Application of Section 45(3) FOI Act
1. Would disclosing the relevant matter disclose the purpose or results of research?
a) Purpose or results of research
'Purpose’ is defined by the Macquarie Online dictionary as, ‘an intended or desired result; end or aim’.
‘Results’ is defined by the Macquarie Online dictionary as, ‘that which results; the outcome, consequence, or effect’.
A record of business operations over a number of years cannot properly be categorised as the ‘results of research’ within the terms of section 45(3)(a) of the FOI Act.2
The categorisation of information extracted from computerised statistical data, is more akin to performance audit information than to the results of a research project undertaken to discover new facts or principles as required by section 45(3)(a) of the FOI Act.3
The Information Commissioner defined ‘research’ as:4
- a search or investigation undertaken to discover facts and reach new conclusions by the critical study of a subject or by a course of scientific enquiry; or
- a diligent and systematic enquiry or investigation into a subject in order to discover facts or principles.
The Information Commissioner found that information prepared in relation to the remediation of land is not research.5
2. Could disclosure reasonably be expected to have an adverse effect on the agency or other person by or on whose behalf the research was or is being carried out
a) Whether there exists an expectation of adverse effect on the agency or other person
The anticipated adverse effect must be on the agency or other person by or on whose behalf the research is being carried out, not on an external third party.6
If matter becomes public knowledge, for example a decision that is available on a Council website7 or information tendered as an exhibit in a court proceeding,8 it is unlikely that disclosure through an FOI application can have an adverse effect.
There can also be no adverse effect if the relevant matter has already been disseminated to the applicant by the objecting third party.9
‘Agency’ is defined in section 8 of the FOI Act as a department, local government, or public authority.
ii) Other person ‘on whose behalf’ the research was or is being carried out
In Spilsbury10 the Information Commissioner considered that the words ‘by or on whose behalf’ carry two possible meanings, either:
- referring to two persons simultaneously (ie, both the beneficiary of the research and the person carrying out the research); or
- referring to only one person (ie, the beneficiary of the research), while recognising that a person may carry out research for their own benefit as well as having it carried out for them.
b) Whether the expectation is reasonably based
There must be a reasonable basis for expecting that disclosing the relevant matter could have an adverse effect on the agency or other person by or on whose behalf the research is being carried out.11
See ‘Could reasonably be expected to’ Annotation.
2O’Dwyer and the Workers’ Compensation Board of Queensland (1995) 3 QAR 97 at paragraph 23.
3Coulthart and Princess Alexandra Hospital and District Health Service (2001) 6 QAR 94 at paragraph 88.
4O’Dwyer and the Workers’ Compensation Board of Queensland (1995) 3 QAR 97 at paragraphs 22-23.
5Fairfield Constructions Pty Ltd; Fairfield Land Pty Ltd and Department of Environment and Resource Management (Unreported, Queensland Information Commissioner, 23 December 2009) at paragraph 84.
6Coulthart and Princess Alexandra Hospital and District Health Service (2001) 6 QAR 94 at paragraph 92.
7Murphy and Department of Infrastructure and Planning (Unreported, Queensland Information Commissioner, 7 July 2010) at paragraph 85.
8Boully and Department of Natural Resources; Stevenson Financial Corporation Pty Ltd (Third Party); Stevenson (Fourth Party) (1998) 4 QAR 236 at paragraph 76.
9Fairfield Constructions Pty Ltd; Fairfield Land Pty Ltd and Department of Environment and Resource Management (Unreported, Queensland Information Commissioner, 23 December 2009) at paragraph 86.
10Spilsbury and Brisbane City Council; John Wilson & Partners Pty Ltd (Third Party); Environmental Resources Management (Qld) Pty Ltd (Fourth Party) (1995) QAR 335 at paragraph 59.
11 Section 45(3)(b) of the FOI Act.
Last updated: March 5, 2012