Godwin and Queensland Police Service
(1993 S0228, 11 July 1997)
The document in issue was a statement given to a QPS officer by a witness to an altercation between the applicant and another person, which ended in significant physical injury to the applicant. The applicant complained to the QPS, after which the witness in question and another witness (who consented to disclosure of his statement to the applicant under the FOI Act, subject to minor deletions) were interviewed. The QPS subsequently decided to take no action against any person in relation to the incident. The QPS contended that the statement in issue was wholly exempt under s.44(1) and s.46(1) of the FOI Act.
In the Information Commissioner's reasons for decision, the Information Commissioner discussed difficulties in the application of s.46(1)(a) of the FOI Act (which turns on whether disclosure would found an action for breach of confidence) to information provided for the purposes of law enforcement investigations, referring to Australian and English cases which show a marked reluctance to restrain disclosure to, and use by, law enforcement agencies of such information. The Information Commissioner said that a court would be unlikely to find an enforceable equitable obligation of confidence unless there was evidence of express assurances of confidential treatment, or evidence of compelling circumstances which warranted such a finding, eg, that disclosure would pose a substantial threat to the safety or livelihood of the supplier of the information. On the evidence before the Information Commission, it was found that the QPS was not bound by an equitable obligation of confidence such that disclosure of the document in issue could found an action for breach of confidence.
With respect to the s.46(1)(b) exemption, the Information Commissioner found that there had been no express assurance that either the identity of the witness, or the information supplied by him, would be treated in confidence as against the applicant. The Information Commissioner found that the witness' identity, and the information he provided to police, were liable to be disclosed to the applicant in the course of the police investigation (if the police saw fit to do so), and were liable to be disclosed to the applicant on either possible outcome of the investigation (ie, whether police decided to lay charges against the alleged offender, or to take no formal action in respect of the applicant's complaint). In those circumstances, the Information Commissioner was not satisfied that the scope of any implicit mutual understanding of confidence between the QPS and the witness could have been properly understood as extending to confidential treatment of the witness' statement and identity, as against the applicant. Moreover, given that the statement was exculpatory of the alleged offender, and there was no other indication that the witness was likely to face any recriminations for having made the statement, the Information Commissioner also found that disclosure of the statement could not reasonably be expected to prejudice the future supply of like information to the QPS. The Information Commissioner therefore found that the statement was not exempt from disclosure to the applicant under s.46(1)(b).
With regard to s.44(1), the Information Commissioner found that disclosure of information which would identify the witness would disclose information concerning his personal affairs, ie, that he had co-operated with the QPS in providing a statement. However, the Information Commissioner found that, given the particular circumstances of the case, it was in the public interest that the applicant be made aware of the witness' identity. In addition, the Information Commissioner found that the signature, and personal details of, the witness were exempt matter under s.44(1), but that the occupation of the witness was not information concerning his personal affairs. The Information Commissioner found that the balance of the statement contained information that concerned the shared personal affairs of the applicant and one or more of the witness, the alleged offender, and the person whose statement had already been disclosed. The Information Commissioner found that there was a public interest in the balance of the statement being made available to the applicant, which was recognised in s.6 of the FOI Act. The Information Commissioner also discussed the public interest in the accountability of the QPS to a complainant (and especially a victim of crime) in respect of the investigation of his or her complaint. The Information Commissioner determined that disclosure to the applicant was, on balance, in the public interest.