Application of Section 49 FOI Act

Relevant considerations

1. Is there an expectation of a substantial adverse effect on the financial or property interests of the State or an agency?

a) State or an agency

State’ is defined in section 36 of the Acts Interpretation Act 1954 (Qld) as ‘a State of the Commonwealth, and includes the Australian Capital Territory and the Northern Territory’.

Agency’ is defined in section 8 of the FOI Act as a department, local government or public authority. It includes a board, council, committee, subcommittee or any other body created by government to help or perform functions in connection with an agency.

b) Financial or property interests

There is no definition of what constitutes ‘financial or property interests’ of the State or an agency, however previous Office of the Information Commissioner decisions have found:

  • the acquisition of land is a financial or property interest of the State or an agency1
  • providing financial assistance to infrastructure projects is a financial interest of the State or an agency.2

c) Substantial adverse effect

The State or agency must identify the nature of the substantial adverse effect that disclosure could reasonably be expected to have.3

The phrase ‘adverse effect’ means an effect that is ‘real’, ‘actual’ or ‘having substance, not illusory’.4 The phrase ‘substantial adverse effect’ in section 49, requires the adverse effect be substantial, that is, ‘grave, weighty, significant or serious’.5

2. Is the expectation reasonably based?

The expectation of a substantial adverse effect on the financial or property interests of the State or agency must be reasonably based.

See ‘Could reasonably be expected to’ Annotation.

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

Even where disclosure could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency, matter will not be exempt if disclosure is in the public interest.6

1Little; Cantoni and Department of Natural Resources (1996) 3 QAR 170.
2Seeney, MP and Department of State Development; Berri Limited (Third Party) (2004) 6 QAR 354.
3Halcyon Waters Community Pty Ltd and Gold Coast City Council (Unreported, Queensland Information Commissioner, 14 September 2009) at paragraph 44.
4Cairns Port Authority and Department of Lands; Cairns Shelfco No.16 Pty Ltd (Third Party) (1994) 1 QAR 66 at paragraph 150.
5Cairns Port Authority and Department of Lands; Cairns Shelfco No.16 Pty Ltd (Third Party) (1994) 1 QAR 66 at paragraph 150.
6Cairns Port Authority and Department of Lands; Cairns Shelfco No.16 Pty Ltd (Third Party) (1994) 1 QAR 66 at paragraph 152.

Last updated: March 5, 2012