Key published decisions applying Section 40(d) 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(d).
Is there a reasonable expectation that disclosing the matter could have a substantial adverse effect on the conduct of industrial relations by an agency?
Conduct of industrial relations
The Information Commissioner adopted the dictionary definition of 'conduct' and 'industrial relations'.
Substantial adverse effect
The Information Commissioner considered that the word 'substantial' means 'grave, weighty, significant or serious'9 and that the 'onus of establishing a "substantial adverse effect" is a heavy one'.10 [95]
The exemption does not require a substantial adverse effect on employee/employer relations, but on the conduct by an agency of industrial relations. [162 and 166]
The Department submitted that disclosing the officers' names would have a substantial adverse effect on the conduct of industrial relations by the OSR because officers would not be able to distinguish between management decisions and matters of law and would view the disclosures as a failure by management to keep faith with them. [137] The Information Commissioner was satisfied that adverse effects described by the Department were neither reasonably based nor substantial.
Accordingly, the relevant matter was not exempt from disclosure under section 40(d) of the FOI Act.
The applicants sought access to a grievance report (Report) which came into existence as a result of the applicants' complaint to the Townsville District Health Service (Department). The Department's decision was a deemed refusal. A third party contended that the Report was exempt from disclosure under a number of FOI provisions, including section 40(d).
Is there a reasonable expectation that disclosing the matter could have a substantial adverse effect on the conduct of industrial relations by an agency?
The third party asserted that disclosing the Report could reasonably be expected to lead to the notification of an industrial dispute, which would be a substantial adverse effect on the agency. The Information Commissioner considered this was a misreading of section 40(d); the provision does not require a substantial adverse effect on industrial relations but rather a substantial adverse effect on the conduct of industrial relations. The expectation that disclosure could lead to industrial action does not mean that disclosure could have a substantial adverse effect on the conduct of industrial relations. [59]
The Information Commissioner was satisfied that there could be no reasonably based expectation that disclosing the Report would have a substantial adverse effect on the conduct of industrial relations by the Department. [63]
Accordingly, the relevant matter was not exempt under section 40(d) of the FOI Act.
Guille and James Cook University (Unreported, Queensland Information Commissioner, 29 June 2001)
In a 'reverse-FOI' application, the applicant asserted that two letters he wrote to James Cook University (JCU) in his capacity as the Queensland Secretary of the National Tertiary Education Union (Union) were exempt from disclosure under a number of FOI provisions, including section 40(d).
Is there a reasonable expectation that disclosing the matter could have a substantial adverse effect on the conduct of industrial relations by an agency?
The Information Commissioner was satisfied that there was no evidence to justify a finding that disclosing the letters could reasonably be expected to have a substantial adverse effect on the conduct of industrial relations by JCU. [20]
Accordingly, the relevant matter was not exempt under section 40(d) of the FOI Act.
9Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 95 referring to Re Cairns Port Authority and Department of Lands (Unreported, Queensland Information Commissioner, 11 August 1994) at paragraphs 147-150.
10Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 95 referring to Re Dyki and Federal Commissioner of Taxation (1990) 22 ALD 124 at paragraph 21.
Last updated: April 20, 2012