Key published decisions applying Section 42(1)(ca) FOI Act
The applicant sought access to matter concerning the decision to terminate her employment with Nanango Shire Council (Council), and Council staff involved in that decision. Council claimed the information was exempt from disclosure under section 42(1)(ca) of the FOI Act.
Is there a reasonable expectation that disclosing the information could cause a person to become subject to a serious act of harassment or intimidation?
Whether there exists an expectation of a serious act of harassment or intimidation
The Acting Information Commissioner interpreted the section in the context of the whole FOI Act and made the following observations about its operation: [187]
- section 42(1)(ca) of the FOI Act may apply in respect of a single access application (ie neither the application nor the applicant need be characterised as vexatious)
- the exemption may be satisfied where it is reasonably expected that disclosure will result in a single serious act of harassment rather than 'repeated attacks' or 'persistent disturbances' which may be required under section 96A of the FOI Act, which deals with vexatious applicants and was inserted in to the FOI Act at the same time as section 42(1)(ca) of the FOI Act
- the conduct contemplated by section 42(1)(ca) is more 'serious' than some conduct contemplated by section 96A(3)(b) of the FOI Act
- some degree of harassment or intimidation is contemplated as permissible before the right to access documents under the FOI Act is removed
- the subjective purpose of the applicant is not a relevant consideration
- no causal link is required between a specific person and the expected conduct; nor is the conduct required to be that of the applicant. [202]
After considering the meaning of 'could reasonably be expected to', the Acting Information Commissioner looked to the plain meaning of the words to form her interpretation of the section. [194-200]
'Harassment'
… 'harass', as defined in the Macquarie Dictionary includes: to trouble by repeated attacks, ... to disturb persistently; torment
'Intimidation'
… 'intimidate', includes: to make timid, or inspire with fear; overawe; cow ... to force into or deter from some action by inducing fear
'A serious act of harassment or intimidation'
Section 42(1)(ca) of the FOI Act requires that an anticipated act of harassment or intimidation be serious.
… 'serious', includes: giving cause for apprehension; critical
and in the New Shorter Oxford Dictionary (4th Edition) includes: having (potentially) important, esp. undesired, consequences; giving cause for concern.
As I have noted above, the definition of 'harassment' refers to persistent or repeated conduct. However, I consider that section 42(1)(ca) of the FOI Act can apply where what is expected to result from disclosure is a single act of serious harassment and it is not necessary for me to consider whether disclosure of the Matter in Issue could reasonably be expected to result in more than one act of serious harassment.
Therefore, I am satisfied that a 'serious act of harassment' in the context of section 42(1)(ca) of the FOI Act means an action that attacks, disturbs or torments a person and that causes concern or apprehension or has undesired consequences.
Accordingly,
- 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.
- 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.
Whether that expectation is reasonably based
The reasonableness of the expectation of harassment or intimidation was considered objectively, in light of all relevant information, including information from and/or about the claimed source of harassment or intimidation.
Past incidents
The Acting Information Commissioner was satisfied that some of the incidents of harassment or intimidation by people claiming to be supporters of the applicant, which were described in the respondent's submissions, did occur and were directly related to the applicant's termination. [240]
Some of those incidents were found to be serious acts of harassment and intimidation:
- the CEO of Council had received a threatening phone call from an unknown caller with reference to the applicant
- the CEO of Council had been subject to an act of physical violence in the presence of his children
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- the threatening phone call and act of physical violence caused the CEO a level of concern and apprehension sufficient for him to relocate his family [263]
- numerous postings relating to the termination had been made on a community website, some containing derogatory statements about the CEO and other Council staff
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- the postings comprised attacks which disturbed and tormented the CEO and other employees associated with the termination and gave them cause for concern or apprehension [273]
- multiple FOI applications had been made by the applicant and people claiming to be her supporters
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- in the context of the other acts of harassment and intimidation, the Acting Information Commissioner found it would not be unreasonable to consider the multiple FOI applications as another vehicle through which Council staff were being harassed. [302]
The Acting Information Commissioner found the past occurrences of serious acts of harassment and intimidation alone provided a reasonable basis for Council staff to anticipate further serious acts of harassment or intimidation.
