Key published decisions applying Section 42(1)(b) FOI Act

McEniery and the Medical Board of Queensland (1994) 1 QAR 349

The applicant was the subject of a complaint to the Medical Board of Queensland (Board) alleging misconduct on the basis of advertising medical services in breach of relevant by-laws. The allegations were investigated and no further action was taken. The applicant sought access to matter revealing the name of the complainant.

The Information Commissioner outlined that matter will be exempt under section 42(1)(b) of the FOI Act if: [16]

  • there exists a confidential source of information
  • the information which the confidential source has supplied (or is intended to supply) is in relation to the enforcement or administration of the law; and
  • disclosing the relevant matter could reasonably be expected to— 
    • enable the existence of the confidential source of information to be ascertained; or
    • enable the identity of the confidential source of information to be ascertained.

Is the existence or identity of the source of information confidential?

Kealy J in Department of Health v Jephcott,18 held that a confidential source is a person who supplies information 'on the understanding, express or implied, that his or her identity will remain confidential'.

Express understanding

An express understanding requires the seeking and giving of an express assurance that the source's identity will remain confidential. The Information Commissioner considered that where an express assurance has been sought by a source of information and has been given inappropriately by, or on behalf of, a government agency, the agency would ordinarily be obliged to honour the express assurance. [35]

Implied understanding

In the absence of an express agreement, it is necessary to determine if there was an implied or common implicit understanding that the source of information would remain confidential. [26] This will depend on whether the source and recipient of the information could have reasonably expected that the source's identity would remain confidential, given the procedures for appropriate action to be taken in the enforcement or administration of the law.

The Information Commissioner outlined various examples of an implied or implicit understanding that the source of information would confidential, including:

  • where the information provided by the confidential source can be independently verified by the agency's own investigators and the source draws the agency's attention to the existence of physical or documentary evidence which speaks for itself and does not require any direct evidence from the confidential source. For example, a person may inform the proper authority that a neighbour is carrying on an unlicensed business from the neighbour's premises, and investigators can observe this for themselves if they visit the premises at certain hours. With this information there would be no reason to disclose the identity or existence of the source information, as the agency, if required in formal procedures could point to what its own investigators have discovered. [27]
  • where the source may be exposed to a real threat of detriment, an implied understanding may be found that the identity of the source of information would be kept confidential unless and until the information must be disclosed in accordance with procedural fairness. This has the effect of allowing a source to remain confidential, without prematurely disclosing the sources identity, if the authorities decide not to pursue formal action or for whatever reason it becomes unnecessary to disclose the source's identity (such as if the alleged wrongdoer confesses to authorities). [33]

The Information Commissioner considered that to determine whether there was an implied or implicit understanding that the complainant was a confidential source, it is necessary to consider all of the relevant circumstances, including: [50]

  • 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.

In the circumstances of this case there was a common understanding that the complainant's identity was to remain confidential because: [51]

  • the complainant intended and expected that his or her identity would remain confidential
  • the expectation was reasonable having regard to the procedures that the Board would need to follow in order to take appropriate action
  • the Board was prepared to accept and act in accordance with the complainant's expectation without disclosing the identity of the complainant.

Nature of the information supplied

The information supplied by the confidential source need not be confidential information in order to satisfy section 42(1)(b) of the FOI Act. This is because of the wording of the section refers to a confidential source of information, rather than a source of confidential information. This distinction was considered by the Information Commissioner to be important in the present case, as newspaper articles containing information provided by the confidential source were in the public domain. [14]

The Information Commissioner noted that section 42(1)(b) of the FOI Act is not subject to a public interest test relating to false or malicious allegations. It has been accepted that equivalent provisions are not concerned with whether information provided is false or erroneous19 and accordingly, the situation may arise where a malicious source of information may be protected by this exemption.20 [64]

Time for determining whether a source is a confidential source

The Information Commissioner considered that whether the identity of a source of information is confidential is to be judged at the time of applying section 42(1)(b) of the FOI Act. Matter will not be exempt where the identity of a source of information was confidential when the information was first communicated, but the confidentiality has since been lost or abandoned. [18]

The identity of a confidential source of information may pass through a chain of persons in the course of an investigation without losing its confidential status, provided the persons who receive the information are obliged to respect the understanding of confidentiality. However, once the identity of a source of information is disclosed to a person not obliged to respect the understanding of confidentiality, the source can no longer be described as confidential. [34]

In the present case, the applicant did not know the identity of the source of information, nor could the identity easily be ascertained independently of the identifying material contained in the relevant matter. [19]

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

Agencies dealing with the enforcement of the law include not only those responsible for the detection and punishment of law violation through criminal prosecutions but also the prevention of law violation, and the enforcement of law through civil and regulatory proceedings. [37] Administration of the law extends to 'the collection of information to monitor compliance'.21

In this case the relevant law was the Medical Act 1939 (Qld) and the Medical Board of Queensland Advertising By-laws 1990 (Qld) (By-laws), which provide that a medical practitioner is guilty of professional misconduct if he or she advertises otherwise than in accordance with the By-laws. [46]

The matter was found to relate to the enforcement or administration of the law as it related to a charge of misconduct in a professional respect. [48]

Is it reasonable to expect that disclosing the information could enable the existence or identity of a confidential source to be ascertained?

