Key published decisions applying schedule 3, section 10(1)(d) RTI Act

Toogood and Cassowary Coast Regional Council [2018] QICmr 13 (22 March 2018)

In this decision, the Assistant Commissioner considered behaviour including hostile correspondence and social media communications, unsubstantiated complaints of wrongdoing and voluminous threats of legal action.  It was noted that otherwise lawful processes (such as complaints and litigation) may be used to ‘torment or wear down’ individuals, and depending on the circumstances, this may constitute harassment.  In this case, the Assistant Commissioner held that Council was entitled to refuse access to the Information in Issue under sections 47(3)(a), 48 and schedule 3, section 10(1)(d) of the RTI Act.

Edmistone and Blackall-Tambo Regional Council [2016] QICmr 12 (15 April 2016)

No evidence to support finding of serious act of harassment or intimidation.

6ZJ3HG and Department of Environment and Heritage Protection; OY76VY (Third Party) [2016] QICmr 8 (24 February 2016)

Not found to be a serious act of harassment or intimidation.

Bowmaker Realty and Department of Justice and Attorney-General; Andrews [2015] QICmr 19 (17 August 2015)

Distinguished from Matthews. The Information Commissioner accepted that in all likelihood, the information would be posted on social media with disparaging remarks, but there was insufficient evidence to support a finding that the harassment or intimidation would be serious. Instead, characterised the acts as competitive, disparaging and at times unpleasant, was not overly malicious, harassing or intimidating, but rather, irksome and annoying. This was not sufficient to meet the serious threshold.

Madden and Noosa Shire Council; Third Party [2014] QICmr 36 (26 August 2014)

Past alleged behaviour had not been triggered by disclosure of information so no link between disclosure and the alleged behaviour.

Conde and Queensland Police Service (Unreported, Queensland Information
Commissioner, 18 October 2012)

In this decision, the Assistant Information Commissioner clarified that the type of behaviour anticipated by schedule 3, section 10(1)(d) of the RTI Act need not involve behaviour that would be considered ‘assault’ or ‘unlawful stalking’ in the criminal sense; rather, the ordinary meaning of the words ‘serious act of harassment or intimidation’ (as interpreted in Richards and Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009)) should be adopted.

Mathews and University of Queensland (Unreported, Queensland Information
Commissioner, 21 September 2012)

The applicant maintained a website on which he published material about various individuals, including UQ staff and students, against whom he held grievances.  The website made a range of offensive statements, attacks and accusations, and stated that it was specially designed to achieve a high ‘Google rank’ when an internet search was conducted for the names of the individuals against whom it was targeted, in order to harm their reputation, job prospects and financial interests.

The Acting Information Commissioner considered that, although the posting of offensive commentary on the internet might not, by itself, be enough to reach the relevant threshold, the malicious nature of the applicant’s website including its stated purpose, together with the impact that it had on the individuals it targeted, were sufficient to conclude that postings on the website constitute serious acts of harassment or intimidation.  The Acting Information Commissioner made clear that while the motive of the applicant for making the access application is not directly relevant in assessing whether this exemption arises, the motive of the potential harasser or intimidator may be (and in this case, these were the same person).

The Acting Information Commissioner was satisfied that disclosing certain information would reveal the identity of individuals who were involved in the processing the applicant’s FOI requests and IP Act access applications which could reasonably be expected to result in those individuals being subjected to serious acts of harassment or intimidation. In particular, based on the past conduct of the applicant it could reasonably be expected that he would post unfounded allegations and offensive commentary on his website about those individuals.

Ogawa and Queensland Police Service (Unreported, Queensland Information Commissioner, 21 June 2012)

No discussion or application of law to the facts so as not to divulge exempt or CTPI information.

Richards and Gold Coast City Council (Unreported, Queensland Information Commissioner, 28 March 2012) (Richards)

The applicant sought access to all documents about himself from the Gold Coast City Council (Council), with whom the applicant had had extensive contact over a number of years relating to his dogs and Council’s establishment and implementation of the local law concerning dangerous dogs.

The Information Commissioner found the applicant had contacted Council staff and elected representatives persistently outside of work hours on their private mobile numbers and home telephone numbers and made both implicit and explicit threats of violence against Council staff members, elected representatives and their family members and indicated he knew the location of the private residences of individuals.  Further, a significant amount of the applicant’s communication with Council staff and elected representatives ranged from being abusive and rude to threatening and/or harassing and the applicant’s actions had resulted in Council implementing security plans to protect specific persons.  [15]

The Information Commissioner considered the past occurrences of serious acts of harassment and intimidation provided a reasonable basis for Council staff and elected representatives to expect to be subjected to further serious acts of harassment or intimidation.  [20]

In establishing a link between the disclosure of the information in issue and the expected act of serious harassment or intimidation, the Information Commissioner noted that the subject matter of the information had previously elicited a strong response from the applicant, the applicant had been in dispute with Council for many years and the applicant’s conduct had detrimentally impacted Council staff and elected representatives.  [21]

Accordingly, the relevant information was found to be exempt information under schedule 3, section 10(1)(d) of the RTI Act.

Australian Leisure and Hospitality Group Pty Ltd and Department of Justice and
(Unreported, Queensland Information Commissioner, 29 October

The Amanda Flynn Charity Ltd and Crime and Misconduct Commission; 7G5BAL
(Unreported, Queensland Information Commissioner, 19 October 2011)

Qualtime Association Inc and Department of Communities (Unreported, Queensland
Information Commissioner, 29 June 2011)

In each of the above three decisions, it was found that the relevant information was not exempt under this provision.

Last updated: July 12, 2018