Key published decisions applying Section 40(c) FOI Act
Pemberton and the University of Queensland (1994) 2 QAR 293
The applicant was a university employee who had applied for various promotions. The applicant sought access to Referee reports provided by Heads of Department, Deans of Faculty and Pro Vice Chancellors as part of their duties of office.
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?
Substantial adverse effect
The Information Commissioner was satisfied that:
- adverse effects, either individually or in aggregate, may constitute a substantial adverse effect [122]
- 'substantial' in the phrase 'substantial adverse effect' means 'grave, weighty, significant or serious effects'.6 [122]
The University of Queensland (UQ) submitted that the referee reports were confidential and their disclosure would result in:
- loss of candour in future referee reports, increased reliance on oral referee reports and consequent prejudicial effects to the process of assessing staff for promotion [123, 125]
- some academics refusing to supply references unless required to do so as part of their duties of employment [124]
- disruptions to teaching, administrative and research activities.
The Information Commissioner found that disclosure would have a substantial adverse effect on the agency's management or assessment of its staff because:
- universities receive public funding to pursue functions intended to benefit the wider public interest [134]
- ensuring meritorious promotions assists UQ to achieve its functions and goals [135]
- the task of constructively assessing staff performance has greater prospects of success if details of perceived shortcomings remain confidential to managers and the subject staff member [152]
- if referee reports were available to any person, it is reasonable to expect that a significant proportion of management would resort to bland written reports leading to increased reliance on oral reports; and
- increased reliance on oral referee reports would introduce significant inefficiencies. [153]
The Information Commissioner found that is was not reasonable to expect disclosure to have the substantial adverse effect of leading to disrupted teaching, administrative and research activities as disappointed staff are an expected part of the promotion process and must be managed. [155]
Would disclosure, on balance, be in the public interest?
The Information Commissioner recognised as public interest factors favouring nondisclosure, that disclosure:
- could reasonably be expected to have a substantial adverse effect on the management or assessment by an agency of its personnel [117]
- may affect the quality and availability of refereed journals and applications for research funding, however this deserved negligible weight as the reports were prepared by managers in respect of subordinate staff. [157] The Information Commissioner recognised the following public interest factors favouring disclosure of the relevant matter:
- greater accountability and objectivity in the decision making processes regarding promotion of academics [158]
- an applicant who fails to be appointed or promoted is given specific and detailed reasons for this failure [163]
- the fair treatment of persons and corporations in accordance with the law in their dealings with government agencies [190]
The Information Commissioner was satisfied that disclosure would, on balance, be in the public interest.
Shaw and The University of Queensland (1995) 3 QAR 107
The applicant sought access to documents created during a workplace dispute involving her. The applicant sought review to gain full access and at the same time, another party to the workplace dispute (L'Estrange) sought review of the decision to grant partial access to the applicant. This decision deals with both external reviews.
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?
Substantial adverse effect
The Information Commissioner was satisfied that a complaint framed in careful and temperate language and substantiated by evidence can withstand scrutiny and accordingly contributes to the effective management of personnel. [32]
However, the Information Commissioner found that the task of constructively addressing workplace problems of this kind had greater prospects of success through cooperative effort when the process remained confidential to the parties involved. Accordingly, disclosure to outside parties could reasonably be expected to have a substantial adverse effect to the agency's management and assessment of the agency's personnel. [34]
Accordingly, the relevant matter was not exempt under section 40(c) 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 applicant sought access to the officers' names to assist in pursuing litigation in defamation. The Department relied on a number of FOI provisions including section 40(c) and submitted that the officers feared harassment from the applicant if their names were disclosed.
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?
Substantial adverse effect
OSR submitted that disclosing officers' names would cause a substantial adverse effect on the management or assessment of their personnel because:
- it would cause officers to refuse to reveal their names as required by the office policy [35]
- officers may not perform their duty with maximum efficiency and diligence if they are concerned about possible future, personal repercussions; they will be less inclined to refer matters to audit and investigators and particularly junior staff will be less likely to persist with audits where there are indications of harassment or intimidation [36]
- OSR has assured staff that it would protect them from reprisals or harassment by taxpayers and staff would perceive the release of officer's names as a breach of faith by management. [36]
The Information Commissioner was satisfied that the adverse effects contemplated by OSR were not reasonably based because:
- OSR had a policy of providing full names in correspondence and phone calls and it was not reasonable to expect that disclosure would cause officers to refuse to follow the OSR policy [142]
- while the agency gave officers an assurance that they would be protected from reprisals or harassment, there was no evidence that any formal policy dealing with exceptions to the general policy existed [143]
- it was not reasonable to expect that disclosure would endanger a person's life or physical safety [144]
- the applicant did not harass individual officers whose names were known to him [144]
- with regard to defamation litigation, the Information Commissioner found that 'public servants performing their duties of office are subject to the laws of the land, just as other citizens are' [149]
- with regard to feared harassment, the incidence was not widespread and the agency could implement remedial measures to address the safety of officers in problem cases [152,153]
- it was not sufficient that staff may perceive disclosure as a breach of faith on the part of management, rather than a legal requirement. [153,169]
The matter was not exempt under section 40(c) because disclosure could not reasonably be expected to have a substantial adverse effect on the management or assessment by an agency of its personnel.
