Ferguson and Director of Public Prosecutions

Application number:
1993 S0090
Decision date:
Wednesday, Jul 31, 1996
(1996) 3 QAR 324

Ferguson and Director of Public Prosecutions
(1993 S0090, 31 July 1996) 

This case illustrates the application of s.22(a) of the FOI Act, which the Information Commissioner analysed in JM and Queensland Police Service (1995) 2 QAR 516.  The Information Commissioner found that the respondent was entitled under s.22(a) to refuse access to the transcripts of the applicant's Supreme Court trial, because they were reasonably open to public access under the Criminal Code 1889 Qld and the Criminal Practice Rules 1900 Qld. 

The Information Commissioner also found that the respondent could refuse access to its annual reports under s.22(c) of the FOI Act, as they had been placed (during the course of the external review) in the State Library.  The Information Commissioner stated that the wording of s.22(c) means that the reasonable availability of a document is not influenced by factors which might hinder a particular applicant from attending at the relevant public library.  The Information Commissioner did indicate that such factors may be relevant to a consideration of whether or not an agency should exercise its discretion to invoke s.22(c), even though the requirements of s.22(c) are met, but, as the annual reports had also been placed in a library accessible to the applicant, the Information Commissioner decided that the respondent was entitled to refuse access to them under the FOI Act. 

Applying the principles discussed in Smith and Administrative Services Department (1993) 1 QAR 22, the Information Commissioner found a number of documents were exempt under s.43(1), as they would be privileged from production in a legal proceeding.  In doing so, the Information Commissioner discussed the position of the Director of Public Prosecutions with respect to legal professional privilege.  The Information Commissioner also found that photographs of children (in respect of whom the applicant had been charged with offences), and correspondence concerning the affairs of another prisoner, were exempt under s.44(1) - the personal affairs exemption.