Key published decisions applying Section 42(1)(h) FOI Act
ROSK and Brisbane North Regional Health Authority (1996) 3 QAR 393
The applicant sought access to information and statements provided in support of a Justices Examination Order (JEO) warrant under section 25 of the Mental Health Act 1974 (Qld) (MH Act 1974).
Is there a system or procedure?
The Information Commissioner considered section 25 of the MH Act 1974 and related provisions and was satisfied that the legislative framework established a ‘system or procedure’.
Is the system or procedure for the protection of persons, property or environment?
The procedure established under section 25 of the MH Act 1974 enabled members of the community, with a genuine belief that a person was mentally ill and a danger to themselves or others, to initiate action to protect that person or others from the apprehended danger. [15] Accordingly, the Information Commissioner was satisfied that the procedure established by legislation was ‘for the protection of persons’.
Is there a reasonable expectation that disclosing the information could prejudice the system or procedure?
The Information Commissioner considered it to be in the interests of the community to maintain a system which encourages disclosing information which may prevent mentally ill persons harming themselves or others. The scheme contemplated that the information be treated in confidence against the world at large and, depending on circumstances, against the subject of the warrant. [21] If information used to support an application for the issue of a warrant under the MH Act 1974 was routinely disclosed, many members of the community would be inhibited from using the system or procedure in cases where it should appropriately be used. [25]
Accordingly, the Information Commissioner was satisfied disclosing the relevant matter could reasonably be expected to prejudice the relevant system or procedure and was exempt under section 42(1)(h) of the FOI Act.
Ferrier and Queensland Police Service (1996) 3 QAR 350
The applicant sought information concerning her being a subject of interest to the defunct ‘Counter-Terrorist Section’ (CTS) of the Queensland Police Service (QPS). QPS refused access to the relevant matter on the basis that disclosing the information could reasonably be expected to prejudice a system or procedure for the protection of persons and property under section 42(1)(h) of the FOI Act.
Is there a system or procedure?
The Information Commissioner relied on the dictionary definition of ‘system’: [28]
[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 was satisfied that the functions and methods of the CTS, set out in its charter, formed a sufficiently coherent, organised and comprehensive scheme to meet the definition of a ‘system’.
Is the system or procedure for the protection of persons, property or environment?
The Information Commissioner was satisfied that the role of the CTS, to prevent politically motivated violence, was clearly for the protection of persons and property. [28-33]
Is there a reasonable expectation that disclosing the information could prejudice the system or procedure?
Disclosing the fact that a person was subject to scrutiny by the CTS was likely to encourage that individual to make their activities more secretive. Similarly, knowledge by members of an activist organisation that the organisation has not been targeted for scrutiny may be encouraged to undertake illegal activity, knowing that their chances of being detected were reduced. Accordingly, the Information Commissioner considered that the effectiveness of the system employed by the CTS for preventing politically motivated violence would be diminished by disclosure. [33-34]
However, the Commissioner considered the potential for prejudice would be reduced over time. This was apparently accepted by the QPS in advising the applicant that she had in the past been a subject of interest to the CTS. [35] Disclosing the relevant matter would have evidenced whether there was a current continuing interest. Therefore, the prejudice was not reduced and there was a reasonable basis to expect prejudice of the kind contemplated by section 42(1)(h). [36]
Accordingly, the relevant matter was exempt under section 42(1)(h) of the FOI Act.
O’Reilly and Queensland Police Service (1996) 1 QAR 402
The applicant sought information concerning his being a subject of interest to the defunct ‘Counter-Terrorist Section’ (CTS) of the Queensland Police Service (QPS). QPS refused access to the relevant matter on the basis that disclosing the information could reasonably be expected to prejudice a system or procedure for the protection of persons and property under section 42(1)(h) of the FOI Act.
Is there a system or procedure?
The Information Commissioner was satisfied that the functions and methods of the CTS, set out in its charter, formed a sufficiently coherent, organised and comprehensive scheme to meet the definition of a ‘system’.
Is the system or procedure for the protection of persons, property or environment?
The Information Commissioner was satisfied that the role of the CTS, to prevent politically motivated violence, was clearly for the protection of persons and property.
Is there a reasonable expectation that disclosing the information could prejudice the system or procedure?
Since the applicant only sought access to information which was by the time of the review 8-10 years old, the Information Commissioner considered that the passage of time meant that the information was less confidential. Due to the length of time which had passed since the creation of the documents, the Information Commissioner was satisfied that prejudice to the procedure could not reasonably be expected to occur as a result of disclosing the information.
Accordingly, the relevant matter was not exempt under section 42(1)(h) of the FOI Act.
The applicant sought access to information in psychiatric reports prepared in connection with the regime set out under Part 4 of the Corrective Services Act for applications for parole. The Department of Corrective Services (Department) refused access to the relevant matter on the basis that disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons and property under section 42(1)(h) of the FOI Act.
Is the system or procedure for the protection of persons, property or environment?
The Deputy Information Commissioner stated that the statutory framework under which prisoners may apply for release into the community is arguably a system or procedure for the protection of persons within the meaning of section 42(1)(h) of the FOI Act. However, the Deputy Information Commissioner did not express a concluded view on this point as he was not satisfied that disclosing the relevant matter would have the required prejudicial consequences.
