Application of Section 42(1)(g) 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 building, structure or vehicle?

The Information Commissioner has considered the application of section 42(1)(g) to the following types of buildings:

  • residential houses1
  • a prison2
  • the Maximum Security Unit of a prison3

The Information Commissioner has considered the exemption in relation to an itinerant food van as a relevant vehicle.4

3. Is there a reasonable expectation that disclosing the information could endanger the security of a building, structure or vehicle?

a) Whether there exists an expectation of endangerment to the security of a building, structure or vehicle

Whether disclosing the relevant matter could reasonably be expected to ‘endanger the security’ of a building, structure or vehicle is determined by the circumstances of the case.

There may be circumstances where the nature of the endangerment to security is evident from the relevant matter. Usually, the agency must identify the precise nature of the endangerment to security.5

The Information Commissioner has previously found that disclosing the following types of information could reasonably be expected to result in endangerment to the security of a relevant building:

  • the best access points for illegal entry6
  • the security procedures and method and time of staff movement in a Maximum Security Unit of a prison.7

b) Whether that expectation of endangerment is reasonably based

See ‘Could reasonably be expected to’ Annotation.

The expectation of endangerment must exist as a result of disclosure, rather than independently or from any other circumstance. This requirement is satisfied where an existing expectation of endangerment will be increased by disclosure.

In Sheridan and South Burnett Regional Council (and Others),8 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:9

  • 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.

1NK & DK and Pine River Shire Council; Another (Third Party) (Unreported, Queensland Information Commissioner, 6 June 2007) at paragraph 26.  
2Prisoners’ Legal Service Inc and Queensland Corrective Services Commission (Unreported, Queensland Information Commissioner, 27 March 1997).  
3Scott and Queensland Corrective Services (Unreported, Queensland Information Commissioner, 29 May 2007).  
4Curtin and Pine River Shire Council (1997) 4 QAR 195.
5Scott and Queensland Corrective Services (Unreported, Queensland Information Commissioner, 29 May 2007) at paragraph 41.  
6NK & DK and Pine River Shire Council; Another (Third Party) (Unreported, Queensland Information Commissioner, 6 June 2007) at paragraph 28.
7Scott and Queensland Corrective Services (Unreported, Queensland Information Commissioner, 29 May 2007) at paragraph 50.
8Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009).
9Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009) at paragraph 193.

Last updated: March 5, 2012