Key published decisions applying Schedule 3, section 10(1)(i) RTI Act
The applicant made an application to the Department of Community Safety for access to emails between the General Manager of the prison in which he is an inmate and the Deputy Commissioner of Custodial Operations of the Department.
The Department located a chain of emails comprising two pages and decided to refuse access to the emails under section 67(1) of the IP Act and sections 47(3)(a) and 48 of the RTI Act on the basis that disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or environment.
The Right to Information Commissioner affirmed the agency’s decision and decided that the Information in Issue related to the systems for assessing intelligence to determine whether a prisoner is an escape risk and disclosure of this type of information could reasonably be expected to:
- reveal the intelligence systems used by the Department to gather information for the protection of persons; and
- prejudice these systems by reducing their effectiveness.
The applicant sought access to compliance notices, cautions, enforceable undertakings, fines or prosecutions issued to amusement ride, fun park or other mobile show operators in Queensland for a specified period. The Department of Justice and Attorney-General (Department) refused access to the names of the amusement rides and owners, including their Australian business numbers, on the basis that disclosing the relevant information would, on balance, be contrary to the public interest under sections 47(3)(b) and 49 of the RTI Act. On external review, the Department also submitted that disclosing the relevant information could reasonably be expected to prejudice:
- the maintenance or enforcement of a lawful method or procedure for protecting public safety; or
- a system or procedure for protecting persons, property or the environment.
Is there an identifiable system or procedure for the protection of persons, property or the environment?
On the basis that the voluntary process (of cooperation and consultation between WHSQ, the amusement device operators and other stakeholders in the industry) was aimed at improving the safety of persons who use amusement devices and achieving industry best practice above the minimum standards legislated by the Workplace Health and Safety Act 1995 (Qld), the RTI Commissioner was satisfied that the first requirement for exemption was met. [25-26]
Is there a reasonable expectation that disclosing the relevant information could prejudice the system or procedure?
The RTI Commissioner was satisfied ‘prejudice’ should be given its ordinary and natural meaning; that is ‘to detrimentally impact’. [32]
The Department and some amusement device operators submitted that disclosure of the relevant information could reasonably be expected to: [35]
- damage the relationship between WHSQ and operators; and
- prejudice the voluntary process.
The RTI Commissioner was not satisfied that the operators’ and Department’s expectation of prejudice was reasonably based because the operators recognised it was in their commercial interest to operate safe rides and the voluntary process facilitates safety improvements. Further, given the mandatory legislative scheme under which the notices were issued, it would be unreasonable to suggest that disclosing the relevant information would prejudice the voluntary process. [36-37]
Accordingly, the relevant information was not exempt under schedule 3, section 10(1)(i) of the RTI Act.
The applicant applied to the Department of Community Safety (Department) for access to an audio recording of a triple zero call, made about her, to Queensland Ambulance Service (QAS), where the caller wanted to remain anonymous. The Department refused access to the information under sections 47(3)(a) and schedule 3, section 10(1)(i) of the RTI Act.
The RTI Commissioner considered whether the information was exempt under schedule 3, section 10(1)(i) of the RTI Act.
Is there an identifiable system or procedure for the protection of persons?
The RTI Commissioner accepted that the triple zero emergency service was a system implemented by the QAS for the protection of persons in need of care, assessment or treatment by providing ambulance services for on-site treatment and transport to a health facility. [13-14]
Could disclosure of the information reasonably be expected to prejudice that system or procedure?
The RTI Commissioner was satisfied that disclosing an audio recording of a triple zero call, particularly where the caller wished to remain anonymous, could reasonably be expected to discourage individuals from making emergency calls in the future. Therefore, the RTI Commissioner was satisfied that disclosure could reasonable be expected to prejudice the system. [15]
Accordingly, the RTI Commissioner held that the information was exempt under schedule 3, section 10(1)(i) of the RTI Act.
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.
The applicant sought access to documents concerning her, including an application for a Justices Examination Order (JEO) under the Mental Health Act 2000 (Qld) (MHA). The Department of Justice and Attorney-General (Department) refused access to the information on the basis that disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons under section 47(3)(a) and schedule 3, section 10(1)(i) of the RTI Act.
Is there an identifiable system or procedure?
The Information Commissioner considered the objectives and processes for making JEO applications under the MHA. She was satisfied that the MHA established a system or procedure for the purpose of schedule 3, section 10(1)(i) of the RTI Act. [11-13]
Is the system or procedure for the protection of persons?
The RTI Commissioner considered previous decisions1 under the equivalent exemption in the repealed FOI Act and confirmed that the purpose of the relevant system is to allow members of the community who genuinely believe a person is mentally ill to make a JEO application to protect the mentally ill person from harming themselves or others. [15-16]
Could disclosing the information reasonably be expected to prejudice that system or procedure?
The applicant specifically sought access to the name of the JEO applicant and grounds for the application. The Information Commissioner noted that JEO applications are made confidentially for a limited purpose under the MHA. [17] The Information Commissioner considered that disclosing the information could reasonably be expected to prejudice the relevant system or procedure by deterring potential applicants from providing relevant information and by potentially reducing the quality of information provided. [18-19]
Accordingly, the RTI Commissioner held that the information was exempt on the basis that disclosure of the information could reasonably be expected to prejudice a system or procedure for the protection of persons, under schedule 3, section 10(1)(i) of the RTI Act.
Ross and Department of Justice and Attorney-General [2017] QICmr 46 (14 September 2017)
- 1 VHL and Department of Health (Unreported, Queensland Information Commissioner, 20 February 2009). [up]
Last updated: March 16, 2012