Is there a reasonable expectation that disclosing the information could prejudice the system or procedure?
The Deputy Information Commissioner considered that the parole system would be prejudiced if psychiatrists declined to provide parole boards with psychiatric assessments of prisoners, or were providing less frank and candid assessments.
However, considering that the relevant report had been compiled four years previously, the applicant had been released for nearly three years, the applicant was aware of most of the report, including the doctor’s identity and that the applicant had never pursued the doctor, showed any violence or tried to contact the doctor, the Deputy Information Commissioner was satisfied that disclosing the relevant matter, in this case, could not reasonably be expected to pose a threat to the system or procedure.
Accordingly, the relevant matter was not exempt under section 42(1)(h) of the FOI Act.
GIM and Department of Health (Unreported, Queensland Information Commissioner, 26 November 2008)
The applicant sought access to all documents relating to a JEO issued against the applicant. The Department of Health (Department) refused access to the relevant matter on the basis that disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons under section 42(1)(h) of the FOI Act.
Does the information consist of the type of information listed in section 42(2)?
The applicant raised a number of public interest concerns, however the Acting Assistant Information Commissioner noted there is no public interest test incorporated in section 42(1)(h) of the FOI Act. Section 42(2) does not provide for consideration of public interest concerns, unless the relevant matter is listed in section 42(2)(a) of the FOI Act. As the relevant matter was not of the type listed in section 42(2)(a) of the FOI Act the Acting Assistant Information Commissioner was unable to consider the public interest concerns raised. [38]
Is there a system or procedure?
The Information Commissioner considered the objects of JEOs and the scheme set out in Chapter 2, Part 3, division 2 of the Mental Health Act 2000 (MH Act 2000) and was satisfied that the legislative framework established a ‘system or procedure’. [25]
Is the system or procedure for the protection of persons, property or environment?
The Information Commissioner considered that it to be in the interests of the community to maintain a system which encouraged disclosing information which may prevent mentally ill persons harming themselves or others. If information used to support an application for the issue of a JEO under the MH Act 2000 was routinely disclosed, many members of the community would be inhibited from using the system or procedure in cases where it should appropriately be used. The scheme contemplates that the information be treated in confidence against the world at large and, depending on circumstances, against the subject of the JEO.
Accordingly, the Information Commissioner was satisfied that the MH Act 2000 established a system or procedure for the protection of persons as described in section 42(1)(h). [30-32]
Is there a reasonable expectation that disclosing the information could prejudice the system or procedure?
The Acting Assistant Information Commissioner considered that in accordance with the principles established in ROSK, disclosing information supplied by persons who provide information in support of a JEO Application under the MH Act 2000 could reasonably be expected to result in other potential informants being less likely to provide relevant information, thereby prejudicing the system or procedure for the protection of persons which is established by the provisions of the MH Act 2000.
Accordingly, the relevant matter was exempt under section 42(1)(h) of the FOI Act.
VHL and Department of Health (Unreported, Queensland Information Commissioner, 20 February 2009)
The applicant had been involuntarily detained and examined under a Justice Examination Order (JEO) and sought access to the JEO and the JEO application. The Department of Health (Department) refused access to the relevant matter on the basis that disclosure could reasonably be expected to prejudice to prejudice the statutory scheme for obtaining JEOs under the MH Act 2000). [38]
Is there a system or procedure?
The Information Commissioner considered the objects of JEOs and the scheme set out in Chapter 2, Part 3, division 2 of the Mental Health Act 2000 (MH Act 2000) and was satisfied that the legislative framework established a ‘system or procedure’. [43]
Is the system or procedure for the protection of persons, property or environment?
The Information Commissioner considered it to be in the interests of the community to maintain a system which encourages disclosing information which may prevent mentally ill persons harming themselves or others. If information used to support an application for the issue of a JEO under the MH Act 2000 was routinely disclosed, many members of the community would be inhibited from using the system or procedure in cases where it should appropriately be used. The scheme contemplated that the information be treated in confidence against the world at large and, depending on circumstances, against the subject of the JEO. [44-47]
Further, the explanatory note to the Mental Health Bill 2000 (Qld) stated: [48]
The scheme for involuntary treatment is necessary to protect the health and safety of persons with a mental illness and to ensure the safety of the community.
Accordingly, the Information Commissioner was satisfied that the procedure set out in the MHA 2000 for obtaining a JEO was a procedure ‘for the protection of persons, property or environment’. [49]
Is there a reasonable expectation that disclosing the information could prejudice the system or procedure?
The Information Commissioner was satisfied disclosing information supplied by persons who provide information in support of a JEO Application under the MH Act 2000 could reasonably be expected to result in other potential informants being less likely to provide relevant information, thereby prejudicing the system or procedure for the protection of persons which is established by the provisions of the MH Act 2000.
In response to the applicant’s submissions in favour of disclosure, the Information Commissioner noted the extensive safeguards put in place by the MH Act 2000 to avoid abuse of the procedure. [50-61]
The relevant matter was exempt under section 42(1)(h) of the FOI Act.
Last updated: March 1, 2012