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:
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:
The following has been noted in decisions which found a reasonable expectation of endangerment had not been established:
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.
Last updated: March 5, 2012