Key published decisions applying Section 42(3A) FOI Act

McKay and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 25 May 2010)

The applicant sought access to a report (Report) which arose out of a misconduct complaint made by the applicant to the Crime and Misconduct Commission (CMC). The Department of Justice and Attorney-General (Department) refused access to parts of the Report and relied on a number of FOI provisions including section 42(3A).

Does the exclusion in section 42(3B) apply to the matter?

Does the matter consist of information ‘about the applicant’?

The Assistant Commissioner was satisfied that the matter in the Report was about two officers of the Department (the subjects of the complaint), rather than the applicant. [81] The Assistant Commissioner referred to the Explanatory Memorandum to the Bill10 which provides a good explanation of situations where information will be about the applicant: [73]

… a person seeks information about themselves, including personal, professional, business and work-related information. However, a person can only receive such information once the investigation has been finalised. For example, and subject to the other exemptions of the FOI Act, a person could receive information about allegations made against them, information given about them in the course of an interview and conclusions made about them in a report.

Was the matter obtained, used or prepared for an investigation by a prescribed crime body or another agency?

In accordance with its misconduct functions, the CMC referred the complaint to the Department for investigation, subject to the CMC’s monitoring role. [58]

Is the investigation in the performance of the prescribed crime body’s functions?

The Assistant Commissioner was satisfied that the Department, which was investigating the complaints in accordance with the CMC’s referral under section 46(2)(b) of the CM Act, was another agency performing the prescribed misconduct functions of the CMC. [60]

Accordingly, the relevant matter was exempt under section 42(3A) of the FOI Act.

Parsons and Department of Police (Unreported, Queensland Information Commissioner, 13 October 2010)

The applicant sought access to records of an incident concerning senior officers of the Department of Police (QPS) and a journalist as well as interviews with the QPS officers.

Does the exclusion in section 42(3B) apply to the matter?

Does the matter consist of information ‘about the applicant’?

The Assistant Commissioner was satisfied that the relevant information was not information about the applicant and accordingly, the section 42(3A) exempt did not apply.

Was the matter obtained, used or prepared for an investigation by a prescribed crime body or another agency?

The Assistant Commissioner was satisfied that the information was obtained, used or prepared for an investigation by QPS’s Ethical Standards Command.

Is the investigation in the performance of the prescribed crime body’s functions?

The Assistant Commissioner found that the CMC can perform its prescribed misconduct functions by: [8]

  • assessing information itself;
  • referring complaints to a public official to be dealt with by the public official; and/or
  • performing its monitoring role for police misconduct or official misconduct.

The CMC referred the complaint about police misconduct to the QPS, subject to the CMC’s monitoring role. Accordingly, the Assistant Commissioner was satisfied that QPS was another agency performing the CMC’s prescribed misconduct functions. [24]

Accordingly, the relevant matter was exempt under section 42(3A) of the FOI Act.

Springborg, 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

The applicant sought access to documents concerning allegations into the conduct of a fourth party at a Government social gathering. The CMC refused access to some relevant matter on the basis of section 42(3A) of the FOI Act. Specifically, the relevant matter consisted of tapes and records from an interview with a third party and other internal CMC documents.

Was the matter obtained, used or prepared for an investigation by a prescribed crime body or another agency?

The Assistant Information Commissioner was satisfied that the tapes and records as well as other internal CMC documents were ‘prepared’ by the CMC in its assessment of possible misconduct. [27]

Is the investigation in the performance of the prescribed crime body’s functions?

The ‘prescribed functions’ of the CMC are defined in section 42(5) of the FOI Act as the crime function and the misconduct function as defined in the Crime and Misconduct Act 2001 (Qld) (CM Act). Upon receiving the applicant’s complaint concerning suspected misconduct, the CMC was exercising its misconduct functions in accordance with section 33(b) of the CM Act. [47]

The Assistant Information Commissioner found it relevant to consider the meaning of ‘investigate’ as defined in CM Act. Schedule 2 of the CM Act defines ‘investigate’ as ‘examine and consider’. [56] The CMC’s assessment of the complaint concerning suspected misconduct was found to be a part of an ‘investigation’ because it involved examining and considering the allegations. [56] The Assistant Information Commissioner was satisfied that the CMC’s evaluation of the matter provided by the applicant and the CMC’s formal interviews with the third party both fell within the meaning of an ‘investigation’. [59]

Accordingly, the relevant matter was exempt under section 42(3A) of the FOI Act.

10Freedom of Information and Other Legislation Amendment Bill 2005 (Qld).

Last updated: March 5, 2012