Key published decisions applying Section 44(1) FOI Act

Stewart and Department of Transport (1993) 1 QAR 227

The applicant sought access to documents relating to a complaint made by the applicant against a third party. The Department of Transport (Department) found that the applicant was liable to pay the application fee⁶ because, while the subject matter of the access request may be a matter to the applicant personally, it was not regarded as ‘personal affairs’ for the purpose of the FOI Act.

Personal affairs of a person

As the term ‘personal affairs’ is not defined in the FOI Act or the Acts Interpretation Act 1954 (Qld) (AI Act) the Information Commissioner considered that the phrase should be interpreted according to its natural and ordinary meaning. [8]

Despite the fact that section 36 of the AI Act defines ‘person’ to include a corporation, the Information Commissioner was satisfied, for the purpose of section 44 of the FOI Act, that ‘personal affairs’ refers to natural persons and does not extend to corporations, clubs or other organisations. [21-22]

The Information Commissioner was satisfied that ‘personal affairs’ does not include the business or professional affairs of a person. [27]

The Information Commissioner considered the Commonwealth, Victorian and New South Wales case law on the meaning of the phrase ‘personal affairs of a person’. While accepting Beaumont J’s definition of ‘personal affairs’ as ‘matters of private concern to an individual’,⁷ because the definition captures privacy considerations, the Information Commissioner expressed concern that the definition ‘carries the danger of incorrectly limiting the scope of the term ‘personal affairs’ to matters that are confidential to the person or at least not widely known’. [38]

The Information Commissioner considered that the definition of the word ‘personal’ in the Oxford English Dictionary (Aust. Ed.) provides an appropriate ordinary meaning for the purpose of the FOI Act. Accordingly, the Information Commissioner was satisfied that the term ‘personal affairs’ means ‘of or relating to the private aspects of a person’s life’. [55]

The Information Commissioner considered matters that clearly fall within the meaning of the phrase ‘personal affairs of a person’ include, but are not limited to: [78-80]

• information of a medical or psychiatric nature
• affairs relating to family and marital relationships
• health or ill-health
• relationships with emotional ties with other real people
• domestic responsibilities or financial obligations
• a persons’ signature
• a mention of a person’s name in police records
• complaints made by a prisoner as to his conditions in prison
• a person’s income
• information supplied by a prospective tenant for the purpose of obtaining a residential lease of premises

The Information Commissioner considered that records relating to the performance by a public servant of his or her duties clearly fall outside the meaning of the phrase ‘personal affairs of a person’ because ‘it would be inimical to the attainment of one of the major objects of the FOI legislation’. [85]

The Information Commissioner recognised the following “grey areas” within the ambit of ‘personal affairs’: [85]

• names, addresses and telephone numbers
• employment related matters
• ‘one off’ commercial transactions capable of concerning a persons’ personal affairs
• a document characterised as having a ‘public character’.

The Information Commissioner found that some of the relevant matter concerned the applicant’s ‘personal affairs’, but that some matter did not concern his personal affairs. Accordingly, the applicant was liable to pay the application fee. [120]

⁶ Payable in respect of applications made under the FOI Act for documents not concerning an applicant’s personal affairs.
⁷ Re Williams and Registrar of the Federal Court of Australia (1985) 8 ALD 219.