In view of the above, it was not necessary for the Information Commissioner to consider public interest factors in this decision.
McCann and Queensland Police Service (1997) 4 QAR 30
Complaints were made by fellow police officers and civilian staff of the Queensland Police Service (QPS) about the applicant. The applicant sought access to the matter, which included transcripts of interviews conducted as part of a disciplinary investigation in relation to these complaints.
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?
Substantial adverse effect
There were adverse consequences for the management by QPS of its personnel, and for effective policing for the benefit of the community, if adverse information was not treated in confidence so far as practicable. The Assistant Commissioner recognised that disclosure had the potential to generate animosity and destroy effective working relationships, particularly where a superior officer's position of authority afforded opportunities for overt or subtle retaliation against a subordinate officer. [93]
Disclosing the investigator's recommendations regarding offences that the applicant was later charged with, could not reasonably be expected to have an adverse effect on the management or assessment of personnel. [101]
Management and assessment
Staff disciplinary processes are an aspect of the management or assessment by an agency of its personnel. [93]
Confidential treatment of relevant information promotes compliance with the statutory duty to report suspected police misconduct by QPS officers and promotes full and frank co-operation with investigations rather than forcing investigators to resort to their coercive powers. [95]
Would disclosure, on balance, be in the public interest?
The Assistant Commissioner recognised the following public interest factors favouring disclosure of the relevant matter:
- the accountability of government [75(d)]
- the applicant had reason to believe the QPS held records containing allegations adverse to his reputation
- the matter involved the applicant to such a degree that there was a justifiable 'need to know', more so than for the general public
- fair treatment in being given the opportunity to see and answer any adverse allegations. [76]
The Assistant Commissioner was satisfied that the relevant information satisfied the exemption under section 40(c) of the FOI Act. [97]
Claes and Queensland Rail (Unreported, Queensland Information Commissioner, 4 September 1998)
The applicant and another staff member of Queensland Rail (QR) had a physical altercation at work which resulted in disciplinary action being taken against the applicant. The applicant sought access to matter relating to the incident. QR refused access to some relevant matter under section 40(c) of the FOI Act.
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?
Substantial adverse effect
The Information Commissioner was satisfied that disclosure could reasonably be expected to heighten the existing tension within the workplace, which would lead to deterioration in workplace relations, which would have an adverse effect on agency's management or assessment of its staff. [20] Given the existing tension, the Information Commissioner was satisfied that the adverse effect would be substantial. [21]
In matters involving physical altercations, staff are more likely to cooperate fully if they are assured of confidentiality, unless disclosure is necessary for disciplinary proceedings. [29] In this case such disclosure was not required, therefore disclosure could reasonably be expected to have a substantial adverse effect on the management or assessment by QR of its personnel, because it would cause:
- an apparent breach of trust
- difficulty in obtaining full cooperation in similar investigations in the future. [30]
Management or assessment of personnel
Achievement and maintenance of satisfactory relations within the workplace is an aspect of the personnel management functions of an agency. [21]
The investigation and disciplinary action following an incident such as this was part of staff disciplinary processes and therefore constitute the management or assessment of personnel. [22]
Would disclosure, on balance, be in the public interest?
The Information Commissioner recognised the following public interest factors favouring nondisclosure:
- QR's ability to maintain good working relations
- QR's duty to provide a safe working environment. [32]
The Information Commissioner recognised the following public interest factors favouring disclosure:
- a person, who is the subject of adverse information held by a government agency, having the opportunity to examine and respond to information given against him.
- the accountability of QR with respect to its employee management and disciplinary processes, and in the provision of information which will enable employees to understand and, if necessary, pursue available avenues for redress if they are concerned about unfair treatment. [35]
The Information Commissioner was satisfied that the public interest factors favouring disclosure of the relevant matter were of low weight because the substance of the allegations had already been provided to the applicant and the relevant matter would not assist in the applicant's understanding of the disciplinary process or of QR's response to his claims of harassment. [33, 36]
Accordingly, the Information Commissioner found that the relevant matter was exempt under section 40(c) of the FOI Act.
