Key published decisions applying Section 42(1)(e) FOI Act
The applicant sought access to documents relating to various matters concerning him. The Department of Police (QPS) granted access to the majority of relevant matter. [5] The Information Commissioner assessed whether the remaining matter was exempt from disclosure under section 42(1)(e) of the FOI Act.
The Information Commissioner was satisfied that for section 42(1)(e) to apply, the following criteria must be satisfied:14
- there is a lawful method or procedure used by the agency;
- the lawful method or procedure is used for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (including revenue law); and
- disclosing the relevant matter could reasonably be expected to prejudice that lawful method or procedure
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)?
Lawful method or procedure
The Information Commissioner applied the decision in T and Queensland Health,15 where it was considered that section 42(1)(e) of the FOI Act does not provide a blanket protection for every method or procedure adopted by an agency. The methods and procedures used by an agency must be 'lawful'.
Due to the nature of the information that this section protects, the Information Commissioner could not describe the method or procedure that QPS was trying to protect, however she was satisfied that the relevant matter did describe a lawful method or procedure used by QPS. [43]
Contravention or possible contravention of the law
Section 42(5) of the FOI Act provides that, for the purposes of section 42 of the FOI Act, the term 'law' includes a law of the Commonwealth, another State, a Territory or a foreign country. [45] Here, the Information Commissioner was satisfied that the remaining documents were used for preventing, detecting, investigating or dealing with a contravention or possible contravention of criminal law. [45]
Is there a reasonable expectation that disclosing the information could prejudice the effectiveness of the method or procedure?
The Information Commissioner was required to determine whether disclosing the relevant matter could reasonably be expected to prejudice the effectiveness of the lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law. The agency submitted that the relevant matter related to the use of certain technology, the existence of which was only a matter of public speculation and not confirmed. [51-52] However, the Information Commissioner was satisfied that a cursory search of the internet revealed general information about the existence and use of the technology referred to in the documents and accordingly found that there was no reasonable expectation that disclosing already public information could prejudice the effectiveness of the lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of criminal law. [55-58]
The relevant matter was found to not be exempt from disclosure under section 42(1)(e) of the FOI Act. [59]
VO and Department of Health (Unreported, Queensland Information Commissioner, 17 June 2002)
The applicant sought access to a copy of their Drugs of Dependence Unit file. The Department of Health (Department) refused access under section 42(1)(e) of the FOI Act. [5]
The Assistant Information Commissioner considered the three requirements necessary to establish section 42(1)(e), as identified in Re T and Queensland Health:16
- there is a lawful method or procedure used by the agency
- the lawful method or procedure is used for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (including revenue law)
- disclosing the relevant matter could reasonably be expected to prejudice that lawful method or procedure
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)?
Lawful method or procedure
The Assistant Information Commissioner was satisfied that the relevant matter described methods or procedures used by the Department to monitor persons using dangerous drugs. However, due to the nature of section 42(1)(e), the Assistant Information Commissioner could not describe those methods or procedures. [16]
Contravention or possible contravention of the law
The Department was responsible for administering provisions of the Health (Drugs and Poisons) Regulation 1996 (Qld), which the Information Commissioner considered was the relevant law that the methods or procedures related to. [19]
Is there a reasonable expectation that disclosing the information could prejudice the effectiveness of the method or procedure?
The Assistant Information Commissioner considered that the relevant matter would be useful to persons who wanted to obtain a dangerous drug, and/or to avoid detection. She was satisfied that disclosing the relevant matter could reasonably be expected to prejudice the ability of the Department to prevent people from doing so, or to detect them if they tried to do so. [25] The relevant matter was therefore exempt under section 42(1)(e) of the FOI Act. [26]
The applicant sought access to information concerning the details of a solicitor who advised the Queensland Law Society (QLS) with respect to a complaint made by the applicant against another solicitor.
QLS submitted that its practice, of sometimes seeking an opinion or advice from an experienced solicitor when investigating a complaint, is a lawful method or procedure for dealing with a possible contravention of the law, the effectiveness of which could reasonably be expected to be prejudiced by disclosing the name of the advising solicitor. [72]
The Information Commissioner applied T and Queensland Health17 and did not accept that the effectiveness of QLS's procedure of seeking opinions or advice from experienced solicitors could reasonably be expected to be prejudiced by disclosing the relevant matter.18
The relevant matter therefore did not qualify for exemption from disclosure under section 42(1)(e) of the FOI Act.
