Cannon and Department of Police
(310622, 20 December 2011)
Right to Information Act 2009 (Qld) - section 40 - refusal to deal - class of documents
Right to Information Act 2009 (Qld) - schedule 3, section 10 (1)(f) - exempt information
The applicant applied to the Department of Police (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) for access to all information supplied by an informant to police officers during their investigations into the applicant. As a result of police investigations, the applicant was convicted of drug related-offences in a trial in the Supreme Court of Queensland, at which the informant appeared as a witness.
QPS decided to neither confirm nor deny the existence of information under section 55 of the RTI Act. The applicant then applied to the Information Commissioner for external review of QPS’ decision. The applicant submitted that disclosure of the information would demonstrate he was not given a fair trial, be adverse to the credibility and reliability of the informant and allow him to make a complaint to the Crime and Misconduct Commission.
On external review the Information Commissioner formed the view that it was not open to QPS to neither confirm nor deny the existence of documents because published court judgments regarding the applicant referred to the existence of the documents he was seeking. QPS accepted this view and submitted that disclosure of the information could reasonably be expected to prejudice the ability of QPS to obtain similar information in the future, and reduce the effectiveness of the systems and processes used by QPS.
The Information Commissioner found that the access application was expressed to relate to all documents relating to a stated subject matter, ie. information provided by a witness to police during investigations into the applicant. On that basis, the Information Commissioner decided that section 40(1)(a) of the RTI Act was satisfied. In considering the second requirement of section 40(1) of the RTI Act, the Information Commissioner found that the requested documents would comprise exempt information under schedule 3, section 10(1)(f) of the RTI Act on the basis that:
· the QPS practice of obtaining information from informants and witnesses in relation to criminal activity is a lawful method or procedure for preventing, detecting, investigating and dealing with contraventions or possible contraventions of the law
· it is reasonable to expect that informants and witnesses may be reluctant to cooperate with QPS in future criminal investigations if they are aware that the information they provide may be disclosed to an offender, outside the usual court processes, including after that offender has been convicted and sentenced; and
· it is reasonable to expect that the methods by which QPS uses informants and witnesses to gather information in relation to suspects may be prejudiced by disclosure of requested documents.
On the basis of the above, the Information Commissioner varied the QPS decision and decided that QPS may refuse to deal with the access application under section 40 of the RTI Act.