ADMINISTRATIVE LAW – RIGHT TO INFORMATION – SCOPE OF APPLICATION – applicant requested documents relating to a complaint made about his property – agency excluded information which fell outside the scope or was irrelevant to the terms of the access application – whether irrelevant information may be deleted under section 73 of the Right to Information Act 2009 (Qld)
ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – CONTRARY TO PUBLIC INTEREST INFORMATION – access refused to complainant’s information – personal information and privacy – whether disclosure would, on balance, be contrary to public interest – whether access may be refused under sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld)
1. The applicant applied to Redland City Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for documents relating to Council’s investigation into a complaint made about the applicant’s property. The applicant specifically excluded ‘details of the complainant’ from the scope of the access application.
2. Council identified 44 documents relevant to the access application and decided1 to grant access to 27 full and 14 part documents and refuse access to the balance on the basis that (i) the information was irrelevant to the access application, or (ii) its disclosure would, on balance, be contrary to the public interest. As Council’s decision to grant access to some of the information was made over the objections of a third party, access to 21 documents was deferred.2
3. The applicant and the third party applied to the Office of the Information Commissioner (OIC) for external review. The third party’s external review was resolved informally and, during the course of the external reviews, Council agreed to release additional information to the applicant.
4. On external review, the applicant submitted that the information remaining in issue should be disclosed, primarily on the basis that he believes he knows the identity of the complainant. The applicant also raised concerns about the legibility of documents released to him by Council.
5. In relation to the information remaining in issue in this review, I vary Council’s decision and find that:
6. Significant procedural steps relating to the access application and the external review are set out in the appendix to this decision.
7. The decision under review is Council’s internal review decision to the applicant dated 18 October 2012.
8. The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and appendix).
9. The information remaining in issue comprises parts of 14 documents and one entire document (Information in Issue). It includes some of the information to which Council decided3 to refuse access, as well as some information which Council decided to disclose.
10. Ordinarily, where an agency decides to grant access to information, that information is disclosed to the access applicant prior to the matter being considered by OIC on external review. In such cases, OIC’s external review would only consider the information to which access has been refused.
11. In this instance, however, as Council’s decision was made over the objections of the third party, the applicant’s access to information on 21 pages was deferred until the third party’s external review was finalised. As a result, OIC was able to consider whether access should be granted to these pages in their entirety, that is, OIC’s review included consideration of the information which Council decided to disclose to the applicant.4
12. The third party’s external review was resolved informally on the basis that the third party withdrew their objection to certain information being disclosed to the applicant. Council also agreed to release additional information to the applicant. This released information is no longer in issue in this review.
13. The issues for determination are whether:
(i) the name and contact details of the complainant are outside the scope of the access application (Category A information)
(ii) Council is entitled to delete information on the basis that it is not relevant to the access application (Category B information); and
(iii) Council is entitled to refuse access to information on the basis that its disclosure would, on balance, be contrary to the public interest (Category C information).
14. The applicant raised concerns in his external review application and his submissions to OIC about the legibility of the documents released to him by Council. As I understand his submissions, the applicant contends that:
15. While the applicant has not specifically identified the documents he claims are not readable, I note that there are a number of plans and building approvals dating from the early 1980s to which he has been granted access that are difficult to read. This is not, however, a result of redaction of information; only one of these documents has had information redacted,6 and a ‘clean’ (i.e., unredacted) copy of this particular document is of no better or worse quality than the redacted version to which the applicant has been given access. As Council has explained, the legibility of these documents is likely due to the quality of the originals. In order that he might satisfy himself in this regard, Council has invited the applicant to view these originals; an offer, I understand, he has yet to avail himself of.
16. As was explained to the applicant during the course of this review, issues as to the legibility of released information are not matters the Information Commissioner has jurisdiction to entertain on external review. It is sufficient to note that I am satisfied that information to which I have decided he may be refused access is legible and comprehensible, and has been properly analysed in the course of this review.
