Key published decisions applying section 55 RTI Act
The applicant sought access to deidentified information about QPS callouts to the Anglican Women’s Hostel at Newfarm. QPS’ decision to rely on section 55 of the RTI Act was set aside and a decision substituted that disclosure of the information in issue was not, on balance, contrary to the public interest.
The applicant sought access to an investigation report about a particular practitioner. The Psychologists Board of Queensland refused to deal with the access application under sections 40 and 55 of the RTI Act.
The Assistant Commissioner found that the Psychologists Board of Australia (Board)1 could not rely on section 40 of the RTI Act because the application was for a single document, rather than a class of documents. [9-11]
The Assistant Commissioner considered whether the Board could rely on section 55 of the RTI Act to neither confirm nor deny the existence of the document sought and was satisfied, given the terms of the access application, that if the report did exist, it would comprise personal information of an individual other than the applicant. [17]
The applicant submitted that personal information could be deleted or would otherwise already be in the public domain, however, it was noted that in the absence of the agency confirming the existence of the report, these were not relevant considerations.
The Assistant Commissioner acknowledged that the public interest in accountability and public scrutiny of the Board would weigh in favour of disclosure if the report existed, though the public interest in protecting privacy would also be afforded significant weight. Prejudice to the flow of information to the Board was found to be a determinative factor in the Assistant Commissioner being satisfied that disclosure of the personal information, if the report existed, would, on balance, be contrary to the public interest. Therefore, the Board was entitled to rely on section 55 of the RTI Act to neither confirm nor deny the existence of the document sought. [23-46]
Tolone and Department of Police (Unpublished, Queensland Information Commissioner, 9 October 2009)
The applicant sought access to documents regarding a complaint about an alleged criminal offence. The applicant named the individuals who he believed the documents referred to. The Department of Police (QPS) refused to deal with the access application under section 40 of the RTI Act, stating in its decision that, whilst QPS neither confirms nor denies the existence of documents relating to the access application, if such documents did exist, the disclosure of information would, on balance, be contrary to the public interest under section 49 of the RTI Act.
The Information Commissioner found that QPS could not rely on section 40 of the RTI Act because the requirements of the section had not been met. Namely, QPS did not state the exemption provision relied on to refuse access nor provide any reasons why the access application would comprise exempt information if any documents existed. [21-22]
The Information Commissioner considered whether QPS could rely on section 55 of the RTI Act to neither confirm nor deny the existence of the documents sought.
Would the relevant documents, if they existed, contain 'prescribed information'?
The Information Commissioner was satisfied, given the terms of the access application and the specific reference to other individuals, that if relevant documents did exist, they would comprise personal information of individuals other than the applicant. [35]
Would disclosure of the personal information (if the document existed), on balance, be contrary to public interest?
The Information Commissioner was satisfied that the public interest in protecting an individual’s right to privacy should be given substantial weight and that disclosure of the personal information could reasonably be expected to cause a public interest harm. The Information Commissioner was also satisfied that the public interest factor favouring disclosure, the administration of justice, should not be afforded any weight as disclosure of the information, if it existed, could not reasonably be expected to contribute to the administration of justice.
Upon balancing the public interest factors the Information Commissioner was satisfied that disclosure of personal information of this nature would, on balance, be contrary to the public interest.
Accordingly, the Information Commissioner was satisfied that the relevant documents, if they existed, would contain 'prescribed information' and QPS was therefore entitled to rely on section 55 of the RTI Act to neither confirm nor deny the existence of documents.
Last updated: November 20, 2013