However, for matter to be exempt under section 42(1)(ca) of the FOI Act, the expectation must exist as a result of disclosure. [307] To establish this nexus, the Acting Information Commissioner considered:
- the nature of the relevant matter
- the likely effect of disclosing the matter
- the past conduct of people claiming to be the applicant's supporters
- the nature of the relationship between the parties and/or third parties. [308]
Nature of the relevant matter and likely effect of disclosure
The applicant submitted that full disclosure would remove the need for her to lodge further applications. However the Acting Information Commissioner found that disclosure could reasonably be expected to result in further FOI applications by the applicant and people claiming to be her supporters, which in themselves would be acts of serious harassment. Further, she noted that disclosure was 'to the world at large' and previous information obtained through FOI applications had been posted on the community website to fuel further derogatory posts. [309-316]
Past conduct or a pattern of previous conduct
As outlined above, previous incidents provided a reasonable basis to expect further incidents of harassment or intimidation could reasonably be expected to occur, following disclosure. [323]
Nature of the relationship between the parties and/or third parties
The Acting Information Commissioner noted the applicant and her supporters remained highly aggrieved by her termination. They had persistently made various allegations about the CEO and expressed negative views about him and other Council staff publicly. Disclosure could reasonably be expected to result in further public vilification of the CEO and others, by people claiming to be the applicant's supporters, which would constitute acts of serious harassment and/or intimidation. [318-319]
Accordingly, the matter was exempt in its entirety under section 42(1)(ca) of the FOI Act. [324]
VHL and Department of Health (Unreported, Queensland Information Commissioner, 20 February 2009)
The applicant had been involuntarily detained and examined under a Justice Examination Order (JEO). She sought access to the JEO and the JEO application. The Department of Health (Department) submitted that information identifying the Justice of the Peace (JP) who issued the JEO was exempt under section 42(1)(ca) of the FOI Act.
The Acting Information Commissioner looked to dictionary definitions to give the words of section 42(1)(ca) of the FOI Act their ordinary meanings. [85-89]
The Acting Information Commissioner considered the question of whether disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation, in light of all relevant information, including information from and/or about the claimed source of harassment or intimidation.
Significant information included:
- the applicant's stated intentions concerning her future conduct. The applicant had appeared on a national television program regarding her experience with the JEO and in response to the question 'What will you do when you find out who did this to you', she said 'I will hunt them down. I don't care how long it takes. I don't care how much it costs me.'
- correspondence with the Office, in which the applicant advised she held the Department, the JEO applicant/s and the JP responsible for the JEO.
The Acting Information Commissioner concluded that as a result of disclosure, the applicant could reasonably be expected to engage in the following:
- persistent pursuit of the people involved in the JEO process, particularly the JP who issued it
- confronting the JP with her concerns and opinions regarding the JEO, in a manner that may be regarded as an 'attack'
- repeatedly taking such actions
- conducting herself in a way that 'attacks, disturbs or torments' the JP and would cause concern or apprehension or have undesired consequences.
The Acting Information Commissioner was satisfied that the expectation of disclosure resulting in a serious act of harassment or intimidation was reasonable. [97]
Importantly, the applicant had expressed an intent to pursue and harass a person performing an official and public role. The likely consequence of that would be to deter that person or others from performing that or similar roles. The Acting Information Commissioner observed that such interference with the private affairs of public officials was 'precisely the essential public and private interests the Parliament sought to protect in passing s42(1)(ca)'. [98]
Price and Department of Police (Unreported, Queensland Information Commissioner, 29 June 2007)
The more recent decision in Sheridan takes a different approach to this decision in two important respects:
- Price applied a higher standard for considering whether disclosure 'could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation', because it asked whether there were real and substantial grounds for the expectation. [59] The current OIC approach is to ask whether the expectation is reasonably based.
- As to what constitutes a 'serious act of harassment', the Assistant Commissioner in Price required 'repeated or persistent conduct which torments or disturbs'. [59] However, since this decision, Sheridan noted that despite the dictionary definition referring to repeated actions, section 42(1)(ca) can apply where a single act of serious harassment is reasonably expected.
The applicant had appealed a criminal conviction on the basis that the arresting officer committed perjury. He sought access to a précis of the QPS interview with the officer and the corresponding tape recording.
The Assistant Commissioner looked to judicial consideration of the terms 'harassment' and 'intimidation' before concluding that the ordinary meaning of the terms should be adopted. [57]
She then addressed whether there were real and substantial grounds to expect that disclosing the relevant matter would result in a person being subjected to a serious act of harassment (repeated or persistent conduct which torments or disturbs) or intimidation (conduct designed to make a person fearful or overawed). [59]
The material before the Assistant Commissioner indicated a certain amount of antagonism between the applicant and the officer. The applicant had made it known in public that he disliked and/or distrusted the officer and had made insulting remarks. There was ongoing contact between the applicant and the officer, however that contact was apparently in the context of the officer's official capacity and the applicant's pursuit of legal remedies or redress of formal complaints. [66-68]
She noted that it is possible to be subjected to harassment or intimidation while conducting official duties, but here the actions did not appear to be unreasonable. [68]
The Assistant Commissioner accepted that the applicant's behaviour could be a source of annoyance and inconvenience for the officer, however there was nothing to suggest the applicant had engaged in serious acts of harassment or intimidation. [69-70]
Examples of serious harassment or intimidation may be:
- repeated telephone calls to the officer at home and/or work over an extended period of time
- threatening letters to the officer's home or work
- following the officer when engaged in his private pursuits or conducting his professional life. [69]
The Assistant Commissioner found nothing to indicate that the applicant's course of conduct may change, following disclosure, such that his conduct would become seriously harassing or intimidating. [70]
Accordingly, disclosing the relevant matter could not reasonably be expected to result in a serious act of harassment or intimidation and thus was not exempt under section 42(1)(ca) of the FOI Act.
Last updated: April 24, 2012
