Key published decisions applying Section 73 FOI Act

Young and Workers' Compensation Board of Queensland (1994) 1 QAR 543

Here, the application for external review was made more than four months after the timeframe under section 73(1)(d) of the FOI Act had expired. The application was received by Department of Justice and Attorney General (DJAG) and forwarded ‘promptly’ to the Office of the Information Commissioner.

The decision identifies the principles the Information Commissioner considered in determining whether to exercise the discretion conferred by section 73(1)(d) of the FOI Act.

The Information Commissioner considered decisions from a number of jurisdictions, ultimately endorsing and summarising the principles set out in Hunter Valley Developments Pty Ltd v Cohen:⁹

• the extent of the delay in applying for review and whether the applicant has an acceptable explanation for the delay;
• the balance of fairness, having regard to any prejudice that would be occasioned to the applicant by a refusal to grant an extension of time compared with any substantial prejudice that would be occasioned to the respondent or to third parties by the grant of an extension of time; and
• the merits of the substantive application for review, i.e. whether it raises genuine issues and discloses a reasonably arguable case, with reasonable prospects of success, in respect of one or more of the documents in issue; or whether it would be futile to permit the application to proceed because it is apparent that the applicant lacks any grounds of substance for challenging the decision under review and has no reasonable prospect of success (it is a characteristic of these cases that the applicant is not aware of the precise contents of the information in issue).

In considering the merits of the substantive application for review, the Information Commissioner briefly considered the applicant’s challenge to the agency’s reliance upon the exemption contained in section 42(1)(b) of the FOI Act. The Information Commissioner considered the applicant did not provide a compelling explanation for the delay in applying for review and there would not be any substantial prejudice to him by refusing the extension of time (as the relevant document would likely be accessible under court discovery procedures).¹⁰

Ultimately, the factor that carried the most weight in the exercise of the Information Commissioners discretion was that the application for review was without merit.¹¹

Daglish and Department of Natural Resources and Water (Unreported, Queensland Information Commissioner, 24 January 2007)

Here, the application for external review was made 13 days after the timeframe under section 73(1)(d) of the FOI Act had expired. The Assistant Information Commissioner applied the principles adopted in Young and Workers' Compensation Board of Queensland,¹² and found that:

• the volume of documents for the applicants to read was not an acceptable explanation for the delay
• Department of Natural Resources and Water, would not suffer any substantial prejudice if the extension was granted
• the merits of the applicant’s substantive application were not strong and did not adequately challenge the Department’s grounds for refusal of access under sections 36(1) and 50(c)(i) of the FOI Act.

Accordingly, the Assistant Information Commissioner declined to exercise the discretion under section 73(1)(d) of the FOI Act.

Sports Drinks Australia Pty Ltd and Department of Tourism, Small Business and Industry (Unreported, Queensland Information Commissioner, 13 January 1997)

Here, the application for external review was made 30 days after the timeframe under section 73(1)(d) of the FOI Act had expired. The applicant submitted he believed there were 60 days to seek review and cited an information sheet provided by the agency, which contained timeframes for a normal application, rather than a ‘reverse FOI application’, as was the case here.

The Information Commissioner applied the principles adopted in Young and Workers' Compensation Board of Queensland,¹³ and found that:

• 30 days is not a ‘trivial’ delay
• though the time frames stated in the information sheet could cause confusion, a reasonably prudent applicant would seek clarification
• as the application was a ‘reverse FOI application’, the agency would suffer no prejudice, nor the applicant any special prejudice (other than loss of the right of review), however the access applicant would suffer prejudice in the form of delay in accessing documents
• the substantive application had no reasonable prospects of success.

Accordingly, the Information Commissioner decided not to exercise his discretion under section 73(1)(d) of the FOI Act.

Tregeagle and Gold Coast City Council (Unreported, Queensland Information Commissioner, 18 October 2000)

Here, the application for external review was made 25 days after the timeframe under section 73(1)(d) of the FOI Act had expired.

The Deputy Information Commissioner applied the principles adopted in Young and Workers' Compensation Board of Queensland,¹⁴ and found that:

• the applicant offered a reasonable explanation for the delay, explaining that he was involved in a lengthy court action with the agency (which the applicant subsequently won) and was, at the same time, moving the family residence
• Gold Coast City Council submitted that it would suffer prejudice in the form of ‘unreasonable cost and absorption of staff time’, especially given that it intended to argue that legal privilege attached to the documents. The Information Commissioner did not accept this as substantial prejudice because a valid application within time would have required the same resourcing.
• In this instance, the applicant had a reasonably arguable case with reasonable prospects of success regarding application of section 43(1) of the FOI Act to the documents in issue.

Accordingly, the Deputy Information Commissioner decided to exercise his discretion to extend time under section 73(1)(d) of the FOI Act.

⁹Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. [up]
¹⁰Young and Workers Compensation Board of Qld (1994) 1 QAR 543 at paragraph 23. [up]
¹¹Young and Workers Compensation Board of Qld (1994) 1 QAR 543 at paragraph 24. [up]
¹²Young and Workers' Compensation Board of Queensland (1994) 1 QAR 543. [up]
¹³Young and Workers' Compensation Board of Queensland (1994) 1 QAR 543. [up]
¹⁴Young and Workers' Compensation Board of Queensland (1994) 1 QAR 543. [up]