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Application of Section 42(1)(f) 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 protecting public safety?

a) Lawful

Section 42(1)(f) 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'.1

b) Method or procedure

Examples of lawful method or procedures for the purposes of section 42(1)(f) include:

  • local authorities receiving and acting upon complaints from the public as to the existence of hazards to public safety2
  • Queensland Police Service (QPS) obtaining information from other law enforcement agencies in other jurisdictions3
  • The process of Queensland Police Service (QPS) for gathering and storing information4

The method or procedure need not be complicated or secret for this section to apply.5 The Information Commissioner has noted that, arguably, the parole system could be a lawful method or procedure for protecting public safety.6

A procedure that is voluntary, such as relying on information provided voluntarily, cannot amount to an enforceable method or procedure.7

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):8

[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.9

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

c) For protecting public safety

The Information Commissioner has not considered the ambit of the words 'public safety' in section 42(1)(f) of the FOI Act. However, the Commonwealth Administrative Appeals Tribunal (AAT) has considered the term in the context of the Freedom of Information Act 1982 (Cth).10

In Re Thies and Department of Aviation,11 the AAT held that 'public safety' does not extend beyond safety from violations of the law and breaches of the peace. In Re Parisi and Australian Federal Police, 12 it was considered that:

…the words “public safety” ought not to be confined to any particular situation. They should certainly not be confined to what might be described as civil emergencies, such as bushfires or floods, as was suggested by counsel for the applicant. They should not be confined in our view even to court cases involved in the enforcement of the lawful methods referred to in the paragraph. Obviously in time of war, considerations of public safety and lawful methods for their protection are much wider than in times of peace.

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

a) Maintenance or enforcement

The focus of section 42(1)(f) of the FOI Act is on the 'maintenance or enforcement' of the relevant method or procedure, rather than its 'effectiveness'.13

The maintenance of a method or procedure is not prejudiced just because less people use it,14 or it becomes harder to obtain full and frank reports.15 The procedure would still remain in place.16

There is no requirement that a method or procedure be a covert or a relatively secret one ifn order to satisfy section 42(1)(f) of the FOI Act, although methods and procedures that are covert are more likely to be prejudiced by disclosing information about them, than are methods or procedures that are well known in the community.17

b) Whether that expectation is reasonably based

See 'Could reasonably be expected to' Annotation.

In Sheridan and South Burnett Regional Council (and Others),18 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:19

  • 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 T and Department of Health; (1994) 1 QAR 386 at paragraph 14.
2 Byrne and Gold Coast City Council (1994) 1 QAR 477.  
3 Ferrier and Department of Police (1996) 3 QAR 350.
4O'Reilly and Department of Police (1996) 3 QAR 402.
5Byrne and Gold Coast City Council (1994) 1 QAR 477 at paragraph 19.
6A Member of the Legislative Assembly and Queensland Corrective Services Commission; A Prisoner (Third Party) (1997) 4 QAR 100 at paragraph 28.
7A Member of the Legislative Assembly and Queensland Corrective Services Commission; A Prisoner (Third Party) (1997) 4 QAR 100 at paragraph 29.
8Ferrier and Queensland Police Service (1996) 3 QAR 350 at paragraph 28.
9Ferrier and Queensland Police Service (1996) 3 QAR 350 at paragraph 33.
10A Member of the Legislative Assembly and Queensland Corrective Services Commission; A Prisoner (Third Party) (1997) 4 QAR 100 at paragraph 25.
11Re Thies and Department of Aviation (1986) 9 ALD 454 at paragraph 466.
12Re Parisi and Australian Federal Police (1987) 14 ALD 11 at paragraphs 17-18
13O'Reilly and Department of Police (1996) 3 QAR 402 at paragraph 26, distinguishing the section from section 42(1)(e) of the FOI Act.  
14Byrne and Gold Coast City Council (1994) 1 QAR 477 at paragraph 20.
15WRT and Department of Corrective Services (Unreported, Queensland Information Commissioner 26 April 2002) at paragraph 47.
16Byrne and Gold Coast City Council (1994) 1 QAR 477 at paragraph 20.  
17Byrne and Gold Coast City Council (1994) 1 QAR 477 at paragraph 19.
18Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner , 9 April 2009) .
19Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009) at paragraph 193.

Last updated: March 5, 2012