17. Yes, for the reasons that follow.
18. The Category A information7 comprises the name and contact details of the person/s who made a complaint to Council about the applicant’s property (Complainant).
19. The applicant’s access application8 to Council states that the applicant is seeking all documents relating to a specified property and Council reference number, with the explicit qualification that he ‘doesn’t require details of complainant’. The applicant reiterated this qualification during the course of this external review, stating that he did not require access to the Complainant’s name or contact details.9
20. However, relatively late in the review process the applicant endeavoured to change his position as regards the Category A information, and sought to press a case for access.
21. The terms of the applicant’s access application—including the qualification excepting ‘details of the complainant’—are in my view clear and unambiguous, and operate to exclude the Category A information. It is not open for an access applicant to unilaterally expand the scope of an access application on external review. I am satisfied that the Category A information falls outside the scope of the access application, is not in issue, and may be excluded from further consideration in this decision.
22. Yes, for the reasons that follow.
23. Section 73 of the RTI Act allows an agency to delete information from a document that is not relevant to the terms of an access application. This is not a ground for refusal of access, but a mechanism to allow irrelevant information to be deleted from documents identified for release to an applicant.12 In deciding whether to apply this section, it is relevant to consider whether the information in question has any bearing upon, or is pertinent to, the terms of the application.13
24. The Category B information14 comprises part of the minutes of a Council team meeting. The complaint the subject of the applicant’s access application was discussed at this meeting, and a summary of that discussion is recorded in the minutes. This relevant information has been released to the applicant.15 The Category B information forms the balance of these minutes, which records the meeting’s consideration of other, entirely unrelated matters, such as team training and internal workplace health and safety issues.
25. I am satisfied the Category B information is not pertinent to the terms of the applicant’s access application and is therefore not relevant to that application. I am also satisfied that Council was entitled to delete this information based on the terms of the application itself,16 as the Category B information clearly falls outside the scope of that application.
26. Yes, for the reasons that follow.
27. An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.17 The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest18 and explains the steps that a decision-maker must take in deciding the public interest as follows:19
28. No irrelevant factors arise in the circumstances of this case, and I have taken none into account in making this decision. I will now consider the relevant factors favouring disclosure and nondisclosure of the Category C information.
29. The Category C information20 can be divided into two categories:
(i) information provided to or obtained by Council from the Complainant (Complaint Information); and
(ii) an individual’s name and a private citizen’s signature (Names).
(i) Complaint Information
30. The Complaint Information comprises information21 either supplied to Council or obtained by it from the Complainant. I am constrained from describing in these reasons the nature of information disclosure of which is claimed to be contrary to the public interest.22 It is sufficient to note that I am satisfied the Complainant’s identity is either apparent, or could reasonably be ascertained, from this information, and it therefore comprises ‘personal information’.23 The RTI Act expressly provides that disclosing another individual’s personal information could reasonably be expected to give rise to a public interest harm.24
31. Additionally, a factor favouring nondisclosure of information25 will arise where its release could reasonably be expected to prejudice the protection of an individual’s right to privacy.26 As explained below, I am satisfied this nondisclosure factor also applies in the circumstances of this case.
32. The applicant submits he is aware of the Complainant’s identity and the Complaint Information should therefore be disclosed.27 Council, on the other hand, states that at no time during the investigation into the complaint, or during processing of the applicant’s access application was he advised of the identity of the Complainant.28
33. There is nothing before me to confirm that the applicant knows the Complainant’s identity. In any event, even if the applicant is aware of the Complainant’s identity, this would only diminish—and not negate—privacy interests attaching to relevant information, and only then as regards a limited portion of this material.29 This is because much of the substance of the Complaint Information comprises more than mere particulars of identity, but personal information provided to or obtained by Council from the Complainant straying beyond the relatively narrow confines of the former’s investigation into matters concerning the applicant.
