporting written complaints made to the QLS. The relevant documents were provided to the applicant, subject to the removal of references to the identity of another solicitor (advising solicitor) who had provided a professional opinion to the QLS in relation to the conduct of the first solicitor. The QLS, as a participant in external review, submitted that disclosing the advising solicitor's identity could reasonably be expected to prejudice the effectiveness of the conduct of tests, examinations or audits by the agency.
The QLS asserted that disclosing the identity of the advising solicitor would have the effect of discouraging solicitors from providing assistance to the QLS which would prejudice the effectiveness of the QLS investigations. [61]
Is there an identifiable method or procedure for the conduct of tests, examinations or audits conducted by the agency?
The Information Commissioner was not satisfied that the investigation into the applicant's complaint was a test, examination or audit for the purposes of section 40(a) of the FOI Act. [63]
Accordingly, the relevant matter was not exempt under section 40(a) of the FOI Act.
Murphy and Queensland Treasury (1995) 2 QAR 744
(Affirmed in subsequent proceeding under the Judicial Review Act 1991 (Qld))
The applicant was a Director of a company and sought access to documents concerning the company's land tax affairs. The Queensland Treasury (Department) provided access to all of the requested documents, subject to the removal of the names of officers involved in the company's land tax affairs from the Office of State Revenue (OSR) and the Australian Taxation Office (ATO). The Department relied on a number of FOI provisions including section 40(a).
Is there an identifiable method or procedure for the conduct of tests, examinations or audits conducted by the agency?
The Information Commissioner was satisfied that the OSR conducted an 'audit' for the purpose of determining whether the company had complied with its land tax or stamp duty obligations under legislation. [96]
Is there a reasonable expectation that disclosing the matter could prejudice the effectiveness of the method or procedure for the conduct of the test, examination or audit?
The Department submitted that disclosing the relevant officers' names would discourage informal sources of information from cooperating with OSR officers. However, the Information Commissioner was not satisfied that the type of prejudice identified by the agency could reasonably be expected to result as a consequence of disclosure. [102-103]
Accordingly, the relevant matter was not exempt under section 40(a) of the FOI Act.
Queensland Law Society Inc. and Legal Ombudsman; Hewitt (Third Party) (1998) 4 QAR 328
The applicant sought access to documents relating to the applicant's complaint about a solicitor made to the Queensland Law Society (QLS). The Lay Observer was a statutory body established by the QLS Act 1952 (Qld) with the function of monitoring and reporting written complaints made to the QLS. The Lay Observer gave full access to the relevant documents, including a memorandum from a QLS lawyer to the QLS's Professional Standards Committee (QLS PSC). In a 'reverse FOI' application the QLS submitted that the memorandum should be exempt from disclosure under section 40(a) of the FOI Act.
Is there an identifiable method or procedure for the conduct of tests, examinations or audits conducted by the agency?
The Information Commissioner found that the words 'test, examination and audit' should be interpreted according to their ordinary and natural meaning. Therefore, an investigation by the QLS PSC into the applicant's complaint about a solicitor was not a 'test, examination or audit'. [158]
The Information Commissioner observed that the QLS's audits of a solicitor's trust accounts would constitute an 'audit' for the purposes of section 40(a) of the FOI Act. [158]
Accordingly, the relevant matter was not exempt under section 40(a) of the FOI Act.
Last updated: March 1, 2012
