Application of Schedule 3, section 10(1)(e) RTI Act

Relevant Considerations


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. Scope of ‘a person’s fair trial’ and ‘impartial adjudication of a case’

  • The phrase a ‘person’s fair trial’ does not refer to a civil suit between parties, but to the trial of a person charged with a criminal offence.1
  • However, the phrase ‘impartial adjudication of a case’ is broad enough to refer to any kind of case involving a dispute between parties which is to be formally adjudicated by an impartial decision maker. 2

This provision can only apply if a specific criminal proceeding or case to be adjudicated is identified.3

3. Is it reasonable to expect that disclosing the relevant information could result in prejudice to a person’s fair trial or the impartial adjudication of a case?

For information to qualify for exemption on this basis, it must be established that disclosure of the information ‘could reasonably be expected to’ result in the anticipated prejudice.4 The term ‘could reasonably be expected to’ requires the relevant expectation to be reasonably based; that is neither irrational, absurd nor ridiculous,5 nor merely a possibility.6 It is not necessary ‘to be satisfied upon a balance of probabilities’ that disclosing the document will produce the anticipated result.7 Whether the expected consequence is reasonable requires an objective examination of the relevant evidence.8 Importantly, the expectation must arise as a result of disclosure, rather than in other circumstances.9

1 Uksi and Redcliffe City Council; Cook (Third Party) (1995) 2 QAR 629.
2 Uksi and Redcliffe City Council; Cook (Third Party) (1995) 2 QAR 629 at paragraph 34 explains, in relation to the equivalent exemption in section 42(1)(d) of the Freedom of Information Act 1999 (Qld) (repealed), that the words ‘a person’s fair trial’ refer to the trial of a person charged with a criminal offence, rather than civil litigation.
3 [26].
4 North Goonyella Coal Mines Pty Ltd and Millard and Department of Natural Resources and Mines (Queensland Information Commissioner, 26 June 2012).
5 Attorney-General v Cockcroft (1986) 64 ALR 97 at 106.
6 Murphy and Treasury Department (1995) 2 QAR 744.
7 Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009).
8 Murphy and Treasury Department (1995) 2 QAR 744 at paragraphs 45-47.
9 Murphy and Treasury Department (1995) 2 QAR 744 at paragraph 54.

Last updated: November 16, 2016