Griffith and Queensland Police Service (1998) 4 QAR 109
A police officer was involved in an altercation and was the subject of disciplinary action conducted by Queensland Police Service (QPS), which ultimately required him to complete community service. The applicant was a journalist and sought access to matter relating to the outcome of the disciplinary proceedings. He did not seek access to any evidentiary or investigative material or details of the disciplinary hearing.
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?
Substantial adverse effect
It was not reasonable to expect that disclosure could have any adverse effect on the management or assessment by the QPS of its staff because: [27]
- the matter had already been provided to the applicant and the public by the QPS and the Criminal Justice Commission (CJC)
- the matter was merely administrative in nature and consisted of formal notices and routine administrative interchanges regarding disciplinary proceedings and community service. [20, 26]
Accordingly, the Information Commissioner found the relevant matter was not exempt under section 40(c) of the FOI Act.
WLS and Queensland Rail (Unreported, Queensland Information Commissioner, 31 October 2002)
The applicant's supervisor reported to Queensland Rail (QR) that the applicant, a train driver, was using drugs at work. The allegation was based on information provided by work colleagues. The allegations were not substantiated.
The applicant sought access to matter relating to the allegation, including the identities of the colleagues who had provided information about him.
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?
Substantial adverse effect
It was proper for staff and management to have an understanding that the identifying information of informants should be treated as confidential. Subsequent disclosure could reasonably be expected to have a substantial adverse effect on the management by QR of its personnel, through the breach of trust that would be involved, and the inhibiting effect it would have on the willingness of staff to report concerns about fellow employees in future cases. [22] The Deputy Commissioner was satisfied that disclosure would inhibit management's capacity to monitor and maintain proper and safe work practices and satisfactory working relationships. [23]
Management or assessment of personnel
Management of staff performance, including taking action if there are concerns about the performance or behaviour of a member of staff, is an aspect of the management by an agency of its personnel. [16]
Would disclosure, on balance, be in the public interest?
The Deputy Commissioner recognised the following public interest factors favouring disclosure:
- the applicant having the opportunity to examine and respond to negative or unproven information about him
- QR's accountability in the proper management of staff and proper use of disciplinary processes
- helping employees to understand the reasons for investigation or discipline and enable them to seek redress for unfair treatment. [26]
The Deputy Commissioner recognised the following public interest factors favouring nondisclosure:
- satisfaction as to a reasonably apprehended substantial adverse effect raises a prima facie public interest in not disclosing the matter [24]
- when QR cannot rely on staff to report performance problems, including drug use, it cannot meet its obligations to its policy to manage drug and alcohol risks. There is a strong public interest in QR meeting its obligations under that policy, under both statute and the common law to maintain a safe workplace environment [25]
- the applicant was provided with the substance of the report about him. [27]
The Deputy Commissioner was not satisfied that the public interest considerations favouring disclosure were strong enough to outweigh the public interest considerations favouring nondisclosure. [29]
Accordingly, the relevant matter was exempt from disclosure under section 40(c) of the FOI Act.
Jackson and Department of Health (Unreported, Queensland Information Commissioner, 10 February 2010)
The applicant made a complaint during his employment with the Department of Health (QH) about a third party. He sought access to a summary of findings from an investigation into the complaint. The subject of the complaint did not object to disclosure.
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?
Substantial adverse effect
QH submitted that disclosure would: [38]
- provoke further hostility in an already volatile work environment which was showing gradual signs of settling
- make staff reluctant to cooperate in future investigations and/or compromise their duty to report, provide comment on and/or follow up on matters of importance
- make staff lose confidence in the processes for the investigation and resolution of grievances.
The Assistant Commissioner was satisfied that there was no reasonable basis to expect that disclosure would have an adverse effect on QH's management or assessment of its personnel or provoke further hostility in the relevant unity or make staff reluctant to cooperate in future investigations because:
- the applicant no longer worked for the agency
- the relevant events which led to the hostile working environment occurred some time ago
- the relevant matter was not detailed and did not reveal information provided by other employees, nor did it relate to grievances lodged by other employees
- the relevant matter was limited to a summary of outcomes in respect of the five allegations made by the applicant.
Would disclosure, on balance, be in the public interest?
The Assistant Commissioner recognised the public interest in the complainant being given an adequate explanation of the outcome of the grievance which he initiated, particularly because QH's dispute resolution policy required parties to a grievance be given investigation report findings and reasons. [42, 47]
The Assistant Commissioner did not recognise any public interest factors favouring nondisclosure.
