Key published decisions applying Section 89A FOI Act

Price and Department of Police (Unreported, Queensland Information Commissioner, 27 February 2009)

The applicant requested a review of a decision of the Information Commissioner on the basis that it contained serious errors. He submitted that the Information Commissioner had the power to review, uphold vary or set aside a delegate’s decision, in accordance with section 24AA of the Acts Interpretation Act 1954 (Qld) (AI Act):

24AA Power to make instrument or decision includes power to amend or repeal

If an Act authorises or requires the making of an instrument or decision—

(a) the power includes power to amend or repeal the instrument or decision; and

(b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.

Does the Information Commissioner consider there is an obvious error in a written decision that resulted from an accidental slip or omission?

The Information Commissioner was satisfied the FOI Act expressed the necessary ‘contrary intention’ to displace section 24AA of the AI Act. [49] The power of review given by the Judicial Review Act 1991 (Qld) provided a sufficient basis to form the view that the Information Commissioner does not have any power to vary, revoke or affirm an external review decision. [50]

Section 89A is the only provision in the FOI Act that gives the Information Commissioner the power to alter a decision. This authority is limited to correcting an error that the Information Commissioner considers is obvious and resulted from an accidental slip or omission. [42] Since the applicant was not seeking the correction such an error, the decision could not be corrected under section 89A of the FOI Act.

The Information Commissioner was satisfied that she had no power under section 89A of the FOI Act to set aside, vary or correct the decision. [43]