Application of Schedule 3, section 10(1)(b) RTI Act
1. Does the information consist of the type of information listed in schedule 3, section 10(2)?
Information is not exempt information under schedule 3, section 10(1), if it consists of:
- matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law; or
- matter containing a general outline of the structure of a program adopted by an agency for dealing with a contravention or possible contravention of the law; or
- a report on the degree of success achieved in a program adopted by an agency for dealing with a contravention or possible contravention of the law; or
- a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law or the law relating to corruption under the Crime and Corruption Act 2001); or
- a report on a law enforcement investigation that has already been disclosed to the entity the subject of the investigation.
2. Is the existence or identity of the source of information confidential?
A 'confidential source of information' supplies information on the understanding (whether express or implied) that their existence or identity will remain confidential.
To determine whether the information was provided under an understanding that the source of information would remain confidential, consider whether:
- there was an express assurance given by the recipient of the information that the source's identity would be kept confidential; or
- the surrounding circumstances indicate an implicit mutual understanding of confidentiality of the identity of the source between the parties.
The following factors may be relevant in determining whether there was an implicit mutual understanding of confidentiality of the source:1
- the nature and sensitivity of the information provided
- whether the confidential source consents to identifying information being disclosed.
3. Does the information relate to the enforcement or administration of the law?
In the context of the repealed FOI Act, the Information Commissioner considered that 'the law' extends beyond criminal law to upholding or enforcing the civil law.2 However, the 'enforcement or administration of the law' does not extend to an agency's general power to carry out its activities for the benefit of the public.3
4. Is it reasonable to expect that disclosing the information could enable the existence or identity of the confidential source to be ascertained?
There must be a reasonable expectation that disclosing the relevant information could enable the existence or identity of a confidential source to be ascertained.
See 'Could reasonably be expected to' Annotation.
This exemption cannot apply where the identity of the information provider is known or can be easily discovered in some other way. However, the provision can apply where applicant claims to already know the identity of a confidential source but is seeking official confirmation of their suspicions via the RTI Act.
a) Whether the information could reasonably be expected to enable the existence of a confidential source to be ascertained
In some circumstances, the mere existence of a confidential source of information is of particular significance.
b) Whether the information could reasonably be expected to enable the identity of a confidential source to be ascertained
Information may enable the identity of a confidential source to be ascertained on the face of the document (eg if the information consists of the source’s personal information) or due to the nature of the information and circumstances surrounding the subject matter.4
Last updated: March 16, 2012