Key published decisions applying schedule 3, section 10(1)(e) RTI Act
The applicant applied to the North Burnett Regional Council (Council) under the RTI Act for access to documents relating to the construction of a haul road passing through the applicant’s grazing property. The haul road was constructed by the third party for the use of the Goondicum mine.
On external review, Council located 224 pages in response to the access application, and agreed to release the relevant information to the applicant. OIC consulted the third party about the likely release of particular information to the applicant under the RTI Act. The third party objected to disclosure of this information on three grounds, one of which was that the information was exempt, as its disclosure could reasonably be expected to prejudice a person’s fair trial or the impartial adjudication of a case.
The third party submitted that some of the information in issue contained unsubstantiated allegations about the third party, which would not be admissible in court, and which would prejudice the third party’s fair trial. The third party was concerned that the applicant may release such information publicly, and subject the third party to ‘trial by media.’ Further, the third party submitted that issues surrounding the construction and planning approvals for the haul road had been referred to an investigative agency, and that this was a precursor to possible litigation.
The Assistant Information Commissioner found that the third party had not identified a particular criminal proceeding or case to be adjudicated which it considered would be impacted by disclosing the information in issue, nor had it provided any evidence to suggest that the subject matter of the Information in Issue was relevant to ongoing legal proceedings.10
The Assistant Information Commissioner went on to say that even if there were proceedings on foot or a case to be adjudicated, that the nature and extent of the anticipated prejudice to those processes could not be identified. In any event, it would not be reasonable to expect that impartial decision-makers or jurors and judicial officers in a legal proceeding would be swayed in their views by the disclosure of information which merely showed the third party’s interactions with Council as part of the approval process for construction of the haul road. If these documents were relevant to the adjudication of a case or legal proceedings, they would have to be disclosed in the interests of a fair hearing of the issues.11
As such, there was no basis to refuse access to the Information in Issue under schedule 3, section 10(1)(e).
The applicant applied to the Department of Employment, Economic Development and Innovation (Department) under the RTI Act for access to certain information about an investigation and decision to prosecute persons in relation to a chemical exposure incident. In this instance, the applicants had been charged with offences under the Coal Mining Safety and Health Act 1999 (Qld), and proceedings were on foot.
The Department submitted that the information in issue was exempt, as its disclosure could reasonably be expected to prejudice a person’s fair trial or the impartial adjudication of a case. The Department submitted that the information related to the decision to prosecute the applicants, and did not concern any issues relevant to the current trial. As such, the Department submitted that disclosure could reasonably be expected to result in the defence raising or relying on irrelevant issues at trial, in an effort “to embark upon an ‘investigation’ by way of cross examination of prosecution witnesses… in an attempt to sidetrack the prosecution.’
The Acting Assistant Information Commissioner accepted that the information in issue may be irrelevant to issues to be considered at trial, however, they could not be satisfied on the evidence that disclosure could reasonably be expected to prejudice a person’s fair trial given that:
- the applicants’ representatives were legal professionals, obliged to behave properly and ethically when presenting issues to Court
- the Court is capable of determining the relevance of issues and arguments presented to it by either party; and
- the court is equipped with appropriate mechanisms to deal with any conduct it identifies as attempts of ‘investigation’ or designed ‘to sidetrack the prosecution.’
Therefore, the information in issue did not comprise exempt information under this provision.
In these related decisions, the information in issue was about allegations of criminal conduct, which at the time of recording had not been tested in court. The applicants submitted that disclosure of the information in issue would impact adversely on the impartiality of jurors and/or judicial officers, as it identified suspects and victims and disclosed incidents of an allegedly criminal nature in the context of unsubstantiated accounts which had not yet been determined by a court. The Assistant Information Commissioner found that individuals could not reasonably be identified in the information in issue. As such, it was found that any pending criminal or civil proceedings associated with the incidents could not be connected to the information in issue with any level of certainty.12
12 Paragraph 24.
Last updated: November 16, 2016