Published on Office of the Information Commissioner Queensland (https://www.oic.qld.gov.au)

Home Annotated legislation  >  Freedom of Information  >  Part 3 Access to documents (21-52A)  >  Division 2 Exempt matter (36-50)  >  42 Matter relating to law enforcement or public safety  >  Section 42(1)  >  Section 42(1)(e)  >  Application of Section 42(1)(e) FOI Act

Application of Section 42(1)(e) 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 lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (including revenue law)?

a) Lawful

Section 42(1)(e) of the FOI Act does not provide a blanket protection for every method or procedure adopted by an agency. The word 'lawful' means that disclosing matter which could only prejudice an unlawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law is not exempt under section 42(1)(e) of the FOI Act.1

b) Method or Procedure

It is not possible to list the types of methods or procedures which may qualify for protection under section 42(1)(e) of the FOI Act, as each case must be judged on its own merits.2 The effectiveness of a method and procedure may depend on the secrecy of its existence, nature, personnel, or results.3

There is no definition of 'method' or 'procedure' in either the FOI Act or the Acts Interpretation Act 1954 (Qld). Therefore, under the rules of statutory interpretation they should be given their ordinary meaning.

However, the Information Commissioner has previously considered the words 'system' and 'procedure' in relation to section 42(1)(h) of the FOI Act, which may provide guidance for the interpretation of section 42(1)(e) of the FOI Act.

The Information Commissioner quoted the following dictionary definitions for 'system' when considering section 42(1)(h) of the FOI Act in Ferrier and Queensland Police Service (Ferrier):4

[an] organised scheme or plan of action, esp. a complex or comprehensive one; an orderly or regular procedure or method; (Shorter Oxford English Dictionary);

[a] co-ordinated body of methods, or a complex scheme or plan of procedure; (Macquarie Dictionary).

The Information Commissioner also indicated that the system or procedure must be 'sufficiently coherent, organised and comprehensive' for this section to apply.5

A system or procedure may be established by a legislative scheme or another method.

c) Contravention or possible contravention

Section 36 of the Acts Interpretation Act 1954 (Qld), provides that 'contravene' includes both 'breach' and 'fail to comply with'. Therefore, contraventions or possible contraventions are not confined to the criminal law and may extend to 'any law which imposes an enforceable legal duty to do or refrain from doing some thing'. 6

d) Law

Section 42(5) of the FOI Act provides that the term 'law' includes a law of the Commonwealth, another State, a Territory or a foreign country.7

As explained above, this exemption is not restricted to criminal law and applies to the contravention or possible contravention of 'any law which imposes an enforceable legal duty to do or refrain from doing some thing'.8

3. Is there a reasonable expectation that disclosing the information could prejudice the effectiveness of the method or procedure?

a) Whether there exists an expectation of prejudice to the effectiveness of the method or procedure

Prejudice will exist where behaviour is modified using the information disclosed, to compromise the effectiveness of a method or procedure.9

For example, it would be easier for someone who is addicted to dangerous drugs to avoid being detected if they know the methods used by the relevant body to monitor their use, thereby prejudicing the effectiveness of the method or procedure.

The expectation of prejudice must exist as a result of disclosure. Disclosing information concerning the methods and procedures adopted by law enforcement agencies which are obvious and known to the community (eg interviewing and taking statements from witnesses to a crime) are not likely to prejudice the effectiveness of those methods or procedures.10 However, information that discloses information about methods or procedures that are neither obvious nor a matter of public knowledge, is more likely to prejudice the effectiveness of those methods or procedures.11

b) Whether that expectation is reasonably based

See 'Could reasonably be expected to' Annotation.

In Sheridan and South Burnett Regional Council (and Others),12 the Information Commissioner considered the phrase 'could reasonably be expected to' in the context of section 42(1)(ca) of the FOI Act 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:13

  • 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; and
  • relevant contextual and/or cultural factors.

1T and Department of Health; (1994) 1 QAR 386 at paragraph 14.
2T and Queensland Health (1994) 1 AAR 386 at paragraph 23.
3T and Queensland Health (1994) 1 AAR 386 at paragraph 23.
4Ferrier and Queensland Police Service (1996) 3 QAR 350 at paragraph 28.
5Ferrier and Queensland Police Service (1996) 3 QAR 350 at paragraph 33.
6T and Department of Health; (1994) 1 QAR 386 at paragraph 16.
7Haneef and Department of Police Part A (Unreported, Queensland Information Commissioner, 24 February 2010) at paragraph 44.
8T and Department of Health; (1994) 1 QAR 386 at paragraph 16.
9VO and Department of Health (Unreported, Assistant Information Commissioner, 17 June 2002) at paragraph 23.
10T and Department of Health; (1994) 1 QAR 386 at paragraph 32.
11T and Department of Health; (1994) 1 QAR 386 at paragraph 32.
12Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009).
13Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009) at paragraph 193.

Last updated: April 24, 2012