Key published decisions applying Section 12 IP Act

Swiatek and The University of Southern Queensland [2017] QICmr 57 (8 December 2017)

The applicant sought student assignment marks with the names and student numbers removed. The University of Southern Queensland (USQ) submitted that the identity of the students were reasonably ascertainable using the marks with only one additional data point.

The Information Commissioner found that the identities of individual students were not reasonably ascertainable using the marks and that, therefore, the marks do not contain personal information when considering the factors set out in Mahoney and definition of ‘personal information’ in section 12 of the Information Privacy Act 2009 (Qld).

Alsop and Redland City Council [2017] QICmr 27 (2 August 2017)

The applicant sought information in relation to general complaints about dogs at his property.

The Information Commissioner found that, after considering the factors set out in Mahoney, that despite the applicant being the registered owner of the dogs, owning the property where the dogs were located and being responsible for dealing with complaints about the dogs does not in fact make the information about the applicant. Therefore the general complaints about the dogs were not the personal information of the applicant.

Tomkins and Rockhampton Regional Council [2016] QICmr 2 (22 January 2016)

The applicant sought information in relation to a proposed enforcement action against the applicant’s dogs arising from an attack.

The Information Commissioner found that, because the information in issue contained sensitive information and photographs of the victim, it comprised information about the victim and therefore contained their personal information which, on balance, would be contrary to the public interest to release.

Marchant and Queensland Police Service (unreported, Queensland Information Commissioner, 10 September 2013)

The applicant sought de-identified information about call-outs to the Anglican Women’s Hostel at New Farm.

The Information Commissioner found, after considering Mahoney, that the identity of individuals are not reasonably ascertainable using the time, date and reason of the call-outs to the Hostel because there were multiple residents at any one time and the names of residents were not made public. This was considered in contrast to call-outs to a private residence which would identify an individual. The call-out information is not about the residents of the Hostel and therefore does not comprise their personal information and is not ‘prescribed information’ so the Queensland Police Service could not maintain its position of neither confirm nor deny. The Information Commissioner then set aside the internal review decision and found that disclosure of the information in issue is not, on balance, contrary to the public interest.

Mahoney and Ipswich City Council (Unreported, Queensland Information Commissioner, 17 June 2011)

The applicant sought access to information relating directly and indirectly to her property under the IP Act. The Ipswich City Council (Council) advised the applicant that her access application should be made under the RTI Act because under the IP Act she is only entitled to access documents containing her personal information. The applicant contended her application should proceed under the IP Act because the information she requested – information concerning land in which she had a proprietary interest – comprised her personal information. Council dealt with the application under the IP Act as if it were a request for documents relating directly to the applicant's land, issuing a decision refusing access on the basis that the documents sought did not exist.

Is the relevant information the applicant's personal information?

An access application can only be made and dealt with under the IP Act if all of the documents sought in the application contain the applicant's personal information.¹⁰ The threshold issue in this review was whether all Council documents relating directly or indirectly to the applicant's property necessarily contained the applicant's personal information.

Having regard to the definition of 'personal information' in section 12 of the IP Act, the RTI Commissioner considered that information will be an individual's personal information where the: [19]

• individual can be identified from the information sought; and
• information sought is about that individual.

Can the individual be identified from the information sought?

The RTI Commissioner considered that information about an individual which includes the individual's name will ordinarily be identifying.¹¹ Information other than a name, such as a photograph, or a detailed description may also identify an individual. [20]

Where an individual's identity is not apparent, the identity of the individual may be reasonably identifiable through additional information.¹² Whether the availability of additional information means that an individual's identity can be reasonably ascertained will depend on a number of factors such as: [21]

• how available the additional information is
• how difficult it is to obtain
• how many steps are required to identify the individual
• how certain the identification will be
• whether it will identify one specific individual or a group of people; and
• whether the individual receiving the information can use it to identify the individual.

In this case, the RTI Commissioner was satisfied the applicant could be identified from the information sought. Since a search of Council's databases would reveal that the applicant was the owner of the relevant property, the applicant could be identified from the information sought. [30]

Is the information sought about that individual?

Whether the information sought is about the individual must be determined according to the context of the case. [23] The RTI Commissioner considered that information must reveal a fact or opinion about the applicant for the information to be about the applicant. [26] In other words, there must be a sufficient link, or connection between the information sought and the identified individual, to make the information the individual's personal information. [26]

The applicant submitted that the fact of ownership provides a sufficient link between the information and the applicant to deem the information the applicant's personal information. [34] However, the RTI Commissioner did not accept that information of significance to land owned by the applicant necessarily constitutes personal information. The information sought did not reveal a fact or opinion about the applicant and without more, there was an insufficient connection between the information sought and the applicant to make the information the applicant sought about the applicant. In short, the information sought was about the applicant's land rather than the applicant. [35] The RTI Commissioner was satisfied that the information sought was not about the applicant and was therefore not the applicant's personal information.

Accordingly, the RTI Commissioner was satisfied that the access application was for access to a document other than to the extent it contained the applicant's personal information and was not an application that could be made under the IP Act. [36]

¹⁰ Section 40 of the IP Act.
¹¹ Mahoney and Ipswich City Council (Unreported, Queensland Information Commissioner, 17 June 2011) at paragraph 20.
¹² WL v La Trobe University [2005] VCAT 2592.