Accordingly, the relevant matter was not exempt under section 40(c) of the FOI Act.
Chambers and Department of Families, Youth and Community Care (1999)
5 QAR 16 The applicant was a manager about whom an employee made a complaint. A third party union official provided information to an investigator which raised concerns about management performance. It was not reasonable to expect that disclosure would inhibit union officials or staff from providing information in future investigations, accordingly the matter was not exempt under section 40(c) of the FOI Act.
Similarly, see Guille and James Cook University (Unreported, Queensland Information Commissioner, 29 June 2001).
HNS and Queensland Health (Unreported, Queensland Information Commissioner, 25 March 2002)
The applicant was a manager in a remote health service district and complaints were made by staff and the public about her performance. She sought access to the complaints. There was a public interest in management having mechanisms for the continuing flow of information from staff in remote districts. The matter was therefore exempt under section 40(c) of the FOI Act.
See also Pentecost and Department of Health (unreported, Queensland Information Commissioner, 8 June 2010).
The applicant made a complaint of racial discrimination and sought access to matter relating to the resulting investigation. Staff interviewed were given an unconditional assurance that information they provided would be kept confidential. It was reasonable to expect that disclosure could be regarded by staff as a breach of trust by management, making full cooperation in future investigations difficult. The matter was therefore exempt under section 40(c) of the FOI Act.
The applicant was subject to disciplinary proceedings for making a series of vexatious complaints about colleagues. He sought access to complaints and statements by colleagues. The information provided by staff during the investigation was not subject to an assurance of confidentiality and it was not reasonable to expect that disclosure would inhibit staff from making similar complaints or from co-operating in similar investigations. The matter was therefore not exempt under section 40(c) of the FOI Act.
Smith and James Cook University (Unreported, Queensland Information Commissioner, 24 February 1999)
The applicant was a university lecturer. Concerns were raised about the quality of his performance. He sought access to matter provided to a consultant regarding problem staff. Disclosure could disrupt working relationships, damage the reputation of the university with the public and inhibit managers from candid comment in the future. The matter was therefore exempt under section 40(c) of the FOI Act.
See also Carter and James Cook University (unreported, Queensland Information Commissioner, 28 March 2002).
The applicant made a complaint and sought access to matter relating to an investigation report. The matter was routine, not contentious and much of the matter was known by the applicant. The matter was therefore not exempt under section 40(c) of the FOI Act.
The applicant was a journalist who sought access to matter, subject to the deletion of identifying information, relating to the misconduct of state security services officers. It was not reasonable to expect that matter provided in that edited form would identify subjects or inhibit full and frank reporting by staff in the future. The matter was therefore not exempt under section 40(c) of the FOI Act.
LSN and Department of Main Roads (Unreported, Queensland Information Commissioner, 21 January 2002)
The applicant was the subject of a sexual harassment complaint. The grievance investigator gave staff a conditional assurance of confidentiality. The applicant had been abusive or intimidating to the complainant and other officers. The agency had a duty of care to protect staff from foreseeable risks of such behavior. The matter was therefore exempt under section 40(c) of the FOI Act.
The applicant was investigated for sexual harassment but no disciplinary action was taken. The applicant left the agency to start a consultancy but still had contact with agency staff through that consultancy. Staff were given assurances that information provided during the investigation would be kept confidential and any unwarranted breach would be viewed as a breach of trust. It would be more difficult to obtain full and frank co-operation from staff in similar future investigations. The matter was therefore exempt under section 40(c) of the FOI Act.
Antony and Griffith University (2001) 6 QAR 31
The applicant unsuccessfully applied for an academic position at Griffith University. He sought access to the job application of the successful candidate. Section 40(c) extends to a recruitment process involving the promotion or transfer of existing staff but may not extend to potential personnel. It was not reasonable to expect that disclosure would damage morale or cause undue stress so as to qualify as a substantial adverse effect on management or assessment of personnel. The matter was therefore not exempt under section 40(c) of the FOI Act.
HIC and Queensland Police Service (Unreported, Queensland Information Commissioner, 7 December 1998)
A junior police officer provided information to management regarding a senior officer's medical condition. The special nature of police work adds significantly to the potential for recrimination and retribution if adverse matter is disclosed. The matter was therefore exempt under section 40(c) of the FOI Act.
The applicant sought access to an invoice for legal services which he knew the agency had obtained. The amount charged for legal services did not relate to the management or assessment of personnel. The matter was therefore not exempt under section 40(c) of the FOI Act.
6Cairns Port Authority and Department of Lands (Unreported, Queensland Information Commissioner, 11 August 1994).
Last updated: March 5, 2012