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 it reasonable to expect that disclosing the relevant information could result in a person being subjected to a serious act of harassment or intimidation?
When considering whether disclosing information could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation:1
- the decision maker does not have to be satisfied upon a balance of probabilities that disclosing the document will produce the anticipated prejudice
- the expectation must arise as a result of disclosure, rather than independently or from any other circumstances
- though a source of harassment or intimidation must be in contemplation, it need not be the applicant; and
- the question of whether disclosing the information in issue could reasonably be expected to result in a serious act of harassment or intimidation must be considered objectively, in light of all relevant information.
a) Is the expected harassment and/or intimidation serious in nature?
The Information Commissioner has noted that because section 10(1)(d) refers to a ‘serious’ act of harassment or intimidation, some degree of harassment or intimidation must be permissible before the exemption will apply.2
In Richards, the Information Commissioner was satisfied that:3
- a serious act of harassment is an act that attacks, disturbs or torments a person and that causes concern or apprehension or has undesired consequences; and
- a serious act of intimidation is an action that induces fear or forces a person into some action by inducing fear or apprehension and that causes concern or apprehension or has undesired consequences.
b) Is the expectation reasonably based and does it arise from disclosing the relevant information? (Rather than independently or from any other circumstance)
The serious act of harassment or intimidation must reasonably be expected to occur. It cannot be a possibility, or mere speculation.
A range of factors may be relevant and include, but are not limited to:4
- past conduct or a pattern of previous conduct
- the nature of the relevant information in issue
- the nature of the relationship between the parties and/or relevant third parties; and
- relevant contextual and/or cultural factors.
There must also be a causal link between the disclosure of the information and the expected conduct.5 For example, this link has been found to exist where there was evidence that such conduct occurred as a result of the release of similar information in the past.6
OIC’s application of the law has been affirmed by Queensland Civil and Administrative Tribunal (QCAT). In Watson v Office of the Information Commissioner Qld  QCATA 95 the applicant appealed OIC’s decision that access to documents could not be refused on the basis of the serious act of harassment or intimidation exemption. The Information Commissioner characterised the relationship between the parties as antagonistic, but found there was no correlation between disclosure and the harassing or intimidating behaviour. The Information Commissioner also found there was insufficient evidence to support a finding that a serious act of harassment or intimidation would occur.
Justice Thomas dismissed the appeal, noting, ‘For the exemption to apply, it must be reasonably expected that a person would be subject to a serious act [of] harassment or intimidation as a result of the disclosure of the information, rather than independently or from any other circumstance.’ (para 19).