Key published decisions applying section 46(1)(b) FOI Act

B and Brisbane North Regional Health Authority (1994) 1 QAR 279

The applicant sought access to his medical records. Brisbane North Regional Health Authority (the Authority) refused access to part of the records concerning the personal affairs of a third party. The applicant applied to the Information Commissioner for review.

While section 46(1)(a) of the FOI Act protects confidences under the general law in an action for breach of confidence, the Information Commissioner considered the focus of section 46(1)(b) of the FOI Act was of minimising any prejudice to the future supply of information to government agencies, which might be occasioned by the threat of disclosure of the confidential information under the FOI Act.

Is the relevant information of a confidential nature?

The Information Commissioner considered the requirement that information be of a confidential nature under an equitable action in breach of confidence is the same as in section 46(1)(b) of the FOI Act.¹ As this element had been established in the application of section 46(1)(a) the information was of a confidential nature. [164] The Information Commissioner was satisfied the matter had the requisite degree of secrecy because the information was not common knowledge and was inaccessible to the public. [136] The third party's identity was also information of a confidential nature because disclosing the third party's identity would work to the third party's detriment in a 'not insubstantial' way. [137]

Was the relevant information communicated in confidence?

Information may be communicated in confidence if there is a mutual expectation the information is to be treated in confidence. [152] A mutual expectation of confidence could also be implied where the circumstances show a common implicit understanding that the confidentiality of the information imparted was to be preserved. [138] In the circumstances, the Information Commissioner considered the information was communicated in confidence because there was an express agreement between the third party and the Authority that the information provided by the third party along with the third party's identity would remain strictly confidential.

Could disclosure reasonably be expected to prejudice the future supply of such information?

The Information Commissioner was satisfied: [161]

[w]here persons are under an obligation to continue to supply such confidential information (e.g. for government employees, as an incident of their employment; or where there is a statutory power to compel the disclosure of the information) or persons must disclose information if they wish to obtain some benefit from the government (or they would otherwise be disadvantaged by withholding information) then ordinarily, disclosure could not reasonably be expected to prejudice the future supply of such information.

The Information Commissioner considered it was unnecessary to make a finding under section 46(1)(b) because section 46(1)(a) was already satisfied. In any event, there was insufficient evidence to indicate disclosing the relevant information could reasonably be expected to prejudice the future supply of such information.

Would disclosure, on balance, be in the public interest?

While the Information Commissioner did not specifically consider the public interest under section 46(1)(b) of the FOI Act, it was noted that the same public interest considerations arising under section 44(1) would apply. [167]

In balancing the public interest under section 44(1) of the FOI Act, the Information Commissioner considered that the public interest in members of the community ensuring the accuracy of information about their personal affairs was a relevant factor, but did not have any greater weight than the public interest factor favouring disclosure that an individual have access to information concerning their personal affairs. The Information Commissioner was satisfied the public interest considerations favouring disclosure of the relevant matter were not sufficient to outweigh the prima facie ground of exemption under section 44(1) of the FOI Act. [186]

The Information Commissioner was satisfied the relevant matter was exempt under sections 44(1) and 46(1)(a) of the FOI Act, but did not make a finding on section 46(1)(b) of the FOI Act.

McCann and Queensland Police Service (1997) 4 QAR 30

The applicant sought access to information, including transcripts of interviews, arising out of a disciplinary investigation in relation to complaints made by fellow police officers and civilian staff of the Department of Police (QPS) about the applicant. QPS refused access to the relevant matter under a number of provisions, including section 46(1)(b) of the FOI Act.

Is the relevant information of a confidential nature?

For the relevant matter to be of a confidential nature the information must not be known to the applicant and must have the requisite degree of relative secrecy or inaccessibility. [30]

The Information Commissioner considered that some of the relevant matter, including identities of complainants, which was put to the applicant during the course of the investigations was not information of a confidential nature because it was known to the applicant. However, the balance of the relevant matter that was not put to the applicant had the requisite degree of secrecy or inaccessibility. [32]

Has the relevant information been communicated in confidence?

For information to be communicated in confidence it must be imparted in circumstances where the information supplier's need or desire for confidential treatment (of the supplier's identity, or information supplied, or both) has been expressly or implicitly conveyed (or otherwise must have been apparent to the recipient) and has been understood or accepted by the recipient, giving rise to an express or implicit mutual understanding that the relevant information would be treated in confidence. [34]

As there was no evidence to suggest the complainants were given an express assurance that their identities and the information they supplied would be treated in confidence, the Information Commissioner considered what could reasonably have been understood and expected in the relevant circumstances. [36] Relevantly, the information was communicated to QPS on the basis of an implicit mutual understanding that QPS would treat the identity of the source of information and the information supplied in confidence.

The Information Commissioner was also satisfied there was an implicit mutual understanding that QPS could disclose such information where: [64]

• selective disclosure is necessary for conduct of relevant investigations to be more effective
• charges are laid as a result of an investigation and the information must be disclosed to the applicant in accordance with legal requirement of procedural fairness
• selective disclosure is necessary for keeping a complainant informed of the investigation's progress and the reasons for the investigations outcome if no formal action is taken.

The Information Commissioner also noted that caution is necessary when assessing whether a mutual understanding of confidence arises in the context of investigations for the purpose of enforcing or administering the law because such an expectation of confidence may not be reasonable or practicable in the circumstances.²

Could disclosure reasonably be expected to prejudice the future supply of such information?

As police officers and civilian employees of QPS have statutory duties and other obligations requiring the officers to report misconduct or behaviour, the Information Commissioner was not satisfied that disclosing information provided by police officers and civilian employees of QPS during an investigation of another police officer's misconduct or breach of discipline could reasonably be expected to prejudice the future supply of such information. [72-73]

In respect of information provided to QPS by people other than police officers and employees of QPS the Information Commissioner was satisfied that disclosing the relevant matter could reasonably be expected to prejudice the future supply of such information to QPS. While sources of the information will generally accept that disclosing such information is sometimes necessary for reasons outlined above, disclosure that is not necessary for those reasons could be reasonably expected to prejudice the future supply of such information from a substantial number of sources. [73]

Would disclosure, on balance, be in the public interest?

The Information Commissioner recognised the following public interest factors favouring disclosure of the relevant matter: [76, 78]

• the matter involved the applicant to such a degree that there was a justifiable 'need to know', more so than for the general public
• enhancing the accountability of QPS
• fair treatment in being given the opportunity to see and answer any adverse allegations.

The Information Commissioner was satisfied the public interest considerations favouring disclosure were not sufficient to outweigh the public interest consideration favouring nondisclosure inherent in satisfying the requirements of the exemption under section 46(1)(b) of the FOI Act.

Accordingly, the Information Commissioner found the information supplied by people other than QPS employees and police officers was exempt matter under section 46(1)(b) of the FOI Act.