Ainsworth; Ainsworth Nominees Pty Ltd and Criminal Justice Commission; A (Third Party); B (Fourth Party)

Application number:
1994 S0087
Decision date:
Friday, Dec 17, 1999
(1999) 5 QAR 284

Ainsworth; Ainsworth Nominees Pty Ltd and Criminal Justice Commission; A (Third Party); B (Fourth Party)
(1994 S0087, 17 December 1999)

The matter in issue comprised information pertaining to the applicants held by the respondent in connection with the respondent's report on Gaming Machine Concerns and Regulations (the GM report). 

A number of 'sufficiency of search' issues were raised.  The Information Commissioner found that the respondent had carried out all the searches/inquiries that it could reasonably be expected to make in an effort to locate matter falling within the terms of the applicants' FOI access application, or, alternatively, that the further matter sought by the applicants was not contained in "documents of the agency" (as explained in my decision in Holt & Reeves and Education Queensland (1998) 4 QAR 310).  The Information Commissioner made some general observations on 'sufficiency of search' issues and emphasised the need for applicants to explain, and provide evidence to support, their grounds for believing that an agency holds additional responsive documents. 

The Information Commissioner found, in respect of the matter in issue comprising communications between the respondent and the Parliamentary Criminal Justice Committee relating to the review by the latter of the circumstances surrounding the production of the GM report, that their public disclosure would contravene a standing order of the Legislative Assembly, and hence infringe the privileges of Parliament.  Those communications therefore qualified for exemption under s.50(c)(i) of the FOI Act. 

The Information Commissioner discussed the relationship between s.46(1)(b) and s.38(b) of the FOI Act in relation to intelligence information that had been supplied by law enforcement agencies of another government.  The Information Commissioner found that the more appropriate exemption for such matter was s.38(b), and that some of the matter in issue was exempt from disclosure under s.38(b). 

The respondent claimed that two documents in issue would have qualified for exemption under s.48(l) of the FOI Act in the form which that provision took before its amendment, and that, by virtue of s.20(2) of the Acts Interpretation Act 1954 Qld, it was entitled to have s.48(l) applied in the form it took at the commencement of my review.  The Information Commissioner rejected this argument on a number of grounds including that a respondent agency has no relevant right or privilege of the kind which s.20(2) of the Acts Interpretation Act is designed to preserve in certain circumstances.  The Information Commissioner held that the relevant law to be applied was the law which was in force at the time of making my decision, and that the two documents in question did not qualify for exemption under s.48 in its current form. 

The Information Commissioner found that matter comprising a former residential address of one third party was information concerning that person's personal affairs and was exempt from disclosure under s.44(1) of the FOI Act. However, the Information Commissioner found that information concerning the performance by the third parties of their duties of employment as public servants was not information concerning their personal affairs, and did not qualify for exemption under s.44(1).  I also decided that matter comprising allegations of wrongdoing on the part of persons and corporations other than the applicants was exempt under s.44(1) and s.45(1)(c) of the FOI Act. 

In relation to matter comprising identifying references to one third party, the Information Commissioner found that the claim for exemption under s.42(1)(b) of the FOI Act was not established because the identity of that third party had ceased to be confidential vis-à-vis the applicants.  The Information Commissioner also determined that a small amount of matter did not qualify for exemption under s.41(1) of the FOI Act as the respondent was unable to demonstrate that disclosure of that information would be contrary to the public interest.