Coventry and Cairns City Council
(1994 L0019, 3 April 1996)
The applicant (a former Director of the Cairns Regional Gallery) sought access to a letter written on behalf of a firm of consultants which had just completed a feasibility study, assessing the potential fundraising capacity of the Gallery. The letter was addressed to the then Mayor of Cairns who was ex officio a member of the Board of the Gallery and, at that time, Chairman of the Board. The letter repeated adverse comments about the applicant which had been made to the consultants in the course of the study. The letter did not identify the sources of the adverse comments. At a meeting of the Board at which the information in the letter was made available to Board members, the Board decided to recommend that the office of Gallery Director be made redundant. The applicant lost his position when the City Council acted on this recommendation.
This case involved a consideration of the application of s.46(1)(a) and the principles set out in B and Brisbane North Regional Health Authority (1994) 1 QAR 279. Referring to the Information Commissioner's statement in “B” that publication of confidential information to a limited number of persons on a confidential basis will not necessarily destroy the confidential nature of the information, the Information Commissioner found that disclosure of the letter to closed meetings of the Gallery Board and the City Council did not affect its confidential nature.
The Information Commissioner also rejected the applicant's submission that, since he had seen the letter, there could be no breach of confidence in giving him further access to it. The Information Commissioner was satisfied on the material before the Office that the applicant did not know the detail of the contents of the letter. The Information Commissioner found that the matter in issue remained confidential vis-à-vis the applicant.
However, in the circumstances of the case, the Information Commissioner found that the respondent had decided to take action to declare the applicant's office redundant, at least in part, on the basis of the letter. The Information Commissioner considered that procedural fairness would have required that the substance of the adverse material be conveyed to the applicant and that he be given a reasonable opportunity to respond to it. The Information Commissioner considered that the scope of the equitable obligation of confidence owed by the respondent in respect of the letter could not have extended to prevent disclosure of the letter to the applicant, at least from the time at which it was decided on behalf of the respondent to take action that might result in the applicant's office being declared redundant. What conscionable conduct required of the Council in its use of the letter in issue must, in these circumstances, have been tempered by its legal duty to accord procedural fairness to the applicant. The Information Commissioner therefore found that disclosure of the letter to the applicant would not be an unconscionable use by the respondent of the letter in issue. The Information Commissioner determined that the letter was not exempt matter under s.46(1)(a).
The Information Commissioner also considered the requirements of s.46(1)(b) as explained in “B”. The Commissioner found that the third requirement, ie whether disclosure of the information in issue could reasonably be expected to prejudice future supply of such information, was not satisfied. No reasonable basis had been established for such an expectation and the letter was therefore not exempt matter under s.46(1)(b).
While it was unnecessary for the Information Commissioner to consider the public interest balancing test incorporated in s.46(1)(b), the Commissioner ventured the opinion that, had that been necessary, the public interest in the fair treatment of an individual according to law would, in all the circumstances of this case, have carried determinative weight against the competing public interest considerations identified in the respondent's submissions, so as to favour disclosure to the applicant of the letter in issue.