Application of Section 42(1)(h) 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 system or procedure?

There is no definition of ‘system’ 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.

The Information Commissioner relied on the following definitions for ‘system’ when considering section 42(1)(h) of the FOI Act in Ferrier and Queensland Police Service (Ferrier):1

[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.2

A system or procedure may be established by a legislative scheme or another method. A ‘system or procedure’ was established by the relevant statutory framework in the following situations:

  • the procedure for making a JEO application under the MH Act 20003
  • intelligence gathering systems of the Queensland Police Service, set out in the specific unit’s charter4
  • the system for prisoners to make parole applications under Part 4 of the Corrective Services Act 1988 (Qld) (although the Information Commissioner did not find it necessary to express a conclusive view on this point)5
  • procedures carried out by the AIDS Medical Unit of Queensland Health as part of its public health function under the Health Act 1937 (Qld)
  • the procedures set out in the Weapons Act 1990 (Qld) and Weapons Regulation 1991 (Qld) relevant to the issuing or revocation of firearms licences.

A ‘system or procedure’ may exist in situations outside of legislative framework, for example:

  • strict office practices to protect the confidentiality of certain information
  • the system of sharing confidential communication between departments and agencies.

3. Is the system or procedure for the protection of persons, property or environment?

The purpose and objects of the ‘system or procedure’ must be identified and assessed to determine whether it is ‘for the protection of persons, property or environment’. This is a factual assessment and the following examples may provide guidance.

a) Protection of people

The following are systems or procedures ‘for the protection of persons, property or environment’:

  • the procedure for making a JEO application to prevent mentally ill persons from harming themselves or others6
  • intelligence gathering systems of the Queensland
  • Police Service’s Counter-Terrorist Unit were for the prevention of politically motivated violence against people and property7

b) Protection of property

The intelligence gathering systems of the Queensland Police Service’s Counter-Terrorist Unit were for the prevention of politically motivated violence against people and property8

c) Protection of environment

The Information Commissioner has not made a decision considering this aspect of the exemption provision.

4. Is there a reasonable expectation that disclosing the information could prejudice the system or procedure?

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

The expectation of prejudice must exist as a result of disclosure, rather than independently or from any other circumstance. This requires a careful assessment of the relevant matter and the possible consequences of disclosure on both current and future operations of the system or procedure.

What constitutes ‘prejudice’ to the system or procedure depends on the circumstances. Generally, the expectation is that the efficacy of the system or procedure will be lessened by disclosure.

In some cases the efficacy of the system or procedure depends on the free flow of information between individuals or organisations. In those cases, disclosing identifying details of persons who provided information may dissuade people from providing full and frank information in the future.9

The Information Commissioner has previously found that disclosing the identifying details of persons providing information for JEO applications would prejudice the system or procedure.10 Similarly, the Information Commissioner was satisfied that disclosing identifying details of health care professional providing information to the assessors of parole applications would prejudice the system or procedure because the free flow of information would be compromised.11

In some cases, the efficacy of the system or procedure depends on its secrecy. For example, if details concerning intelligence gathering methods or parties of interest were disclosed, it may enable the subject of covert investigations to better avoid the scrutiny of those investigations or to make its activities more secretive.12

In some situations, the expectation of prejudice will be mitigated by other factors. In Ferrier,13 the Information Commissioner was satisfied the potential for prejudice to the counter-terrorist organisation by disclosing the relevant matter would be reduce over time. In O’Reilly14 the Information Commissioner was satisfied that disclosing information created 8-10 years previously would not prejudice the QPS system or procedure.

In WRT, the Information Commissioner accepted that the parole system would be prejudiced if psychiatrists provided less frank and candid assessments, however, since the applicant had previously been provided with parts of the psychiatric report, including the author’s identity, the Information Commissioner did not accept that disclosing the particular relevant matter could reasonably be expected to affect the flow of information from other psychiatrists.

b) Whether that expectation is reasonably based

See ‘Could reasonably be expected to’ Annotation.

In Sheridan and South Burnett Regional Council (and Others),15 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:16

  • 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 Ferrier and Queensland Police Service (1996) 3 QAR 350 at paragraph 28.
2 Ferrier and Queensland Police Service (1996) 3 QAR 350 at paragraph 33.
3 VHL and Department of Health (Unreported, Queensland Information Commissioner, 20 February 2009) at paragraph 43.
4 Ferrier and Queensland Police Service (1996) 3 QAR 350 at paragraph 33.
5 WRT and Department of Corrective Services (Unreported, Queensland Information Commissioner, 26 April 2002) at paragraph 51.
6 VHL and Department of Health (Unreported, Queensland Information Commissioner, 20 February 2009).
7 Ferrier and Queensland Police Service (1996) 3 QAR 350 at paragraph 33.
8 Ferrier and Queensland Police Service (1996) 3 QAR 350 at paragraph 33.
9 VHL and Department of Health (Unreported, Queensland Information Commissioner, 20 February 2009); ROSK and Brisbane North Regional Health Authority (1996) 3 QAR 393.
10 ROSK and Brisbane North Regional Health Authority (1996) 3 QAR 393.
11 WRT and Department of Corrective Services (Unreported, Queensland Information Commissioner, 26 April 2002).
12 Ferrier and Queensland Police Service (1996) 3 QAR 350.
13 Ferrier and Queensland Police Service (1996) 3 QAR 350.
14 O’Reilly and Department of Police (1996) 3 QAR 40.
15 Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009).
16 Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009) at paragraph 193.

Last updated: March 1, 2012