34. I am, as noted, restricted under the RTI Act from describing the actual content of the Complaint Information. It is sufficient to note, however, that parts of it include information concerning the Complainant’s familial relationships, touching on emotional states and reflecting upon the Complainant’s own relationship with Council.
35. Disclosure of the Complaint Information would therefore not only definitively identify the Complainant as the person/s who complained to the Council about property issues, but, as might be gleaned from the broad descriptions given in the preceding paragraph, reveal other information falling squarely within the Complainant’s ‘personal sphere’. Disclosure of the Complaint Information could therefore reasonably be expected to comprise a significant intrusion into the Complainant’s privacy,31 and by disclosing personal information of the kind described, give rise to a public interest harm of some magnitude. I consider each of these factors favouring nondisclosure warrant significant weight.
36. Some of the Complaint Information comprises the applicant’s personal information; generally, references to the applicant as the owner of a property. This gives rise to a factor favouring disclosure to the applicant of this information.32 The information is relatively limited in extent. Nevertheless, I recognise the importance of providing individuals with access to their personal information as held by government, and afford this factor moderate weight.
37. I acknowledge a general public interest in promoting access to government-held information. I also acknowledge that by revealing information about Council’s investigation of the complaint, disclosure of the Complaint Information could advance the public interest in enhancing the transparency of Council’s investigation processes and its accountability for the outcomes of those processes,33 and provide the applicant with background or contextual information informing same.34
38. Council has, however, released to the applicant part of the complaint and the bulk of information concerning its investigation. Disclosure of this information in my view largely satisfies these public interest considerations. Release of the Complaint Information would not, in the circumstances, advance relevant public interest factors to any significant degree and accordingly I consider these relevant factors also warrant moderate weight.
39. There is a legitimate public interest in a party complained against having access to sufficient information to allow that person to consider his or her position and to respond, if necessary, i.e., in order to accord the subject of the complaint procedural fairness.35
40. The applicant did not expressly raise public interest considerations of this kind. However, in response to my letters36 noting my understanding37 that Council had concluded its investigations without making adverse findings against or requiring action from him, the applicant directed my attention to an April 2013 show cause notice. The applicant submitted that the issuing of the show cause notice indicated that Council had reopened the matter and was ‘making this an ongoing issue,’38 necessitating full disclosure to him of the Information in Issue. Given this, and in the interests of completeness, I have considered whether the above factors arise. I am not satisfied they do.
41. While Council did serve the April 2013 show cause notice on the applicant,39 it subsequently found no grounds to proceed with compliance action and has since cancelled the notice.40 In these circumstances, I am not satisfied that any issues of fairness or administration of justice arise for consideration in this case,41 and have therefore not taken these factors into account in assessing the balance of the public interest.
42. This information comprises:
43. The name redacted from the copy of the correspondence otherwise disclosed to the applicant was, I understand, inadvertently inserted as a result of administrative error. The individual has no connection with events the subject of the applicant’s access application, and there are no compelling public interest factors42 justifying the breach of privacy and personal information public interest harm43 that would result were this information to be released. I am satisfied these factors favouring nondisclosure warrant substantial weight, sufficient to displace any arguably favouring disclosure.
44. In making these comments, I should note that I am unsure as to whether the applicant received the original of this correspondence as incorrectly addressed, but do not in any event consider it matters. Disclosing the information now would disclose what is clearly personal information and occasion either a fresh invasion of privacy,44 or repeat again such invasion,45 and thus compound an unfortunate error.
45. As to the signature, I note the relevant individual’s identity is clearly apparent on the face of this information. It therefore comprises personal information, giving rise to a public interest harm telling against disclosure,46 which in view of community sensitivity as regards government and information privacy,47 warrants substantial weight. As with the name discussed above, I can identify no compelling public interest factors weighing in favour of this information.
