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Application of Section 40(c) FOI Act

Relevant considerations

1. Is there a reasonable expectation that disclosing the matter could have a substantial adverse effect on the agency's management or assessment of its staff?

a) Management or assessment

The 'management or assessment by an agency of the agency's personnel' may include:

  • achievement and maintenance of satisfactory relations within the workplace1
  • staff disciplinary processes, including any investigation or disciplinary action following an incident2
  • management of staff performance, including taking action if there are concerns about the performance or behaviour of a staff member.3

b) Substantial adverse effect

To satisfy this exemption, any adverse effect must be 'substantial', ie 'grave, weighty, significant or serious'.4 For example, there may be a 'substantial adverse effect' where disclosure would result in:

  • a perceived breach of confidence or trust which inhibits staff co-operation in future workplace investigations
  • management problems due to wide dissemination of matter5
  • disruption or damage to working relationships.

c) Is the expectation reasonable?

See 'Could reasonably be expected to' Annotation.

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

In applying section 40(c) of the FOI Act, the following public interest factors favouring disclosure may be relevant:

  • enhancing the accountability of the agency for the way it carries out its personnel management functions
  • a person having access to matter adverse to her/him held by an agency so that she/he may have the opportunity to respond.

1Claes and Queensland Rail (Unreported, Queensland Information Commissioner, 4 September 1998) at paragraph 21.
2Claes and Queensland Rail (Unreported, Queensland Information Commissioner, 4 September 1998) at paragraph 22.
3WLS and Queensland Rail (Unreported, Queensland Information Commissioner, 31 October 2002) at paragraph 18.
4Cairns Port Authority and Department of Lands (1994) 1 QAR 663 at paragraphs 148-150.
5Pemberton and the University of Queensland (1994) 2 QAR 298.

Last updated: March 5, 2012