Application of Schedule 3, section 10(1)(i) 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 system or procedure?

The Information Commissioner has previously considered the objectives and administrative processes of a scheme to determine whether there is an identifiable system or procedure.1

The following have been considered to be identifiable systems or procedures:

  • the triple zero emergency services system2
  • the process under the Mental Health Act 2000 (Qld) for making a Justices Examination Order (JEO) application.3

3. Is the system or procedure for the protection of persons, property or environment?

The purpose and objects of the system or procedure must be identified and assessed to determine whether it is 'for the protection of persons, property or environment'. This is a factual assessment but the following examples may provide some guidance.

a) System or procedure for the protection of persons

The Information Commissioner has previously found that the following systems or procedures are for the protection of persons:

  • the triple zero emergency services system, including on-site treatment and transport to a health facility was found to be a system for the protection of persons in need of health care4
  • the procedure for making a JEO application to prevent mentally ill persons from harming themselves or others.5

Note

On 6 March 2017, the Mental Health Act 2000 was repealed and replaced with the Mental Health Act 2016 (MH Act). The MH Act introduces Emergency Examination Authorities (EEAs) in place of Justice Examination Orders (JEOs). This section of the Annotated Legislation only applies to JEOs. An access application for an EEA has yet to be dealt with by an agency or come on external review. Accordingly, the Information Commissioner has not made a decision on accessing EEAs pursuant to the Right to Information Act 2009 or the Information Privacy Act 2009.

b) System or procedure for the protection of property

The Information Commissioner has not yet made a decision where a system or procedure for the protection of property was established under the RTI Act.

See 'Section 42(1)(h) FOI Act' Annotation.

c) System or procedure for the protection of environment

The Information Commissioner has not yet made a decision where a system or procedure for the protection of environment was established.

4. Could disclosing the information reasonably be expected to prejudice that system or procedure?

a) Does an expectation of prejudice exist?

What constitutes 'prejudice' to the procedure or system depends on the circumstances. Generally, the expectation is that the efficacy of the system or procedure will be lessened by disclosure.

The Information Commissioner has previously found that the expectation that disclosure could result in potential informants being less likely to provide relevant and quality information to authorities in the future, was an expectation of prejudice to the relevant system or procedure.6 An expectation of prejudice to a system or procedure also existed where disclosure could result in people being discouraged from making calls to emergency services.7

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

b) Is the expectation reasonably based?

See 'Could reasonably be expected to' Annotation.

  • 1 SQD and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 2 September 2010) at paragraphs 11-12.
  • 2 94NNEZ and Department of Community Safety (Unreported, Queensland Information Commissioner, 29 November 2010) at paragraph 13.
  • 3 SQD and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 2 September 2010).
  • 4 94NNEZ and Department of Community Safety (Unreported, Queensland Information Commissioner, 29 November 2010) at paragraph 14.
  • 5 SQD and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 2 September 2010) at paragraphs 15-16.
  • 6 SQD and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 2 September 2010).
  • 7 94NNEZ and Department of Community Safety (Unreported, Queensland Information Commissioner, 29 November 2010).

Last updated: March 16, 2012