Application of Section 42(1)(d) 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 prejudice a person's fair trial or the impartial adjudication of a case?

a) A person's fair trial

'A person's fair trial', only refers to a criminal trial and does not extend to civil proceedings.¹

b) Impartial adjudication of a case

The phrase 'impartial adjudication of a case' is wide enough to extend to civil proceedings or any case that is formally adjudicated by a decision-maker.²

c) Whether there exists an expectation of prejudice

Where the applicant may gain access to the relevant matter under curial processes, eg through the discovery process, there can be no expectation of prejudice.³

Where disclosing the documents would assist the plaintiff in establishing a cause of action against the defendant in a civil case, there can be no expectation of prejudice.⁴

Where disclosure would actually assist in natural justice by allowing one party access to the details of the other party's complaint and providing for early resolution, then there can be no expectation of prejudice.⁵

d) Whether the expectation is reasonably based

See 'Could reasonably be expected to' Annotation.

In Sheridan and South Burnett Regional Council (and Others),⁶ the Information Commissioner considered the phrase 'could reasonably be expected to' in the context of section 42(1)(ca) of the FOI Act 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:⁷

• 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.

¹ Uksi and Redcliffe City Council; Cook (Third Party) (1995) 2 QAR 629 at paragraph 34.
² Uksi and Redcliffe City Council; Cook (Third Party) (1995) 2 QAR 629 at paragraph 35.
³ Kennedy and Building Services Authority (Unreported, Queensland Information Commissioner, 7 December 2001) at paragraph 17.
⁴ Kennedy and Building Services Authority (Unreported, Queensland Information Commissioner, 7 December 2001) at paragraph 19.
⁵ Uksi and Redcliffe City Council; Cook (Third Party) (1995) 2 QAR 629 at paragraph 35.
⁶ Sheridan and South Burnett Regional Council (and Others) (Sheridan) (Unreported, Queensland Information Commissioner, 9 April 2009).
⁷ Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009) at paragraph 193.