Application of Schedule 3, section 10(4) RTI Act

Relevant considerations

1. Does the exception in schedule 3, section 10(6) apply to the information?

Schedule 3, section 10(6) provides that information will not be exempt under schedule 3, section 10(4) or (5) of the RTI Act if it consists of information about the applicant and the investigation has been finalised.

a) Is the information ‘about the applicant’?

This is a question of fact.  The word ‘about’ in schedule 3, section 10(6) of the RTI Act, as a matter of law, is a ‘non-technical term defined according to its natural and ordinary meaning’.1 Previous decisions of the Information Commissioner have found that while an applicant may have some involvement with, or knowledge of, an investigation—for example, as a witness or a complainant—this does not mean that the investigation information is about the applicant.  Instead, these decisions have found that the relevant investigation information clearly concerned—that is, was about—the individual/s who were the subject of the complaint, and not the complainant.2

For example, in G8KPL2 the Right to Information Commissioner found that an investigation report, while created as a result of the applicant’s complaint, was not about the applicant but instead about the persons who were the subject of the allegations and related Crime and Misconduct Commission investigation. Similarly, in Cameron, the Assistant Information Commissioner found that while the investigation reports and investigatory materials ‘came into existence as the result of the applicant’s actions in…making…complaints’ about public officials, the information was not about the applicant.3  In each case, the thrust or substance of the relevant information was found to concern—be ‘about’—those officials who were the subject of the particular applicants’ complaints and resulting investigations.4

b) Has the investigation been finalised?

The investigation to which the relevant information relates must be finalised for the exception in schedule 3, section 10(6) of the RTI Act to apply.

2. Was the information ‘obtained, used or prepared’ for an ‘investigation’ by a ‘prescribed crime body’ or another agency?

a) ‘Obtained, used or prepared

The terms ‘obtained’, ‘used’ and ‘prepared’ are not defined in the RTI Act or Acts Interpretation Act 1954 (Qld) and the words have been interpreted according to their ordinary meaning.  In Springborg, MP and Crime and Misconduct Commission (Springborg),5 the Assistant Information Commissioner considered the term ‘prepared’ means ‘compose and write out, draw up (a text or document) … produce or form … manufacture, make’ in accordance with the New Shorter Oxford English Dictionary.

b) ‘Investigation

The term ‘investigation’ is not defined in the RTI Act.  However, in Springborg, the Assistant Information Commissioner found it relevant to consider the meaning of ‘investigate’ as defined in the Crime and Misconduct Act 2001 (Qld).6 Schedule 2 of the current version of the Crime and Corruption Act 2001 (Qld) (CC Act) defines ‘investigate’ to include ‘examine and consider’.

c) ‘Prescribed crime body’ or another agency

Prescribed crime body’ for the purposes of this section, is defined in schedule 3, section 10(9) of the RTI Act to mean the Crime and Corruption Commission (CCC—formerly known as the Crime and Misconduct Commission (CMC)), the former Criminal Justice Commission or the former Queensland Crime Commission.

While the CMC no longer appears in the list of prescribed crime bodies, documents which refer to an investigation by the CMC can still be documents of a prescribed crime body.  Unlike the Criminal Justice Commission and the Queensland Crime Commission, the Act which established the CMC was not repeale and the CMC was not disbanded. While its name and functions have changed, the body itself continues as the CCC.  However, when dealing with documents which refer to an investigation by the CMC, it will still be necessary to establish that the documents relate to the current functions of the CCC—ie, its crime, corruption or intelligence functions.  The exemption can apply to information obtained, used or prepared for an investigation into complaints about police misconduct because such investigations are within the scope of the CCC’s corruption function.  Matters involving official misconduct are also likely to come within the CCC’s corruption function as per the definition of corrupt conduct in section 15 of the CC Act.

Often the CCC will refer a matter to the relevant agency to be dealt with subject to the CCC’s monitoring role and a requirement that the agency advise the CCC of the outcome of the investigation.7 In these situations, information obtained, used or prepared for the investigation by the relevant agency will be subject to this exemption.

