This part provides information about how the public interest test has been applied in particular contexts or in relation to particular documents. The Information Commissioner has considered whether disclosing the following types of information would, on balance, be contrary to the public interest under sections 47(3)(b) and 49:
In addition to this part of the Annotation, please see the ‘Public interest test applied - factors’ part of this Annotation which provides links to decisions which have considered particular public interest factors listed in schedule 4, as well as links to FOI Act Annotations where FOI Act provisions operated in a similar way to the current RTI Act public interest factors.
Ordinarily, it is OIC’s view that information that does not reveal legal advice or representation and indicates total legal fees:
OIC’s usual view relates to legal fees paid by an agency.
In circumstances where legal fees are paid by an agency’s insurer’s underwriter, OIC has decided3 that the information:
This difference in position arose because the fees did not constitute expenditure of any public monies.4 (OIC considered submissions regarding payment of insurance premiums and potential premium increases – however, these were considered insufficient to raise oversight of expenditure of any public monies as a relevant factor). Further, in the circumstances of the review, it was accepted that the magnitude of legal fees revealed could reasonably be expected to indicate in broad terms the amount of legal work that was performed in relation to specific individual/s regarding matter/s involving the individual/s, and therefore gave rise to relatively strong factors favouring nondisclosure regarding personal information and privacy.5
Generally, it will not, on balance, be contrary to the public interest to disclose to an applicant information which the applicant has already provided to the agency, largely because the information usually comprises the applicant’s own personal information. Even if the information provided by the applicant contains information relating to other individuals, the potential prejudice to privacy is generally lessened (but not negated entirely) because the applicant is already aware of that particular personal information.6
However, where the information provided by an applicant contains sensitive information about other individuals or appears in a different form prepared by the agency, it may, on balance, be contrary to the public interest to disclose such information. For example, in 0ZH6SQ and the Department of Health,7 where information provided by a prisoner applicant about other individuals (including the applicant’s family members and sexual offence victims) appeared in a psychiatric report, the strong public interest in protecting the relevant individuals’ privacy tipped the balance of the public interest in favour of nondisclosure.
Applications are sometimes made for access to information relating to the recruitment process for a specific public service position, often by an unsuccessful candidate. After examining whether any relevant exemptions arise (eg. breach of confidence under schedule 3, section 8 of the RTI Act)8, it is relevant to consider whether disclosing such information would, on balance, be contrary to the public interest.
Access applicants who are unsuccessful candidates will ordinarily be entitled to access information about themselves.9
It will generally be, on balance, contrary to the public interest to disclose information relating to other unsuccessful candidates, including any information that would reveal their identity. This is because the fact of making a job application is considered to be that individual’s personal information to which a privacy interest attaches, and their privacy has not been diminished by their appointment to a public service role.10
In relation to the successful candidate, disclosing certain sensitive personal information (eg. remuneration, family and personal contact details, hobbies) will usually be contrary to the public interest.11
However, for other information relating to a successful candidate (eg. their job application comprising a covering letter, CV, a statement addressing selection criteria) the public interest balancing test is more complex, requiring consideration of the following issues.
Factors favouring disclosure that usually arise include that disclosure could reasonably be expected to:
OIC has also noted on several occasions that for feedback to unsuccessful candidates to be meaningful and effective, it would frequently necessitate comparison of the areas in which, and the basis upon which, the successful candidate was assessed as being superior to the unsuccessful candidate.12
The factors favouring nondisclosure which would usually arise are that the information comprises the successful candidate’s personal information and that disclosure could reasonably be expected to prejudice their right to privacy. However, if the successful candidate’s sensitive personal information is removed from the information, there is usually a low weight attributed to these factors, even where the information in issue comprises work history details in a CV and selection criteria responses.13 In assessing the weight to accord to these factors favouring nondisclosure, it may be relevant to consider any policies of the agency concerning disclosure of such information. For example, were job candidates informed that the agency has a policy of disclosing certain details about the recruitment process as a matter of standard procedure?
The existence and content of an agency’s policies may also be relevant to examining whether disclosing a successful candidate’s information could reasonably be expected to prejudice the future supply of confidential information. However, the Information Commissioner has previously rejected this factor, given that someone who is genuinely interested in a position would not be deterred from applying simply because their application may be open to scrutiny in the event they were appointed to the position.14
A further factor to consider is whether disclosing the information could reasonably be expected to prejudice an agency’s management function or its conduct of industrial relations. However, the Information Commissioner has previously dismissed reliance on the former provision under the FOI Act, as there was no reasonable basis for expecting that disclosure could damage the morale of participants or cause them undue stress, let alone to a level that would qualify as a substantial adverse effect.15
Corrective facilities hold various documents that may be sought under the RTI and IP Acts (eg. recordings of telephone calls, CCTV footage and records of visits).
