Key published decisions applying Section 42(1)(f) FOI Act

Byrne and Gold Coast City Council (1994) 1 QAR 477

The applicant sought access to details of a third party who had complained about the length of grass at a property at Palm Beach. The applicant was refused access to the relevant matter under section 42(1)(f) of the FOI Act by the Gold Coast City Council (GCCC).

Is there a lawful method or procedure for protecting public safety?

GCCC did not specifically identify a relevant method or procedure, but asserted that the Council's cutting of grass related to public safety in that:

Such long grass is an excellent habitat for vermin and other health injurious infestations, as well as, an excellent camouflage for other physical safety hazards.

The Information Commissioner was satisfied the only thing that could arguably be described as a 'lawful method or procedure for protecting public safety' was the procedure by which the GCCC receives and acts upon complaints from members of the public regarding the length of grass in public areas. [19]

The Information Commissioner considered it is possible for something as elementary and widely known as the fact that local authorities will receive and act upon complaints from the public as to the existence of hazards to public safety, to be 'a lawful method or procedure for protecting public safety', for the purposes of section 42(1)(f) of the FOI Act. [19]

Further, there is no requirement that a method or procedure be a covert or relatively secret one in 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. [19]

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

The maintenance of the relevant procedure would not be prejudiced by disclosing the names of individuals who complain about hazards on public land. Section 42(1)(f) only refers to prejudice to the 'maintenance or enforcement of a lawful method or procedure' and not its effectiveness. [20] Even if people may be discouraged from making use of the procedure if their identities would be disclosed, this would not amount to prejudice to the maintenance of the procedure, as the procedure would still remain in place even if fewer people used it. The relevant matter was not exempt under section 42(1)(f) FOI Act. [20]

Ferrier and Department of Police (1996) 3 QAR 350

The applicant sought access to documents relating to herself and was refused access by the Department of Police (QPS) under section 42(1)(f) of the FOI Act. The Information Commissioner was not satisfied that disclosing organisation names or reference numbers could reasonably be expected to prejudice the maintenance or enforcement of a method or procedure for protecting public safety. [38]

The Information Commissioner considered that the only method or procedure which could be identified on disclosing relevant matter, was QPS's procedure of obtaining information from other law enforcement agencies. [43] The Information Commissioner considered that this procedure is well known to the public and he did not accept that there was a reasonable basis for expecting prejudice of a kind referred to in section 42(1)(f) of the FOI Act. [43]

O'Reilly and Department of Police (1996) 3 QAR 402 

The applicant sought access to documents relating to himself and was refused access by the Department of Police (QPS) under section 42(1)(f) of the FOI Act.

As in Ferrier and Department of Police,20 the Information Commissioner was not satisfied that disclosing organisation names or reference numbers, could reasonably be expected to prejudice in the maintenance or enforcement of a method or procedure for protecting public safety. [26]

The Information Commissioner considered that QPS attempted to identify methods and procedures (for gathering and storing intelligence), the maintenance or enforcement of which might be prejudiced by disclosing the names and reference numbers, but the Information Commissioner was unable to accept that there was any reasonable basis for expecting such prejudice, especially as the organisations in question were subjects of interest some 8 to 13 years prior. [27]

A Member of the Legislative Assembly and Queensland Corrective Services Commission; A Prisoner (Third Party) (1997) 4 QAR 100

The applicant objected to the Queensland Corrective Services Commission (QCSC) decision to grant the access applicant access to a letter written by the applicant to the Chairman of the QCSC. [1]

The following criteria must be established for matter to be exempt under section 42(1)(f) of the FOI Act: [24]

  • there exists an identifiable method or procedure;
  • it is a method or procedure for protecting public safety;
  • the method or procedure is lawful21; and
  • disclosing the relevant matter could reasonably be expected to prejudice the maintenance or enforcement of the method or procedure.

The Information Commissioner referred to Byrne and Gold Coast City Council,22 emphasising that, unlike section 42(1)(e) of the FOI Act, section 42(1)(f) does not refer to prejudice to the 'effectiveness' of a lawful method or procedure, but rather to prejudice to the 'maintenance or enforcement' of a lawful method or procedure.

The Information Commissioner further indicated that even if disclosing the relevant matter would result in fewer people using a procedure, there would be no prejudice to the maintenance of the procedure, as the procedure would still remain in place. [26]

Here, the Information Commissioner considered that it is possible to characterise QCSC's willingness to accept and consider unsolicited information from a member of the public (or a Member of the Legislative Assembly acting in a representative capacity), supplied with the aim of persuading a community corrections board to refuse parole to an individual prisoner, as a method or procedure for protecting public safety within the terms of section 42(1)(f) of the FOI Act. [29] However, the Information Commissioner was not satisfied that disclosing the relevant matter could reasonably be expected to prejudice the maintenance or enforcement of such a method or procedure, as it could not be said that the voluntary supply of information to QCSC and the QCSC's acceptance of the information, could prejudice the enforcement or maintenance of such a method or procedure. [30] The channel of communication to the QCSC of unsolicited information of the kind in issue would remain open. Accordingly, the relevant matter was not exempt under section 42(1)(f) of the FOI Act. [30]

WRT and Department of Corrective Services (Unreported, Queensland Information Commissioner 26 April 2002)

The applicant sought review of a deemed refusal of access by the Department of Corrective Services (Department) to parts of a psychiatric report concerning him.

The Information Commissioner considered that the focus of section 42(1)(f) of the FOI Act is on the maintenance or enforcement of a lawful method or procedure for protecting public safety, rather than prejudice to the 'effectiveness' of a lawful method or procedure for protecting public safety. [45]

The Department submitted that disclosure to the applicant of the relevant matter could reasonably be expected to result in psychiatrists refusing to provide reports on prisoners, or providing less frank and candid reports to the Department. [47] The Information Commissioner considered that while such a result would be unfortunate, it would not amount to prejudice to the maintenance or enforcement of the parole system. The parole system itself would remain in place, whether or not it became harder to obtain full and frank psychiatric reports on prisoners. [47]

Accordingly, the relevant matter was not exempt under section 42(1)(f) of the FOI Act.

20 Ferrier and Department of Police (1996) 3 QAR 350.
21Referring to T and Department of Health; (1994) 1 QAR 386 at paragraphs 10-15.
22Byrne and Gold Coast City Council (1994) 1 QAR 477.

Last updated: March 5, 2012