It should be noted that as part of the CCC’s monitoring role, the CCC may review or audit the way the agency has dealt with a particular complaint, and may assume responsibility for the matter at any time.8 The term ‘deal with’ is defined in schedule 2 of the CC Act as including investigating the complaint, starting a disciplinary proceeding and taking other action to address the complaint in an appropriate way.  ‘Investigate’ is broadly defined in schedule 2 of the CC Act to include ‘examine and consider’.

The CCC continues to perform its monitoring role even after findings have been made on allegations through the disciplinary phase and until a matter has been disposed of through an appeal process.9

3. Is the investigation in the performance of the prescribed crime body’s ‘prescribed functions’?

The ‘prescribed functions’ of the prescribed crime bodies are defined in schedule 3, section 10(9) of the RTI Act.  Relevantly, the prescribed functions of the CCC are the ‘crime function’, the ‘intelligence functions’ and the ‘corruption function’.  These functions are defined in the CC Act as:

25 Commission’s crime function

The commission has a function (its crime function)—

(a) to investigate major crime referred to it, under division 2, by the reference committee; and
(b) to investigate, under an authorisation under section 55F, incidents a criminal organisation or participants in criminal organisations have engaged in, or are planning to engage in, that threatened or may threaten public safety.

53 Intelligence functions

The commission has the following functions (its intelligence functions)—

(a) to undertake intelligence activities, including specific intelligence operations authorised by the reference committee, to support the proper performance of its functions;
(b) to hold intelligence function hearings under an authorisation under section 55F;
(c) to analyse the intelligence data collected to support its functions;
(d) to minimise unnecessary duplication of intelligence data;
(e) to ensure that intelligence data collected and held to support its functions is appropriate for the proper performance of its functions.

33 Commission’s corruption function

The commission has the function (the corruption function) to ensure a complaint about, or information or matter involving, corruption is dealt with in an appropriate way, having regard to the principles set out in section 34.

Under schedule 2 of the CC Act, corruption means corrupt conduct or police misconduct.  These terms are defined at length in section 15 and schedule 2 of the CC Act, respectively.

1 Darlington v Office of the Information Commissioner & Queensland Police Service [2015] QCATA 167 at [52] (Darlington).

2 G8KPL2 and the Department of Health (Unreported, Queensland Information Commissioner, 31 January 2011) at [32]) (G8KPL2) (an appeal against this decision was dismissed: see Minogue v Office of the Information Commissioner Queensland and Anor [2012] QCATA 191; Darlington and Queensland Police Service [2014] QICmr 14 (11 April 2014) (an appeal against this decision was also dismissed: see Darlington. See also the decisions in Cameron and Queensland Police Service (Unreported, Queensland Information Commissioner, 7 August 2012) (Cameron) and Magin and Department of Environment and Heritage Protection [2016] QICmr 26 (30 June 2016).

3 Cameron at [31], repeating the Right to Information Commissioner’s similar observation in G8KPL2 at [32].

4 Cronin and Crime and Corruption Commission [2017] QICmr 13 (6 April 2017) at [24].

5 (2006) 7 QAR 77 [27], a decision made under the repealed FOI Act.

6 (2006) 7 QAR 77 [58], a decision made under the repealed FOI Act.

7 See G8KPL2 and Department of Health (Unreported, Queensland Information Commissioner, 31 January 2011) [18] where the RTI Commissioner recognised that the then CMC could perform its ‘misconduct functions’  in several ways, including assessing information itself, referring complaints to a public official to be dealt with by the public official, and/or performing its monitoring role.

8 Section 47 of the CC Act.

9 See Lee v Crime and Corruption Commission & Anor [2016] QCA 145 at [69] - [71] where the appellant argued that the power of the CCC to assume responsibility for and complete the investigation was not exercisable in this case because the investigation of the complaint had been finalised.  The Court of Appeal found that “In the performance of its monitoring role, the CCC is given powers to intervene where it disagrees with a course which is being taken in dealing with a complaint.  If the CCC’s powers in its monitoring role in response to a decision by the Commissioner or another public official were limited to seeking a review by QCAT, those powers would be very much eroded.  Again, there is no indication from the language of any relevant provision that the CCC’s powers are limited if there is a reviewable decision … there was no express or implied limitation upon the power of the CCC to assume responsibility for an investigation of [the appellant’s] conduct.”

Last updated: May 1, 2018