McCann and Department of Police (1997) 4 QAR 30
The applicant sought access to 34 categories of documents, principally investigative statements and reports, concerning incidents which the applicant was involved. [2] The Department of Police (QPS) refused access on the basis that the information was exempt under a number of provisions, including section 42(1)(e) of the FOI Act. [3] QPS submitted that there would be prejudice to the effectiveness of the routine methods and procedures of investigation under which the relevant matter was obtained, if QPS could not keep confidential the identities of sources of information, and the information which they supply. [19]
The Information Commissioner expressed some doubt as to whether section 42(1)(e) of the FOI Act was intended to apply on such a basis, rather than prejudice caused through the disclosing methods or procedures for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law. [19]
The Information Commissioner found that even if it were assumed that assessing whether evidence obtained in an investigation was sufficient to support charges, constituted a method or procedure for dealing with a possible contravention of the law, the Information Commissioner was not satisfied that prejudice to the effectiveness of that method or procedure could reasonably be expected to follow from disclosure. [104]
T and Department of Health (1994) 1 QAR 386
The applicant sought access to 'all information held by Queensland Health where I am named or referred to, regardless of origin'. After consultation, the Department of Health (Department) released various documents and refused access to some documents under section 42(1)(e) of the FOI Act. [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)?
Lawful method or procedure
The Information Commissioner noted that section 42(1)(e) is not a blanket protection for every method or procedure; rather the method or procedure must be 'lawful' to be afforded protection under this exemption. 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). [14] This reflects the legislature's intention as evidenced by section 42(2)(a)(i) of the FOI Act, which provides that matter which would qualify for exemption under any exemption provision in section 42(1) is not exempt if it consists of a 'matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law', provided also that its disclosure would, on balance, be in the public interest (as required by section 42(2)(b) of the FOI Act). [14]
Contravention or possible contravention of the law
The Information Commissioner applied section 36 of the Acts Interpretation Act 1954 (Qld), which provides that 'contravene' includes both 'breach' and 'fail to comply with'. Accordingly, the Information Commissioner was satisfied that contraventions or possible contraventions are not confined to the criminal law. [16]
The word 'law' is defined in section 42(5) of the FOI Act to include the law of the Commonwealth, another State, a Territory or a foreign country for the purposes of section 42 of the FOI Act. [20]
The inclusion of laws of a foreign country avoids issues relating to extradition and breach of foreign laws.19
Is there a reasonable expectation that disclosing the information could prejudice the effectiveness of the method or procedure?
The Information Commissioner applied the definition of the phrase 'could reasonably be expected to' from B and Brisbane North Regional Health Authority:20
… The words call for the decision-maker applying section 46(1)(b) to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural 'expectations') and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist.
The Information Commissioner found that 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.
Disclosing 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 their effectiveness. [32] However, information that discloses methods or procedures that are neither obvious nor a matter of public knowledge are more likely to prejudice their effectiveness.21
The Information Commissioner found that one of the functions of the Drugs of Dependence Unit (DDU) is to enforce the provisions of the Health Act 1937 (Qld) and the Poisons Regulation 1996 (Qld). The DDU developed a system of monitoring the prescription of dangerous drugs to assist in preventing, detecting and investigating contraventions or possible contraventions of the Poisons Regulation 1996 (Qld). Disclosing the documents in issue would disclose these methods and procedures. Accordingly, the methods and procedures adopted by the DDU were 'lawful' within the meaning of section 42(1)(e) of the FOI Act.
The Information Commissioner was also satisfied that the expectation of prejudice was reasonably based as the nature of information involved could be used for evading provisions of the Poisons Regulation 1996 (Qld). [56]
Accordingly, the Information Commissioner was satisfied that the relevant information was exempt under section 42(1)(e) of the FOI Act. [60-61]
14T and Queensland Health (1994) 1 AAR 386.
15T and Queensland Health (1994) 1 QAR 386.
16T and Queensland Health (1994) 1 QAR 386.
17T and Queensland Health (1994) 1 QAR 386.
18JLC and Legal Ombudsman; Queensland Law Society Inc. (Third Party); A Solicitor (Fourth Party) (1995) 5 QAR 33 at paragraph 73.
19Referring to Re Conte and Australian Federal Police (1985) 7 ALN N71.
20B and Brisbane North Regional Health Authority (1994) 1 QAR 279.
21Re T and Department of Health; (1994) 1 QAR 386 at paragraph 32.
Last updated: April 24, 2012
