Application of Section 42(1)(j) 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 natural resource, cultural resource or habitat?

a) Natural resource

The Macquarie Online dictionary defines a ‘natural resource’ as ‘a resource which occurs naturally, such as sunlight, wind, soil, water, etc’.

b) Cultural resource

The Macquarie Online dictionary defines ‘cultural’ as ‘of or relating to culture or cultivation’.

c) Habitat of animals or plants

The Macquarie Online dictionary defines a ‘habitat’ as ‘the native environment or kind of place where a given animal or plant naturally lives or grows, as warm seas, mountain tops, fresh waters, etc’.

3. Is there a reasonable expectation that disclosing the information could prejudice the wellbeing of a cultural or natural resource or the habitat of animals or plants?

a) Whether that expectation is reasonably based

See ‘Could reasonably be expected to’ Annotation.

The expectation of prejudice 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