Application of Section 42(1)(c) FOI Act

Relevant Considerations

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 a reasonable expectation that disclosing the information could endanger a person's life or physical safety?

The expectation need only be of a person's life or physical safety being endangered, not necessarily of physical harm actually occurring. What amounts to endangerment depends on the facts of the case.¹

The following factors were considered in decisions which established an expectation of endangerment:

• disclosing similar information concerning similar subjects had resulted in bomb threats, break-ins and violent protests²
• the applicant's history of violence, active psychotic symptoms and homicidal ideation.

The following has been noted in decisions which found a reasonable expectation of endangerment had not been established:

• intemperate verbal abuse alone is not suggestive of an intention to endanger lives or physical safety³
• personal vendettas and 'bad blood' alone do not necessarily suggest a threat of physical harm.⁴

The 'person' at risk of endangerment need not be the author or subject of the matter in question. The exemption has been applied broadly to include any person who may be endangered by disclosure.

a) Whether that expectation is reasonably based

See 'Could reasonably be expected to' Annotation.

The expectation must exist as a result of disclosure, rather than independently or from any other circumstance. This requirement is satisfied in situations where an existing expectation of endangerment will be increased by disclosure. A source of danger must be in contemplation however it need not be the applicant.⁵

¹Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 52, referring to Department of Agriculture and Rural Affairs v Binnie [1989] VR 836.
²Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 at page 839.
³Murphy and Treasury Department (1995) 2 QAR 744 at paragraphs 85-86.
⁴Toren and Secretary, Department of Immigration and Ethnic Affairs [1995] AATA 60 (8 March 1995).
⁵Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 49 referring to Marks J in Department of Agriculture and Rural Affairs v Binnie [1989] VR 836.