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

Murphy and Treasury Department (1995) 2 QAR 744

The application was for documents concerning the land tax affairs of a company of which the applicant was director. The Office of State Revenue (OSR) granted access to the documents but relied on section 42(1)(c) of the FOI Act to delete the names of departmental officers.

The Information Commissioner analysed the phrase 'could reasonably be expected to' and applied it to the question of whether disclosure could reasonably be expected to endanger a person's life or physical safety.

See 'Could reasonably be expected to' Annotation.

The Information Commissioner noted that: [52-54]

• the expectation must be of a person's life or physical safety being endangered rather than of physical harm actually occurring
• the expectation must arise from disclosing the specific document in issue, rather than any other circumstances
• a source and subject of danger must be in contemplation
• the source of danger need not be the respondent but any person, should the information become publicly known
• evidence of the risk of violence must be produced.

The Information Commissioner took an objective approach. He considered evidence obtained from and about the alleged source of danger (in this case, the applicant), rather than relying on the subjective view of the persons claiming to be at risk (department officers). [45-47]

To substantiate the expectation of endangerment, the respondent relied on instances of verbal abuse against council officers. [76, 78]

The Information Commissioner accepted that 'abusive and intemperate language' showed an apparent lack of self control. [85, 86] However the instances occurred at the officers' place of employment, during office hours. Therefore they were not indicative of harassment of individual officers. [78]

The evidence was not sufficient to suggest the applicant would endanger a person's life or physical safety as required under section 42(1)(c) of the FOI Act. [91]

The Information Commissioner's approach was approved by the Queensland Supreme Court on judicial review.

State of Queensland v Albietz [1996] 1 Qd R 215

The State applied for review under the Judicial Review Act 1991 (Qld) of the decision of the Information Commissioner in Murphy and Treasury Department (1995) 2 QAR 744.

The State submitted that the Commissioner had misinterpreted the standard of the words 'could reasonably be expected to' and claimed he gave insufficient weight to the subjective view of departmental officers and undue weight to facts which the officers were likely unaware of. [page 8] In particular, the Commissioner accepted character evidence from the applicant's friend and noted that the applicant had never been prosecuted for a crime and had always complied with his legal obligations to pay tax. [page 8]

De Jersey J (as he then was) rejected the submission and found the considerations were relevant. He held that the fact that the Commissioner gave attention to matters unknown to the officers was appropriate as the FOI Act applied an objective test. [page 8]