Application of Section 42(1)(i) 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 reasonable expectation that disclosing the relevant matter could facilitate a person’s escape from lawful custody?

a) Whether there exists an expectation of facilitation of a person’s escape from lawful custody

Whether disclosure could reasonably be expected to facilitate a person’s escape from lawful custody is determined by the circumstances of the case.

The Information Commissioner has previously considered that disclosing the following information could not reasonably be expected to facilitate a person’s escape from prison because the relevant matter would already be known to the prison population:¹

• compliance with prescribed safety and security procedures
• compliance with prison orders and rules
• general systems of control for prisoner movement
• general security measures for the prison
• recommendations for security changes that have been implemented.

b) Whether that expectation is reasonably based

See ‘Could reasonably be expected to’ Annotation.

The expectation 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),² 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:³

• 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 Prisoners’ Legal Service Inc and Queensland Corrective Services Commission (Unreported, Queensland Information Commissioner, 27 March 1997) at paragraphs 22 and 25-28.
² Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009).
³ Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009) at paragraph 193.