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