Key published decisions applying Section 45(3) FOI Act
O'Dwyer and Workers' Compensation Board of Queensland (1995) 3 QAR 97
The applicant sought access to matter recording details of past performance in certain aspects of the business operations of the Workers’ Compensation Board of Queensland (Report). Access was refused under a number of FOI provisions, including section 45(3). [1-3]
The Information Commissioner noted that that the requirements of section 45(3) of the FOI Act are cumulative. [22-23]
The Information Commissioner was satisfied that the word ‘research’ means: [23]
- 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.
As the Report essentially recorded the business operations and performance of the Board over a number of years, the relevant matter could not properly be categorised as the ‘results of research’, under section 45(3)(a). [23] Further, the Information Commissioner was not satisfied that disclosing the Report could reasonably be expected to have an adverse effect on the Board, under section 45(3)(b).
Accordingly, the Report was not exempt matter under section 45(3) of the FOI Act. [22-23]
The applicant sought access to a report titled ‘Biosolids Management Study Report’ (Report) prepared by the Brisbane City Council (Council) and two consultants (Consultants). Council refused access to the relevant matter under a number of FOI provisions, including section 45(3). [1-3]
The Information Commissioner expressed the view that section 45(3) of the FOI Act was a clumsily drafted provision which requires reconsideration and amendment by Parliament to clarify its intended sphere of application. [56]
Even if disclosing the relevant matter were would ‘disclose the results of research’, the Information Commissioner was satisfied the research was completed and therefore fell outside the ambit envisaged by the section. [58]
While the use of the word ‘including’ in section 45(3)(a) suggests that the provision extends more broadly than to research that is yet to be started or finished, the operative test is provided by section 45(3)(b), which refers only to adverse effects on an agency or person on whose behalf research is being, or is intended to be carried out. Accordingly, the Information Commissioner was satisfied that the correct interpretation of section 45(3) of the FOI Act is that the section did not extend to research that has been completed. [58]
The Information Commissioner considered that the words ‘by or on whose behalf’ carry two possible meanings, either: [59]
- 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.
However, the Information Commissioner did not find it necessary to express a concluded view on this issue. [60]
The applicant sought review of the Department of Primary Industries’ (DPI) decision to refuse access to certain documents relating to a proposal by the third party to build a large dam on the third party’s agricultural property in south-west Queensland. The third party objected to DPI’s decision to disclose a large number of documents concerning the same subject matter and implemented a ‘reverse FOI’ application, which was also under review by the Information Commissioner.
The third parties asserted that the following matter was exempt under section 45(3) of the FOI Act:
- a Hazard Assessment Report
- a Supplementary Hazard Assessment Report.
The Information Commissioner referred to O’Dwyer and the Workers’ Compensation Board of Queensland,12 and concluded that the requirements of section 45(3) are cumulative.
The two reports were tendered as part of an exhibit in the Land Court, which indicated that the third party was content to have the reports become a matter of public record, in the interests of pursuing the grant of a licence for the proposed dam. [76] Accordingly, the Information Commissioner was satisfied that disclosing the relevant matter could not reasonably be expected to have an adverse effect on the third party. [76]
Accordingly, the relevant matter was not exempt under section 45(3) of the FOI Act. [76]
Coulthart and Princess Alexandra Hospital and District Health Service (2001) 6 QAR 94
The applicant sought access to parts of a folio which contained a statistical table of adverse outcomes from carotid artery surgery performed by the Princess Alexandra Hospital and Health Service District (Hospital). The Hospital refused access to the relevant matter under a number of FOI provisions, including section 45(3).
The Information Commissioner referred to O’Dwyer and the Workers’ Compensation Board of Queensland,13 and concluded that the requirements of section 45(3) are cumulative.
