Application of Section 42(1)(b) 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 the existence or identity of the source of information confidential?

A 'confidential source of information' is a person who supplies information on the understanding (whether express or implied) that their existence or identity will remain confidential.2

To determine whether an understanding existed that the source's existence or identity would remain confidential, it is necessary to consider whether:

  • there was an express assurance given by the recipient of the information, that the source's identity would be kept confidential;3 or
  • the surrounding circumstances indicate an implicit mutual understanding between the parties the source's identity would be kept confidential.4

The following factors may be relevant in determining whether there was an implicit mutual understanding of confidentiality:5

  • the nature and sensitivity of the information conveyed
  • the relationship of the source of information to the person about whom the information was provided
  • whether the source of information is comparable to an informant, eg a whistleblower or witness
  • whether it could reasonably have been understood by both the source of information and the agency that the agency could take action while still preserving the confidentiality of its source
  • whether there is any real risk of harassment or detriment to the source of information
  • any indications of the source of information's desire to keep their identity confidential, for example, a failure or refusal to supply a name and/or address.

Another relevant consideration may be whether the confidential source consents to disclosure of information relating to their identity.6

3. Does the information relate to the enforcement or administration of the law?

The information provided by the confidential source must relate to the enforcement or administration of the law.

The Information Commissioner considered that 'the law' in this context extends beyond criminal law to upholding or enforcing the civil law.7 However, the 'enforcement or administration of the law' does not extend to an agency's general power to carry out its activities for the benefit of the public.8

Examples of what has been accepted to relate to the 'enforcement or administration of the law', in relation to the Commonwealth FOI Act include:

  • information concerning a person's entitlement to receipt of a domiciliary nursing care benefit9
  • information suggesting or alleging that a recipient of social security benefits did not satisfy the eligibility requirements to receive the benefit10
  • information relating to investigations about the whereabouts of a person believed to be a prohibited immigrant.11

Importantly, the information provided by the source need not be confidential12 or correct13 for this exemption to apply.

4. Is there a reasonable expectation that disclosing the information could enable the existence or identity of a confidential source to be ascertained?

See 'Could reasonably be expected to' Annotation.

a) Whether there exists an expectation that the information could enable the existence of a confidential source to be ascertained

In some circumstances, the mere existence of a confidential source of information is of particular significance,14 for example:15

where the revelation of the nature and extent of the intelligence gathered by the police and others may reveal the fact not otherwise known, that a confidential source has been providing information to government on a particular matter.

b) Whether there exists an expectation that the information could enable the identity of a confidential source to be ascertained

The applicant may claim to already know the identity of a confidential source and may be seeking official confirmation of their suspicions via the FOI Act.

Section 42(1)(b) of the FOI Act cannot apply where the identity of the information provider is known or can be easily discovered in some other way.16 However, where the identity of the information provider qualifies for confidential treatment and has not been disclosed by an official source, the FOI Act cannot be used to confirm the applicant's suspicions.17

2 McEniery and the Medical Board of Queensland (1994) 1 QAR 349 at paragraphs 20-21.
3 McEniery and the Medical Board of Queensland (1994) 1 QAR 349 at paragraph 35.
4 McEniery and the Medical Board of Queensland (1994) 1 QAR 349; Bussey and Council of the Shire of Bowen (Unreported, Queensland Information Commissioner, 24 June 1994).
5 McEniery and the Medical Board of Queensland (1994) 1 QAR 349 at paragraph 50.
6Byrne and Gold Coast City Council (1994) 1 QAR 477 at paragraph 17.
7 McEniery and the Medical Board of Queensland (1994) 1 QAR 349 at paragraphs 37 and 50.
8 Byrne and Gold Coast City Council (1994) 1 QAR 477 at paragraph 17.
9 Department of Health v Jephcott (1985) 62 ALR 421.
10 Re Letts and Director-General of Social Security (1984) 6 ALN N176.
11 Re Chandra and Minister for Immigration and Ethnic Affairs (Commonwealth AAT, Deputy President Hall, No. V84/39, 5 October 1984).
12 McEniery and the Medical Board of Queensland (1994) 1 QAR 349 at paragraph 15;
13 McEniery and the Medical Board of Queensland (1994) 1 QAR 349 at paragraphs 62-64; Bayliss and Department of Health (1997) 4 QAR 1 at paragraph 34; Arber and Centrelink [2008] AATA 366 at paragraph 7; Re Dale and Australia Federal Police (1997) 47 ALD 417 at paragraph 420.
14 McEniery and the Medical Board of Queensland (1994) 1 QAR 349 at paragraph 19.
15 Re Anderson and Department of Special Minister of State (No.2) (1986) 11 ALN N239 [N247], per Deputy President Hall, considering the equivalent exemption under the Commonwealth FOI Act.
16 McEniery and the Medical Board of Queensland (1994) 1 QAR 349 at paragraph 18.
17 McEniery and the Medical Board of Queensland (1994) 1 QAR 349 at paragraph 19.

Last updated: March 5, 2012