Key published decisions applying Section 42(1)(d) FOI Act
The access applicant sought access to matter relating to complaints made against Mr Kennedy and the Building Services Authority's (BSA) response to those complaints. The BSA decided to disclose the documents and Mr Kennedy sought external review of BSA's decision, relying on section 42(1)(d) of the FOI Act.
Is there a reasonable expectation that disclosing the information could prejudice a person's fair trial or the impartial adjudication of a case?
Impartial adjudication of a case
The case involved civil proceedings initiated by the access applicant against Mr Kennedy, in relation to breach of contract and negligence in Mr Kennedy's dealing with the access applicant's house extensions. [14] The Information Commissioner was satisfied that section 42(1)(d) of the FOI Act was capable of applying to the civil proceedings because the phrase 'impartial adjudication of a case' is wide enough to apply to any civil proceedings.
Whether there exists an expectation of prejudice
During the course of the external review, the access applicant commenced proceedings against Mr Kennedy in the Magistrates court. Mr Kennedy submitted that if the access applicant were to be given BSA's findings, the Magistrate would be likely to give more weight to BSA's findings, in respect of the complaint, than to Mr Kennedy's own response to the complaint and that disclosure would pre-empt the decision of the Magistrate. [16]
However, the Information Commissioner was satisfied that there was no reasonable basis for the expectation of prejudice. Since the applicant could gain access to the relevant documents through disclosure and discovery procedures,8 the applicant would be in the same position as if disclosure was obtained under the FOI Act. [17] As disclosure under the FOI Act would not prejudice impartial adjudication any more than disclosure under curial processes, there was no basis to refuse access to the relevant matter under section 42(1)(d) of the FOI Act.
The Information Commissioner found that there was no reasonable expectation of prejudice under section 42(1)(d) of the FOI Act, merely on the basis that disclosing the documents would assist the plaintiff in a civil matter establishing a cause of action against the defendant. [19]
It was also noted that there was no reasonable basis to expect that the Magistrate would not adjudicate impartially on the admissibility of the documents, or on the probative value and weight of the documents as evidence. In saying, it must be kept in mind that '[t]here is no valid analogy to be drawn, in these circumstances, with the legal principle under which evidence may be withheld from a jury in a criminal trial on the basis that the prejudicial effect of the evidence exceeds its probative value.' [19]
Accordingly, the information was not exempt under section 42(1)(d) because there could be no reasonable expectation that disclosure would prejudice the impartial adjudication of the case.
The applicants sought access to a report (Report) produced by a geotechnical consultant firm that was commissioned by the Redland Shire Council (Council) to investigate and report on the canal wall stability at Raby Bay Canal Estate in the Shire. The developer of the estate, Civil Projects (Third Party) objected to disclosing the relevant information on the basis of section 42(1)(d) of the FOI Act.
Is there a reasonable expectation that disclosing the information could prejudice a person's fair trial or the impartial adjudication of a case?
Impartial adjudication of a case
The Third Party referred to a civil case initiated against it by landowners at Red Bay Canal Estate, in the Supreme Court of Queensland.
The Information Commissioner was satisfied that section 42(1)(d) of the FOI Act was capable of applying to the civil case in issue, as the phrase 'impartial adjudication of a case' is wide enough to apply to any civil proceedings.
Whether there exists an expectation of prejudice
However, the Information Commissioner noted that the plaintiffs to the proceedings would be able to access the Report under the Council's informal inspection arrangements and the Report itself actually contained many positive statements and did not directly criticise any one party. [67-68]
The Third Party submitted that if the Report was disclosed, the applicant and other media outlets would selectively quote the Report in such a way as to give a negative impression of the development and thereby prejudice the impartial adjudication of the case. [66] However the Information Commissioner considered that it was mere speculation that media publication of the Report would unduly influence a judge or the entire population of possible jury members for the Supreme Court.
Accordingly, the Information Commissioner was not satisfied that the relevant matter was exempt under section 42(1)(d) of the FOI Act.
Uksi and Redcliffe City Council; Cook (Third Party) (1995) 2 QAR 629
The original access applicant sought access to documents surroundings complaints made against the applicant by a third party (Uksi). The relevant matter consisted of letters, an engineering report, handwritten notes of property dimension and notes of a telephone conversation. Redcliffe City Council (Council) decided to disclose the relevant matter to the applicant. Uksi sought external review of that decision, relying on section 42(1)(d) of the FOI Act.
Is there a reasonable expectation that disclosing the information could prejudice a person's fair trial or the impartial adjudication of a case?
Impartial adjudication of a case
Uksi referred to litigation commenced by Uksi against the applicant in regards to property damage.
The Information Commissioner drew a distinction between the applicability of 'fair trial' and 'impartial adjudication' in section 42(1)(d) of the FOI Act. A 'person's fair trial', requires a trial for a criminal offence and does not extend to civil litigation. However, the phrase 'impartial adjudication' can refer to all cases where there is a formal decision-maker, including civil litigation. Here, the litigation was civil and so the issue for determination was whether disclosing the relevant matter could reasonably be expected to prejudice the impartial adjudication of the case.
Whether there exists an expectation of prejudice
The Information Commissioner considered that disclosure would assist in the provision of natural justice as it would provide the applicant with access to details of Uksi's complaints and allow for early resolution, without resorting to litigation. [35] Similarly, the documents (particularly the engineering report) were the type which a court would likely compel disclosure, 'in the interests of a fair hearing of the issues'. [35] Therefore, of the documents could not reasonably be expected to prejudice the impartial adjudication of the case.
Last updated: April 24, 2012