Parliament has recognised that disclosure of certain information in the possession of, or brought into existence by, the Department of Community Safety in relation to corrective services facilities, could reasonably be expected to cause a public interest harm (Schedule 4, Part 4, item 5), however, various other factors favouring both disclosure and nondisclosure may also be relevant depending on the circumstances of the case.
When considering an application for access to video footage from Arthur Gorrie Correctional Centre in Beale and Department of Community Safety,16 the Assistant Information Commissioner accorded very significant weight in favour of nondisclosure due to the important security function which video recording systems perform in correctional facilities. The Assistant Information Commissioner also took into account:
The Information Commissioner has published a number of decisions17 which consider documents created by regulatory agencies while carrying out their regulatory functions, including:
These types of documents generally record whether an official is satisfied on a reasonable basis that a breach of the relevant Act has occurred.18 The documents may also disclose details of how a complaint of a breach of the relevant Act has been assessed, investigated and finalised by the relevant regulatory agency.
When considering whether it would, on balance, be contrary to the public interest to disclose regulatory documents, it may be useful to consider where they sit on the spectrum between unsubstantiated allegations on the one end (which are not generally disclosed due to the high level of prejudice to business affairs that could reasonably be expected to result from disclosure), and documents which have been the subject of court proceedings on the other (which are often available through the courts). Regulatory documents are generally more reliable than unsubstantiated allegations, because they generally require an official to be satisfied on a reasonable basis that the relevant act has occurred. They do, however, require less evidence than information which shows there has been a conviction or finding in court.
So far, in relation to the regulatory documents which have been the subject of external review, the Information Commissioner has found that disclosure would not, on balance, be contrary to the public interest because the potential prejudice to business affairs has been outweighed by factors favouring disclosure such as:
In Australian Workers’ Union and Queensland Treasury; Ardent Leisure Limited (Third Party)  QICmr 28 (28 July 2016) the Assistant Information Commissioner considered whether records held by Workplace Health and Safety Queensland in relation to safety complaints about amusement rides and ride-related plant and machinery would, on balance, be contrary to the public interest to disclose. The Assistant Information Commissioner found that a moderate prejudice to the commercial affairs of the relevant amusement ride operator and its willingness to cooperate with WHSQ in the future was outweighed by the significant weight that could be attributed to the public interest factors listed above. This decision explained that there is a clear public interest in the community being able to discuss and understand the way in which regulatory entities such as WHSQ perform their responsibilities under legislation and this has heightened importance in the context of public safety issues relating to amusement rides.
Government is accountable to the public regarding the decisions it makes to award tenders for the performance of work that is to be paid for from public funds. Government agencies must be able to demonstrate that tender processes have been carried out fairly and equitably, and that the successful tenderers were the best candidates, in terms of efficiency, effectiveness and economy in the delivery of services to be paid for from public funds.19
There are strong public interest considerations favouring disclosure of information about successful tenders as it:20
OIC decisions have recognised that pricing information has a degree of commercial sensitivity for suppliers of goods and services operating in a competitive market. The degree of commercial sensitivity will vary from case to case according to a number of key factors including the nature and detail of the pricing information, whether it is current or merely historical and the nature and custom of the particular market.24 Generally the total price at which a supplier is prepared to offer particular items (i.e. prices quoted in a lump sum) is less sensitive than details of the supplier's pricing structure, e.g. detailed descriptions of the component elements of a tender price.25
It has been consistently found that disclosure of a successful tender submission could not reasonably be expected to result in organisations deciding not to tender for work, homogenising tender submissions generally or omitting significant information needed for the evaluation of their tenders which would disadvantage them in the competition for government contracts.26
Tender documentation often contains personal details about employees, such as personal contact information. This information may appear incidentally, for example, through copies of their current driver’s license being included in the tender document. Often this information will be considered contrary to the public interest to disclose for privacy reasons.27
In assessing whether information was provided in confidence by a tenderer, it will generally be necessary to carefully consider the tender process and any related documentation.28
Information about a tenderer’s business systems and service standards may not be disclosed where there is a reasonable basis for expecting that its disclosure could confer a competitive advantage on the tenderer’s competitors (with a corresponding adverse effect on the tenderer).29 However, information about standards of service and performance indicators in the contract with the successful tenderer, and information about performance standards achieved by the contractor, is the kind of information which attracts a strong public interest consideration favouring disclosure.30
Deliberative process documents comprise opinions, advice or recommendations obtained, prepared or recorded31 in the course of or for the ‘thinking processes’32 of government. They also include documents that reveal a consultation or deliberation that has taken place in the course of, or for, these ‘thinking processes’. Examples include:
The RTI Act recognises that disclosure of ‘deliberative process’ documents can reasonably be expected to cause a public interest harm (the harm factor).40 It also recognises that there is a public interest in protecting information where disclosure could reasonably be expected to prejudice a deliberative process of government (the prejudice factor).41
The harm factor does not apply to documents to the extent that the documents consist of purely factual or statistical information, including the raw data or evidentiary material upon which decisions are made.42 It is also important to consider whether documents can be correctly described as containing ‘deliberative process’ information, or whether they merely record the procedural or administrative functions of an agency.43
If it is established that the harm factor or the prejudice factor (or both) apply in relation to ‘deliberative process’ documents, it does not necessarily follow that access can be refused. Rather, it is necessary to consider the nature and extent of the public interest harm that may result through disclosure, and to balance this harm against any relevant factors favouring disclosure.44
In previous decisions, the Information Commissioner has found that access could be refused to ‘deliberative process’ documents where disclosure would result in unnecessary harm – emotional, financial or reputational - to members of the public.45 For example, the Information Commissioner has recognised that significant harm may arise where documents disclose options for infrastructure development, and these options have the potential to significantly impact on people’s land and amenity.46
On the other hand, there are generally strong and compelling public interest arguments favouring disclosure of deliberative process information that must be balanced against the relevant nondisclosure factors. Disclosure of this type of information – including draft information – not only promotes the accountability and transparency of government,47 but may also:
Depending on the circumstances, when a deliberative process has been finalised, the public interest harm in disclosing the relevant documents may be low.53 However, the fact that a relevant process is ongoing, does not, of itself, permit a conclusion that disclosure would, on balance, be contrary to the public interest.54 The Information Commissioner has recognised that providing timely access to information regarding ongoing deliberative processes is essential if the RTI Act is to achieve one of its major objects, i.e., ‘promoting informed public participation in the processes of government’.55
Public interest factors arise for consideration where disclosing information could reasonably be expected to contribute to or impede the administration of justice either generally (including procedural fairness) or for a person.56 In many cases, the public interest balancing test will involve weighing these factors with competing factors such as those relating to the privacy and personal information of other individuals. These factors were discussed in the following reviews.
In Zacka and Fraser Coast Regional Council; BGM Projects Pty Ltd (Third Party) & Ors  QICmr 2 (14 February 2019), the Information Commissioner found that the release of confidential discussions between Council and a third party that were held on a 'without prejudice' basis would impede the administration of justice on the basis that Council would struggle to conduct alternative dispute resolution under its obligations as a model litigant.
In 1OS3KF and Department of Community Safety, the agency’s decision to release information identifying an individual was affirmed57 on the basis that:
Similarly, in Volep and Queensland Police Service, access was granted to the names and addresses of a number of witnesses to an accident in circumstances where the applicant had suffered personal injury and sought compensation for injuries under the Motor Accident Insurance Act 1994 (Qld) (MAI Act). In that matter, the applicant was precluded from signing the certificate of readiness for trial because he could not obtain the identities of the witnesses, nor obtain statements from them. Significant weight was accorded to the administration of justice factors favouring disclosure on the basis that it was in the public interest to ensure that:
In Nine Network Australia Pty Ltd and Queensland Police Service, the RTI Commissioner decided that disclosing some of the evidence created or obtained by QPS during an investigation that led to a manslaughter conviction would not, on balance, be contrary to the public interest. The RTI Commissioner considered that disclosing the information could reasonably be expected to contribute to the administration of justice generally and identified, as part of this factor, two related aspects, namely:
In l6XD0H and Department of Community Safety, the decision to refuse access to witness statements in the context of a workplace investigation was affirmed. The applicant indicated he sought access to the information in order to fully understand the nature of the allegations against him, and to allow him to respond more adequately and comprehensively. The Assistant Information Commissioner decided that no procedural fairness issues arose for consideration in the circumstances as the investigation was complete, the disciplinary process was finalised and the applicant had received considerable information about the investigation. See also the decision in G8KPL2 and Department of Health for consideration of these factors in the context of a workplace investigation.
Similarly, in P6Y4SX and Department of Police, the applicant sought access to the information in issue for the purpose of knowing all of the allegations made against him, contending that he needed to respond to the allegations and clear his name through the courts. Again, it was found that this factor did not arise:
No procedural fairness issues arise because the applicant had an opportunity to refute the allegations through the police investigation process, which ultimately led to the matter being finalised. As QPS determined that no offence occurred, the matter did not proceed to charges being laid and being heard before a court. The applicant has not been named in a criminal matter as generally occurs when such matters proceed to court. In any event, he has already been cleared of any wrongdoing through the preliminary investigation process. There is simply no case for the applicant to answer because QPS concluded there was no substance to the claims and therefore this factor favouring disclosure does not arise in this case.
Last updated: March 28, 2012