46. To summarise, in the circumstances of this case I afford:
a) moderate weight to the public interest in promoting access to government-held information, as it applies to the Category C information
b) moderate weight to the public interest in enhancing Council’s accountability and transparency and revealing background/contextual information, as these apply to the Complaint Information
c) moderate weight to the public interest factor favouring disclosure to the applicant of his own personal information, again, as this applies to the Complaint Information; and
d) significant weight to the personal information and privacy public interest factors favouring nondisclosure of the Category C information.
47. As regards (c) above, while I recognise the importance of permitting members of the community to access the personal information government holds about them, relevant information is inextricably intertwined with the personal information of the Complainant. Accordingly, it is not possible to release the applicant’s information without disclosing the personal information of others, which would therefore result in the adverse public interest consequences discussed in paragraphs 30 to 35.
48. Having weighed these factors, I consider that in this case, the substantial public interest in safeguarding individual privacy and avoiding public interest harm by protecting personal information should be preferred to considerations favouring disclosure of the Category C information.
49. For these reasons, I find that disclosure of the Category C information would, on balance, be contrary to the public interest.48
50. For the reasons set out above, I vary the decision under review and find that:
51. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.
Acting Assistant Information Commissioner
Date: 17 October 2013
|29 June 2012||Council received the access application under the RTI Act.|
|19 September 2012||Council issued its decision to the applicant.|
|21 September 2012||Council received the internal review application.|
|18 October 2012||Council issued its internal review decision to the applicant.|
|14 November 2012||OIC received the third party’s application for external review.|
|15 November 2012||OIC received the applicant’s external review application.|
|29 November 2012||OIC telephoned the applicant to discuss his external review application.|
|30 November 2012||OIC wrote to the applicant to advise that the issues raised in his external review application were not matters that OIC has jurisdiction to consider on external review and advised the applicant that if OIC did not hear from him by 10 December 2012, OIC would assume that the applicant had elected not to proceed with the external review application.|
|12 December 2012||OIC finalised the external review on the basis that it had not heard from the applicant by the given date.|
|14 December 2012||OIC received a letter from the applicant stating that he wished to proceed with external review application.|
|18 December 2012||OIC reopened the matter and notified the applicant and Council that OIC had accepted the applicant’s external review application.|
|24 January 2013||OIC made enquiries with Council about issues relevant to the review.|
|1 February 2013||OIC received copies of documents relevant to the review from Council.|
|11 February 2013||OIC requested Council provide further information relevant to the review and Council provided the requested information.|
|12 March 2013||The applicant provided oral submissions to OIC and confirmed he did not seek access to the Complainant’s name and contact details. OIC confirmed this discussion in a letter to the applicant.|
|21 March 2013||OIC conveyed a preliminary view to Council and invited it to provide submissions supporting its case by 5 April 2013 if it did not accept the view.|
|27 March 2013||OIC received Council’s submissions in response to the preliminary view.|
|10 May 2013||OIC advised Council that it accepted Council’s submissions. OIC conveyed a preliminary view to the third party in relation to the third party’s external review.|
|4 June 2013||OIC finalised the third party’s external review and asked Council to release additional information to the applicant on the basis that neither Council nor the third party objected to disclosure.|
|6 June 2013||Council advised OIC that it had released the additional information to the applicant.|
|7 June 2013||OIC conveyed a preliminary view to the applicant and invited him to provide submissions supporting his case by 24 June 2013 if he did not accept the preliminary view.|
|23 June 2013||The applicant requested an extension of time to provide submissions in response to the preliminary view.|
|24 June 2013||OIC notified the applicant that OIC had approved his request for an extension until close of business on 12 July 2013.|