The Information Commissioner was satisfied that that the relevant matter was merely the categorisation of information extracted from computerised statistical data and patient records, more akin to performance audit information than to the results of a research project undertaken to discover new facts or principles. [88] Accordingly, the comparative statistical data extracted from the Hospital records was not ‘research’ for the purpose of section 45(3)(a) of the FOI Act. [86-87]
The Information Commissioner was satisfied that section 45(3)(b) refers only to adverse effects on an agency or person by or on whose behalf research is being, or is intended to be, carried out. [58] 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. [92] Here, there was no reasonable basis for expecting that disclosing the relevant matter could have any adverse effect on the Hospital or on the Doctor who compiled the research. Rather the adverse effect would impact upon a particular surgeon. Since the surgeon was not the person by or on whose behalf the alleged research was carried out, the relevant matter was not exempt under section 45(3) of the FOI Act. [92]
The applicant sought access to various documents from the Office of Urban Management in relation to the subdivision of a specific block of land in the suburb of Priestdale.
The issue before the Assistant Commissioner was the decision of the Department of Infrastructure and Planning (DIP) to disclose the relevant matter against the objections of a relevant third party.
The Assistant Commissioner found that matter will only be exempt under section 45(3) where the following two cumulative requirements are satisfied, namely disclosure: [120]
- would disclose the purpose of results of research; and
- could reasonably be expected to have an adverse effect on the agency or other person by or on whose behalf the research was, is being, or is intended to be, carried out.
The Assistant Commissioner applied the definition of ‘research’ from O'Dwyer and Workers' Compensation Board of Queensland.14
Whether there exists an expectation of adverse effect on the agency or other person
The third party submitted that the adverse effect of disclosing the relevant matter was that:
- it may delay or harm the third party’s negotiations with Logan City Council (Council); and
- it would arm the applicant with information that would enable them to agitate against a favourable outcome for the third party.
In relation to the first point, the Assistant Commissioner considered that Council had provided a decision notice regarding the proposed subdivision, which was publicly available on the Council’s website. As the third party’s appeal against aspects of Council’s decision was considered to not be substantially different in nature to the original application (now publicly available), it was difficult to accept that release of this information would have an adverse effect on the third party. [85] Further, the Assistant Commissioner did not consider that disclosing the relevant matter would ‘arm’ the applicant with information, as the applicant had already made it known to Council that it objected to the third party’s development application. [86]
The Assistant Commissioner considered it was merely speculative to suggest that Council would agree to more favourable conditions as a result of the third party’s representations. [127]
Whether the expectation is reasonably based
The Assistant Commissioner was satisfied that there was nothing in the relevant matter to suggest the adverse effects identified by the third party were reasonably based, rather than speculative. [95] As the requirement for an adverse effect was not established, the Assistant Commissioner did consider whether the relevant matter was ‘research’. [125]
Accordingly, the relevant matter was not exempt under section 45(3) of the FOI Act.
The applicants applied to the Department of Environment and Resource Management (DERM) for access to documents relating to the removal of a parcel of land from the Environmental Management Register. The relevant matter comprised part of a report (Report) prepared for the applicants by a third party. The third party objected to the release of the Report.
The Assistant Commissioner applied the definition of ‘research’ from O'Dwyer and Workers' Compensation Board of Queensland15 and found that the relevant matter was prepared by the third party in relation to the remediation of the relevant land and could not be described as ‘search or investigation undertaken to discover facts and reach new conclusions by the critical study of a subject or course of scientific enquiry’ or ‘a diligent and systematic enquiry or investigation into a subject in order to discover facts or principles’ for the purpose of section 45(3) of the FOI Act. [84]
Further, the Assistant Commissioner was satisfied that disclosing the relevant matter could not reasonably be expected to have an adverse effect on the person by or on whose behalf the research is carried out, as the relevant matter had already been disseminated by the third party to a director of the applicant companies. [86]
Accordingly, the relevant matter was not exempt under section 45(3) of the FOI Act.
12Re O’Dwyer and the Workers’ Compensation Board of Queensland (1995) 3 QAR 97 at paragraph 22-23.
13Re O’Dwyer and the Workers’ Compensation Board of Queensland (1995) 3 QAR 97 at paragraph 22-23.
14O'Dwyer and Workers' Compensation Board of Queensland (1995) 3 QAR 97 at paragraph 23.
15O'Dwyer and Workers' Compensation Board of Queensland (1995) 3 QAR 97 at paragraph 23.
Last updated: March 5, 2012