Application of Section 42(3A) FOI Act
1. Does the exclusion in section 42(3B) apply to the matter?
Matter is not exempt under section 42(3A) if:
- the matter consists of information about the applicant; and
- the investigation has been finalised.
a) Does the matter consist of information ‘about the applicant’?
The word ‘about’ is not defined in the FOI Act or the Acts Interpretation Act 1954 (Qld). Accordingly, the Information Commissioner has accepted the Macquarie Dictionary definition of the word; ‘concerning; in regard to…connected with’.2
The decision in McKay and Department of Justice and Attorney-General3 considered whether relevant matter was ‘about the applicant’. The relevant matter was created during the course of an investigation which was initiated on the basis of complaints made by the applicant. The Assistant Commissioner considered that such information will not usually be ‘about the applicant’ for the purposes of section 42(3B) of the FOI Act.
In McKay the Assistant Commissioner referred to the explanatory notes4 to the Bill that inserted section 42(3A) and Parliament’s intention in inserting the section 42(3A), that applicants be entitled to obtain information from a finalised investigation about:
- allegations made against them
- information given about them in the course of an interview; and
- conclusions made about them in a report.
b) Has the investigation been finalised?
The investigation to which the relevant matter relates must be finalised for the exclusion in section 42(3B) of the FOI Act to apply.
2. Was the matter obtained, used or prepared for an investigation by a prescribed crime body or another agency?
a) Obtained, used or prepared
The terms ‘obtained’, ‘used’ and ‘prepared’ are not defined in the FOI Act. The Information Commissioner has accepted the ordinary meanings of ‘use’ and ‘prepare’ as defined by the New Shorter Oxford English Dictionary:5
Use: employ…;…make use of.
Prepare: compose and write out, draw up (a text or document)…produce or form…manufacture, make.
The term ‘investigation’ is not defined in the FOI Act. However, the Information Commissioner has found it relevant to consider the meaning of ‘investigate’ as defined in the Crime and Misconduct Act 2001 (Qld) (CM Act). Schedule 2 of the CM Act defines ‘investigate’ as ‘examine and consider’.6
The Assistant Information Commissioner has previously found that the CMC’s assessment of a complaint concerning suspected misconduct is an ‘investigation’ because it involves an examination and consideration of the allegations.7 Conducting formal interviews also falls within the meaning of ‘investigate’.8
c) Prescribed crime body or another agency
‘Prescribed crime body’ for the purpose of section 42 of the FOI Act is defined in section 42(5) to mean the Crime and Misconduct Commission (CMC), the former Criminal Justice Commission or the former Queensland Crime Commission.
In certain circumstances, the CMC will refer a matter to another agency to be dealt with subject to the CMC’s monitoring role and a requirement that the other agency advise CMC of the outcome of the investigation.9 In these situations, information obtained, used or prepared for the relevant investigation will be subject to this exemption.
3. Is the investigation in the performance of the prescribed crime body’s functions?
The ‘prescribed functions’ of the prescribed crime bodies are defined in section 42(5) of the FOI Act.
Relevantly, the prescribed functions of the CMC are the ‘crime function’ and the ‘misconduct functions’. These functions are defined in the CM Act as:
25 Commission’s major crime function
The commission has a function (its crime function) to investigate major crime referred to it, under division 2, by the reference committee.
33 Commission’s misconduct functions
The commission has the following functions for misconduct (its misconduct functions)—
(a) to raise standards of integrity and conduct in units of public administration;
(b) to ensure a complaint about, or information or matter involving, misconduct is dealt with in an appropriate way, having regard to the principles set out in section 34.
2McKay and Department of Justice and Attorney-General (McKay) (Unreported, Queensland Information Commissioner, 25 May 2010) at paragraph 79.
3McKay and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 25 May 2010).
4Explanatory Notes, Freedom of Information and Other Legislation Amendment Bill 2005 (Qld).
5Springborg, MP and Crime and Misconduct Commission; RZ (Third Party), BX (2006) 7 QAR 77 at paragraph 27.
6Springborg, MP and Crime and Misconduct Commission; RZ (Third Party), BX (Fourth Party), Director-General of the Department of Justice and Attorney-General (Fifth Party) (2006) 7 QAR 77 at paragraph 58.
7Springborg, MP and Crime and Misconduct Commission; RZ (Third Party), BX (Fourth Party), Director-General of the Department of Justice and Attorney-General (Fifth Party) (2006) 7 QAR 77 at paragraphs 56 and 59.
8Springborg, MP and Crime and Misconduct Commission; RZ (Third Party), BX (Fourth Party), Director-General of the Department of Justice and Attorney-General (Fifth Party) (2006) 7 QAR 77 at paragraph 59.
9See Parsons and Department of Police (Unreported, Queensland Information Commissioner, 13 October 2010) at paragraph 8 where the Assistant Commissioner recognised that the CMC can perform its ‘misconduct functions’ in several ways, including assessing information itself, referring complaints to a public official to be dealt with by the public official, and/or performing its monitoring role.
Last updated: March 5, 2012