Here, the relevant matter was ultimately found to be exempt as its disclosure could reasonably be expected to enable the identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained. [54-55] Section 42(2) of the FOI Act did not apply to the relevant matter.

Bussey and Bowen Shire Council (1994) 1 QAR 530

A complaint was made to the Bowen Shire Council (Council) regarding the applicant's dogs. The applicant sought access to matter relating to the identity of the complainant.

Is the existence or identity of the source of information confidential?

The Information Commissioner applied the definition of 'confidential source of information' in McEniery and the Medical Board of Queensland.22

Express or implied understanding

In this case there was no express agreement as to confidentiality.23[21] Accordingly, the Information Commissioner considered the factors relevant to establishing a common implicit understanding of confidentiality and identified the following relevant factors:

  • the complainant's expectation that their identity would remain confidential was reasonable, given:
    • o the nature of the information conveyed; and
    • o procedures that Council would need to follow to take appropriate action (this involved Council attending the applicant's property to observe the dogs which were the subject of the complaint) [23]
  • Council employees had been instructed according to Council policy that when a dog complaint was investigated, the complainant's identity was to remain confidential. However, the existence of such a policy cannot in itself be determinative. In this case, the third party was not made aware of the policy and did not seek express assurance as to confidentiality [24]
  • the complainant's position was analogous to that of an informer [25]
  • the proper investigation of the complaint did not require that the complainant's identity be disclosed, only that the substance of the complaint be disclosed so that the applicants could address the allegation [25]

In this case there was a common implicit understanding that the identity of the source would remain confidential.

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

Here, the complaint related to a possible breach of a Council by-law and therefore related to the enforcement or administration of the law. [28]

No exclusions under section 42(2) of the FOI Act applied and accordingly the matter was exempt under section 42(1)(b) of the FOI Act.

Byrne and Gold Coast City Council (1994) 1 QAR 477

A complaint was made to the Gold Coast City Council (Council) regarding the length of grass at a residential address. The applicant sought access to the name and telephone number of the complainant.

The relevant question here was whether the information related to the enforcement or administration of the law.

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

The Council identified the relevant law as the Council's general power to undertake work as per section 30 of the Local Government Act 1936 (Qld). Though the Council also identified by-laws, it did not identify any by-law which governed the mowing of grass in a public place. Therefore, the information did not relate to the enforcement or administration of the law. Section 42(1)(b) of the FOI Act does not apply where the law merely empowers a government agency to carry out activities for the benefit of the public. [17]

Accordingly, the matter was not exempt under section 42(1)(b) of the FOI Act.

EST and Department of Family Services and Aboriginal and Islander Affairs (1995) 2 QAR 645

Complaints were made about the applicant to the Department of Family Services and Aboriginal and Islander Affairs (Department) relating to child protection. The applicant sought access to the complaints and the identity of the complainants.

The Information Commissioner followed the approach set out in McEniery and the Medical Board of Queensland.24

Is the existence or identity of the source of information confidential?

The Information Commissioner considered that generally, in situations concerning allegations about neglect or abuse of a child, there will be an express agreement or a common implicit understanding between the complainant and the Department that the source's identity is to remain confidential. [42]

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

The Information Commissioner expressed the view that allegations of neglect or abuse of a child relate to the Department's enforcement or administration of the law under the Children's Services Act 1965 (Qld), and possibly offences under the Criminal Code 1899 (Qld).

No exclusions under section 42(2) of the FOI Act applied and accordingly the matter was exempt under section 42(1)(b) of the FOI Act.

Ferrier and Queensland Police Service (unreported, Queensland Information Commissioner, 19 August 1996)

The former Special Branch of the Queensland Police Service (QPS) created documents relating to the applicant, which she sought access to. There were two sets of documents claimed to be exempt under section 42(1)(b) of the FOI Act: 

  • folios 17, 19, 20 and 23 (Document Set One)
  • folios 25-26 and 34-37 (Document Set Two).

Document Set One

Document Set One contained records of information supplied to the Special Branch and QPS claimed the documents were therefore exempt under section 42(1)(b) of the FOI Act.

Is the existence or identity of the source of information confidential?

The Information Commissioner considered that given the nature of the information recorded, and the circumstances of its supply to the Special Branch that the information contained in Document Set One was supplied on the understanding that the identities of its sources would remain confidential. [16]

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

The information also related to the enforcement or administration of the law, as one of the Special Branch's key functions was to identify and monitor the activities of persons and organisations who might have intended to break the law, in an effort to prevent breaches of the law occurring. [17]

Is it reasonable to expect that disclosing the information could enable the existence or identity of a confidential source to be ascertained?

The Information Commissioner then considered whether disclosing the matter in Document Set One could reasonably be expected to enable the identity of a confidential source to be ascertained. [18] The Information Commissioner expressed the view that while the information was more than ten years old and would appear to be of little consequence now, there is a possibility that the applicant might be able to link the information with her recollection of events and thereby be able to identify the sources of information. [19]

No exclusions under section 42(2) of the FOI Act applied and accordingly the Document Set One matter was exempt under section 42(1)(b) of the FOI Act.