|12 July 2013||The applicant made oral submissions and requested a further extension of time to provide written submissions. OIC asked Council if they would allow the applicant to inspect the original of particular documents in the Information in Issue. Council agreed to allow the applicant to inspect the documents. OIC advised the applicant by telephone that OIC had approved his request for an extension to provide submissions until close of business on 2 August 2013, and advised the applicant that he could arrange with Council to inspect relevant documents.|
|15 July 2013||OIC wrote to the applicant to confirm the due date for the applicant’s submissions and to provide information about arranging inspection of documents with Council.|
|5 August 2013||OIC notified the applicant and Council that as the due date for the applicant’s submissions had passed and OIC had not received anything from the applicant, OIC had finalised the review.|
|6 August 2013||OIC received the applicant’s submissions in response to the preliminary view.|
|7 August 2013||OIC wrote to the applicant to explain that OIC had decided not to reopen the external review. The applicant made further oral submissions to OIC contesting OIC’s preliminary view. OIC advised the applicant by telephone that OIC had decided to reopen the external review.|
|8 August 2013||OIC advised Council and the applicant in writing that the external review had been reopened.|
|29 August 2013||OIC conveyed a preliminary view to the applicant and invited the applicant to make any final submissions by 12 September 2013 if he did not agree with the preliminary view.|
|11 September 2013||OIC received submissions from the applicant in response to the preliminary view.|
|26 September 2013||OIC made further enquiries with Council and asked Council release a small amount of additional information to the applicant.|
|30 September 2013||Council provided further information relevant to the review to OIC.|
|1 October 2013||The applicant advised OIC that he did not accept OIC’s preliminary view in relation to the Information in Issue and made submissions about the legibility of the documents released to him by Council.|
|2 October 2013||Council advised OIC that it had released the additional information to the applicant.|
|3 October 2013||OIC wrote to the applicant to confirm OIC’s preliminary view, provide information about arranging inspection of documents with Council, and confirm that OIC has no jurisdiction to consider the legibility of documents on external review.|
|8 October 2013||OIC made further enquiries with Council about issues relevant to the review.|
|10 October 2013||OIC asked Council release a small amount of additional information to the applicant. Council agreed to release the relevant information.|
|17 October 2013||Council confirmed that it had released the information noted immediately above to the applicant and that the applicant had not sought to inspect original documents.|
 By internal review decision dated 18 October 2012.
 Under section 37(3)(d) of the RTI Act.
 In its internal review decision to the applicant dated 18 October 2012.
 Schedule 6 of the RTI Act provides that a decision giving access to documents subject to the deletion of information under sections 73, 74 or 75 is a reviewable decision. Sections 73, 74 and 75 of the RTI Act allow an agency to delete information from documents which is irrelevant, exempt or contrary to the public interest to disclose. On external review, the Information Commissioner has power to decide any matter in relation to an access application that could have been decided by an agency: section 105(1)(b) of the RTI Act.
 In conversations with OIC staff including on 12 July 2013 and 7 August 2013.
 A segment of text comprising a private citizen’s signature. There are other documents among the Information in Issue to which redaction has been applied. However, these are all relatively contemporary documents, and each is clearly legible.
 Comprising parts of six documents.
 Dated 29 June 2012.
 In a telephone conversation with OIC staff on 12 March 2013, as confirmed in a letter from OIC to the applicant on the same date.
 Largely on the basis he was aware of this information: applicant’s submissions dated 31 July 2013 and 2 September 2013.
 Robbins and Brisbane North Regional Health Authority (1994) 2 QAR 30 at .
 Under section 73(3) of the RTI Act, the agency may give access to the document if it considers from the terms of the application or after consultation with the applicant, that the applicant would accept the copy and it is reasonably practicable to give access to the copy. The agency is entitled to make the decision to delete based on the access application itself (i.e., without consulting the applicant) where the information clearly falls outside the scope of the access application: see 8U3AMG and Department of Communities (Unreported, Queensland Information Commissioner, 15 September 2011) at .
 Underwood and Department of Housing and Public Works (Unreported, Queensland Information Commissioner, 18 May 2012) at  citing O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) at .
