Application of Schedule 3, section 10(1)(h) 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. Is there an identifiable building, structure or vehicle?

The Information Commissioner has previously considered whether the exemption applies in relation to the following types of buildings/structures/vehicles:

  • residential houses1
  • a prison2
  • the Maximum Security Unit of a prison3
  • an itinerant food van4
  • parking meter machines;5 and
  • hotels, clubs and casinos.6 

3. Could disclosure of the information reasonably be expected to endanger the security of that building, structure or vehicle?

a)  Whether there exists a reasonable expectation of endangerment to the security of a building, structure or vehicle

See 'Could reasonably be expected to' Annotation.

There may be circumstances where the nature of the endangerment to security is evident from the relevant information.  Usually, the agency must identify the precise nature of the endangerment to security.7

Whether disclosing the relevant information could reasonably be expected to endanger the security of a building, structure or vehicle is determined with regard to the circumstances of the case.  In YW87TN the Right to Information Commission considered the age of the information in issue, similar information that was publicly available and the existing likelihood of criminal activity at relevant venues in determining whether an expectation of endangerment was reasonable in the circumstances.

The Information Commissioner has found that disclosing the following types of information could reasonably be expected to result in endangerment to the security of a relevant building:

  • the best access points for illegal entry;8 and
  • the method and time of staff movement and certain security measures taken by staff in a Maximum Security Unit of a prison.9

The Information Commissioner has found that disclosing the following types of information could not reasonably be expected to result in endangerment to the security of a relevant building or structure:

  • the ten most profitable hotel gaming machine venues in Queensland;10 and
  • parking meter revenue.11

b)  Whether that expectation of endangerment would arise from disclosure of the information in issue

The expectation of endangerment must exist as a result of disclosure, rather than independently or from any other circumstance.

  • 1 NK & DK and Pine River Shire Council; Another (Third Party) (Unreported, Queensland Information Commissioner, 6 June 2007) at paragraph 26 under the now repealed FOI Act (NK & DK).
  • 2 Prisoners’ Legal Service Inc and Queensland Corrective Services Commission (Unreported, Queensland Information Commissioner, 27 March 1997) under the now repealed repealed FOI Act.
  • 3 Scott and Queensland Corrective Services (Unreported, Queensland Information Commissioner, 29 May 2007) (Scott).
  • 4 Curtin and Pine River Shire Council (1997) 4 QAR 195 under the now repealed FOI Act.
  • 5 Nine Network Australia Pty Ltd and Brisbane City Council (Unreported, Queensland Information Commissioner, 7 June 2012) (Nine and BCC).
  • 6 YW87TN and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 10 January 2012) (YW87TN).
  • 7 Scott at paragraph 41.
  • 8 NK & DK at paragraph 28 under the now repealed FOI Act.
  • 9 Scott at paragraph 50 under the now repealed FOI Act.
  • 10 YW87TN.
  • 11 Nine & BCC.

Last updated: May 28, 2013