Application of Section 42(1)(ca) 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 cause a person to become subject to a serious act of harassment or intimidation?

a) Whether there exists an expectation of a serious act of harassment or intimidation

The term 'serious act of harassment or intimidation' is not defined in either the FOI Act or the Acts Interpretation Act 1954 (Qld). Therefore, under the rules of statutory interpretation, the words should be given their ordinary meaning.⁶

The Information Commissioner has accepted the following dictionary definitions:⁷

'Harass' includes:

• 'to trouble by repeated attacks, ... to disturb persistently; torment'⁸

'Intimidate' includes:

• to make timid, or inspire with fear; overawe; cow ... to force into or deter from some action by inducing fear⁹

'Serious' includes:

• giving cause for apprehension; critical,¹⁰ and
• having (potentially) important, esp. undesired, consequences; giving cause for concern.¹¹

Note that despite the definition of 'harass' referring to persistent or repeated acts, section 42(1)(ca) has been found to apply where a single act of serious harassment is expected to result from disclosure.¹²

Some degree of harassment or intimidation is permissible before the exemption precluding access to documents will apply. Therefore, the expected actions must be 'serious' for section 42(1)(ca) of the FOI Act to apply.¹³

A 'serious act of harassment or intimidation' is an action that 'attacks, disturbs or torments a person and that causes concern or apprehension or has undesired consequences'.¹⁴ In Sheridan the Commissioner made the following distinctions between acts of harassment or intimidation and 'serious' acts of harassment or intimidation. ¹⁵

For acts of intimidation:

• acts which induce fear or force a person into some action by inducing fear or apprehension are acts of intimidation
• acts of intimidation which have undesired consequences or cause concern and/or apprehension are serious acts of intimidation.

For acts of harassment:

• acts which persistently trouble, disturb or torment a person are acts of harassment
• acts of harassment which have undesired consequences or cause concern and/or apprehension are serious acts of harassment.

b) Whether that expectation is reasonably based

See 'Could reasonably be expected to' Annotation.

In Sheridan the Information Commissioner considered the phrase 'could reasonably be expected to' in the context of section 42(1)(ca) of the FOI Act (Qld) and found that depending on the circumstances of the particular review, a range of factors may be relevant in determining whether an expectation is reasonable. These factors may include, but are not limited to:¹⁶

• past conduct or a pattern of previous conduct
• the nature of the relevant matter
• the nature of the relationship between the parties and/or relevant third parties
• relevant contextual and/or cultural factors.

The expectation must exist as a result of disclosure, rather than independently or from any other circumstance.¹⁷ This requirement is satisfied in situations where an existing expectation of harassment or intimidation will be increased by disclosure.

A source of harassment or intimidation must be in contemplation; however it need not be the applicant.¹⁸ In Sheridan the Information Commissioner stated:

While I accept the applicant's submissions that she has not been involved in any way with the physical acts of violence and intimidation directed at Mr Gray by some of the other people claiming to be her supporters, the applicant has engaged in her own acts of harassment by making repeated and numerous FOI applications for documents which may assist in her personal investigation into the performance and/or conduct of Mr Gray and other staff involved in the Termination and which are largely unrelated to the substantive merit of Mr Gray's decisions in relation to her.¹⁹

The Information Commissioner found it relevant that disclosure could reasonably be expected to result in further acts of serious harassment or intimidation by those third parties as well as the applicant.

⁶Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009) at paragraph 188. [up]
⁷Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009) at paragraphs 194-197 and VHL and Department of Health (Unreported, Queensland Information Commissioner, 20 February 2009) at paragraphs 85 89. [up]
⁸Macquarie Dictionary Online (Fourth Edition). [up]
⁹Macquarie Dictionary Online (Fourth Edition). [up]
¹⁰Macquarie Dictionary Online (Fourth Edition). [up]
¹¹New Shorter Oxford Dictionary (Fourth Edition). [up]
¹²Sheridan at paragraphs 187 and 198. [up]
¹³Sheridan at paragraph 187. [up]
¹⁴Sheridan at paragraph 199. [up]
¹⁵Sheridan at paragraph 200. [up]
¹⁶Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009) at paragraph 193. [up]
¹⁷Sheridan at paragraph 307. [up]
¹⁸Sheridan at paragraph 202. [up]
¹⁹Sheridan at paragraph 320. [up]