Application of Section 42(1)(a) FOI Act
1. Does the information consist of the type of information listed in section 42(2)?
Matter is not exempt under section 42(1) if its disclosure would, on balance, be in the public interest under section 42(2)(b) of the FOI Act, and if it consists of:
- matter revealing that the scope of a law enforcement investigation has exceeded its legal limits
- matter containing the general outline of an agency's program to deal with breaches or possible breaches of law
- a report on the success of an agency's program to deal with breaches or possible breaches of law
- a report prepared by an agency with law enforcement functions (other than those related to criminal law or misconduct under the Crime and Misconduct Act 2001 (Qld)), during a routine law enforcement inspection or investigation; or
- a report on a law enforcement investigation, that has already been provided to the subject of the investigation.
2. Is there an investigation into a contravention or possible contravention of the law?
There must be an investigation on foot, for section 42(1)(a) of the FOI Act to apply.1 When an investigation has been completed it is not possible to prejudice that investigation by way of disclosure.2
Section 36 of the Acts Interpretation Act 1954 (Qld), provides that 'contravene' includes both 'breach' and 'fail to comply with'.
Contraventions or possible contraventions for the purpose of this section are not confined to the criminal law.3 Section 42(4) of the FOI Act provides that a reference in this section to a contravention or possible contravention of the law includes a reference to misconduct or possible misconduct under the Crime and Misconduct Act 2001 (Qld).
Section 42(5) of the FOI Act defines 'law' for the purposes of section 42 to include a law of the Commonwealth, another State, a Territory or a foreign country.4
3. Is there a reasonable expectation that disclosing the information could prejudice the investigation?
a) Whether there exists an expectation of prejudice to the investigation
Whether an investigation will be prejudiced by disclosure will depend on the nature of the investigation, the relevant matter and existing knowledge of the applicant or subject of the complaint.
b) Whether the expectation of prejudice exists as a result of disclosure
An investigation can only be prejudiced by disclosing information while the investigation is ongoing.5 If the subject of the investigation or possible investigation has knowledge of the relevant matter, an expectation of prejudice will not usually be considered to be reasonably based,6unless the existing expectation will be increased by disclosure.
c) Whether that expectation is reasonably based
See 'Could reasonably be expected to' Annotation.
1C and Department of Tourism, Small Business and Industry (Unreported, Queensland Information Commissioner, 23 June 1998) at paragraph 50.
2Gill and Brisbane City Council (2001) 6 QAR 45 at paragraph 56.
3T and Department of Health (1994) 1 QAR 386 at paragraph 16.
4Haneef and Department of Police Part A (Unreported, Queensland Information Commissioner, 24 February 2010) at paragraph 44.
5Gill and Brisbane City Council (2001) 6 QAR 45 at paragraph 56.
6C and Department of Tourism, Small Business and Industry (Unreported, Queensland Information Commissioner, 23 June 1998) at paragraph 50; Ellis and Department of Environment (Unreported, Queensland Information Commissioner, 20 October 1998) at paragraph 41.
Last updated: April 23, 2012