Criminal Justice Commission and Director of Public Prosecutions; Harris (Third Party)

Application number:
1995 S0074
Decision date:
Friday, Jun 28, 1996
(1996) 3 QAR 299

Criminal Justice Commission and Director of Public Prosecutions; Harris (Third Party)
(1995 S0074, 28 June 1996) 

This was a 'reverse FOI' application by the CJC, challenging the decision of the DPP to disclose two documents to the third party.  One document consisted of a copy of a document created by the third party, attached to a covering page.  The covering page was addressed to an officer of the QPS and requested that the attachment be passed on to the CJC for the purposes of an investigation being undertaken into the actions of the third party.  The Information Commissioner rejected the CJC's claim that the document was exempt under s.41(1), deciding that it did not contain "deliberative process" material within the terms of s.41(1)(a). 

The Information Commissioner also rejected the claim of the CJC that the document was exempt under s.46(1)(b).  The Information Commissioner found that, while there may have been an understanding that the author's identity would be kept confidential at the time the information was supplied, it had been overridden by the passage of time and the subsequent disclosure of information in relation to the CJC investigation.  The Information Commissioner further determined that, given the particular circumstances of the case, release of the document could not reasonably be expected to prejudice the future supply of information to the CJC by informants.  (The Information Commissioner also discussed the relevance of statutory secrecy provisions like s.132 of the Criminal Justice Act 1989, in determining whether an understanding of confidentiality should be implied in a particular case.) 

The other document in issue was a draft public statement, prepared for the Chairman of the CJC by an unnamed officer, which the CJC contended was exempt under s.41(1).  A public statement had been made by the Chairman of the CJC which was virtually identical to the draft (the final two paragraphs of the draft did not appear in the public statement).  The Information Commissioner concluded that disclosure of that part of the draft which had been incorporated into the public statement, could not be regarded as being contrary to the public interest. 

The Information Commissioner rejected the contention of the CJC that the rationale for s.41(1) is that it does not assist members of the public to know what opinions and advice were considered and rejected by an agency in coming to a decision.  The Information Commissioner referred to Eccleston and Department of Family Services and Aboriginal & Islander Affairs (1993) 1 QAR 60, where the Information Commissioner had stated that a finding that matter is of a type described in s.41(1)(a) does not raise any presumption that disclosure would be contrary to the public interest.  The Information Commissioner indicated that in each case it is a matter for the agency claiming exemption to establish that disclosure of the particular matter in issue would be contrary to the public interest. 

With regard to the two paragraphs not included in the public statement, the Information Commissioner applied the principles expounded in Eccleston and Trustees of the De La Salle Brothers and Queensland Corrective Services Commission (1996) 3 QAR 206.  The Information Commissioner accepted that the document fell within the terms of s.41(1)(a) but concluded that the CJC had not established that detriment would flow from release of the two paragraphs.  The Information Commissioner again questioned the validity of the 'fourth Howard criterion' relating to "confusion and unnecessary debate resulting from disclosure of possibilities considered", which the Information Commissioner had criticised in Eccleston.  The Information Commissioner expressed confidence in the ability of members of the public to distinguish between the significance of draft documents and final expressions of agency policy, and the Information Commissioner discussed the public interest in members of the community having access to material which would enable an understanding of the decision-making processes of agencies.  The Information Commissioner determined that disclosure of the two paragraphs would not be contrary to the public interest.