Key published decisions applying section 40 RTI Act
The Office of the Leader of the Opposition applied to the Treasury Department (Department) for all draft documents and material used to produce the flyer, Queensland assets sale - The Myths v The Facts.
The Department relied on section 40 of the RTI Act to refuse to deal with the application on the basis that:
- the application requested all documents of a stated kind containing information relating to a stated subject matter; and
- it appeared that all relevant documents were comprised of exempt information.
The Department relied on the exemption in schedule 3, section 2(1)(a) of the RTI Act on the basis that the documents comprised information brought into existence for the consideration of Cabinet.
The scope of the access application was not an issue in this review. The Information Commissioner considered the application of schedule 3, section 2(1)(a) to the relevant documents. She was satisfied that the documents appeared to be comprised of information brought into existence for the consideration of Cabinet, and would therefore comprise exempt information under schedule 3, section 2(1)(a) of the RTI Act.
The Information Commissioner was therefore satisfied that the Department was entitled to refuse to deal with the application under section 40 of the RTI Act.
The applicant sought access to documents regarding a complaint about an alleged criminal offence. The Department of Police (QPS) refused to deal with the access application under section 40 of the RTI Act.
The Information Commissioner stated that section 40 of the RTI Act will allow an agency to refuse to deal with an access application if the application requests documents of a particular class, containing information of a stated kind or relating to a stated subject matter, and the agency believes that all documents relating to the application comprise 'exempt information' under section 48 and schedule 3 of the RTI Act. 
The agency is not required to identify any or all the documents, therefore it was acceptable for QPS to neither confirm nor deny the existence of documents sought in the application. The Information Commissioner noted that when relying on section 40 of the RTI Act, section 54(2)(f) of the RTI Act requires the agency or Minister to set out the following information in its notification of decision: 
- the schedule 3 provision under which the information in the documents is considered to be exempt information; and
- the agency or Minister's reasons for classifying the information as exempt information.
In its decision, QPS did not identify a schedule 3 provision under which information relating to the access application would be exempt information. The decision provided that, whilst QPS neither confirms nor denies the existence of documents relating to the access application, if such documents did exist, the disclosure of the information would, on balance, be contrary to the public interest under section 49 of the RTI Act. This did not meet the requirements of section 40 of the RTI Act. By not identifying an exemption provision nor giving reasons as to why documents relevant to the access application would comprise exempt information, the decision did not disclose any basis for QPS to rely on section 40 of the RTI Act.  Therefore, the Information commissioner found that QPS could not rely on this section should be set aside. 
The Information Commissioner found that QPS could rely on section 55 of the RTI Act because if such documents existed they would contain 'prescribed information' under section 47(3)(b) being personal information the disclose of which would, on balance, be contrary to public interest under section 49 of the RTI Act. 
Last updated: May 9, 2014