Document Set Two

Document Set Two comprised of interchanges of information between law enforcement agencies. [40]

QPS submitted that information provided by other law enforcement organisations which communicated information to the Special Branch were confidential sources of information for the purposes of section 42(1)(b) of the FOI Act. [41]

However, the Information Commissioner considered that it is well known that law enforcement organisations cooperate in the exchange of information for law enforcement purposes. Therefore, the exemption does not extend to routine interchanges of information between law enforcement agencies and therefore Document Set Two matter was not exempt under section 42(1)(b) of the FOI Act. [42]

Bayliss and Department of Health (1997) 4 QAR 1

A complaint was made about the applicant's conduct of a medical service. The applicant sought access to matter identifying the complainant. The Information Commissioner followed the approach set out in McEniery and the Medical Board of Queensland.25

Is the existence or identity of the source of information confidential?

Here, there was no express assurance or understanding that the source's identity would remain confidential. The Information Commissioner therefore assessed the circumstances surrounding the communication of information in order to determine whether there was an implicit mutual understanding of confidentiality. [24]

The Information Commissioner considered that the following factors warranted a finding that there was and remained, an implicit mutual understanding of confidentiality between the third party and the Minister:

  • the letter sent to the Minister was marked 'IN CONFIDENCE'
  • the source of information was not prepared to disclose in the letter the information that the source wished to convey, but instead sought a meeting for that purpose
  • the source wished to inform against another medical practitioner, but was not prepared to name the other medical practitioner in the letter
  • the serious and sensitive nature of the information
  • the source stood in a position analogous to that of an informer
  • it was reasonable for the source to understand and expect that appropriate action could be taken in respect of the information while still preserving the confidentiality of their identify.

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

Here the information was clearly pertinent to the administrative and law enforcement responsibilities of the Medical Board of Queensland under the Medical Act 1939 (Qld). [38]

False or malicious allegations

Section 42(1)(b) of the FOI Act was not designed to examine the motive of the confidential source of information. A source may provide accurate, useful information with the clear intention of causing harm to the subject. The motive of the source would not alter the value of accurate and relevant information. [34] In any event, the reliability of information provided by confidential sources would ordinarily be tested in the course of an investigation. [34]

Is it reasonable to expect that disclosing the information could enable the existence or identity of a confidential source to be ascertained?

The Information Commissioner was satisfied that disclosing the relevant matter could reasonably be expected to enable the identity of a confidential source of information to be ascertained, as their name, position and signature appeared in several places. [40]

No exclusions under section 42(2) of the FOI Act applied and accordingly the matter was exempt under section 42(1)(b) of the FOI Act.

Christophers and Redland City Council (Unreported, Queensland Information Commissioner, 6 August 2009)

Complaints were made to the Redland City Council (Council) regarding the applicant's property and animals. The applicant sought access to the name of the complainant.

The Assistant Information Commissioner considered that for information to be exempt under section 42(1)(b) of the FOI Act the following requirements must be established: [30]

  • there must be a confidential source of information
  • the information supplied by the confidential source must relate to the enforcement or administration of the law; and
  • disclosing the relevant matter could reasonably be expected to enable the existence or identity of the confidential source of information to be ascertained.

Is the existence or identity of the source of information confidential?

Council's policy that complaints would remain confidential, equated to an express assurance of confidentiality on the part of the Council. It was noted that the policy was published to the public on the internet and that the assurance of confidentiality was reinforced with every customer making a complaint. [50]

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

The Assistant Information Commissioner considered that the complaint to Council was in relation to the administration of various local laws relating to animals, unlawful use of land and visual pollution. [56-61]

Is it reasonable to expect that disclosing the information could enable the existence or identity of a confidential source to be ascertained?

The relevant matter consisted solely of the complainant's name; accordingly, there was a reasonable basis to expect that its disclosure would enable the identity of the complainant to be ascertained. [62-63]

No exclusions under section 42(2) of the FOI Act applied and accordingly the matter was exempt under section 42(1)(b) of the FOI Act.

18Department of Health v Jephcott (1985) 62 ALR 421) at paragraph 426.
19 Referring to Muirhead J in McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645 and the Victorian AAT in Re Richardson and Commissioner for Corporate Affairs (1987) 2 VAR 51 at paragraphs 52-53, considering the Commonwealth and Victorian equivalents of section 42(1)(b) of the Queensland FOI Act
20 Re Sutcliffe and Victoria Police (No. 1) (1989) 3 VAR 306.
21 Re Croom and Accident Compensation Commission (1989) 3 VAR 441 per Jones J at paragraphs 453-457.
22McEniery and the Medical Board of Queensland (1994) 1 QAR 349 at paragraph 16.
23McEniery and the Medical Board of Queensland (1994) 1 QAR 349.
24McEniery and the Medical Board of Queensland (1994) 1 QAR 349.
25McEniery and the Medical Board of Queensland (1994) 1 QAR 349.

Last updated: March 5, 2012