Community Care Inc and Department of Communities; Mr M Howard (Third Party)
(210096, 30 June 2008)
The freedom of information applicant sought access to an audit report concerning an audit of the external review applicant. When consulted by the Department of Communities (DOC) regarding disclosure of the audit report, the external review applicant indicated that it objected to disclosure on a number of bases including that the audit report was not a document for the purposes of the Freedom of Information Act 1992 (Qld) (FOI Act). In its initial decision the DOC decided that the audit report was a document for the purposes of the FOI Act, that parts of the audit report qualified for exemption under various provisions of the FOI Act and that the balance of the audit report should be disclosed to the FOI Applicant. The DOC’s initial decision was affirmed on internal review and the external review applicant subsequently sought external review of the DOC’s internal review decision. During the external review process the FOI Applicant agreed not to pursue access to some parts of the audit report.
Jurisdiction – whether audit report is a document for the purposes of the Freedom of Information Act 1992 (Qld)
First Assistant Commissioner Rangihaeata found that in accordance with relevant provisions of the FOI Act and the Acts Interpretation Act 1954 (Qld) the audit report was a document for the purposes of the FOI Act and the Information Commissioner had jurisdiction to review the DOC’s internal review decision which was the subject of this external review.
Section 46(1)(a) Action for breach of confidence
The external review applicant submitted that much of the information provided to the auditors was provided on the understanding that the information would remain in confidence and would not be disclosed. However, First Assistant Commissioner Rangihaeata found that the information was not communicated in circumstances that would fix the DOC with an equitable obligation not to disclose the information. In considering the various factors that were relevant in reaching this conclusion, First Assistant Commissioner Rangihaeata had regard to the Information Commissioner’s decision in Queensland Gridiron Football League Inc. and Department of Tourism, Sport and Racing (1994) 2 QAR 230 (a matter concerning disclosure of an audit report concerning a not-for-profit organisation in receipt of public funding) in which the Information Commissioner stated that:
The Department in effect acts as an agent of the public in ensuring that public funds advanced to a private sector organisation to further purposes considered to be in the public interest … are expended in a proper manner and properly accounted for. In my opinion, these general circumstances tell against the imposition of enforceable equitable obligations of confidence.
Section 46(1)(b) Prejudice the future supply of information
was satisfied that in circumstances where a community organisation is in receipt of a government grant and the chief executive suspects that the conditions of the grant may not be being complied with, it could be anticipated that a substantial number of such organisations would disclose any necessary and relevant information to avert a withdrawal of funding and accordingly decided that the relevant information did not qualify for exemption under this provision.
Section 41(1) information relating to deliberative processes
First Assistant Commissioner Rangihaeata considered and accorded weight to the public interest in ensuring that the external review applicant’s:
· clients were not caused unnecessary stress and anxiety
· ability to deliver services to its clients
However, First Assistant Commissioner Rangihaeata found that disclosure of the relevant information was not contrary to the public interest due to the relative strength of public interest considerations favouring disclosure, including in particular the strong public interest in the community being able to ascertain whether the DOC is ensuring that public funds are being properly administered, particularly in circumstances where there has been considerable community concern about these issues.
Section 45(1)(c) information relating to business affairs
First Assistant Commissioner Rangihaeata was satisfied that disclosure of the relevant information could not reasonably be expected to have an adverse effect on the external review applicant’s financial or business affairs, nor would it reasonably be expected to prejudice the future supply of information to the DOC. In any event, First Assistant Commissioner Rangihaeata found that the public interest considerations favouring disclosure of the relevant information outweighed all identifiable public interest considerations against disclosure.
Section 44(1) information concerning personal affairs
The Audit Report Appendices included financial data and calculations concerning individual clients of the external review applicant. However, the FOI Applicant had agreed to accept deletion of the names of the external review applicant’s clients and accordingly this information was no longer in issue in the external review. In view of this, First Assistant Commissioner Rangihaeata was satisfied that disclosure of the remaining information in the appendices would not reveal information concerning any identifiable individual’s personal affairs and accordingly the relevant information did not qualify for exemption under section 44(1) of the FOI Act.