 Comprising parts of three documents.
 Subject to a small amount of information which forms part of the Category C information considered below.
 Thus satisfying the requirements of section 73(3) of the RTI Act.
 Section 47(3)(b) of the RTI Act. The term public interest refers to consideration affecting the good order and functioning of the community and government affairs for the well-being of its citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.
 Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, the list of factors is not exhaustive. In other words, factors that are not listed may also be relevant.
 Section 49(3) of the RTI Act.
 Comprising parts of eight documents and one entire document.
 Other than name and contact details which, as discussed in paragraphs 18 to 19, comprise Category A information which the applicant expressly excluded from the scope of his access application.
 Section 108(3) of the RTI Act provides that the Information Commissioner must not, in a decision or in reasons for a decision on external review, include information that is claimed to be exempt information or contrary to the public interest information.
 ‘Personal information’ is ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’: see section 10 and schedule 6 of the RTI Act, and section 12 of the Information Privacy Act 2009 (Qld) (IP Act).
 Schedule 4, part 4, section 6 of the RTI Act.
 Schedule 4, part 3, item 3 of the RTI Act.
 The concept of ‘privacy’ is not defined in the IP Act or RTI Act. It can, however, be viewed as the right of an individual to preserve their personal sphere free from interference from others: see Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at  paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 11 August 2008, at paragraph 1.56.
 In the applicant’s submissions dated 31 July 2013 and 2 September 2013, the applicant states that he was advised verbally by Council of the Complainant’s identity. He submits that ‘it is common knowledge from [a real estate agent] that [named individuals] were complaining to [Council]’. The applicant also provided correspondence from the named individuals to the applicant which he submits is evidence that they are the Complainants.
 Council’s submission to OIC dated 11 February 2013.
 And being information of which he is aware, commensurately reduce the weight of any public interest factors favouring disclosure.
 The Right to Information Commissioner has previously found that the fact that a person has raised concerns or made a complaint to an agency concerns a central aspect of their ‘personal sphere’: 0P5BNI and Department of National Parks, Recreation, Sport and Racing (Unreported, Queensland Information Commissioner, 12 September 2013) at .
 Enlivening the privacy nondisclosure factor noted in note 25.
 Schedule 4, part 2, item 7 of the RTI Act.
 Schedule 4, part 2, item 1 of the RTI Act.
 Schedule 4, part 2, item 11 of the RTI Act.
 Schedule 4, part 2, items 16 and 17 of the RTI Act.
 Dated 7 June 2013 and 29 August 2013.
 Based on OIC’s review of Council documents released to the applicant in response to his access application.
 Applicant’s submissions dated 31 July 2013.
 A copy of which was enclosed with the applicant’s submissions as received by OIC on 31 July 2013 and 2 September 2013.
 Council submission to OIC dated 30 September 2013. This advice was conveyed to the applicant by OIC letter dated 3 October 2013, which he has not sought to contest.
 Public interest considerations that, in any event, would in my view have been adequately met by Council’s disclosure to the applicant of the substance of the complaint and information detailing Council’s actions in response, and which would not in my view be materially advanced by disclosure of the Information in Issue.
 The applicant raised no public interest factors favouring disclosure of this name, and, apart from the general public interest in promoting access to government-held information (implicit in the ‘pro-disclosure bias’ prescribed in section 44 of the RTI Act), I can identify none.
 This name being ‘personal information’ within the meaning of the definition set out in note 23, thus enlivening the public interest harm factor set out in schedule 4, part 4, section 6 of the RTI Act.  In the event the applicant did not receive the correspondence.
 If the applicant has in fact received same.
 Schedule 4, part 4, section 6 of the RTI Act.
 As reflected, for example, via Parliament’s enactment of the IP Act.
 Sections 47(3)(b) and 49 of the RTI Act.
 Section 73 of the RTI Act.
 Sections 47(3)(b) and 49 of the RTI Act.